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HomeMy WebLinkAboutSeptember 16, 2003 Agenda AGENDA CITY OF DENTON CITY COUNCIL September 16, 2003 After determining that a quorum is presem, the City Council of the City of Demon, Texas will convene in a Work Session on Tuesday, September 16, 2003 at 5:30 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: Requests for clarification of consent agenda items listed on the consent agenda for today's City Council regular meeting of September 16, 2003. Following the completion of the Work Session, the City Council will convene in a Closed Meeting to consider specific items when these items are listed below under the Closed Meeting section of this agenda. When items for consideration are not listed under the Closed Meeting section of the agenda, the City Council will not conduct a Closed Meeting and will convene at the time listed below for its regular or special called meeting. The City Council reserves the right to adjourn into a Closed Meeting on any item on its Open Meeting agenda consistent with Chapter 551 of the Texas Governmem Code, as amended, as set forth below. 1. Closed Meeting: mo Consultation with Attorney - Under TEXAS GOVERNMENT CODE Section 551.071. Discuss and consider the status of legal issues concerning an Interim Grant of Authority to Denton Telecom Partners i, LP d/b/a Advantex Communications to construct, reconstruct, operate and maintain a cable television system in the City of Demon where to discuss these legal issues concerning the above stated matters with the attorneys in public would conflict with the duty of the City's attorneys to the City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas and would jeopardize the City's position in administrative proceedings or in potential litigation. ANY FINAL ACTION, DECISION, OR VOTE ON A MATTER DELIBERATED IN A CLOSED MEETING WILL ONLY BE TAKEN IN AN OPEN MEETING THAT IS HELD IN COMPLIANCE WITH TEXAS GOVERNMENT CODE, CHAPTER 551, EXCEPT TO THE EXTENT SUCH FINAL ACTION, DECISION, OR VOTE IS TAKEN IN THE CLOSED MEETING iN ACCORDANCE WiTH THE PROViSiONS OF §551.086 OF THE TEXAS GOVERNMENT CODE (THE "PUBLIC POWER EXCEPTION"). THE CiTY COUNCIL RESERVES THE RIGHT TO ADJOURN INTO A CLOSED MEETING OR EXECUTIVE SESSION AS AUTHORIZED BY TEX. 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 DeNon City Council Agenda September 16, 2003 Page 2 Regular Meeting of the City of DeNon City Council on Tuesday, September 16, 2003 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: 1. PLEDGE OF ALLEGIANCE mo U.S. Flag Texas Flag "Honor the Texas Flag -- I pledge allegiance to thee, Texas, one and indivisible." 2. PROCLAMATIONS/PRESENTATIONS A. Proclamations/Awards B. September Yard-of-the-MoNh Awards C. Recognition of staff accomplishments 3. CITIZENS REPORTS mo Receive citizen reports from the following: 1. David Weir regarding variance for maiNaining horses on property. 2. Mike Phillips regarding preserving DeNon. 3. Nell Yeldell regarding high utilities, drainage ditches, and the concrete plaN. 4. CONSENT AGENDA Each of these items is recommended by the Staff and approval thereof will be strictly on the basis of the Staff recommendations. Approval of the ConseN 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 ConseN Agenda (Agenda Items A-HH). This listing is provided on the ConseN Agenda to allow Council Members to discuss or withdraw an item prior to approval of the ConseN Agenda. If no items are pulled, Consent Agenda Items A-HH 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. mo Consider approval of a resolution by the City of DeNon, Texas, authorizing the City Manager to sign and submit an amendment to the 2003 Action Plan for Housing and Community DevelopmeN submitted in June 2003 to the U.S. Department of Housing and Urban Development with appropriate certifications, as authorized and required by the Housing and Community DevelopmeN Act of 1974, as amended and the Affordable Housing Act of 1990, as amended; and providing for an effective date. City of Demon City Council Agenda September 16, 2003 Page 3 Bo Consider adoption of an ordinance of the City Council of the City of Demon, Texas approving the Third Amendment to that agreement between the City of Demon and the Demon Affordable Housing Corporation; authorizing the City Manager to execute the Third Amendment and to expend funds with respect to the Third Amendmem; and providing for an effective date. Co Consider adoption of an ordinance of the City Council of the City of Demon, Texas, authorizing the City Manager to execute the Second Amendment to that Agreement between the City of Denton and Denton City County Day School, Inc. for improvemems to the daycare facility at 1603 Paisley; authorizing the City Manager to expend funds with respect to the Second Amendment; and providing for an effective date. Do Consider adoption of an ordinance of the City Council of the City of Demon, Texas, approving the guidelines for the Rental Rehabilitation Program and eligibility criteria; authorizing expenditures in excess of $25,000 for projects meeting program guidelines and criteria; and providing for an effective date. mo Consider adoption of an ordinance authorizing the City Manager to execute a personal services agreement with Barbara T. McCall Associates, Inc. to provide certain information and services with regard to legislation of interest to the city. Fo Consider approval of a tax refund for the following property tax: 1. NeoRx Corporation Supplemental Change 2002 $4,526.61 Go Consider approval of a resolution appointing members to the Board of Directors of the North Texas Higher Education Authority, Inc.; and declaring an effective date. Ho Consider approval of a resolution of the City of Demon, Texas approving revised City Policy regulating dress code/personal appearance of City employees; and declaring an effective date. Consider approval of a resolution of the City of Demon, Texas, approving revised City Policy regulating illness and off duty injuries of City employees; and declaring an effective date. Jo Consider approval of a resolution of the City of Demon, Texas approving City Policy regulating incemive/recognition programs of City employees; and declaring an effective date. Ko Consider approval of a resolution of the City of Demon, Texas approving revised City policy regulating use of tobacco products by City employees; and declaring an effective date. City of DeNon City Council Agenda September 16, 2003 Page 4 Lo Consider adoption of an ordinance accepting competitive bids and awarding an annual contract for the purchase of refuse bags; providing for the expenditure of funds therefor; and providing an effective date (Bid 3058 - Annual Price Agreement for Refuse Bags awarded to Dyna Pak Corporation in the amount of five ceres per bag ($2.68/ro11) for an annual estimated amoum of $80,400). Mo Consider adoption of an ordinance accepting competitive bids and awarding an annual contract for the purchase of multipurpose paper; providing for the expenditure of funds therefor; and providing an effective date (Bid 3060 - Annual Price Agreement for Multipurpose Paper awarded to Western Paper Company, Inc. in the amoum of $1.80 per ream of paper ($18/carton) for an estimated annual amoum of $28,800). No Consider adoption of an ordinance accepting competitive bids and awarding a comract for Infam and Child Care Programs for Low-Income Families, providing for the expenditure of funds therefor; and providing for an effective date (Bid 3069A - Infam & Child Program for Low-Income Families awarded to Fred Moore Day Nursery School, Inc. in the amoum of $39,000). Oo Consider adoption of an ordinance accepting competitive bids and awarding a comract for Self-Sufficiency Program for Low-Income & Homeless Households, providing for the expenditure of funds therefor; and providing for an effective date (Bid 3070 - Self-Sufficiency Program for Low Income & Homeless Households awarded to HOPE, Inc., in the amoum of $30,000). iD, Consider adoption of an ordinance accepting competitive bids and awarding a comract for Childcare Expansion Program for Low Income Children, providing for the expenditure of funds therefor; and providing for an effective date (Bid 3071 - Childcare Expansion Program for Low-Income Children awarded to DeNon Christian Preschool in the amoum of $30,000). Qo Consider adoption of an ordinance accepting competitive bids and awarding a contract for Daycare Program for Low-Income Families; providing for the expenditure of funds therefor; and providing for an effective date (Bid 3072 - Daycare Program for Low-Income Families awarded to DeNon City County Day School in the amoum of $38,000). Ro Consider adoption of an ordinance awarding a comract for the purchase of an automated tape library as awarded by the State of Texas Building and Procurement Commission through the Catalog Information Service Vendor (CISV) Catalog Program; providing for the expenditure of funds therefor; and providing an effective date (File 3075 - Purchase of Automated Tape Library awarded to Eagle Software, Inc. in the amoum of $64,441). So Consider adoption of an ordinance awarding a contract for the purchase of a RS6000 Server, computer hardware, operating system software, and first year annual maintenance as awarded by the State of Texas Building and Procurement Commission through the Catalog Information Service Vendor (CISV) Catalog City of DeNon City Council Agenda September 16, 2003 Page 5 Program; providing for the expenditure of funds therefor; and providing an effective date (File 3076 - Purchase of RS6000 Server awarded to imernational Business Machines, inc. (iBM) in the amoum of $80,595.14). To Consider adoption of an ordinance awarding a contract for the purchase of a Mitsubishi 50kVA Uninterruptible Power Supply and Distribution System as awarded by the State of Texas Building and Procurement Commission through the Catalog information Service Vendor (CiSV) Catalog Program; providing for the expenditure of funds therefor; and providing an effective date (File 3079 - Purchase of Mitsubishi 50kVA Unimerruptible Power Supply and Distribution System awarded to DataCom Power, inc. in the amoum of $89,155). Uo Consider adoption of an ordinance authorizing the City Manager or his designee to execute a professional services agreement with the firm of Booziotis & Company Architects to provide architectural services for the renovation of the Civic Cemer and Emily Fowler Library; authorizing the expenditure of funds therefor and providing an effective date (RFSP 3030 in the amoum of $184,190). go Consider adoption of an ordinance approving the expenditure of funds for the purchase of the renewal of annual support maimenance for DeNon Municipal Electric's Supervisory Comrol and Data Acquisition System (SCADA) available from only one source in accordance with the provision for state law exempting such purchases from requiremems of competitive bids; and providing an effective date (File 3084 - Renewal of SCADA Maimenance Agreemem awarded to Advanced Comrol Systems in the amoum of $31,452). Wo Consider adoption of an ordinance of the City of DeNon, Texas providing for, authorizing, and approving the expenditure of funds for the purchase of Promotional Commercials from Comcast Advertising, Denton, Texas, pertaining to DeNon Municipal Electric, which are available from only one source in accordance with the pertinent provisions of Chapter 252 of the Texas Local Government Code exempting such purchases from the requirements of competitive bidding; and providing an effective date (File 3085 - Comcast Advertising in the amoum of $41,028). Xo Consider adoption of an ordinance accepting competitive bids and awarding a contract for the purchase of an Inductively Coupled Plasma Mass Spectrophotometer (iCPMS); providing for the expenditure of funds therefor; and providing an effective date (Bid 3062 - inductively Coupled Plasma Mass Spectrophotometer (iCPMS) awarded to Perkin Elmer Instruments in the amount of $121,637). Yo Consider approval of a resolution allowing La Mexicana Restaurant to be the sole participant allowed to sell alcoholic beverages at the Fuego Y Alma Event on September 27, 2003, upon certain conditions; authorizing the City Manager or his designee to execute an agreemem in conformity with this resolution; and providing for an effective date. City of DeNon City Council Agenda September 16, 2003 Page 6 go Consider adoption of an ordinance of the City of DeNon, Texas approving an amendment to an Airport Lease between the City of Denton and John Kristoferson dated June 4, 2002; and providing an effective date. Consider the adoption of an ordinance of the City of DeNon, Texas approving the conveyance of business assets of Avionics imernational Supply, inc. ("Avionics") a tenant at the Denton Municipal Airport and other entities co-located therewith to complete Aviation Supply Services imernational inc. ("Complete Aviation"); and approving an assignmem of a commercial airport lease dated December 19, 1995 from Avionics to H & J Building Emerprises, L.L.C. (H&J) and further approving of a ground sublease and separate lease of the improvemems thereon from H & J to Complete Aviation; and providing an effective date. BB. Consider adoption of an ordinance amending Section 6-27(b) of Chapter 6 Animals, providing an exception for Equestrian Developments; providing a penalty not to exceed $500; providing for a severability clause; providing a savings clause; providing for publication; and providing an effective date. CC. Consider adoption of an ordinance approving a change order to that certain Professional Services Contract between the City of Denton and Steven J. Kunkel and Associates, inc., dated March 13, 2003 to provide real property appraisal services for acquisitions for the Clear Creek imerceptor Sewer Line Project; and providing an effective date. DD. Consider adoption of an ordinance of the City of DeNon, Texas, authorizing the City Manager to execute the Swisher Road Waterline Extension Project Agreement between Swisher Road Water Supply Corporation, the City of Denton, Texas, Nortex Regional Planning Commission and Denton County, Texas; providing for the expenditure of funds therefor: and providing for an effective date. EE. Consider adoption of an ordinance of the City of DeNon approving an agreemem in the amount of $500.00 between the City of Denton, Texas and the Denton Holiday Festival Association, Inc. for the installation and maintenance of decorative lighting in the Downtown Square and related holiday activities; providing for the expenditure of funds therefore; and providing for an effective date. FF. Consider approval of a resolution of the City Council of the City of DeNon, Texas, requesting the Texas Municipal League oppose legislation that erodes a City's ability to charge an equal and uniform drainage fee; and providing an effective date. GG. Consider approval of a resolution of the City Council of the City of DeNon, Texas, requesting the Texas Municipal League oppose legislation that erodes a City's ability to impose an equal and uniform impact fee; and providing an effective date. City of Demon City Council Agenda September 16, 2003 Page 7 HH. Consider approval of a resolution of the City of Demon, Texas adopting the City of Denton's 2003 State Legislative Program for the 78th Third Called Legislative Session; providing a repealer; and providing an effective date. 5. ITEMS FOR INDIVIDUAL CONSIDERATION mo Consider adoption of an ordinance of the City Council of the City of Demon, Texas, on first reading, granting an Interim Grant of Authority to Denton Telecom Partners I, LP d/b/a Advantex Communications to construct, reconstruct, operate and maimain a cable television system in the City of Demon, Texas and setting forth conditions accompanying the granting of this Interim Grant of authority; providing for a penalty for the violation of this ordinance; providing for a savings clause; providing for the effect of this ordinance upon other ordinances and resolutions; and providing an effective date. Bo Consider adoption of an ordinance of the City Council of the City of Demon, Texas providing for the dismissal of TXU Gas Company's requested increase in rates in the event the Company fails to amend its Statement of Intent to remove increases for pipeline services from its requested distribution rates; and providing for an effective date. Co Consider nominations/appointments to the Economic Development Partnership Board. Do Consider appointing a voting delegate and alternate voting delegate to the National League of Cities Annual Congress of Cities. mo New Business This item provides a section for Council Members to suggest items for future agendas or to request information from the City Manager. Fo Items from the City Manager 1. Notification of upcoming meetings and/or conferences 2. Clarification of items on the agenda Go Possible Cominuation of Closed Meeting under Sections 551.071-551.086 of the Texas Open Meetings Act. Ho 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 Demon, Texas, on the day of ,2003 at o'clock (a.m.) (p.m.) CITY SECRETARY City of Denton City Council Agenda September 16, 2003 Page 8 NOTE: THE CITY OF DENTON CITY COUNCIL CHAMBERS IS ACCESSIBLE IN ACCORDANCE WITH THE AMERICANS WITH DISABILITIES ACT. THE CITY WILL PROVIDE SIGN LANGUAGE INTERPRETERS FOR THE HEARING IMPAIRED IF REQUESTED AT LEAST 48 HOURS IN ADVANCE OF THE SCHEDULED MEETING. PLEASE CALL THE CITY SECRETARY'S OFFICE AT 349-8309 OR USE TELECOMMUNICATIONS DEVICES FOR THE DEAF (TDD) BY CALLING 1-800- RELAY-TX SO THAT A SIGN LANGUAGE INTERPRETER CAN BE SCHEDULED THROUGH THE CITY SECRETARY'S OFFICE. AGENDA INFORMATION SHEET AGENDA DATE: September 16, 2003 DEPARTMENT: Economic Development CM: Mike Conduff SUBJECT Consider adoption of a resolution by the City of Demon, Texas, authorizing the City Manager to sign and submit an amendmem to the 2003 Action Plan for Housing and Community Development submitted in June 2003 to the U.S. Department of Housing and Urban with appropriate certifications, as authorized and required by the Housing and Community Developmem Act of 1974, as amended, and the Affordable Housing Act of 1990, as amended; and providing for an effective date. BACKGROUND The application for the Owsley Community School Renovation project was submitted within the appropriate time frame and should have been considered during the regular project evaluation process. Unfortunately, the application was not included in the Community Development Advisory Committee's review packet. CDAC reviewed the proposed project at a meeting on May 6, 2003. ESTIMATED PROJECT SCHEDULE Improvemems to the Owsley Community School should be complete on or before the end of the CDBG program year, July 31, 2004 PRIOR ACTION/REVIEW (Councils, Boards, Commissions) On May 6, 2003 the Community Developmem Advisory Committee reviewed the application from the Owsley Community School for building renovations and other on-site improvemems. The CDAC voted to recommend $10,000 in funding be reallocated to the project for improvemems to the existing facility. They recommended that funding be moved from the Infill New Construction Program to fund the improvements. Committee members also requested that the Owsley Community School attempt to raise additional funding to match the $10,000 provided by the City. Committee members suggested that the match funding raised could be cash or in-kind work on the School's facilities. FISCAL INFORMATION Funding for the proposed project will be from 2003-04 Community Developmem Block Gram funding. EXHIBITS 1. Resolution 2. Unofficial CDAC Minutes of May 6, 2003 Respectfully submitted: Linda Ratliff Director of Economic Development Prepared by: Barbara Ross Community Development Administrator RESOLUTION NO. A RESOLUTION BY THE CITY OF DENTON, TEXAS, AUTHORIZING THE CITY MANAGER TO SIGN AND SUBMIT AN AMENDMENT TO THE 2003 ACTION PLAN FOR HOUSING AND COMMUNITY DEVELOPMENT SUBMITTED IN JUNE 2003 TO THE U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT WITH APPROPRIATE CERTIFICATIONS, AS AUTHORIZED AND REQUIRED BY THE HOUSING AND COMMUNITY DEVELOPMENT ACT OF 1974, AS AMENDED AND THE AFFORDABLE HOUSING ACT OF 1990, AS AMENDED; AND PROVIDING AN EFFECTIVE DATE WHEREAS, the City of Denton is concerned with the development of viable urban communities, including decent housing, a suitable living environment and expanded economic opportunities; and WHEREAS, the City of Denton, as an entitlement city under the Community Development Block Grant program and a participating jurisdiction under the HOME Investment Partnerships program, has prepared through a citizen participation process, a plan for using its 2003 CDBG, HOME and program income funding in the approximate amount of $1,730,759; and WHEREAS, the City of Denton wishes to reallocate $10,000 in 2003 HOME funding from the Infill New Housing Construction Program to the Home Improvement/Optional Relocation Program and reallocate $10,000 in CDBG funding from the Home Improvement Program to a new project, the Owsley Community School Renovation project; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY RESOLVES: SECTION 1. That the City Council of the City of Denton, Texas, authorizes the City Manager to submit to the US Department of Housing and Urban Development an amendment for the reallocation of funds in the 2003 Action Plan for Housing and Community Development that was previously submitted for a grant application with appropriate assurances for CDBG and HOME funds under the Housing and Community Development Act of 1974 and the Affordable Housing Act of 1990, as amended, to provide $10,000 to the Owsley Community School Renovation Project. SECTION 2. That the City Council authorizes the City Manager or his designee to handle all fiscal and administrative matters related to the amended Action Plan. SECTION 3. That this resolution shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of .,2003. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: Community Development Advisory Committee Unofficial Minutes May 6, 2003 Committee Members Present: Pat Colonna, Hank Dickenson, Sondra Ferstl, Will Taylor, Sue Thomson Staff Present: Luisa Rodriguez-Garcia, Barbara Ross Ed Touraine, CDAC Chair, was not present. Luisa Rodriguez-Garcia asked if there were any corrections to the minutes of March 11, 2003. There were no corrections. Pat Colonna made a motion for approval of the minutes. Hank Dickenson seconded the motion. The minutes were approved unanimously. Ms. Rodriguez-Garcia introduced Darhyl Ramsay and Don Louis representing the Owsley Community School. She stated that Greg Hedges was not available for the meeting. Mr. Ramsay described the proposed project. He stated that the Owsley Community School Board of Directors was requesting $50,000 to move their programs into a new temporary building and renovate the existing building. He stated that they currently have two temporary buildings that they rent from DISD. The buildings were constructed in 1967 and they have problems with defective flooring and also have space issues. They are serving approximately 45 children with the one small building. The other building is basically office space. Rachel Flemming, code enforcement officer, is in the front office and Debbie Wren acts as a greeter in the front office. Mr. Ramsay stated that police officers have less of a presence in the facility and the area and that concerns the Owsley Community School staff and board. Mr. Ramsay mentioned another piece of property in the area that is for sale that they might consider acquiring at some point to build a new building. Mr. Ramsay stated that the Owsley School might be able to buy materials and work with Habitat or obtain other donated services. Sondra Ferstl asked for clarification regarding whether they wanted a temporary building or a permanent building. Mr. Ramsay stated that the temporary building would allow them to do repairs on the other building but both would remain on the property and be used to provide services. Ms. Ferstl asked about the $50,000 request and what would happen if the committee recommended less funding. Mr. Ramsay responded that they would find some way to make repairs on the existing building. Members continued to discuss the renovation and the location of the facility. They discussed area church facilities and boarded up apartment units. Mr. Ramsay stated that they realize that families would not go out of the neighborhood for services and classes. Hank Dickenson asked if there was a cost associated with having police on site. Mr. Ramsay stated that this was a space issue. He noted that the City pays for utilities, phone, etc. Don Louis noted that if it hadn't been for Police Chief Michael Jez, the project would never have taken place. Pat Colonna stated that she did not realize the area was predominately Hispanic. Mr. Ramsay noted that many were new immigrants. He also added that specific challenges are involved when working with a neighborhood that is made up of renters rather than property owners. The Owsley Community School is working through these challenges. Community Development staff asked for some specifics and/or clarification regarding the project including use of funds, size of the building to be constructed, and whether the building would be moved in the future. Mr. Ramsay and Mr. Louis indicated that the funds would be used for the new building and repairs to the existing building, the new building would be 30' X 60'. They added that they would like an area with more space. The specific amounts would be $35,000 for the new building and $15,000 for repairs. Staff commented that under Federal regulations, the Owsley Community School would have to continue using the facility to provide services for at least ten years. Luisa Rodriguez-Garcia asked if they were seeking other funds. Mr. Ramsay and Mr. Louis stated that the funds provided by the City would help to leverage funds from other sources. Committee members continued to discuss the project. Hank Dickenson noted that this was a wonderful project but was unsure as to whether they should provide the total amount requested. Ms. Ferstl indicated that it appeared that they were in the beginning stages of the planning process. Ms. Colonna agreed but felt some funding should be provided to show support for their efforts. Will Taylor also agreed that some funding was appropriate. Members discussed the use of City funds to leverage funds from other sources. Sue Thomson stated that it appeared that they have some ideas for grant submissions to bring in additional funds. Ms. Colonna made a motion that $10,000 be recommended to City Council to fund the renovation project on the Owsley Community School. Hank Dickenson seconded the motion. The vote was four in favor of the motion and one opposed. Ms. Ferstl made a motion that the $10,000 needed for the project be reallocated from the Infill New Construction program. Mr. Taylor seconded the motion. The motion passed unanimously. Members agreed to recommend that any future proposals by the Owsley Community School should be based on more concrete research and planning. The meeting was adjourned. AGENDA DATE: DEPARTMENT: CM: AGENDA INFORMATION SHEET September 16, 2003 Economic Development Mike Conduff ~ SUBJECT Consider adoption of an ordinance of the City Council of the City of DeNon, Texas approving the Third Amendment to that agreement between the City of Denton and the Denton Affordable Housing Corporation; authorizing the City Manager to execute the Third Amendment and to expend funds with respect to the Third Amendmem; and providing for an effective date. BACKGROUND The DeNon Affordable Housing Corporation will use $156,000 in HOME funding for their new Nevada Court housing developmem project. The developmem will be located off of Mockingbird Lane to the north of the Singing Oaks subdivision. The project was approved by City Council as part of the City's 2003 Action Plan for Housing and Community Development. Upon completion, the developmem will provide a minimum of 25 new housing units that will be available to low and moderate-income households. This will increase the total budget of new HOME funding provided to DAHC under the current contract to $434,417 for all activities. ESTIMATED PROJECT SCHEDULE Construction is projected to begin in November 2003. Some units should be available for occupancy by spring 2004. All units should be completed and available to eligible households within three years. PRIOR ACTION/REVIEW (Councils, Boards, Commissions) The Community Developmem Advisory Committee recommended approval of the Nevada Court project as a part of the City's 2003 Action Plan for Housing and Community Development. City Council approved the Action Plan on May 27, 2003. FISCAL INFORMATION Funding for the proposed project will be from 2003-04 Home Investmem Partnerships Program (HOME). EXHIBITS 1. Ordinance 2. Third Amendmem Respectfully submitted: Linda Ratliff Director of Economic Development Prepared by: Barbara Ross Community Development Administrator S:\Our Documcms\Ordinances\03\DlIA Third Amend 2003 ord.doc ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS APPROVING THE THIRD AMENDMENT TO THAT AGREEMENT BETWEEN THE CITY OF DENTON AND THE DENTON AFFORDABLE HOUSING CORPORATION; AUTHORIZING THE CITY MANAGER TO EXECUTE THE THIRD AMENDMENT AND TO EXPEND FUNDS WITH RESPECT TO THE THIRD AMENDMENT; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, on October 17, 2000 the City Council entered into an Agreement with the Denton Affordable Housing Corporation to provide certain services for the provision of affordable housing under the National Affordable Housing Act of 1990, as amended by the Housing and Community Development Act of 1992, which Agreement was authorized by Ordinance No. 2000-385; and WHEREAS on January 15, 2002, the City Council amended the contract with the Denton Affordable Housing Corporation to provide additional funding in accordance with their approval of the 2001 Community Development Action Plan, which Amendment was authorized by Ordinance No. 2002-033; and WHEREAS on October 8, 2002, the City Council again amended the contract with the Denton Affordable Housing Corporation to provide additional funding in accordance with their approval of the 2002 Community Development Action Plan, which Amendment was authorized by Ordinance No. 2002-330; and WHEREAS, the City Council, by approving the 2003 Community Development Action Plan, has authorized additional funding for ongoing activities of the Denton Affordable Housing Corporation and the scope of work for the Denton Affordable Housing Corporation has expanded; and WHEREAS, the City Council deems it in the public interest to amend the Agreement with the Denton Affordable Housing Corporation to provide for such additional funding to be provided from funds made available by the U.S. Department of Housing and Urban Development under the National Affordable Housing Act; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the City Council hereby approves the Third Amendment to the Agreement between the City of Denton and the Denton Affordable Housing Corporation, executed October 17, 2000, substantially in the form of the attached Exhibit "A" which is incorporated herein for all purposes, and further authorized the City Manager to execute said Third Amendment to the Agreement. S:\Our Documcms\Ordinances\03\DlIA Third Amend 2003 ord.doc SECTION 2. That the City Council authorized the expenditure of funds for operating costs and project funding for the Demon Affordable Housing Corporation, included in the Third Amendmem attached as Exhibit "A", which includes additional funding in an amoum of $156,000. SECTION 3. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2003. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: Page 2 S:\Our Documcms\Con/racLs\03\D Al I Third Amcndmcm. doc THIRD AMENDMENT TO AGREEMENT BETWEEN THE CITY OF DENTON AND THE DENTON AFFORDABLE HOUSING CORPORATION This Third Amendmem to that certain Agreemem between the City of DeNon (hereinafter referred to as "DeNon") and the DeNon Affordable Housing Corporation (hereinafter referred to as "Contractor"), this Agreement hereinafter referred to as "Base Agreement", which is attached hereto as Exhibit 1. WHEREAS, by Ordinance No. 2000-385, DeNon authorized its City Manager to execute an Agreement with the Contractor to provide acquisition and renovation, and new construction to promote affordable housing in the City of Denton in return for Denton providing an amount not to exceed $434,417 for affordable housing projects described in the Work Statemem, Attachmem A, attached to the Base Agreement; and WHEREAS, the City Council has approved additional funding for the Comractor in accordance with their approval of the 2003 Community Developmem Action Plan, and adequate funding has been obtained from the U.S. Departmem of Housing and Urban Developmem: NOW, THEREFORE, the parties hereto agree, and by the execution hereof are bound to the mutual obligations and to the performance and accomplishment of the conditions hereinafter described. That Section 1. "Term" of the Base Agreemem is amended to read as follows: This Agreemem shall commence on or as of September 1, 2000, and shall terminate on August 31, 2007, unless adjusted by the CITY. Request for such an adjustmem must be in writing and is to be submitted to the Community Developmem Division. That Section 2. read as follows: "Responsibilities" of the Base Agreemem, subsection A is amended to mo Comractor hereby accepts the responsibility for the performance of all services and activities described in the amended Work Statement attached hereto as Attachment "A" and incorporated herein as if set forth at length, in accordance with the amended Program Budget attached hereto as Attachment "B" and the amended Schedule of Contract Activities attached hereto as Attachment "C" and incorporated herein as if set forth at length, in as satisfactory and efficient manner as determined by City in accordance with the terms herein. S:\Our Documcms\Con/racLs\03\D Al I Third Amcndmcm. doc o That the Base Agreement is hereby amended by substituting amended Attachments "A", "B", and "C" which are attached hereto and incorporated herein for all purposes for the original Attachments "A", "B", "C" of the Base Agreement. That save and except as amended hereby, the remaining sections, subsections, sentences and clauses of the Base Agreement dated October 17, 2000 shall remain in full force and effect. IN WITNESS of which this Third Amendment has been executed on this the day of ,2003, by the duly authorized officials of the City and the Contractor. CITY OF DENTON ATTEST: JENNIFER WALTERS, CITY SECRETARY MICHAEL A. CONDUFF CITY MANAGER BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: S:\Our Documcms\Con/racLs\03\D Al I Third Amcndmcm. doc DENTON AFFORDABLE HOUSING CORPORATION ATTEST: LINNIE MCADAMS BOARD PRESIDENT BY: BOARD SECRETARY S:\Our Documcms\Con/racLs\03\D Al I Third Amcndmcm. doc ATTACHMENT "A" WORK STATEMENT Demon Affordable Housing Corporation The Demon Affordable Housing Corporation ("DAHC") was developed to increase the supply of affordable housing in the Demon area. The organization is designed to carry out the following activities but is not limited to these: administration, rehabilitation, acquisition, new construction, and tenant-based rental assistance and public service programs. Expenditure of City funds for housing projects is limited to projects within the city limits of Demon. DAHC's projects and programs will primarily benefit low and moderate-income households. Low and moderate income is defined as households below 80% of the area median income. The Affordable Homeownership Opportunity Program provides for acquisition, renovation and sale of single-family units. HOME funding in the amoum of $164,550 will be used in the Program. Proceeds from the sale of properties will be placed in the AHOP program fund to be used to cominue the program. No more than 10% of the HOME portion of the project sales proceeds may be utilized for project delivery costs for the program. The HOME portion of the proceeds is based on the percemage of HOME funds included in the project. The Affordable Housing Construction Program provides funding to construct single-family units. Properties suitable for single-family housing will be acquired through purchase or donation. Units will be constructed in such a way as to make them affordable to low and moderate-income households. Units will be sold to HOME-eligible households. Not more than 10% of the total funding amount may be used to assist buyers with down payment and closing costs. The Nevada Court Project will culminate in the developmem ora minimum of 25 single-family housing units on property donated to and acquired by the Demon Affordable Housing Corporation. The project includes acquisition of property adjacem to the donated site off Mockingbird Lane, project planning, site developmem including sidewalks sanitary and storm sewers, water lines, and utility lines and housing construction. DAHC will also be responsible for sale of the completed single-family units. Down paymem, closing cost assistance and some "gap" financing will be available to households purchasing the units. The Nevada Court project will be completed within three years from the date of this amendmem. Along with the 2003 HOME allocation of $156,000, an unspecified amoum of HOME program proceeds retained by DAHC from previous projects may be used for the project. S:\Our Documcms\Con/racLs\03\D Al I Third Amcndmcm. doc ATTACHMENT "B" PROGRAM BUDGET Affordable Homeownership Opportunity Program $164,550 Affordable Housing Construction Program $113,867 Nevada Court Project - $156,000 Also, an unspecified amount of HOME proceeds may be used for this project. AGENDA DATE: DEPARTMENT: CM: AGENDA INFORMATION SHEET September 16, 2003 Economic Development Mike Conduff ~' SUBJECT Consider adoption of an ordinance of the City Council of the City of Demon, Texas, authorizing the City Manager to execute the Second Amendment to that Agreement between the City of Denton and Denton City County Day School, Inc. for improvements to the daycare facility at 1603 Paisley; authorizing the City Manager to expend funds with respect to the Second Amendmem; and providing for an effective date. BACKGROUND The 2003 Action Plan for Housing and Community Development included $61,344 for improvements to the Denton City County Day School facility at 1603 Paisley Street. Improvemems will include sidewalks, a driveway and a parking area. The daycare provides services to low and moderate-income households. DCCDS provides services using a sliding scale fee structure based on the household income of the family that is receiving services. ESTIMATED PROJECT SCHEDULE The project should be completed within the currem community developmem program year ending July 31, 2004. PRIOR ACTION/REVIEW (Councils, Boards, Commissions) The Community Developmem Advisory Committee recommended approval of the Demon City County Day School improvemem project as a part of the City's 2003 Action Plan for Housing and Community Development. City Council approved the Action Plan on May 27, 2003. FISCAL INFORMATION Funding for the proposed project has been budgeted from 2003-04 Community Developmem Block Gram Program (CDBG). Staff oversight costs will also be paid from Federal program funds. EXHIBITS 1. Ordinance 2. Second Amendmem 3. Exhibit 1 - Original contract and First Amendment Respectfully submitted: Linda Ratliff Director of Economic Development Prepared by: Barbara Ross Community Development Administrator ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS, AUTHORIZING THE CITY MANAGER TO EXECUTE THE SECOND AMENDMENT TO THAT AGREEMENT BETWEEN THE CITY OF DENTON AND DENTON CITY COUNTY DAY SCHOOL, INC. FOR IMPROVEMENTS TO DAYCARE FACILITY AT 1603 PAISLEY; AUTHORIZING THE CITY MANAGER TO EXPEND FUNDS WITH RESPECT TO THE SECOND AMENDMENT; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, on November 6, 2001, the City Council emered imo an Agreemem with Denton City County Day School, Inc. to provide funds for certain improvements to the day care facility serving low-income families, which Agreemem was authorized by Ordinance NO. 2001-401; and WHEREAS, on September 19, 2002, the City Manager executed the first amendment to the agreement with Denton City County Day School to provide additional funding in accordance with City Council's approval of the 2002 Action Plan for Housing and Community Developmem; and WHEREAS, the City Council, by approving the 2003 Action Plan for Housing and Community Developmem, has authorized additional funding for sidewalk, driveway and parking lot improvements to the facility located at 1603 Paisley Street; and WHEREAS, the City Council deems it in the public interest to amend the Agreement with Denton City County Day School to provide for the extension of the term of the Agreemem and for such additional funding to be provided from funds made available by the U.S. Department of Housing and Urban Development under Title 1 of the Housing and Community Developmem Act of 1974 and to provide other changes as set forth in the Second Amendment to the Agreement; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the City Council hereby approves the Second Amendment to the Agreemem between the City of DeNon and DeNon City County Day School, executed November 6, 2001, substamially in the form of the attached Exhibit "A" which is incorporated herein for all purposes, and further authorizes the City Manager to execute said Second Amendment to the Agreement. SECTION 2. That the City Council authorizes the expenditure of funds for sidewalks, driveway and parking lot improvemems for the day care facility located at 1603 Paisley Street, included in the First Amendment attached as Exhibit "A", which includes additional funding in the amoum of $61,344. SECTION 3. 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: S:\Our Documents\Contracts\03\dccds second amend, doc SECOND AMENDMENT TO AGREEMENT BETWEEN THE CITY OF DENTON AND THE DENTON CITY COUNTY DAY SCHOOL This Second Amendment to that certain Agreement between the City of Denton (hereinafter referred to as "Denton") and the Denton City County Day School (hereinafter referred to as "Contractor"), this Agreement hereinafter referred to as "Base Agreement", which is attached hereto as Exhibit 1. WHEREAS, by Ordinance No. 2001-410, Denton authorized its City Manager to execute an Agreement with the Contractor to provide physical improvements to the day care facility located at 1603 Paisley Street, Denton, Texas 76209 described in the Description of Improvements and Work Statement, Attachment A, attached to the Base Agreement; and WHEREAS, on September 19, 2002, the City Manager executed a first amendment to the agreement to provide additional funding in accordance with City Council's approval of the 2002 Action Plan for Housing and Community Development, which is attached to the Base Agreement, Exhibit 1; and WHEREAS, the City Council has approved additional funding for the Contractor in accordance with their approval of the 2003 Action Plan for Housing and Community Development, and adequate funding has been obtained from the U.S. Department of Housing and Urban Development: NOW, THEREFORE, the parties hereto agree, and by the execution hereof are bound to the mutual obligations and to the performance and accomplishment of the conditions hereinafter described. 1. That Section 1. "Term" of the Base Agreement is amended to read as follows: This Agreement shall commence on or as of November 6, 2001, and shall terminate on November 6, 2008 unless adjusted by the CITY. Request for such an adjustment must be in writing and is to be submitted to the Community Development Division, 101 S. Locust Street, Denton, Texas, 76201. That Section 2. "Responsibilities" of the Base Agreement, subsection A is amended to read as follows: A. Contractor hereby accepts the responsibility for the performance of all services and activities described in the amended Description of improvements and Work Statement attached hereto as Attachment "A" and incorporated herein as if set forth at length, in accordance with the amended Total Project Budget amount, in as satisfactory and efficient manner as determined by City in accordance with the terms herein. S:\Our Documents\Contracts\03\dccds second amend, doc That the Base Agreement is hereby amended by substituting amended Attachment "A", which is attached hereto and incorporated herein for all purposes for the original Attachment "A" as amended of the Base Agreement. o That save and except as amended hereby, the remaining sections, subsections, sentences and clauses of the Base Agreement dated November 6, 2001 shall remain in full force and effect. IN WITNESS of which this Third Amendment has been executed on this the day of ,2003, by the duly authorized officials of the City and the Contractor. CITY OF DENTON MICHAEL A. CONDUFF CITY MANAGER ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: DENTON CITY COUNTY DAY SCHOOL CAROLYN BERRY EXECUTIVE DIRECTOR S:\Our Documents\Contracts\03\dccds second amend, doc ATTEST: BY: BOARD SECRETARY S:\Our Documents\Contracts\03\dccds second amend.doc ATTACHMENT "A" DESCRIPTION OF IMPROVEMENTS 1. Replace existing carpet in classrooms with commercial grade vinyl flooring. 2. Renovate five bathrooms, kitchen and entry hall flooring with new vinyl flooring. 3. Install adequate insulation. 4. Installation of a central air conditioning unit Total Original Budget $30,000 o Installation of a coated chain link fence around existing playground. Increase - First Amendment $17,000 Construction of sidewalks, driveway and parking lot for day care facility. Increase - Second Amendment $61,344 TOTAL BUDGET $108,344 WORK STATEMENT DeNon City County Day School, Inc. Services DeNon City County Day School is a nonprofit childcare facility for low-income families. DCCDS serves approximately 66 children daily ranging in age from 2 years to 5 1/2 years. Parents must be working, going to school full time or doing a combination of both to be eligible. DCCDS is open Monday through Friday from 6:30 am to 5:30 pm. The staff consists of 8 teachers, a cook, an assistant director and a director. The children are served breakfast, lunch and two snacks. DCCDS provides a safe and healthy environmem for childcare, and a learning program for all age groups. The curriculum places emphasis on cognitive, affective and psychomotor learning skills, good health habits and physical developmem. The nursery staff receives 20 hours continuing education hours each year in child developmem and early childhood education. The most important element is the emphasis placed on enhancing the self-concept of each individual child, as this is very significam for his/her future success. C?dMy Documents\Do0file\CCDS Repair! Contract 01 06,doc EXHIBIT AGREEMENT BETWEEN THE CITY OF DENTON AND DENTON CITY COUNTY DAY SCHOOL, INCORPORATED This Agreement is made and entered into by and between the City of Denton, Texas, a municipal corporation, acting by and through its City Manager, pursuant to ordinance, hereinafter referred to as CITY, and Denton City County Day School, Inc., 1603 Paisley, Denton, Texas, 76209, a not-for-profit corporation, hereinafter referred to as CONTRACTOR. WHEREAS, CITY has received certain funds from the U.S. Department of Housing and Urban Development under Title I of the Housing and Community Development Act of 1974, as amended; and WHEREAS, CITY has adopted a budget for such funds and included therein an authorized budget for expenditure of funds for improvements to the child care facility at 1603 Paisley Street; and WHEREAS, CITY has designated the Community Services Division of the Community Development Department as the division responsible for the administration of this Agreement and all matters pertaining thereto; and WHEREAS, CITY wishes to engage CONTRACTOR to carry out such project; NOW, THEREFORE, the parties hereto agree, and by the execution hereof are bound to the mutual obligations and to the performance and accomplishment of the conditions hereinafter described. This agreement shall commence on or as of November 6, 2001, and shall terminate on November 6, 2006 unless otherwise adjusted by CITY. Request for such an adjustment must be in writing and is to be submitted to the City's Community Services Division, 100 W. Oak, Suite 208, Denton, Texas, 76201. II. RESPONSIBILITIES CONTRACTOR hereby accepts responsibility for ensuring the proper completion of ali construction and repair activities described in the Description of Improvements attached hereto as Attachment "A", in a satisfactory and efficient manner as determined by CITY, in accordance with the terms herein. CITY will consider CONTRACTOR'S executive director to be the CONTRACTOR'S representative responsible for the management of alt contractual matters pertaining hereto, unless written notification to the contrary is received from CONTRACTOR, and, approved by CITY. CITY'S Community Development Administrator will be the CITY'S representative responsible for the administration of this Agreement. III. CITY'S OBLIGATION A. Limit of Liability. CITY will pay the the CONTRACTOR the expenses incurred pursuant and in accordance with the description of improvements attached hereto as Attachment "A" and incorporated herein by reference. Notwithstanding any other provision of the Agreement, the total of all payments and other obligations made or incurred by CITY hereunder shall not exceed the sum of $30,000. B. Measure of Liability. In consideration of full and satisfactory services, activities and reports hereunder by CONTRACTOR, CITY shall reimburse CONTRACTOR for expenses incurred, subject to the limitations and provisions set forth in this Section and Section VII of this Agreement. (I) The parties expressly understand and agree that CITY's obligations under this Section are contingent upon the actual receipt of adequate Community Development Block Grant (CDBG) funds to meet CITY's liabilities under this Agreement. If adequate funds are not available to make payments under this Agreement, CITY shall notify CONTRACTOR in writing within a reasonable time after such fact has been determined. CITY may, at its option, either reduce the amount of its liability, as specified in Subsection A of this Section or terminate the Agreement. If CDBG funds eligible for use for purposes of this Agreement are reduced, CITY shall not be liable for further payments under this Agreement. (2) It is expressly understood that this Agreement in no way obligates the General Fund or any other monies or credits of the City of Denton. (3) CITY shall not be liable for any cost or portion thereof which: (a) has been paid, reimbursed or is subject to payment or reimbursement, from any other source; (b) was incurred prior to the beginning date, or after the ending date specified in Section I; (c) is not in strict accordance with the terms of this Agreement, including all exhibits attached hereto; (d) is not an allowable cost as defined by Section XI of this Agreement or the project budget. Page 2 (4) CITY shall not be Iiable for any cost or portion thereof which is incurred with respect to any activity of CONTRACTOR requiting prior written authorization from CITY, or after CITY has requested that CONTRACTOR furnish data concerning such action prior to proceeding further, unless and until CITY advises CONTRACTOR to proceed. (5) CITY shall not be obligated or liable under this Agreement if CONTRACTOR fails to follow appropriate procurement procedures and to retain the services of the contractors and suppliers who were the lowest reasonable bidders on each respective project and who were agreed upon by both the CITY and CONTRACTOR for payment of any monies or provision of any goods or services. C. CITY shall provide funds in an amount not to exceed $30,000 to assist CONTRACTOR in the improvements to the facility located at 1603 Paisley Street, Denton, Texas. D. CONTRACTOR agrees to hold and save harmless CITY from any and all loss, cost, or damage of every kind, nature or description arising under this Agreement or from any source whatsoever. E. CITY shall comply with the HUD Office of Management and Budget Circular A~ 87. CITY shall be responsible for performing the environmental review and monitoring the project for compliance with federal wage and labor requirements. IV. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS A. CONTRACTOR understands that funds provided to it pursuant to this Agreement are funds which have been made available to CITY by the Federal Government (U.S. Department of Housing and Urban Development) under the Housing and Community Development Act of 1974, as amended, in accordance with an approved Grant Application and specific assurances. Accordingly, CONTRACTOR assures and certifies that it will comply with the requirements of the Housing and Community Development Act of 1974 (P.L. 93-383) as amended and with regulations promulgated thereunder, and codified at 24 CFR 570. The foregoing is in no way meant to constitute a complete compilation of all duties imposed upon CONTRACTOR by law or administrative ruling, or to narrow the standards which CONTRACTOR must follow. CONTRACTOR further accrues and certifies that if the regulations and issuances promulgated pursuant to the Act are amended or revised, it shall comply with them, or notify CITY, as provided in Section XXIV of this Agreement. CONTRACTOR agrees to abide by the conditions of and comply with the requirements of the Office of Management and Budget Circulars Nos. A-110 and A-122. Page 3 t B. CONTRACTOR shall comply with all applicable federal laws, laws of the State of Texas and ordinances of the City of Denton, and in particular provisions of attachments B -D which are attached hereto and incorporated herein for all purposes. REPRESENTATIONS A. CONTRACTOR assures and guarantees that it possesses the legal authority, pursuant to any proper, appropriate and official motion, resolution or action passed or taken, to enter into this Agreement. B, The person or persons signing and executing this Agreement on behalf of CONTRACTOR, do hereby warrant and guarantee that he, she, or they have been fully authorized by CONTRACTOR to execute this Agreement on behalf of CONTRACTOR and to validly and legally bind CONTRACTOR to all terms, performances and provisions herein set forth. C. CITY shall have the right, at its option, to either temporarily suspend or permanently terminate this Agreement if there is a dispute as to the legal authority of either CONTRACTOR or the person signing the Agreement to enter into this Agreement. CONTRACTOR is liable to CITY for any money it has received from CITY for performance of the provisions of this Agreement if CITY has suspended or terminated this Agreement for the reasons enumerated in this Section. D. CONTRACTOR agrees that the funds and resources provided CONTRACTOR under the terms of this Agreement will in no way be substituted for funds and resources from other sources, nor in any way serve to reduce the resources, services, or other benefits which would have been available to, or provided through, CONTRACTOR had this Agreement not been executed. E. CONTRACTOR warrants that it is the legal owner of the property described in Article II and CONTRACTOR agrees to allow CITY access to this site for inspection purposes. CONTRACTOR further agrees to allow CITY to bid and execute agreements with the general contractor for the repairs to the Denton City County Day School, Inc. facility. F. CONTRACTOR shall continue to utilize the facility at 1603 Paisley Street, Denton, Texas for a minimum of five years after improvements are completed to provide affordable day care for low and moderate-income households. G. CITY is the only agent authorized to designate changes to the work to be performed. Any additional or changes to the work authorized by CITY can only be done in writing with the signature of CITY'S City Manager, Mayor, or Community Development Administrator, plus those of CONTRACTOR and its representatives. Page 4 VI. WARRANTIES CONTRACTOR represents and warrants that: A. Ali information, reports and data heretofore or hereafter requested by CITY and furnished to CITY, are complete and accurate as of the date shown on the information, data, or report, and, since that date, have not undergone any significant change without written notice to CITY. B. Any supporting financial statements heretofore requested by CITY and furnished to CITY, are complete, accurate and fairly reflect the financial condition of CONTRACTOR on the date shown on said report, and the results of the operation for the period covered by the report, and that since said date, there has been no material change, adverse or otherwise, in the financial condition of CONTRACTOR. C. No litigation or legal proceedings are presently pending or threatened against CONTRACTOR. D. None of the provisions herein contravenes or is in conflict with the authority under which CONTRACTOR is doing business or with the provisions of any existing indenture or agreement of CONTRACTOR. CONTRACTOR has the power to enter into this Agreement and accept payments hereunder, and has taken all necessary action to authorize such acceptance under the terms and conditions of this Agreement. F. None of the assets of CONTRACTOR is subject to any lien or encumbrance of any character, except for current taxes not delinquent, except as shown in the financial statements furnished by CONTRACTOR to CITY. Each of these representations and warranties shall be continuing and shall be deemed to have been repeated by the approval of each request for payment from the general construction contractor. VII. COVENANTS A. During the period of time that payment may be made hereunder and so long as any payments remain unliquidated, CONTRACTOR shall not, without the prior written consent of the Community Development Administrator or her authorized representative: (1) Mortgage, pledge, or otherwise encumber or suffer to be encumbered, any of the assets of CONTRACTOR now owned or hereafter acquired by it, or permit any pre-existing mortgages, liens, or other encumbrances to remain on, or attached to, any assets of CONTRACTOR which are allocated to the performance of this Agreement and with respect to which CITY has ownership hereunder. Page 5 (2) Sell, assign, pledge, transfer or otherwise dispose of accounts receivables, notes or claims for money due or to become due. (3) Sell, convey, or lease alt or substantiaI part of its assets. (4) Make any advance or loan to, or incur any liability for any other firm, person, entity or corporation as guarantor, surety, or accommodation endorser. (5) Sell, donate, loan or transfer any equipment or item of personal property purchased with funds paid to CONTRACTOR by CITY, unless CITY authorizes such transfer. B. Should CONTRACTOR use funds received under this Agreement to acquire or improve real property under CONTRACTOR's control, CONTRACTOR agrees and covenants: (1) That the property shall be used to meet one of the national objectives stated in 24 CFR 570 until August 31, 2006. (2) That should CONTRACTOR transfer or otherwise dispose of said property on or before August 31, 2006, CONTRACTOR shall reimburse CITY in the mount of the fair market value of this property less any portion of the value attributable to expenditures ofnon-CDBG funds for acquisition of, or improvement to, the property. C. CONTRACTOR agrees, upon written request by CITY, to require its employees to attend training sessions sponsored by the Community Services Division. VIII. PROGRAM INCOME A. For purposes of this Agreement, program income means earnings of CONTRACTOR realized from activities resulting from this Agreement or from CONTRACTOR's management of funding provided or received hereunder. Such earnings include, but are not limited to, income from interest, usage or rental or lease fees, income produced from contract-supported services of individuals or employees or from the use or sale of equipment or facilities of CONTRACTOR provided as a result of this Agreement, and payments from clients or third parties for services rendered by CONTRACTOR under this Agreement. B. CONTRACTOR shall maintain records of the receipt and disposition of program income in the same manner as required for other contract funds, and reported to CITY in the format prescribed by CITY. CITY and CONTRACTOR agree, based upon advice received from representatives of the U.S. Department of Housing and Urban Development (HUD), that any fees collected for services performed by CONTRACTOR shall be spent only for service provision. These fees or other program income will be deducted from the regular reimbursement request. Page 6 C. CONTRACTOR shall include this Section in its entirety in all of its sub-contracts which involve other income-producing services or activities. D. It is CONTRACTOR'S responsibility to obtain from CITY a prior determination as to whether or not income arising directly or indirectly from this Agreement, or the performance thereof, constitutes program income. CONTRACTOR is responsible to CITY for the repayment of any and all mounts determined by CITY to be program income, unless otherwise approved in writing by CITY. IX. MAINTENANCE OF RECORDS A. CONTRACTOR agrees to maintain records that will provide accurate, current, separate, and complete disclosure of the status of the funds received under this Agreement and with any other applicable Federal and State regulations establishing standards for financial management. CONTRACTOR's record system shall contain sufficient documentation to provide in detail full support and justification for each expenditure. Nothing in this Section shall be construed to relieve CONTRACTOR of fiscal accountability and liability under any other provision of this Agreement or any applicable law. CONTRACTOR shall include the substance of this provision in all subcontracts. B. CONTRACTOR agrees to retain ali books, records, documents, reports, and written accounting policies and procedures pertaining to the operation of programs and expenditures of funds under this Agreement for the period of time and under the conditions specified by CITY. C. Nothing in the above subsections shall be construed to relieve CONTRACTOR of responsibility for retaining accurate and current records which clearly reflect the level and benefit of services provided under this Agreement. D. At any reasonable time and as often as CITY may deem necessary, CONTRACTOR shall make available to CITY, or any of its authorized representatives, all of its records and shall permit CITY, or any of its authorized representatives to audit, examine, make excerpts and copies of such records, and to conduct audits of all contracts, invoices, materials, payrolls, records of personnel, conditions or employment and all other data relating to the program requested by said representatives. REPORTS AND INFORMATION At such times and in such form as CITY may require, CONTRACTOR shall furnish such statements, records, data and information as CITY may request and deem pertinent to matters covered by this Agreement. CONTRACTOR shall submit quarterly beneficiary and financial reports to CITY no less than once each three months. The beneficiary report shall detail client information, including Page 7 race, income, female head of household and other statistics required by CITY. The financial report shall include information and data relative to all programmatic and financial reporting as of the beginning date specified in Section I of this Agreement. Unless a written exemption has been granted by the CITY, CONTRACTOR shall submit an audit conducted by independent examiners within ten (10) days after receipt of such. MONITORING AND EVALUATION A. CITY shall perform on-site monitoring of CONTRACTOR's performances under this Agreement. B. CONTRACTOR agrees that CITY may carry out monitoring and evaluation activities to ensure adherence by CONTRACTOR to the Work Statement attached hereto as Attachment "A", as well as other provisions of this Agreement. C. CONTRACTOR agrees to cooperate fully with CITY in the development, implementation and maintenance of record-keeping systems and to provide data determined by CITY to be necessary for CITY to effectively fulfill its monitoring and evaluation responsibilities. D. CONTRACTOR agrees to cooperate in such a way so as not to obstruct or delay CITY in such monitoring and to designate one of its staffto coordinate the monitoring process as requested by CITY staff. E. After each official monitoring visit, CITY shall provide CONTRACTOR with a written report of monitoring findings. F. CONTRACTOR shall submit copies of any fiscal, management, or audit reports by any of CONTRACTOR's funding or regulatory bodies to CITY within five (5) working days of receipt by CONTRACTOR. XII. DIRECTORS' MEETINGS During the terms of this Agreement, CONTRACTOR shall cause to be delivered to 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 CITY in a timely manner to give adequate notice, and shalI include an agenda and a brief description of the matters to be discussed. CONTRACTOR understands and agrees that CITY representatives shall be afforded access to ali of the Board of Directors' meetings. Minutes of all meetings of CONTRACTOR's governing body shall be available to CITY within ten (10) working days of approval. Page 8 XIII. INSURANCE A. CONTRACTOR shall observe sound business practices with respect to providing such bonding and insurance as would provide adequate coverage for services offered under this Agreement. B. The premises on and in which the activities described in Attachment "A" are conducted, and the employees conducting these activities, shall be covered by premise liability insurance, commonly referred to as "Owner/Tenant" coverage with CITY named as an additional insured. Upon request of CONTRACTOR, CITY may, at its sole discretion, approve alternate insurance coverage arrangements. C. CONTRACTOR will comply with applicable workers' compensation statues and will obtain employers' liability coverage where available and other appropriate liability coverage for program participants, if applicable. D. CONTRACTOR will maintain adequate and continuous liability insurance on all vehicles owned, leased or operated by CONTRACTOR. All employees of CONTRACTOR who are required to drive a vehicle in the normal scope and course of their employment must possess a valid Texas driver's license and automobile liability insurance. Evidence of the employee's current possession of a valid license and insurance must be maintained on a current basis in CONTRACTOR's files. E. Actual losses not covered by insurance as required by this Section are not allowable costs under this Agreement, and remain the sole responsibility of CONTRACTOR. F. The policy or policies of insurance shall contain a clause which requires that City and Contractor be notified in writing of any cancellation of change in the policy at least thirty (30) days prior to such change or cancellation. XIV. EQUAL OPPORTUNITY A. CONTRACTOR shall submit for CITY's approval, a written plan for compliance with the Equal Employment and Affirmative Action Federal provisions, within thirty (30) days of the effective date of this Agreement. B. CONTRACTOR shall comply with all applicable equal employment opportunity and affirmative action laws or regulations. C. CONTRACTOR will furnish ail 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. Page 9 D. In the event of CONTRACTOR's non-compliance with the non-discrimination requirements, CITY may cancel or terminate the Agreement in whole or in part, and CONTRACTOR may be barred from further contracts with CITY. XV. PERSONNEL POLICIES Personnel policies shall be established by CONTRACTOR and shall be available for examination. Such personnel policies shall: A. Be no more liberal than CITY's personnel policies, procedures, and practices, including policies with respect to employment, salary and wage rates, working hours and holidays, fringe benefits, vacation and sick leave privileges, and travel; and B. Be in writing and shall be approved by the governing body of CONTRACTOR and by CITY. XVI. CONFLICT OF INTEREST A. CONTRACTOR 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. CONTRACTOR 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. CONTRACTOR 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 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 (I) participate in any decision relating to the Agreement which affects is 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. XVII. NEPOTISM CONTRACTOR 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 CONTRACTOR, or is a member of CONTRACTOR's governing board. The term "member of immediate family" Page 10 includes: wife, husband, son, daughter, mother, father, brother, sister, in-laws, aunt, uncle, nephew, niece, step-parent, step-child, half-brother and half-sister. XVIIL POLITICAL OR SECTARIAN ACTIVITY A. None of the performance rendered hereunder shall involve, and no portion of the funds received by CONTRACTOR hereunder shall be used, either directly or indirectly, for any political activity (including, but not limited to, an activity to further the election or defeat of any candidate for public office) or any activity undertaken to influence the passage, defeat or final content of legislation. B. None of the performance rendered hereunder shall involve, and no portion of the funds received by CONTRACTOR hereunder shall be used for or applied directly or indirectly to the construction, operation, maintenance or administration, or be utilized so as to benefit in any manner any sectarian or religious facility or activity. XIX. PUBLICITY A. Where such action is appropriate, CONTRACTOR shall publicize the activities conducted by CONTRACTOR under this Agreement. In any news release, sign, brochure, or other advertising medium, disseminating information prepared or distributed by or for CONTRACTOR, the advertising medium shall state that the U.S. Department of Housing and Urban Development's Community Development Block Grant Program funding through the City of Denton has made the project possible. B. All published material and written reports submitted under this project must be originally developed material unless otherwise specifically provided in this Agreement. When material not originally developed is included in a report, the report shall identify the source in the body of the report or by footnote. This provision is applicable when the material is in a verbatim or extensive paraphrase format. Ail published mater/al submitted under this project shall include the following reference on the front cover or title page: This document is prepared in accordance with the City of Denton's Community Development Block Grant Program, with funding received from the United States Department of Housing and Urban Development. C. All reports, documents, studies, charts, schedules, or other appended documentation to any proposal, content of basic proposal, or contracts and any responses, inquiries, correspondence and related material submitted by CONTRACTOR shall become the property of CITY upon receipt. Page I 1 XXl FUNDING APPLICATIONS CONTRACTOR agrees to notify CITY each time CONTRACTOR is preparing or submitting any application for funding in accordance with the following procedures: A. When the application is in the planning stages, CONTRACTOR shall submit to CITY a description of the funds being applied for, and the proposed use of funds. B. Upon award of or notice of award, whichever is sooner, CONTRACTOR shall notify CITY of such award and the effect, if any, of such funding on the funds and program(s) contracted hereunder. Such notice shall be submitted to CITY, in writing, within ten (I0) working days of receipt of the notice of award or funding award by CONTRACTOR, together with copies of the budget, program description, and Agreement. C. CONTRACTOR shall not use funds provided hereunder, whether directly or indirectly, as a contribution, or to prepare applications to obtain any federal or private funds under any federal or private program without the prior written consent of CITY. CHANGES AND AMENDMENTS A. Any alterations, additions, or deletions to the terms of this Agreement shall be by written amendment executed by both parties, except when the terms of this Agreement expressly provide that another method shall be used. B. CONTRACTOR shall request, in writing, budget revisions in a form prescribed by CITY, and such request for revision shall not increase the total monetary obligation of CITY under this Agreement. In addition, budget revisions cannot significantly change the nature, intent, or scope of the program funded under this Agreement. C. CONTRACTOR will submit revised budget and program information, whenever the level of funding for CONTRACTOR or the program(s) described herein is altered according to the total levels contained in any portion of this agreement. D. It is understood and agreed by the parties hereto that changes in the State, Federal or local laws or regulations pursuant hereto may occur during the term of this Agreement. Any such modifications are to be automatically incorporated into this Agreement without written amendment hereto, and shall become a part of the Agreement on the effective date specified by the law or regulation. E. CONTRACTOR shall notify CITY of any changes in personnel or governing board composition. Page 12 F. It is expressly understood that neither the performance of Attachment "A" for any program contracted hereunder nor the transfer of funds between or among said programs will be permitted. XXII. SUSPENSION OF FUNDING Upon determination by CITY of CONTRACTOR's failure to timely and properly perform each of the requirements, time conditions and duties provided herein, CITY, without limiting any fights it may otherwise have, may, at its discretion, and upon ten (10) working days written notice to CONTRACTOR, withhold further payments to CONTRACTOR. Such notice may be given by mail to the Executive Officer and the Board of Directors of CONTRACTOR. The notice shall set forth the default or failure alIeged, and the action required for cure. The period of such suspension shall be of such duration as is appropriate to accomplish corrective action, but in no event shalI it exceed thirty (30) calendar days. At the end of the suspension period, if CITY determines the default or deficiency has been satisfied, CONTRACTOR may be restored to full compliance status and paid alt eligible funds withheld or impounded during the suspension period. If however, CITY determines that CONTRACTOR has not come into compliance, the provisions of SECTION XXIII may be effectuated. XXIII. TERMINATION A. CITY may terminate this Agreement for cause under any of the following reasons or for other reasons not specifically enumerated in this paragraph: (1) CONTRACTOR's failure to attain compliance during any prescribed period of suspension as provided in Section XXII. (2) CONTRACTOR's violation of covenants, agreements or guarantees of this Agreement. (3) Termination or reduction of funding by the United States Department of Housing and Urban Development. (4) Finding by CITY that CONTRACTOR: (a) is in such unsatisfactory financial condition as to endanger performance under this Agreement; (b) has allocated inventory to this Agreement substantially exceeding reasonable requirements; (c) is delinquent in payment of taxes, or of costs of performance of this Agreement in the ordinary course of business. Page 13 (5) Appointment of a trustee, receiver or liquidator for all or substantial part of CONTRACTOR's property, or institution of bankruptcy, reorganization, rearrangement of or liquidation proceedings by or against CONTRACTOR. (6) CONTRACTOR's inability to conform to changes required by Federal, State and local laws or regulations as provided in Section IV, and Section XXI (D), of this Agreement. (7) The commission of an act of bankruptcy. (8) CONTRACTOR's violation of any law or regulation to which CONTRACTOR is bound or shall be bound under the terms of the Agreement. CITY shall promptly notify CONTRACTOR in writing of the decision to terminate and the effective date of termination. Simultaneous notice of pending termination maybe made to other funding source specified. B. CITY may terminate this Agreement for convenience at any time. If this Agreement is terminated by CITY for convenience, CONTRACTOR will be paid an amount not to exceed the total of accrued expenditures as of the effective date of termination. In no event will this compensation exceed an amotmt which bears the same ratio to the total compensation as the services actually performed bears to the total services of CONTRACTOR covered by the Agreement, less payments previously made. C. CONTRACTOR may terminate this Agreement in whole or in part by written notice to CITY, if a termination of outside funding occurs upon which CONTRACTOR depends for performance hereunder. CONTRACTOR may opt, within the limitations of this Agreement, to seek an alternative funding source, with the approval of CITY, provided the termination by the outside funding source was not occasioned by a breach of contract as defined herein or as defined in a contract between CONTRACTOR and the funding source in question. CONTRACTOR may terminate this Agreement upon the dissolution of CONTRACTOR's organization not occasioned by a breach of this Agreement. D. Upon receipt of notice to terminate, CONTRACTOR shall cancel, withdraw or otherwise terminate any outstanding orders or subcontracts which relate to the performance of this Agreement. CITY shall not be liable to CONTRACTOR or CONTRACTOR's creditors for any expenses, encumbrances or obligations whatsoever incurred after the termination date listed on the notice to terminate referred to in this paragraph. E. Notwvithstanding any exercise by CITY of its right of suspension or termination, CONTRACTOR shall not be relieved of liability to CITY for damages sustained by CITY by virtue of any breach of the Agreement by CONTRACTOR, and CITY may withhold any Page 14 reimbursement to CONTRACTOR until such time as the exact amount of damages due to CITY from CONTRACTOR is agreed upon or otherwise determined. XXIV. NOTIFICATION OF ACTION BROUGHT In the event that any claim, demand, suit or other action is made or brought by any person(s), firm corporation or other entity against CONTRACTOR, CONTRACTOR shall give written notice thereof to CITY within two (2) working days after being notified of such claim, demand, suit or other action. Such notice shall state the date and hour of notification of any such claim, demand, suit or other action; the names and addresses of the person(s), firm, corporation or other entity making such claim, or that instituted or threatened to institute any type of action or proceeding; the basis of such claim, action or proceeding; and the name of any person(s) against whom such claim is being made or threatened. Such written notice shall be delivered either personally or by mail. XXV. INDEMNIFICATION A. It is expressly understood and agreed by both parties hereto that CITY is contracting with CONTRACTOR as an independent contractor and that as such, CONTRACTOR shall save and hold CITY, its officers, agents and employees harmless from all liability of any nature or kind, including costs and expenses for, or on account of, any claims, audit exceptions, demands, suits or damages of any character whatsoever resulting in whole or in part from the performance or omission of any employee, agent or representative of CONTRACTOR. B. CONTRACTOR agrees to provide the defense for, and to indemnify and hold harmless CITY its agents, employees, or contractors from any and all claims, suits, causes of action, demands, damages, losses, attorney fees, expenses, and liability arising out of the use of these contracted funds and program administration and implementation except to the extent caused by the willful act or omission of CITY, its agents, employees, or contractors. XXVI. MISCELLANEOUS A. CONTRACTOR shall not transfer, pledge or otherwise assign this Agreement or any interest therein, or any claim arising thereunder, to any party or parties, bank, trust company or other financial institution without the prior written approval of CITY. B. If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the remaining provisions shall remain in full force and effect and continue to conform to the original intent of both parties hereto. Page 15 C. In no event shall any payment to CONTRACTOR hereunder, or any other act or failure of CITY to insist in any one or more instances upon the terms and conditions of this Agreement constitute or be construed in any way to be a waiver by CITY of any breach of covenant or default which may then or subsequently be committed by CONTRACTOR. Neither shall such payment, act, or omission in any manner impair or prejudice any right, power, privilege, or remedy available to CITY to enforce its fights hereunder, which rights, powers, privileges, or remedies are always specifically preserved. No representative or agent of CITY may waive the effect of this provision. D. This Agreement, together with referenced exhibits and attachments, constitutes the entire agreement between the parties hereto, and any prior agreement, assertion, statement, understanding or other commitment antecedent to this Agreement, whether written or oral, shall have no force or effect whatsoever; nor shall an agreement, assertion, statement, understanding, or other commitment occurring during the term of this Agreement, or subsequent thereto, have any legal force or effect whatsoever, unless properly executed in writing, and if appropriate, recorded as an amendment of this Agreement. E. In the event any disagreement or dispute should arise between the parties hereto pertaining to the interpretation or meaning of any part of this Agreement or its governing rules, codes, laws, ordinances or regulations, CITY as the party ultimately responsible to HUD for matters of compliance, will have the final authority to render or to secure an interpretation. F. For purposes of this Agreement, all official communications and notices among the parties shall be deemed made if sent postage paid to the parties and address set forth below: TO CITY: TO CONTRACTOR: City Manager City of Denton 215 E. McKinney St. Denton, Texas 76201 Director Denton City County Day School 1603 Paisley Street Denton, Texas 76209 G. This Agreement shall be interpreted in accordance with the laws of the State of Texas and venue of any litigation concerning this Agreement shall be in a court competent jurisdiction sitting in Denton County, Texas. ,! WI SS OF WHICH this Agreement has been executed on this the ~ ~p~ day of ~., 2001. CITY ~y MICHAEL CITY MANAGER Page 16 ATTEST: JENNIFER WALTERS, CITY SECRETARY APP ~JovED Al TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY ATTEST: DENTON CITY COUNTY DAY SCHOOL, INC. BY: BOARD SECRETARY Page 17 ATTACHMENT "A" DESCRIPTION OF IMPROVEMENTS 1. Replace existing carpet in classrooms with commercial grade vinyl flooring. 2. Renovate five bathrooms, kitchen and entry hall flooring with new vinyl flooring. 3. Install adequate insulation. 4. Installation of a central air conditioning unit. Total Project Budget $30,000 WORK STATEMENT Denton City County Day School, Inc. Services Denton City County Day School is a nonprofit childcare facility for low-income families. DCCDS serves approximately 66 children daily raging in age from 2 years to 5 ½ years. Parents must be working, going to school full time or doing a combination of both be eligible. DCCDS is open Monday through Friday from 6:30 a.m. to 5:30 p.m. The staff consists of 8 teachers, a cook, an assistant director and a director. The children are served breakfast, lunch and two snacks. DDCDS provides a safe and healthy environment for childcare, but a learning program for ail age groups. The curriculum places emphasis on cognitive, affective and psychomotor teaming skills, good health habits and physical development. The nursery staff receives 20 hours continuing education hours each year in ch/Id development and early childhood education. The most important element is the emphasis placed on enhancing the self-concept of each individual child, as this is very significant for his/her future success. Page 18 ATTACHMENT "B" 24 CFR § 570.505 The standards described in this section apply to real property with/n the recipient's control which was acquired or improved in whole or in part using CDBG funds in excess of $25,000. These standards shall apply fi.om the date CDBG funds are first spent for the property until five years after ctoseout of an entitlement recipient's participation in the entitlement CDBG program or, with respect to other recipients, until five years after the closeout of the grant from which the assistance to the property was provided. (a) A recipient may not change the use or planned use of any such property (including the beneficiaries of such use) from that for which the acquisition or improvement was made unless the recipient provides affected citizens with reasonable notice of, and oppommity to comment on, any proposed change, and either: (1) The new use of such property qualifies as meeting one of the national objectives in Section 570.208 and is not a building for the general conduct of government; or (2) The requirements in paragraph (b) of this section are met. (b) If the recipient determines, after consultation with affected citizens, that it is appropriate to change the use of the property to a use which does not qualify under paragraph (a)(1) of this section, it may retain or dispose of the property for the changed use if the recipient's CDBG program is reimbursed in the amount of the current fair market value of the property, less any portion of the value attributable to expenditures of non- CDBG funds for acquisition of, and improvements to, the property. (c) If the change of use occurs after closeout, the provisions governing income from the disposition of the real property in Section 570.504(o) (4) or (5), as applicable, shall apply to the use of funds reimbursed. (d) Following the reimbursement of the CDBG program in accordance with paragraph (b) of this section, the property no longer will be subject to any CDBG requirements. Page 19 ATTACHMENT "C" 24 CFR § 570.503 (a) Before disbursing any CDBG funds to a subrecipient, the recipient shall sign a written agreement with the subrecipient. The agreement shall remain in effect during any period that the subrecipient has control over CDBG funds, including program income. (b) At a minimum, the written agreement with the subrecipient shall include provisions concerning the following items: (1) Statement of Work. The agreement shall include a description of the work to be performed, a schedule for completing the work, and a budget. These items shall be in sufficient detail to provide a sound basis for the recipient effectively to monitor performance under the agreement. (2) Records and Reports. The recipient shall specify in the agreement the particular records the subrecipient must maintain and the particular reports the subrecipient nmst submit in order to assist the recipient in meeting its recordkeeping and reporting requirements. (3) Program Income. The agreement shall include the program income requirements set forth in Section 570.504(c). (4) Uniform Administrative Requirements. The agreement shall require the subrecipient to comply with applicable uniform administrative requirements, as described in Section 570.502. (5) Other Pro_gram Requirements. The agreement shall require the subrecipient to carry out each activity in compliance with all Federal laws and regulations described in subpart K of these regulations, except that: (i) The subrecipient does not assume the recipient's environmental responsibilities described at Section 570. 604; and (ii) The subrecipient does not assume the recipient's responsibility for initiating the review process under the provisions of 24 CFR Part 52. (6) Conditions for Religious Organizations. Where applicable, the conditions prescribed by HUB for the use of CDBG funds by religious organizations shall be included in the agreement. (7) Suspension and Termination. The agreement shall specify that, in accordance with 24 CFR 85.43, suspension or termination may occur if the Page 20 subrecipient materially fails to comply with any term of the award, and that the award may be terminated for convenience in accordance with 24 CFR 85.44. (8) Reversion of Assets. The agreement shall specify that upon its expiration the subrecipient shall transfer to the recipient any CDBG funds on hand at the time of expiration and any accounts receivable attributable to the use of CDBG funds. It shall also include provisions to the use of CDBG funds. It shall also include provisions designed to ensure that any real property under the subrecipient's control that was acquired or improved in whole or in part with CDBG funds in excess of $25,000 is either: (i) Used to meet one of the national objectives in Section 570.208 until five years after expiration of the agreement, or for such longer period of time as determined to be appropriate by the recipient; or (ii) Disposed of in a manner that results in the recipient's being reimbursed in the amount of the current fair market value of the property less any portion of the value attributable to expenditures of non-CDBG funds for acquisition of, or improvement to, the property. (Reimbursement is not required after the period of time specified in paragraph (b) (8) (I) of this section.) Page 21 ATTACHMENT "D" 24 CFR § 570.504 (a) Recording Progam Income. The receipt and expenditure of program income as defined in Section 570.500(a) shall be recorded as part of the financial transactions of the grant program. (b) Di_sposifion of Program Income Received by Recipients. (1) Program income received before grant closeout may be retained by the recipient if the income is treated as additional CDBG funds subject to all applicable requirements governing the use of CDBG funds. (2) If the recipient chooses to retain program income, that income shall affect withdrawals of grant funds from the U.S. Treasury as follows: (i) Program income in the form of repayments to, or interest earned on, a revolving fund as defined in Section 570.500(b) shall be substantially disbursed from the fired before additional cash withdrawals are made from the U.S. Treasury for the same activity. (This rule does not prevent a lmnp sum disbursement to finance the rehabilitation of privately owned properties as provided for in Section 570.513.) (ii) Substantially ali other program income shall be disbursed for eligible activities before additional cash withdrawals are made from the U.S. Treasury. (3) Program income on hand at the time of closeout shall continue to be subject to the eligibility requirements in Subpart C and all other applicable provisions of this part until it is expended. (4) Unless otherwise provided in any grant closeout agreement, and subject to the requirements of paragraph (b) (5) of this section, income received after closeout shall not be governed by the provisions of this part, except that, if at the time of closeout the recipient has another ongoing CDBG grant received directly from HUD, funds received after ctoseout shall be treated as program income of the ongoing grant program. (5) If the recipient does not have another ongoing grant received directly from HUD at the time of closeout, income received after ctoseout from the disposition of real property or from loans outstanding at the time ofcloseout shall not be governed by the provisions of this part, except that such income shall be used for activities that meet one of the national objectives in Section 570.208 and the eligibility requirements described in Section 105 of the Act. Page 22 FIRS'/' AMEt'qD MENT TO AGREEMENT BETWEEN TI-~E (?D~Y OP DENTON AND DENTON CITY COUNTY DAY SCHOOL, INCORPORATED This First Amerldmcnt to tha: certain Agreement between the City of Denton (hereinafter referred to as "Denton") and ~he Denton City County Day School, Incorporated (hereinafter referred to .as (..,ohm;toter), this Agr,=cment hereinafter referred to as "Base Agreement", which ia attached ihemtc, ~ Exhibit l, W'HEREAS, by Ordinar ~.e No, 2001-410, Denton authorized its City Manager to execute an Agreement with the Contta¢:or t~ provide physieat improvements to the day care facility located at 1603 Paisley Street, Denton, Texas 76209 described in the Description of Improvements and Work Statement, Attachment A, attached to the Base Agreement; and V?£qEREAS, the City Co,~m¢il has approved additional fimding for playground improvements a'I the facility in ,.ccorclance with their approval of the 2002 Community Development Action Plm~, and -adequate 5mding has been obtained from the U.S. Department of Housing an d Urban Devetopme:.at:; NOW, I't:[EREFORE, tire parties hereto agree, and by the execution hereof are bound to the mutual obl*ig~tt[ons and to the perform,'mee and accomplishment of the eanditions hereinafter described. That Section t. "Term" of the Base Agreement is amended to read as follows: This a~reement shall c~mmence on or as of November 6, 2001, and shall terminate on October I, 20~7, unless otherwise a'3jasted by City. Request for such an adjustment must be in writing and, is tc~ be submitted ~o the City's Community Development Division, 100 W Oak, Suite 208, Denton, Texas, 7620 [. Th.a't S{.~ct..on 2." .... " ' ' Respc.ns~bfl~tms' of the Base Agreement, subsection A is amended to read as follows: Contractor hereby accepts the responsibility for the completion of ail improvement~ de,critter in the amended Description of hnprovements and Work Statement attachetl hereto as Attachment ~'A" and incorporated herein as if set forth at length, ia accordance with the amended Total Project Budget amount, in as sati~factow an¢l effi¢:ent manner as determined by City in accordance with the terms herein. That the B ese Agreemen: is hereby amended by substituting amended Attachment "A", wkich is att~ched l'mre!o and ince'.q:mraled herein ]~br all purposes for the original Attachment of the Base Agn;cment. That save and except as; amended hereby, the remah~g sections, subsections, sentences and clauses ()fth¢ Base AgreemenI datc~ November 6, 2001 stroll remain in hit fome md effect. ~' WITNf~SS ofwhich this First ~endment has I,een executed on this the /¢~ ~ay of _. [~>:~t~_.. by officials of the Ci, ~d the __, 2002, the duly authafized Conh-actor. CITY OF DENTON /' ATTEST: JENNIFER WA. LTERS, CITY S]gCR'£TARY APPROVED AS TO LEGAL FOI~ M: FIERB~RT L. P.ROUTY, CITY A.~TI'ORNEY Page 2 ATTEST: DEN'I ON CITY COUNTY DAY SCHOOL, 1-NC, BY: ,,, BOARD SECz-"~TARY Page 3 ATTACHIYfENT DE g CR.[PTION OF IMPROVEMENTS 1. lt.ep}.aee existing carpet in ,::l,×ssrc. oms with commercial gq'~d: vinyl flooring. 2. Renova::¢ live batttrooms kitchen and ent~- hall flooring witk new vinyl flooring. 3. Install adequate insulatio~t. 4. I~mtt,.tl~ttior[ of t~ cmatral ail' conditioning unit. 5. Instatlatkm ora coated chain link fence around the existing playground. :['omi Project $47,000 WORK STATEMIiNT Den.tort ,City County Day School, Inc. .Services. Denton City Comity Day School i:s a :nonprofit childcare facility for low-income families. DCCD$ serves approximal:ely 66 children daily ranging in age from 2 years to 5 ¼ years. Parents must be working, going to school full ~im~,' or doing a combination of both be eligible, DCCDS is open Monday through Friday from 6:30 a.m. to 5:30 p.m. The ~taff¢onsists of' 8 teaoher$, a cook, an assistant dir,~tcr ~md a director. 'r}~e ~:kilaren are served breakfast, lunch and two snacks. DDCDS providea a safe and healthy .~=n,,ironment for chitdieam, but a learning program for all age groups. Th,: curriculum places ernl~asis on cognitive, affective and psychomotor learning skills, good hea. t~ habits and physical development. The nursery staff receives 20 hours continuing education hotma each year in child development and early chEdhood education. The most irr:podm-,t element is the emphasis placed on etth,~ncing the self-concept of each individual child, as t~s. i~ vel3, si,.s~fleant for hi~rher future ~uccess. Page 4 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM: September 16, 2003 Economic Development Michael A. Conduff, 349-8306 SUBJECT Consider adoption of an ordinance of the City Council of the City of Demon, Texas, approving the guidelines for the Rental Rehabilitation Program and eligibility criteria; authorizing expenditures in excess of $25,000 for projects meeting the program guidelines and criteria; and providing for an effective date. BACKGROUND This ordinance approves guidelines and eligibility criteria for the 2003 Remal Rehabilitation Program. Passage of this ordinance reauthorizes project paymems that exceed $25,000 when the project meets the program's eligibility criteria and guidelines. City Council approved CDBG funding in the 2000 and 2001 program years for a Remal Rehabilitation Program. This activity is included in the City of Demon 2000 - 2005 Consolidated Plan and the 2003 Action Plan. This activity has a currem balance of $56,896.08. The number of units to be assisted with the available funding is between a minimum of 5 and maximum of 10 single-family remal units located in targeted neighborhoods. Owners provide matching funding. With the exception of a minor adjustmem being made to the annually-adjusted Fair Market Rems (Appendix I), no significam changes to the guidelines were made. OPTIONS · Approve guidelines as presemed · Request revisions to program guidelines · Deny approval of program and reallocate funding to other eligible activities (this would require amendmem to City's Action Plan for Housing and Community Developmem) RECOMMENDATION Staff recommends adoption of this ordinance. ESTIMATED PROJECT SCHEDULE The program guidelines will be in effect for remer-occupied rehabilitation projects completed from October 1, 2003, through September 30, 2004. Staff will market funding availability through media advertisemem. The Community Developmem Division goal is to have all funds expended by 10/1/2004. PRIOR ACTION/REVIEW On May 16, 2000, City Council adopted the 2000-2005 Consolidated Plan for Housing and Community DevelopmeN. The renal rehabilitation activity was included in this plan. On May 15, 2001, City Council approved the 2001 Action Plan that approved funding for this activity. FISCAL INFORMATION The program is funded using 2000 and 2001 Community DevelopmeN Block GraN fund balances totaling $20,945.75. These funds, combined with program income/payoffs of $35,950.33, provide a total of $56,896.08 for the ReNal Rehabilitation Program. No general fund dollars are budgeted to administer this program. ATTACHMENTS 1. Proposed Ordinance 2. ReNal Rehabilitation 2003 Program Guidelines Prepared By: Respectfully submitted: Linda B. Ratliff Director, Economic Development Department Nancy L. Baker Housing Program Manager S:\Our Documents\Ordinances\03\2003 Rental Rehab Prog ord. DOC ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS, APPROVING THE GUIDELINES FOR THE RENTAL REHABILITATION PROGRAM AND ELIGIBILITY CRITERIA; AUTHORIZING EXPENDITURES IN EXCESS OF $25,000 FOR PROJECTS MEETING PROGRAM GUIDELINES AND CRITERIA; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Denton recognizes the need to assist low and moderate income families in securing safe, sanitary and decent housing; and WHEREAS, the City of Denton has developed a program to rehabilitate tenant occupied housing units by making needed repairs through its Rental Rehabilitation Program, which is administered by the City of Denton Community Development Division and funded through a federal grant; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the City Council approves the Rental Rehabilitation Program Guidelines and eligibility criteria attached to and made a part of this ordinance for all purposes, and authorizes the City of Denton Community Development Division to administer this program. SECTION 2. That the City Council authorizes the expenditure of funds in excess of $25,000 by the Community Development Division for projects meeting program guidelines and criteria, subject to compliance with competitive bidding laws, where applicable. SECTION 3. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the __ day of ., 2003. ATTEST: JENNIFER WALTERS, CITY SECRETARY EULINE BROCK, MAYOR BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: CITY OF DENTON RENTAL REHAB'rL'rTAT'J:ON PRO~RAM GUIDELINE5 2003 RENTAL REHABILITATION PROGRAM GUIDELINES TABLE OF CONTENTS ii. iii iV. V. Vi. Vii. Viii. ELIGIBILITY REQUIREMENTS: .................................................................................... 4 APPLICATION PROCESSING: ..................................................................................... 5 PROJECT SELECTION ................................................................................................. 5 CONTRACTOR SELECTION, MONITORING AND DEBARMENT: ........................... 6 PAYMENT TO CONTRACTOR: .................................................................................... 7 FINANCIAL ASSISTANCE OPTIONS: ......................................................................... 7 PROGRAM GUIDELINES: ............................................................................................. 8 MINIMUM REHABILITATION STANDARDS: .............................................................. 12 APPENDIX I - FAIR MARKET RENTS (FMRS) ................................................................................................ 17 APPENDIX II - RENTAL REHABILITATION PROCEDURES ................................................................ 18 APPENDIX III - APPLICATION FOR THE CITY OF DENTON ................................................................... 20 APPENDIX IV - TENANT ASSISTANCE POLICY ........................................................................................... 25 APPENDIX V - TENANT PRE NOTIFICATION SAMPLE LETTER ........................................................... 28 APPENDIX VI - RENTAL REHABILITATION TARGET AREA MAP ..................................................................... 29 APPENDIX VII- TENANT BENEFICIARY TRACKING FORM ................................................................. 30 2 INTRODUCTION The City of Denton Rental Housing Rehabilitation Program is designed to assist Iow and moderate- income families in securing safe, sanitary and decent housing. This program's objective is to rehabilitate renter occupied housing units by making needed repairs with the first priority as correcting code violations. The Rental Rehabilitation Program is administered by the City of Denton's Community Development Division and funded through a federal grant. The Community Development Division is located at 101 S Locust St., Suite 500, Denton, TX 76201 (In the Wells Fargo Bank Building) The following pages contain a detailed description of the program including policies and procedures. The purpose of these guidelines is to explain to potential clients and the citizens of Denton, the Rental Housing Rehabilitation Program and types of assistance available. For further information or clarification of the guidelines, contact the Community Development Division at 940-349-7726 3 DESCRIPTION OF PROGRAM PROCEDURES I. ELIGIBILITY REQUIREMENTS: ApplicantJ(Owner) Requirements: Eligible property owner(s) [hereinafter referred to as Applicant] must: 1 .) Be a citizen of the United States or a legal resident alien. 2.) Maintain primary residence within the city limits of Denton. 3.) Own unit(s) to be assisted within a targeted neighborhood (see Appendix VII). 4.) Hold fee simple title to the property. 5.) Have an annual gross household income at or below 150 percent of the current Dallas metropolitan area median income. (See Table I.A below). 6.) Not have assets in excess of $600,000 (rental properties, personal property, cash on hand, stocks, bonds, etc.). 7.) Exhibit the financial ability to pay monthly property expenses including mortgage payments, taxes, insurance, utility bills, etc. 8.) Show proof of financial ability to fund the Applicant portion of the rehab project. 9.) Provide proof that all property taxes assessed by the various taxing agencies in Denton County are paid in full on all properties owned by Applicant. 10.) Obtain a statement of income on all tenants. Income data must be verified; i.e., by contacting the tenant's employer and/or obtaining a copy of the tenant's latest income tax return and/or obtaining copies of 1 month of paycheck stubs, etc. Annual income includes earnings (wages, pensions, etc.) spouse's earnings, interest from stocks, bonds, income from real estate, public assistance, etc. Also, include amounts of any monies regularly contributed to tenant(s) by any other adult member of the family, child support payments, SSI, etc. Tenant Requirements: The current and future tenants of a unit to be rehabilitated with funding from this program must be Iow or moderate income. Low/Moderate income is defined as 80 percent and below of the current Dallas metropolitan area median income. (See Table I.B below ) Table I.A- Applicant Income Limits 1 69,900 2 79,800 3 89,850 4 99,750 5 107,700 6 115,650 7 123,750 8 131,700 Table I.B- Tenant Income Limits 1 $37,250 2 $42,550 3 $47,900 4 $53,200 5 $57,450 6 $61,700 7 $65,950 8 $70,200 4 II. APPLICATION PROCESSING: Any property owners wishing to apply for Rental Rehabilitation assistance must complete the application and all other required forms included in the proposal packet. All information on the completed applications will be verified by the Community Development staff. If any information is found to have been intentionally falsified, the application will be rejected and the applicant will not be allowed to reapply. If the applicant is determined to be eligible for the program, a preliminary inspection will be made of the dwelling unit(s). The dwelling unit(s) must meet certain standards to be considered eligible for rehabilitation. These standards are listed below: The unit(s) must be located within the recognized Rental Rehabilitation Target Area (Appendix VII). The unit(s) must not be situated in the Designated Flood Plain Area. Applicant may not occupy any assisted unit regardless of his or her income with the exception of the circumstances set forth in Section VII-FF on page 15 of these Guidelines. The unit(s) must be in an existing condition that would permit rehabilitation to bring the structure to meet current City of Denton building codes. City-approved water supply, sanitary sewer and electrical system must service the unit(s). The unit(s) must be two bedroom or larger. Preference will go to three bedroom and four bedroom units. Owner must agree to have a Lead Paint Risk Assessment completed on all units to be assisted that were built before 1978 (a "hold harmless" agreement must be signed by owner before City staff can conduct the Lead Risk Assessment). III PROJECT SELECTION Project selection will be based upon an analysis of the following factors: Location of unit(s). Number of bedrooms. Owner's ability to obtain private financing. Number and extent of major health and safety violations to be corrected. Tenant displacement (preference given to no displacement) Economic feasibility Amount of subsidy required Owner's Equity in property Potential impact on neighborhood Track record of landlord in Iow income tenant placement Management and maintenance capabilities Quality of rehabilitation plan Accessibility or adaptability of unit(s) for handicapped tenants Commitment by landlord to and/or likelihood of Iow income tenant placement Assisted unit(s) must be available for rental, or currently rented to Iow income household(s). 5 IV. CONTRACTOR SELECTION, MONITORING AND DEBARMENT: Contractors participating in the Rental Rehabilitation Program will be selected by the eligible Applicant. The Applicant will be required to solicit at least two bids from contractors based on the preliminary work specifications completed by the CD inspector. The Applicant shall also be responsible for supplying all bidders with a Community Development Contractor's Packet that includes the contractor information sheet, performance manual, and general specifications for workmanship, all insurance and bonding requirements, a contractor's eligibility certification form and a copy of the preliminary work writeup. Bid proposals and all other required forms from the contractors should be submitted to Community Development Division for review. Acceptable bid proposals must fall within a ten percent (10%) margin of the cost estimate developed by the community development inspector. THE CITY OF DENTON AND/OR THE APPLICANT RESERVE THE RIGHT TO REJECT ANY AND ALL BIDS. Any contractor whose name appears on the most current HUD Debarred Contractor's List will not be eligible to participate in this program. Once the contractor has been selected and approved, a contract agreement must be signed. Before the contractor can start work, the Applicant must issue a notice to proceed. The Applicant, the Community Development staff and the City of Denton building code inspectors will monitor the contractor's work. If the Applicant considers any work done by the contractor to be unsatisfactory or incomplete, the property owner should advise the contractor of the discrepancy and ask that it be corrected. E. Acceptance of Work 1.) Final Inspection - In order for the contractor to close out a rehabilitation job, a final inspection shall be made by the City of Denton building code inspector, the Community Development Inspector, and the property owner. If the final inspection results in no additional work or no specified corrections, the property owner shall sign the contractor's release form which states that all work has been completed to their (property owne¢s) satisfaction. The building code inspector shall sign a final inspection form to confirm the same. At this time, the contractor is required to submit to the property owner copies of all warranties and releases of liens from subcontractors and suppliers. The Community Development staff will not authorize payment to the contractor until these documents are properly completed and submitted to the property owner and copies provided to the Community Development Division. 2.) Warranty of Work - As stated in the rehabilitation contract, the contractor shall guarantee the work performed for a period of at least one year from the date of final acceptance. The owner is responsible for periodic review of the work. F. Contractor Debarment 1.) A contractor will be declared ineligible to participate in projects funded by the City of Denton's Housing Rehabilitation Program for one or more of the following causes: 2.) Failure to complete a project within the prescribed contract period. 3.) Failure to complete warranty repairs within a reasonable time period. 4.) Failure to use licensed plumbing and electrical subcontractors. 5.) Failure to obtain proper insurance, i.e., both liability and worker's compensation. 6 6.) Failure to complete work in accordance with program specifications and/or accepted standards of workmanship. 7.) Failure to pay all subcontractors working on the project appropriately and/or submit affidavits of payment signed by all subcontractors. 8.) Failure to obtain proper permits for work in progress. Contractors will be notified of their proposed debarment and will be afforded the opportunity to comment or appeal the action. All appeals must be made in writing to the Community Development Division at least 15 days after the date of the notification letter. PAYMENT TO CONTRACTOR: The contractor shall receive payment for all completed contracts within 15 working days after final inspection and approval of all work. Ten percent (10%) of the total contract amount will be withheld for 30 days. At the end of this time, the property owner must approve release of contingency funds. An "All Bills Paid" affidavit or release of lien from all subcontractors and suppliers must be submitted before payment. Rental rehabilitation partial payment minimum are as follows: projects over 50,000 at least 10 percent per draw, projects under 50,000 25 percent per draw and final payment. VI. FINANCIAL ASSISTANCE OPTIONS: Applicant is provided with two assistance options: Option 1: The City of Denton will provide 25 percent (or up to the maximum limit - whichever is lower) of the amount needed to rehabilitate the property. Funds will be provided as a 10-year deferred loan. At the end of the 10-year period, if all program guidelines have been met, the loan will be forgiven. Option 1 Maximum Limits: $6,000 for three or more bedroom units. $5,000 for two bedroom units. (One-bedroom units are not eligible for assistance.) Option 2: The City of Denton will provide 50 percent (or up to the maximum limit - whichever is lower) of the amount needed to rehabilitate the property. The first 25 percent will be a deferred loan (as described in option 1 above). An additional amount of 25 percent (or up to the maximum limit- whichever is lower) will be a loan with a 2 percent interest rate. There will be a 10-year loan term. Option 2 Maximum Limits: $6,000 as a loan and $6,000 as a deferred loan for three or more bedroom units. $5,000 as a loan and $5,000 as a deferred loan for two bedroom units. (One-bedroom units are not eligible for assistance.) Applicants are required to sign a contract. A lien will be placed on the property for the 10-year period. Applicants are required to maintain the property and affirmatively market the property to Iow and moderate-income households. * All project funding contributed by the Applicant will be placed in an escrow account with the City of Denton prior to contract execution. '7 The owner must also comply with the terms of the note and mortgage that include the following: No conversion to condominiums or any type of cooperative ownership for the 1 O-year duration of the lien. No discrimination against tenants receiving Federal, State or local rental assistance for the 1 O-year duration of the lien. The project must be maintained according to adopted City of Denton building codes in effect during the year in which the rehabilitation took place. The owner must affirmatively market vacant units for the ten-year duration of the lien using the "fair housing logo" below. EQUAL HOUSING OPPORTUNITY The unit will be made available and leased to persons whose income is at or less than 80% of the area median income. If the Applicant violate any of these restrictions, the entire amount of the loan less 10% for each full year after completion of the rehabilitation of the units until the time of default, will be due and payable in full immediately after the owner is notified that the loan must be repaid. VII. PROGRAM GUIDELINES: Property owner agrees to comply with all HUD requirements to not discriminate upon the basis of race, ethnicity, religion, gender, disability status or family status in the sale, lease, rental, or use of occupancy of the subject property. Property owner agrees to not award any contract for rehabilitation work to be paid for in whole or in part with the proceeds of the grant, to any contractor who, at the time, is ineligible under the provisions of any applicable regulations issued by the Secretary of Labor, United States Department of Labor, or the Department of Housing and Urban Development to receive an award of such contract. The tenant will continue to occupy the premises during the rehabilitation. Any tenant required to move temporarily or permanently as a result of the rehabilitation*, must be paid relocation/displacement costs as outlined in the City's Tenant Assistance Policy (Appendix IV to these Guidelines). *Any displacement of tenant(s) living in unit(s) at the time applicant decided to apply for funding who move because of their inability to pay increased rents, are considered displaced. Displacement costs are the responsibility of the property owner. Property owner agrees that existing house utility services will be made available to the contractor without charge as follows: electricity, gas, water and telephone (local calls only). Property owner agrees that the City shall be the agent for the owner and as such agent shall hold both the owner's private funds and all grant funds in escrow for the purpose of disbursement thereof to the contractor. 8 Property owner agrees that it is his/her sole responsibility to see that the contractor completes the work specified in his contract to the owner's satisfaction and that the City of Denton has no responsibility for any defects, faulty work or incomplete work by the contractor. The owner further agrees that the City has no liability for warranty of any of the workmanship or materials furnished by the contractor under the contract. The owner further agrees that latent or hidden conditions in the property which were not included in the original inspection and work write-up of the City are not the responsibility of the contractor nor of the City, but remain the responsibility of the owner. As part of the consideration for providing the funds to rehabilitate property as described herein, the property owner agrees to maintain and keep the property in good repair after the completion of the work to be performed by contractor, taking into consideration the ability of the owner to do so. The property owner also agrees to maintain the property up to City of Denton Building Code standards that were in effect when the rehabilitation was completed. Owner agrees to do this during the term of the loan agreement and understands that if at anytime the property fails to meet these Code standards, the loan amount will become due immediately. The owner shall issue a written Notice to Proceed within thirty (30) days from the date of acceptance of the contractor's bid and proposal. If the contractor does not receive the Notice to Proceed within this 30-day period, the contractor has the option of withdrawing his/her bid and proposal. If the contractor chooses to do this, a written notice must be delivered to the owner with a copy to the City. The contractor shall not begin the work to be performed until receipt of written Notice to Proceed from the owner after which the contractor shall begin the work within ten (10) calendar days of the date of said Notice and shall complete said work within ninety (90) days or as agreed to in the Rehabilitation contract. The contractor shall not assign the contract without written consent of the owner and the City and/or its agent. The contractor shall not be responsible for any delays in the completion of work due to the following: Any acts of the government; including controls or restrictions upon or requisitioning of materials, equipment, tools or labor by reason of war, National Defense or any other national emergency. 2.) Any acts of the owner. 3.) Causes not reasonably foreseeable by the parties to this contract at the time of the execution of the contract which are beyond the control and without the fault or negligence of the contractor; including but not limited to acts of God or of the public enemy; acts of another contractor in the performance of some other contract with the owner, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes and weather of unusual severity such as hurricanes, tornadoes, etc. 4.) Any delay of the subcontractor occasioned by any of the causes specified in Subparagraphs (A) (B) and (C) above, provided that the contractor promptly (within 10 days) notifies the Owner in writing of the cause of the delay. If the facts show the delay to be properly excusable, the owner shall extend the contract time by a period commensurate with the period of excusable delay. The contractor shall not be held responsible for preexisting violations of law including but not restricted to zoning or building code regulations at the property listed in the contract. Before beginning work, the contractor shall examine the work write-up for compliance with the applicable ordinance and codes for the new or replaced work and shall immediately report any discrepancy to the owner. Where the requirements of the work write-up fail to comply with such applicable ordinances or codes for the new or replaced work, the owner and the City will adjust the contract by change order to conform to such ordinances or code and make appropriate adjustment in the contract price unless waivers in writing covering the difference have been granted by the proper authority. The contractor shall comply with all non-discrimination clauses included in the contract; non-compliance may result in termination of the contract. Bids or proposals will be submitted at the bidder's risk and the City and/or the owner reserve the right to decline funding for projects not in compliance with the guidelines. Subcontractors shall be bound by the terms and conditions of the contract, insofar as it applies to their work. This shall not relieve the general contractor from the full responsibility to the owner for the completion of all work to be executed under this agreement and he shall not be released from this responsibility by any subcontractual agreement he may make with others. When adjacent property is affected or endangered by any work done under this contract, it shall be the responsibility of the contractor to take whatever steps are necessary for the protection of the adjacent property and to notify the owner thereof of such hazards. Repairs shall be made to all surfaces damaged by the contractor resulting from his/her work under this contract at no additional cost to the owner. Where "repair of existing work" is called for by the contract, the feature shall be placed in "equal to new condition" either by patching or replacement. All damaged, loose or rotted parts shall be removed and replaced and the finished work shall match adjacent work in design and dimension. After the final inspection and acceptance by the owner of all work under the contract including cleanup, the contractor shall submit to the owner for approval a requisition for payment. When the required warranties and other required documents have been submitted and the contractor has executed the release of liens, the final payment will be made. The payment will include any amounts remaining due under the contract as adjusted in accordance with approved change orders. Payments will be made within 15 days of formal requisition for payment. Partial payments will be made at discretion of the owner with the consent of the City. A Rehabilitation Loan may be made to cover the cost necessary to bring the dwelling into conformance with City of Denton Codes. The two categories of repairs listed below are to be included as priority items: Required Repairs: Code violations which create hazardous conditions in regard to safety or health will generally involve the basic heating, plumbing or electrical systems. 2.) Recommended Repairs: Code corrections or preventive maintenance efforts which should be undertaken to avoid more costly future action. 3.) Heating, plumbing and electrical improvements 4.) Weatherization 5.) Exterior work such as roofing, siding, painting, step and porch repair and retaining walls 6.) Interior work such as renovation and repair of existing kitchen and bath facilities. The Denton Central Appraisal District automatically reappraises any house where a building permit is issued. Participants in the Rehabilitation Program should be aware that the appraised value of their property might increase which consequently may cause their yearly property taxes to increase. The policy shall be thoroughly explained to any person applying for rehabilitation assistance. Change orders may be made to cover an item of work that cannot be determined until sometime during the course of the rehabilitation work. Change orders will be considered as follows: 11) U 1.) Change orders are used to add work necessary to correct incipient items that have been found to be defective after work is in progress but were not anticipated at the time the contract was executed. 2.) The change order amount is limited to a maximum of 10 percent (10%) of the total contract amount. If it is necessary to request a change order to make required repairs and the contract is already at the maximum amount, a work item of less priority will be deleted from the bid proposal in order to compensate for the added amount. 3.) Change orders will be used when it is necessary to delete work from a contract for any reason. When items are deleted from the contract, they shall be at their previously bid amount. When items are deleted, but do not have specific costs, in such cases the contract shall be reduced by negotiating the cost at prevailing rates. 4.) All change orders shall be executed by the property owner, contractor, and a Community Development official. 5.) Except for the purpose of affording protection against any emergency endangering life or property, the Contractor shall make no change in the work or rehabilitation, provide any extra or additional work or supply additional labor, services or materials beyond that actually required for the execution of the contract. 6.) All change order requests must be submitted by the contractor, signed by the homeowner and approved by Community Development Division. No claim for an adjustment of the contract price by the contractor or homeowner will be valid unless this is done. 7.) The approval of a change order shall constitute authorization by the property owner and Community Development to change the loan amount equal to the cost of the work added or deleted, unless all available funds have been utilized. If this is the case, the owner must absorb the total cost or delete non-code items in order to pay for the work described in the change order. 8.) It may be necessary to change the time of completion due to the addition of certain work items or delays that are beyond the contractor's control. If the work completed is not in accordance with the construction contract, Community Development shall advise the property owner of the non-compliance who then shall obtain appropriate action from the contractor. No payment shall be processed on a construction contract until a contractor has satisfactorily completed all necessary corrective action. The owner shall be able to select the color and style of certain materials (i.e. carpet, floor covering, paneling, paint, etc.). The contractor warrants that all materials, fixtures, and equipment furnished by the contractor and its subcontractors shall be new, of good title and that the work will be done in a neat and workmanlike manner. Neither the final payment nor any provision in the contract nor partial or entire use or occupancy of the premises by the owner shall constitute an acceptance of work not done in accordance with the Contract or relieve the Contractor of liability in respect to any express warranties or responsibility for faulty materials or workmanship. The contractor shall promptly remedy any defect in the work and pay for any damage to other work resulting therefrom that may appear within a period of one year from the date of final acceptance of the work unless a longer period is specified. The owner will give notice of observed defects with reasonable promptness. Mobile homes are not eligible for rehabilitation. Interest of certain federal and other officials: BB. CC. DD. EE. FF. No member or Delegate to the Congress of the United States and no Resident Commissioner and no federal employee shall be admitted to any share or part of this contract or to any benefit to arise from same. 2.) No member of the governing body of the City and no other public official of or within the City or County who exercises any functions or responsibilities in connection with the administration of the Community Development Block Grant Program and no other employee of the Economic Development Department who exercises any such functions or responsibilities shall have any interest, direct or indirect, in rehabilitation proceeds which is incompatible or in conflict with the discharge or fulfillment of his functions and responsibilities in connection with the carrying out of the Housing Rehabilitation Program. The length of time this exclusion shall be in effect is one (1) year following the ending of term of office and shall be binding upon, but not limited to, all of the individuals and agencies herein described. The property owner agrees that for a period of ten years after the project is completed not to convert the rehabilitated units to condominium ownership. If the owner does convert rehabilitated units to condominium ownership, the entire loan amount shall be due immediately. The property owner agrees not to discriminate against prospective tenants on the basis of their receipt of or eligibility for, housing assistance under any Federal, State or local housing assistance program; on the basis that the tenants have a minor child who will be residing with them; or on the basis that they are handicapped. Applicant agrees to rent all assisted units to households whose total gross annual income is at or below 80 percent of the area median income found in Table I.B, page 7 of these guidelines (see "note" below). Applicant agrees to track tenant income and beneficiary data (See Appendix VII - Tenant Income and Beneficiary Tracking Form). This form is to be made available to the Community Development Division when requested. The Form is to be completed at the time assisted units are leased. (NOTE: Income Limits may change annually- usually on October l~t. It is the Applicant's responsibility to request a copy of the most current income limits from the Community Development Division.) The property owner agrees to maintain the rehabilitated property up to adopted City of Denton Building Code Standards in effect the year in which the rehabilitation was completed. This will be applicable for a period of at least ten years after the project is completed. The property owner agrees to comply with applicable lead-based paint regulations. The property owner agrees to comply with the City of Denton's Tenant Assistance Policy, including execution of all tenant notifications outlined in the policy. Copies of all tenant correspondence regarding this project must be submitted to the Community Development Division. When the property to be rehabilitated is a tri- or four-plex, and the owner/applicant meets the income limits for tenants (see Table I.B on page 7 of these guidelines), the owner/applicant is eligible to occupy one of the assisted units. VIII. MINIMUM REHABILITATION STANDARDS: Roofs Roofs should not leak and have no evidence of rotted decking, fascia or soffit. Any roof with two or more layers of roofing must be stripped to the decking. If it is determined a new roof is necessary the decking must be checked for broken or rotted decking and shall be repaired or replaced as needed. Where new decking is required the material shall be one-half inch plywood or one-half inch wafer board to be used with H clips between sheets. All roofs that are stripped shall be replaced with new felt paper, the proper flashing and metal drip edge with 240 pound shingles. Any roof with less than a 4/12 pitch shall be 12 covered with rolled roofing, with at least 12 inches of lap, if installation of rolled roofing is not sufficient to promote proper run off roof will be rebuilt. Siding and Trim All exterior siding and trim shall be free of holes, cracks or rotted material that might admit moisture into walls. New siding may be applied only if the cost of new siding and installation is comparable to the repair and painting costs of the existing siding. Windows All windows and hardware shall operate satisfactorily. Cracked or broken windows shall be replaced. Window glazing shall be weather tight and windows shall be weather stripped so as not to allow entry of air and water around the glass, sashes or window casings. All windows shall have screens and working locks. Drainage The grade of concrete or dirt should drain at least five feet away from foundation walls. Site Improvements All replaced concrete surfaces are to be level with the widths to match the existing surfaces. All steps that pose a threat to the occupants shall be repaired or, if necessary, replaced. Foundations and Piers Skirting shall be six (6) inches underground level. If it is necessary to install skirting, new 22 or 24 gauge skirting shall be used. Kitchens Kitchens shall have a specific area that contains a sink with hot and cold running water, counter workspace, and space for storage of cooking utensils. Stairs All stairs shall provide for the safety of ascent and descent. All treads and risers should show no evidence of breakage or have evidence of excessive wear. All stairs shall be equipped with handrails. Utility Areas Gas or oil fired water heaters or furnaces shall not be located in the bathrooms or bedrooms. In addition to all plumbing and electrical codes, water heaters and furnaces shall be enclosed with a sealed door and adequate upper and lower combustion air. All washer and dryer hookups must meet City Code. Structural System The wood, masonry or steel components shall be in serviceable condition for the expected useful life of the rehabilitated building. Structural members that are in seriously deteriorated condition shall be replaced. Sagging and unleveled floors shall be raised and stabilized as level as possible without causing interior damage. Termite inspection and treatment shall be done if evidence of active infestations exist. A certified pest control company will carry out the treatment and present documents of proof. Electrical System All replacement of existing wiring and equipment shall be done in conformance with the 2002 National Electric Code and the City of Denton Code. Any potential source of electrical hazard or ignition of combustible material shall be corrected. GFCI outlets shall be used in bathrooms, kitchen, garage, and exterior receptacles. Additional outlets shall be added to eliminate extension cords and, at the request of the City Inspector, to meet City Codes. PlumbinR The plumbing system shall operate free of fouling and clogging, and not have cross-connections which permit contamination of the water supply or back siphonage between fixtures. All sinks, lavatories, water closets, water heater, and other plumbing fixtures shall have accessible cutoff valves. All fixtures shall have P-traps, necessary vents and be properly connected to a public or private sewage disposal system. All sewer lines shall have accessible cleanouts. All water heaters shall be installed with double wall vent stack, a pop-off valve, and overflow to the exterior of the structure. Mechanical Equipment All gas fired heating units must be vented with double wall pipe and proper upper and lower combustion air. The unit shall not be installed in a living area such as bedrooms or under stairways. Rigid gas pipe must be used to supply heating units with a maximum of three (3) feet of flexible pipe from the stop to the appliance. All ductwork shall be properly sealed from the heat source to the register vent and from the return air supply to the heat source. A gas pipe pressure test is required. All leaks must be repaired. Insulation and Weatherization An "R-30" insulation value in the attic shall be required. Exterior Doors All exterior doors shall be solid core. All locks shall be capable of tightly securing the door and shall be readily operable from the inside without the use of keys. All exterior doors shall be weather stripped so that there is no significant entry of air or water into the structure. Porches and Decks All porches and decks shall be safe and capable of supporting anticipated loads. All porches and decks in deteriorated condition and which serve no useful purpose or which are not economically repairable shall be removed. Porches and decks 30 inches above grade shall have guardrails and flights of stairs with four or more risers. They shall have a handrail on at least one side. Gutters and Downspouts Gutters and downspouts should exist where they are deemed necessary to promote proper drainage. Gutters will not normally be installed if they do not already exist. Downspouts that cannot be connected to drain tiles shall have splash backs with proper site grading. Chimneys and Vents Furnace and water heater vents shall be double wall vent pipe. 14 Existing unlined masonry chimneys having open mortar joints or cracks shall be removed or made safe by installation of a UL approved flue liner. Vent-a-hood stacks shall be vented through the roof. Interiors All floors, walls, and ceilings shall be maintained in good, clean, and sanitary condition. All peeling paint, cracked or loose plaster, and other defective surface conditions shall be eliminated. All doors shall be operational. Carpet and vinyl that is badly worn, torn or too dirty to be cleaned shall be replaced. This shall be determined by the C.D. Inspector. Existing carpet shall be cleaned with a commercial steam cleaner, if necessary. Bathrooms An operational water closet, tub or shower, and lavatory should be in the bathroom. Hot water should flow to the lavatory and tub or shower. Cold water should be supplied to all fixtures. Either a window or an exhaust fan must be present to properly vent the bathroom. Cabinets Built-in kitchen cabinets shall be repaired up to 50 percent of the cost of new cabinets. Bathroom cabinets are not required. ALL WORK MUST COMPLY WITH HUD TITLE X REGULATIONS REGARDING LEAD - BASED PAINT. BY APPLYING FOR CDBG FUNDS, OWNER/APPLICANT UNDERSTANDS THE CITY MUST COMPLETE A LEAD RISK ASSESSMENT TO DETERMINE THE SCOPE OF WORK AND COST ESTIMATE ON PROPERTIES BUILT BEFORE 1978. FOR PROPERTIES BUILT BEFORE 1978, OWNER / APPLICANT MUST EXECUTE AN ACKNOWLEDGEMENT AND RELEASE OF LIABILITY FOR LEAD PAINT TESTING OF PROPERTY. 15 APPENDICES 16 APPENDIX I FMR's !l© (/3 X Page17 APPENDIX II - RENTAL REHABILITATION PROCEDURES The following list of procedures is designed to insure that property owners understand their responsibilities under the Rental Rehabilitation Program. Please call the Community Development Division at (940) 349-7726 if you have any questions regarding these procedures. 1.) 2.) 3.) 4.) 6.) 7.) Return completed application. Include a copy of property deed, tax receipts from all taxing entities, proof of insurance coverage on the property and documentation of all owner(s) income and assets*. A set of work specifications must be drawn up by the owner and approved by the Community Development Division. The owner of the proposed property will bear the responsibility of contacting at least two general contractors, who will submit bid proposals. These proposals must remain within a margin of ten percent of the estimate determined by the Community Development Division. Upon project approval, a title search must be submitted. Certification that all tenants have received timely written notice that they will not be displaced by the project must be submitted within two weeks of application submission. A copy of the City of Denton's Tenant Assistance Policy must accompany the notice to the tenant. Requests for all interim and final payments should include an itemized list of completed work and its cost and two "Requests for Payment" signed by both the property owner and the contractor. IT IS THE CONTRACTOR'S RESPONSIBILITY TO FILE ALL NECESSARY PAPERWORK WITH COMMUNITY DEVELOPMENT DIVISION A final inspection must be completed by Community Development Division. Final payment is contingent on receipt of the following by Community Development: a) b) c) signed affidavits from all subcontractors stating that they have received full payment affidavit from general contractor and signature on lien assignment two executed requests for payment *Documentation of income sources may include but is not limited to the following: · Current year's income tax Return with W-2's for each household member who has filed tax returns. APPENDIX II PAGE 18 Most current Social Security income statement if applicable. Paycheck stubs for last four weeks for each employed household member. Names and addresses of all retirement income or any other income sources (ALL INCOME SOURCES AND ASSETS MUST BE DISCLOSED--RETIREMENT, RENTAL/HAP INCOME, AFDC, FOOD STAMPS, PROPERTIES OWNED, ETC.) Divorce decree if you receive child/other support from a divorce o_r if you were awarded property through a divorce. Name, address, account number(s) of all banks, credit unions, savings banks, IRA accounts, etc. for all household members who have any such accounts. PAGE 19 APPENDIX II APPENDIX III - APPLICATION FOR THE CITY OF DENTON RENTAL HOUSING REHABILITATION PROGRAM CONTACT AGENCY: OWNER PROPOSAL FORM COMMUNITY DEVELOPMENT DIVISION 10l SW. LOCUST ST., SUITE 500 DENTON, TX 76201 TELEPHONE NO. (940) 349-7726 INSTRUCTIONS: PLEASE COMPLETE ALL SECTIONS OF THIS OWNER PROPOSAL FORM. IF YOU NEED ASSISTANCE 1N COMPLETING THE FORM, CONTACT THE AGENCY LISTED ABOVE. SECTION I: OWNERSHIP DATA A. COMPLETE THE INFORMATION BELOW FOR ALL OWNERS OF THE PROPOSED PROPERTY. NAME STREET CITY STATE (AC) ADDRESS ZIP Phone # B. TYPE OF OWNERSHIP (check one): [] (a) Sole Owner [] (b) Parmership [] (c) Corporation [] (d) Limited Partnership [] (e) Other: C. PROPERTY ADDRESS: No. Street Unit No(s). City D. BUILDING DESCRIPTION [] Single Family [] Duplex [] Tri-Plex []Four-Plex PAGE 20 APPENDIX III E. BUILDING STRUCTURE [] Frame [] Brick [] Masonry [] Other: F. FOR EACH UNIT IN THE PROJECT PLEASE PROVIDE THE INFORMATION REQUESTED IN THE FOLLOWING TABLES. The following information must be provided on all existing tenants. Applications will not be processed until all tenant information is received. Tenant's Name Current Apt. No. of Over Minor- Ethnic *FEM Handi- Sect. Income Rent No. Occupants65 ity Code Code HHH Capped 8 NOTE: for the table above, use the following codes: **MINORITY CODES: 1 = White 2 = Black / African American 3 = Black / African American & White 4 = Asian 9 = Native Hawaiian / Other Pacific Islander 5 = Asian & White 10 = Other Multi Racial **ETHNICITY CODES: 11 = Hispanic 12 = Non-Hispanic * Please note a female head-of-household is a single female with dependent children. Section 8 recipient Codes: C - Certificate V - Voucher N - None 6 = American Indian / Alaska Native 7 = American Indian / Alaska Native & White 8 = American Indian / Alaska Native & Black / Mrican American (List) SECTION I1: PROPERTY DATA A. NOTE: PROVIDE INFORMATION FOR ALL UNITS UNIT NUMBER NUMBER OF BEDROOMS, EXISTING NUMBER OF BEDROOMS, AFTER REHABILITATION CURRENT RENT PROJECTED RENT AFTER REHABILITATION UNIT OCCUPIED (O) OR VACANT B. ORIGINAL MORTGAGE Orig. Amount Mortgagee PAGE 21 Balance APPENDIX III C. OTHER LIENS Amounts Lien Holder Total Due $ $ $ D. ORIGINAL PURCHASE PRICE E. DATE OF PURCHASE F. ESTIMATED MARKET VALUE OF PROPERTY (Attach recent appraisal) G. DOLLAR AMOUNT OF RECENT CAPITAL IMPROVEMENTS DESCRIBE IMPROVEMENTS BELOW: H. AMOUNT OF INSURANCE COVERAGE I. NAME OF INSURANCE COMPANY (Attach copy of policy) J. AMOUNT OF RENTAL REHABILITATION FUNDS REQUESTED FROM CITY FINANCING OF OTHER REHABILITATION COSTS NOT COVERED BY THE RENTAL REHABILITATION PROGRAM 1. AMOUNT OF ESTIMATED OWNER COSTS FOR REHABILITATION TO BE PAID FROM OWNER'S FUNDS (EQUITY): $ 2. AMOUNT TO BE BORROWED FROM PRIVATE LENDING INSTITUTION: NAME OF LENDING INSTITUTION: 3. ANTICIPATED INTEREST RATE AND LOAN PERIOD: % for years PAGE 22 APPENDIX III SECTION II1: PROPERTY OWNER INCOME DATA Note: Owner income eligibility is based on household income which includes the income of all working members of the household. If the property is owned by a partnership or corporation, all partners and/or principals must be income eligible. Please list all income amounts below and provide documentation of each income source. (To be completed by all households with ownership in the property.) Salary Overtime pay Fees/tips Commissions/bonuses Interest and/or dividends Net income from business Net rental income Social Security, pensions retirement Unemployment benefits, workers compensation, etc. Alimony, child support Welfare pymts, AFDC, food stamps, etc. Checking accounts Savings/CD accounts Stocks, bond, etc. Rental property income Value of private residence Life Insurance Other PAGE 23 APPENDIX III SECTION IV: CERTIFICATION THE OWNER/CO-OWNER CERTIFIES: (l) THAT HE/SHE HAS READ THE RENTAL REHABILITATION PROGRAM GUIDELINES AND UNDERSTANDS THE PROCEDURES AND REGULATIONS DESCRIBED THEREIN; (2) THAT HE/SHE AGREES TO ABIDE BY THOSE PROCEDURES, REGULATIONS, AND CONDITIONS; AND (3) THAT THE iNFORMATION CONTAINED iN THIS APPLICATION AND PROPOSAL IS TRUE, CORRECT, AND COMPLETE. THE APPLICANT AGREES NOT TO DISCRIMINATE UPON THE BASIS OF RACE, AGE, GENDER, DISABILITY, FAMILY STATUS, CREED OR NATIONAL ORIGIN IN THE SALE, LEASE, RENTAL, USE, OR OCCUPANCY OF THE REAL PROPERTY REHABILITATED WITH ASSISTANCE FROM THE RENTAL REHABILITATION PROGRAM. VERIFICATION OF ANY OF THE INFORMATION CONTAINED IN THIS APPLICATION MAY BE OBTAINED FROM ANY SOURCE NAMED HEREIN. THE APPLICANT CERTIFIES THAT HE/SHE HAS NOT REQUIRED ANY TENANT TO MOVE WITHOUT CAUSE, SUCH AS VIOLATION OF THE LEASE OR LOCAL LAW DURING THE 12 MONTHS PREVIOUS TO THE DATE OF THIS APPLICATION. Owner's Signature Social Security Number Date Co-Owner's Signature Social Security Number Date ITEMS TO INCLUDE WITH THIS APPLICATION: l. A COPY OF THE DEED. 2. PICTURE(S) OF THE BUILDING AND, IF AVAILABLE, PICTURES OF THE INSIDE OF THE UNIT(S). 3. PROOF THAT PROPERTY TAXES AND ALL UTILITIES ARE PAID IN FULL. INCLUDE A RECENT TAX STATEMENT SHOWING PROPERTY VALUE. 4. DOCUMENTATION OF OPERATING EXPENSES, TAXES AND INSURANCE. 5. SIGNED LETTER FROM ALL EXISTING TENANTS STATING THEY HAVE RECEIVED A COPY OF THE TENANT ASSISTANCE POLICY AND UNDERSTAND THEIR RIGHTS ACCORDING TO THE POLICY. A COPY OF THE POLICY AND A SAMPLE LETTER ARE ATTACHED. 6. INCOME DOCUMENTATION and COMPLETED AND SIGNED INCOME VERIFICATION FORMS. PAGE 24 APPENDIX III Community Development Division APPENDIX IV- TENANT ASSISTANCE POUCY Rental Rehabilitation Program Introduction The regulations for the Rental Rehabilitation Program (24 CFR 511.10(h) require grantees to adopt a written Tenant Assistance Policy. The purpose of the Tenant Assistance Policy is for the grantee to articulate how it will assist tenants currently living in or moving into projects rehabilitated under its Rental Rehabilitation Program. City of Denton residents have been made aware that the policy exists and that the policy is available to tenants in projects selected for rehabilitation. I. Definition of Displacement The term "displaced person" means any person that moves from real property, or moves personal property from real property, permanently and involuntary as direct result of rehabilitation, demolition or acquisition for a Rental Rehabilitation Program project. Permanent, involuntary moves for a Rental Rehabilitation Program project include: A permanent move from the real property following notice by the property owner to move permanently from the property, if the move occurs on or after the date that the owner submits a request for Rental Rehabilitation Program assistance that is later approved and funded. A permanent move from the real property that occurs before the submission of the request for assistance to the City, if either the City or HUD determines that the displacement resulted directly from rehabilitation, acquisition, or demolition for the project. C. A permanent move from the real property by a tenant-occupant of a dwelling unit that occurs after the execution of the agreement between the owner and the tenant if; The tenant has not been provided a reasonable opportunity to lease and occupy a suitable, decent, safe and sanitary dwelling in the same building/complex following the completion of the project at a rent, including average utility costs that does not exceed the greater of: The tenant's rent and estimated average utility costs before the execution of the agreement between the City and the owner or the total tenant payment as determined under 24 CFR 813.107, if the tenant is lower income, or 30% of gross household income if the tenant is not lower income, or; 2. The tenant has been required to relocate temporarily but: The tenant is not offered payment for all reasonable out-of-pocket expenses incurred in connection with a temporary relocation, including the cost of moving to and from the temporarily occupied housing and any increased rent and utility costs, or other conditions of APPENDIX IV Page 25 II. the temporary relocation are not reasonable, and the tenant does not return to the building/complex or; The tenant is required to move to another unit within the building/complex but is not offered reimbursement for all reasonable out-of-pocket expenses incurred in connection with the move or other conditions of the move are not reasonable. A person does not qualify as a displaced person, however, if the person has been evicted for cause based upon a serious or repeated violation of material terms of the lease or occupancy agreement and the City determines if the eviction was not undertaken for the purpose of evading the obligation to provide relocation assistance or the person moved into the property after the owner's submission of the request for assistance but, before commencing occupancy, received written notice of the owner's intent to terminate the person's occupancy for the project or the person is an owner-occupant who moves as a result of the rehabilitation of the real property or the person is ineligible under 49 CFR 24.2(g)(2) or the City determines that the person was not displaced as a direct result of the acquisition, rehabilitation or demolition for the project and the HUD office concurs in that determination. Relocation Assistance Relocation assistance is available to tenants from two sources: A. Rental rehabilitation funding as provided in CFR 511.10(g) (iv). B. Section 8 assistance provided by the Denton Housing Authority. Permanent Relocation Assistance Moving expenses will be provided to a family or individual displaced from any dwelling. They may, at their discretion, choose either a payment related to actual moving expenses or the fixed moving expense and dislocation allowance indicated in the federal register by the Department of Transportation. Replacement housing assistance can be taken in one of two ways: Tenants will be screened to determine if the family is eligible to receive a housing vouchedcertificate. When available, housing vouchers/certificates will be offered to families who are permanently displaced. In the absence of vouchers/certificates or when a tenant is found to be ineligible (if for reasons other than not being Iow income), the Public Housing Authority will provide at least one referral to an available decent, safe, and sanitary unit. Tenants eligible for a replacement housing payment may also elect to obtain a cash payment which will allow them to rent a corn ~arable replacement dwelling for a 42-month period or purchase a replacement dwelling. Tenants eli.qible for a replacement housin.q payment include: 1. Those displaced from a dwelling occupied at least 90 days pnor to the execution of an agreement between owner and the City and, Those displaced from a dwelling that they did not occupy for at least 90 days immediately before the execution of the agreement between the owner and the grantee/recipient. Generally, replacement housing payments will be the monthly rent and average utility costs at the displacement dwelling or 30% of the tenants average monthly gross income. If a gap exists between the new cost of housing with Section 8 assistance and the old costs, replacement housing payments will be made to cover the gap. Temporary Relocation Assistance PAGE 26 APPENDIX IV All tenants temporarily relocated from their residence will be reimbursed for all out-of-pocket expenses incurred in connection with the move. III. Provisions of Assistance Tenant Assistance will be provided from three sources: The property owner - The property owner will be charged with informing his/her tenants of their rights under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (URA). The property owner will provide the Community Development Division with evidence of communication to tenants concerning these matters. Community Development Division - The Community Development staff will be responsible for counseling tenants regarding the appropriateness of replacement housing payments. Community Development staff will also be responsible for complaint resolution and referral of tenants to the DHA for additional assistance. The Denton Housing Authority - The DHA will perform the following tests related to tenant assistance: 1) certifying eligibility of tenants, 2) issuing vouchers/certificates, 3) notifying and counseling tenants of their rights and rules of participation, and 4) identifying suitable replacement dwellings. IV. Denton Housing Authority Policies The DHA provides counseling and application assistance at their office located at 1225 Wilson St. Applicants including all income verifications must be submitted to the office prior to any consideration for Section 8 or other public housing assistance. Each applicant found to be eligible is placed on DHA's waiting list. Any applicants found to be eligible under one of the federally mandated preference categories will be moved to the appropriate position on the waiting list. Section 7 of the City's Memorandum of Understandinq with DHA states that "DHA recognizes that some tenants residing in units rehabilitated with rental rehabilitation funds may qualify for preferential treatment under federal guidelines." Those households whose rent burden is 50% or more of household income will be entitled to move forward on the DHA's waiting list along with others who fall into the rent burdened category. V. Equal Housing Opportunity and Non-Discrimination The Community Development Division and the Denton Housing Authority are charged with upholding individual rights under the Federal Fair Housing law. The Community Development Division administers the City's Fair Housing Ordinance. Ordinance No. 81-33 declares "The policy of the City against discrimination in housing." The City and DHA agree not to discriminate in providing information, counseling, referrals or other relocation services to persons displaced by rental rehabilitation activities. The City and DHA also commit that the practices and methods using and administering this program will not result in this displacement of persons because of their particular race, color, religion, sex, handicap, family status or national origin. For further information, please call the Community Development Division at 940-349-7726. The Community Development Division is located in the Texas Building at 101 S. Locust St., Suite 500, Denton, TX 76201. APPENDIX IV PAGE 27 APPENDIX V- TENANT PRE NOTIFICATION SAMPLE LE'I-I'ER Dear Tenant: This letter is to let you know that the rental unit where you live is being considered for rehabilitation through the U.S. Department of Housing and Urban Development Rental Rehabilitation Program under the City of Denton's Rental Rehabilitation Program. PLEASE DO NOT MOVE! This renovation project is being considered in order to provide you with a safer, more comfortable and attractive place to live. If you move without receiving a notice to vacate from the owner, you may not be eligible for relocation assistance. We do not foresee you or any other resident will be displaced by the rehabilitation. However, if for some unforeseen reason displacement should become necessary, relocation assistance will be provided for you. This assistance is described in the attached Tenant Assistance Policy, which contains many important facts regarding the rental assistance available to you. If you need more information or need further explanation, please contact (OWNER) at (TELEPHONE NUMBER), or Alma Espino with the City of Denton at 940-349-7756. Thank you for your cooperation. Please keep in mind this project is simply under consideration at this time so PLEASE DO NOT MAKE ANY PLANS TO MOVE. Should we decide at a later date to proceed with the project, you will be notified. I hereby certify that I have received this notice and a copy of the Tenant Assistance Policy. Name: Address: City/State/Zip: Signature Date Page 28 Appendix V Appendix VI - Rental Rehabilitation TARGET AREA MAP [Denton, Texas] _;RCULE: Page 29 APPENDIX VII - TENANT BENEFICIARY TRACKING FORM Page 30 AGENDA INFORMATION SHEET AGENDA DATE: September 16, 2003 DEPARTMENT: City Manager's Office CM/DCM/ACM: Michael A. Conduff, City Manager SUBJECT: Consider adoption of an ordinance authorizing the City Manager to execute a personal services agreement with Barbara T. McCall Associates, Inc. to provide certain information and services with regard to legislation of interest to the city. BACKGROUND: Since 1997, Demon has joined the cities of Austin, Dallas, and Lubbock as part of the Texas Cities Legislative Coalition that contracts for the services of Barbara T. McCall Associates, Inc. Ms. McCall provides advocacy assistance to local government and their agencies. As our Washington contact, Ms. McCall provides information about legislative and executive action on issues of common interest, transmitting city positions on the issues to the Congressional delegation and to the Administration, and pursuing defined projects or individual legislative priorities for each city. This includes establishing and maintaining comact with the Texas Senators and the city's Representatives. As our Washington representative, she also maintains communications with the White House and many federal agencies and departments. The services of Barbara T. McCall Associates, Inc. have been beneficial to the City of Demon in keeping elected officials and staff aware of federal gram deadlines and pending legislation that could impact the city. During this last fiscal year Ms. McCall's services have assisted with HUD funding, airport improvemems, and transportation issues especially seeking legislation to cominue the city's ability to use federal transit assistance for operational costs. Her services are instrumental in tracking grants and legislative priorities and have assisted Denton in obtaining information regarding law enforcemem and homeland security issues, Imernet tax issues, and environmental issues. The 2002-2003 contract provided thirty-six (36) hours of assured-usage hours, optional hours not to exceed one hundred (100), and expenses not to exceed $5,000. As funding for local government initiatives has become more competitive, Ms. McCall's assistance in keeping Demon's issues before our Congressional delegation has become increasingly importam. During the current fiscal year, the optional hours were completely exhausted before the end of the fiscal year and the expense funds have been used for the remainder of the contract. The contract for 2003-2004 increases the number of optional hours to one hundred fifty (150). RECOMMENDATIONS: Approve the ordinance allowing the City Manager to execute the contract. PRIOR ACTION/REVIEW (Council, Boards, Commission): Previous contracts have been approved in 1998, 1999, 2000 and 2001 with the adoption of Ordinance No. 98-348, Ordinance No. 99-380, Ordinance No. 2000-356, Ordinance No. 2001- 321 and Ordinance No. 2002- 290. FISCAL INFORMATION: The service cost of the basic contract is $24,600 including a retainer of $16,000 per one-year period, thirty-six assured-usage hours of service, and reimbursable costs not to exceed $5,000 plus optional hours of service not to exceed one hundred fifty hours at a cost of $100 per hour. The maximum total impact would be $39,600, which has been included in the 2003-2004 fiscal year budget that was approved on September 2, 2003. Respectfully submitted: Betty Williams Director of Management & Public Information Attachments: Ordinance Contract S:\Our Documents\Ordinances\03hMcCall Contract Ordinance 2003.do¢ ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A PERSONAL SERVICES AGREEMENT WITH BARBARA T. MCCALL ASSOCIATES, INC. TO PROVIDE CERTAIN INFORMATION AND SERVICES WITH REGARD TO LEGISLATION OF INTEREST TO THE CITY; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Denton wishes to employ Barbara T. McCall Associates, Inc. to · provide personal services with regard to legislation which is of interest to the City; and WHEREAS, the City of Denton will be participating with a number of other cities that have entered into similar Personal Services Agreements with Barbara T. McCall Associates, Inc.; and WHEREAS, due to the concurrent participation of other Texas cities and that Barbara T. McCall has unique qualifications and experience that no other person can offer the City during this period of time as a Personal Services Contract, this Contract is exempt fi.om competitive bidding in accordance with Tex. Loc. Gov't Code §252.002(a)(4); and WHEREAS, the City Council deems it in the public interest to authorize the City Manager to enter into a Personal Services Contract with Barbara T. McCall Associates, Inc. for the above-mentioned legislative services; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the City Manager is hereby authorized to enter into a Personal Services Agreement with Barbara T. McCall Associates, Inc., substantially in the form of the attached Agreement, which is made a part of this ordinance for ali purposes, to provide information about legislation and other related personal services to the City. SECTION 2. That the City Manager is hereby authorized to make the expenditures as outlined in the attached Agreement. SECTION 3. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ., 2003. EULiNEBROCK, MAYOR ATTEST: SENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: Page 2 PERSONAL SERVICES AGREEMENT Between the City of Denton, Texas State of Texas, County of Denton and BARBARA T. McCALL ASSOCIATES, INC. Washington, D.C. WHEREAS, the City of Denton, ("City"), in consultation with other major cities in Texas, has determined that there is a need for jointly sponsored Washington representation; and WHEREAS, this need is particularly pressing in relation to: 1. information about legislative and executive action on issues of common interest, transmitting City positions on these issues to the Congressional delegation and to the Administration, and obtaining individual City service to pursue defined projects or individual legislative priorities; and WHEREAS, Barbara McCall, due to the concurrent participation of other Texas cities has unique qualifications and experience that no other person can offer the city during this period of time; and WHEREAS, Barbara T. McCall is known to the Cities and is capable of and willing to undertake such representation in Washington as a personal services contract exempt from competitive bidding in accordance with Section 252.022 (a) of the Texas Local Govemment Code; NOW, THEREFORE, the City of Denton, in association with and recognizing the concurrent participation of the Cities of Austin, Dallas, and Lubbock (collectively, the "Cities"), enters into this personal services agreement with Barbara T. McCall Associates, Inc. ("Consultant"). I. OBLIGATIONS OF THE CONSULTANT The Consultant will operate a trait to act as a Washington office for the Cities and head this unit and as Washington Assistant to the Cities. The Consultant will furnish requisite staff, office space, utilities, furnishings, and equipment, secretarial services, common-use office supplies and services, and general administrative support. The Consultant will consult with the "Committee" (see Section IIE) to determine issues of specific interest to the Cities and to determine policies and positions which the Cities as a group hold and wish to be pursued. In cases in which the City positions differ fi:om or conflict with the Cities' group position, the Consultant will consult with the City and the Committee to determine the proper course of action. C. Information. The Consultant will provide regular information on Washington issues and events of interest to the Cities. This will be done by: a) a regular "Washington Report," b) written reports, bulletins, and memoranda on developments regarding Texas-specific issues, and c) direct phone contact. The Consultant will present federal affairs briefings for the Cities at times and places specified by the Committee. Congressional Relations. The Consultant will establish and maintain on a regular basis contact with the Texas Senators and the Cities' delegation in the House of Representatives. Administrative Relations. The Consultant will advise and consult on behalf of the City with the White House and the following federal agencies or departments: Commerce, SBA, Treasury, HUD, Labor, HI-IS, DOT, EPA, Interior, Justice, DOE, and such other agencies, departments and commissions as may be necessary to the performance of Washington service to the City. F. individual City Services. The Consultant will initiate and pursue research, reports, meetings, consultation and other activities on matters of interest to the City and will respond to requests for similar actions from the City. She will inform the Administration and Congress of the needs of the City. Such services and activities will be provided at a cost of $100.00 per hour. Should billable costs for the contract period appear to exceed the costs specified in Sections II, B or C. The consultant will notify the City, together with her estimates of the extra amounts expected to be required, the reasons therefore, and her recommendation to the City. II. OBLIGATIONS OF TIlE CITY The City will contract with the Consultant for specified services for a period of one year, commencing October 1, 2003 and ending September 30, 2004. B. Service Costs 1. The service cost of this Contract is composed of three elements: A retainer of sixteen thousand dollars ($16,000.00) per the one year period. b) Thirty-six assured-usage hours of service at one hundred dollars ($I00.00) per hour, totaling three thousand six hundred dollars ($3,600.00). c) Optional use hours of service at the rate of one hundred fifty dollars ($150.00) per hour, not to exceed fifteen thousand dollars ($1s,0o0.00). C. Reimbursable Costs--Not to Exceed five thousand dollars ($5,000.00). Costs incident to travel outside Washington, D.C. for long-distance telephone calls and for expedited communication services shaI1 be reimbursed to the Consultant upon submission of its invoice to the City. It is understood that travel is to be pre-authorized by the City or the Committee. In the case of travel authorized by the Committee, the City agrees to pay its pro-rata share of the costs. Costs for the following items which exceed the allocation for such items in the basic contract cost shall, when authorized by the City and the 3 Committee, be reimbursed to the invoice: a) b) c) d) e) Consultant upon presentation of an Subscription and dues. Printing and graphics. Supplies. Provision of local ground transportation in Washington. Rental of meeting facilities and other meeting expenses. 3. If an expenditure under this section is authorized by the Committee, the City agrees to pay its pro-rata share. Contract costs are payable as follows: 1. The retainer and assured hourly costs of nineteen thousand six hundred dollars ($19,600) are payable, quarterly, in advance in these mounts: October 1, 2003 January 1, 2004 April 1, 2004 July 1, 2004 $4,900.00 $4,900.00 $4,900.00 $4,900.00 The optional hourly costs above the first thirty-six hours of service are payable upon billing by the Consultant, after the assured hours of service have been exceeded. (Sec. II, B. 2) The committee. The City will appoint a member to a Committee of the Cities associated in this effort. The Committee will appoint its own chairperson and determine the times and places of its meetings. The functions of the Committee are: a) to determine common positions on federal issues which the Consultant is to pursue on behalf of the Cities. b) to discuss apparent conflicts or differences on issues or projects which may arise among the Cities and to resolve them in terms of a course of action for the Consultant. General. c) to monitor the function and operation of the Washington office to determine if it is fulfilling the goals and objectives for which it was designed. to authorize travel and other reimbursable expenses to be incurred for the common purposes of the Cities. III. The City will inform the Consultant of the person(s) authorized to request services and to serve as the chief contact. The City will supply the Consultant with a summary of the federal programs in which the City is participating and other information necessary to an understanding of the City's purposes in relation to the federal government. THE CITY AND THE CONSULTANT AGREE THAT CERTAIN EXCLUSIONS SHALL APPLY. The Consultant will not: A. Directly or indirectly participate in or intervene in any pohtical campaign on behalf of or in opposition to any candidate for public office. B. Will not represent the interests of local constituents in pursuit of federal business. C. By virtue of this agreement, represent other local agencies in the City except those which are instrumentalities or agencies of the City. D. Perform any legal, engineering, accounting, or other similar professional services. E. Expend more than two thousand five hundred dollars ($2,500.00) provided by this contract in efforts to influence HUD directly, as specified in Sec 7 (d) and 13 (g) of the Department of Housing and Urban Development Act 42 USC 3535 (d) and 3537 b(g) and 24 CFR Sec. 86.1. THE CITY AND THE CONSULTANT AGREE Either party may terminate this agreement at any time by giving the other at least thirty days' written notice. go VI. VII. VIII. B. This agreement shall take effect on October 1, 2003. PROFESSIONAL COMPETENCY The Consultant agrees that in the performance of these personal 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. For the purpose of this Agreement, the key person who will be performing most of the work hereunder shall be Barbara T. McCall. However, nothing herein shall limit Consultant from using other qualified and competent members of her firm to perform the services required herein so long as they are working in a support role to Ms. McCall. The City shall be able to make copies of any reports and documents prepared or obtained under the terms of this Agreement. The City shall be able to use copies of these reports and documents without restriction on their use and without further compensation to Consultant. ESTABLISHMENT AND MAINTENANCE OF RECORDS Full and accurate records shall be maintained by the Consultant at its 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. 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 from such records, and to make audits of contracts, invoices, materials, and other data relating to all matters covered by this Agreement. 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 constmed as c rearing a relationship o f employer and employee between t he parries. T he City and Consultant agree to cooperate in the defense of claims, actions, suits, or proceedings of any kind brought by a third party which may result from 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 of any litigation or claim under this Agreement in which the City is joined as a party, Consultant shall provide suitable counsel to defend City and Consultant against such claim, provided the ConSultant shall have 6 the right to proceed with the competent counsel of its own choosing. The Consultant agrees to defend, indemnify, and hold harmless the City and all of its officers, agents, servants, and employees against any all such claims to the extent of coverage by Consultant's commercial liability policy. The Consultant agrees to pay all expenses, including, but not limited to attorney's fees, and satisfy all judgements which may be incurred or rendered against the Consultant's commercial 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 from Consultant's negligent errors or omissions, or breach of contract, and all such rights and remedies are expressly reserved. 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 Commercial liability insurance, with a rating of at least A- with Best Rated Carders. Such coverage shall cover any claim hereunder occasioned by the Consultant's negligent professional act and/or error or omission, in an amotmt not 1 ess 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 forthwith advise the City thereof; and in such event, the consultant shall, prior to the effective date of change or cancellation, serve substitute policies furnishing the same coverage. The Consultant shall provide a copy of such policy or the declarations page of the policy or a certificate of insurance, whichever is reasonably satisfactory, to the City through its City Manager simultaneously with the execution of this Agreement. IX. COMPLIANCE WITH LAWS The consultant shall comply with all applicable laws. X. GOVERNING LAW This agreement shall be governed by the laws of the State of Texas, venue and jurisdiction of any suit or cause of action arising under this agreement shall lie exclusively in a court of competent jurisdiction sitting in Denton County, Texas. In witness hereof, the City of Denton, Texas, has caused this agreement to be executed by its duly authorized City Manager and Consultant has executed this agreement through its duly authorized President, dated this __ day of 2003. FOR THE CITY OF DENTON, TEXAS Michael A. Conduff City Manager Attest: Jennifer Walters City Secretary Barbara T. McCall, President Barbara T. McCall Associates, Inc. 1401 K Street, NW Suite 700 Washington, DC 20005 202-842-5430 Federal Employer ID #: 52-1906049 Approved to legal form: By: c~~~ Herb ProUty, City~grney AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: September 16, 2003 Tax Kathy DuBose, Fiscal and Municipal Services SUBJECT Consider approval of a tax refund for the following property tax: Tax Name Reason Year Amount 1'4 ~r~ti~ SupP~g!C,h dE BACKGROUND Chapter 31.11 of the Texas Property Tax Code requires the approval of the governing body of the taxing unit for refunds in excess of $500.00. FISCAL INFORMATION The tax overpayment revenue fund would be reduced by $4,526.61 Respectfully submitted: Diana G. Ortiz Director of Fiscal Operations AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: September 16, 2003 Fiscal and Municipal Services Kathy DuBose, Fiscal and Municipal Services SUBJECT Consider approval of a resolution appointing members to the Board of Directors of the North Texas Higher Education Authority; and declaring an effective date. BACKGROUND The North Texas Higher Education Authority, Inc. (NTHEA) was established as a non-profit corporation for the purpose of furthering educational opportunities of students by providing funds for the acquisition of student loans. The cities of Arlington and Denton exercise the powers enumerated under Section 53.47 of the Texas Education Code and the directors of the Authority are appointed by the cities. Under Section 53.47 the Authority may issue revenue bonds or borrow money to provide funds for the purchase of student loans guaranteed under provisions of the Higher Education Act of 1965, as amended. The Authority issued its first revenue bonds for such purpose in 1979. PRIOR ACTION/REVIEW At its August 14, 2003 meeting, the North Texas Higher Education Authority Board took action to nominate individuals to Places 6, 8 and 9 on its board for the term October 1, 2003 through September 30, 2005. The incumbents, Dr. Lindsay Keller, Place 6, Mr. Jay Anderson, Place 8, and Mr. Jim Brock, Place 9 have expressed a willingness to serve another term. Therefore, the names of Dr. Keller, Mr. Anderson, and Mr. Brock are respectfully submitted for the Council's consideration for reappointment. FISCAL INFORMATION There is no fiscal impact to the City of Denton. EXHIBITS Letter from NTHEA Resolution Respectfully submitted: Kathy DuBose, Assistant City Manager Fiscal and Municipal Services North Texas Higher Education Authority, Inc. August 15, 2003 Honorable Euline Brock Denton City Council City of Denton 215 East McKinney Denton, Texas 76201 Re: North Texas Higher Education Authority, Inc. Appointment for Places 6, 8 and 9 Dear Mayor Brock: At its August 14, 2003 meeting, the North Texas Higher Education Authority Board took action to nominate individuals to Places 6, 8 and 9 on its board for the term October 1, 2003 through September 30, 2005. The incumbents Dr. Lindsay Keffer, Place 6, Mr. Jay Anderson, Place 8, and Mr. Jim Brock, Place 9 have expressed a willingness to serve another term. Therefore, the names of Dr. Keffer, Mr. Anderson and Mr. Brock are respectfully submitted for the City Council's consideration for re-appointment. I will very much appreciate your notifying me of the action taken by the City Council on the nominees. Please extend our continued thanks to the individual Council members for their support of the Authority and its activities. Sincerely, 1250 E. Copeland Rd., Suite 200 · Arlington, Texas 76011-4921 · (817) 265-9158 · www.nthea.com S:Our Documelt s Resolutions 03 Norfll Texas High~ Educatkm Authority doc RESOLUTION NO. A RESOLUTION APPOINTING MEMBERS TO THE BOARD OF DIRECTORS OF THE NORTH TEXAS HIGHER EDUCATION AUTHORITY; AND DECLARING AN EFFECTIVE DATE. WHEREAS, the term of office for Places 6, 8 and 9 on the Board of Directors of the North Texas Higher Education Authority, Inc. have expired; and WHEREAS, the Board has nominated Dr. Lindsay Keffer - Place 6, Mr. Jay Anderson - Place 8, and Mr. Jim Brock - Place 9 on the Board; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY RESOLVES: SECTION 1. That Dr. Lindsay Keffer is hereby reappointed to Place 6 on the Board of Directors of the North Texas Higher Education Authority, Inc. for a term commencing October 1, 2003 and continuing through September 30, 2005. SECTION 2. That Mr. Jay Anderson is hereby reappointed to Place 8 on the Board of Directors of the North Texas Higher Education Authority, Inc. for a term commencing October 1, 2003 and continuing through September 30, 2005. SECTION 3. That Mr. Jim Brock is hereby reappointed to Place 9 on the Board of Directors of the North Texas Higher Education Authority, Inc. for a term commencing October 1, 2003 and continuing through September 30, 2005. SECTION 4. That this resolution shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2003. ATTEST: JENNIFER WALTERS, CITY SECRETARY EULINE BROCK, MAYOR BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: September 16, 2003 Human Resources Kathy DuBose, Fiscal and Municipal Services SUBJECT Consider approval of a resolution of the City of DeNon, Texas approving revised City policy regulating dress code/personal appearance of City employees and declaring an effective date. BACKGROUND In the previous three years, an Employee Policy Review Committee was established to examine and review the City's employmem policies, administrative procedures and administrative directives comained in the "City of DeNon Policies and Procedures Manual." The manual is designed for employee guidance and reference. The review process is coordinated by the Human Resources Department in conjunction with Legal staff. When there is a discrepancy between the written reference and the Organization's practice, the Committee makes a determination to either change or to reinforce through training and communication the affected policy, procedure or directive. For the most part, the policies and amendments are primarily administrative in nature so as to reflect the actual practices throughout the Organization. Currently before you are recommended amendments to the "Policy Statement" portion of the Dress Code/Personal Appearance Policy (No. 108.07). This Policy Statemem has been updated in order to incorporate the changes that more accurately reflect the practices relating to that policy. The revised Policy Statement follows: DRESS CODE/PERSONAL APPEARANCE POLICY STATEMENT: The employees of the City of DeNon are expected to presem a positive and professional image to fellow employees and the public. The City Manager is the appropriate person to issue proper guidelines on the dress and personal appearance of City employees. The policy statement has been changed to reflect the difference between the policy of presenting a positive and professional image and the administrative application of that policy that is carried out by the City Manager. PRIOR ACTION/REVIEW There has been no prior action or review on this agenda item. FISCAL INFORMATION There is no fiscal impact on the City of Denton associated with this recommendation. Agenda Information Sheet September 16, 2003 Respectfully submitted: Carla J. Rom~ne Director of Human Resources RESOLUTION NO. A RESOLUTION OF THE CITY OF DENTON, TEXAS APPROVING REVISED CITY POLICY REGULATING DRESS CODE/PERSONAL APPEARANCE OF CITY EMPLOYEES; AND DECLARING AN EFFECTIVE DATE. WHEREAS, the City of DeNon, Texas has a dress code/personal appearance policy for city employees to maimain a positive and professional appearance of employees; and WHEREAS, the Director of the Human Resources Departmem for the City of Demon has presemed a revised policy regarding employee rules and regulations concerning the dress code/personal appearance policy; and WHEREAS, the City Council, desires to adopt such policy as an official policy regarding employment with the City; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY RESOLVES: SECTION 1. That Policy numbered 108.07 "Dress Code/Personal Appearance" of the Personnel Policies and Procedure Manual of the City of Denton attached hereto and incorporated by reference herein, is hereby approved as official policy of the City of DeNon, Texas, and replaces former policy 108.07. SECTION 2. That the foregoing policy is attached hereto and made a part hereof and shall be filed in the official records with the City Secretary. SECTION 3. That this resolution shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the __day of ,2003 EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: S:\Our Documents\Resolutions\03\Dress Code Policy.doc 2 CITY OF DENTON POLICY/ADMINISTRATIVE PROCEDURE/ADMINISTRATIVE DIRECTIVE SECTION: HUMAN RESOURCES REFERENCE NUMBER: 108.07 SUBJECT: STANDARDS OF CONDUCT FOR EMPLOYEES iNITIAL EFFECTIVE DATE: 12/17/85 TITLE: DRESS CODE/PERSONAL APPEARANCE LAST REVISION DATE: 9/16/03 POLICY STATEMENT The employees of the City of Demon are expected to presem a positive and professional image to fellow employees and the public. The City Manager is the appropriate person to issue proper guidelines on the dress and personal appearance of city employees. ADMINISTRATIVE DIRECTIVE: In order to project a positive, professional and safe environmem, City of Demon employees are expected to maintain a positive and professional appearance at all times. I. All employees are expected to comply with safety regulations--i.e., type of shoes, shirt sleeve length, etc.--as dictated by departmemal and industry safety standards. II. All office/public comact employees are expected to be appropriately dressed and well groomed in order to reflect a professional businesslike atmosphere. III. Clothing should be clean, comfortable, and appropriate for the job being performed, as determined by the supervisor and/or departmem procedures. Clothing having pictures, designs, words, and/or advertising not conducive to a professional image, see-through and/or otherwise sexually provocative clothing are prohibited for all employees. IV. Uniformed employees shall follow the guidelines under Policy 102.11 Uniforms. HR/POLICY/108.07 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: September 16, 2003 Human Resources Kathy DuBose, Fiscal and Municipal Services SUBJECT Consider approval of resolution of the City of DeNon, Texas approving revised City policy regulating illness and off duty injuries of City employees and declaring an effective date. BACKGROUND in the previous three years, an Employee Policy Review Committee was established to examine and review the City's employmeN policies, administrative procedures and administrative directives coNained in the "City of DeNon Policies and Procedures Manual." The manual is designed for employee guidance and reference. The review process is coordinated by the Human Resources Department in conjunction with Legal staff. When there is a discrepancy between the written reference and the Organization's practice, the Committee makes a determination to either change or to reinforce through training and communication the affected policy, procedure or directive. For the most part, the policies and amendments are primarily administrative in nature so as to reflect the actual practices throughout the Organization. Currently before you are recommended amendments to the "Policy Statement" and Title portion of the illness/Off Duty injury Policy (No. 107.05). This Policy StatemeN has been updated in order to incorporate the changes that more accurately reflect the practices relating to that policy. The revised Policy Statement follows: ILLNESS/OFF DUTY INJURY POLICY STATEMENT: The ability of the City to provide timely and adequate salary coNinuation and benefit programs to assist City employees abseN from the job due to an injury or illness is dependeN upon the City's ability to coordinate its handling of each individual case. This policy seeks to create a coordination and uniformity of the handling of all City employee disability or injury cases, it is expected that employees will assist and cooperate with the City in obtaining recommended medical treatments or therapy and rehabilitative services in order to return to work at the earliest possible date. This policy applies to all regular full-time and regular part-time employees who have completed the six-month introductory period. On-the-job injury or illness is addressed in the "Occupational injury Policy" (409.1) with the exception of "business necessity termination" (Section iii of this policy). Civil Service employees will be governed by the provisions outlined in Chapter 143 of the Texas Local GovernmeN Code unless Chapter 143 does not address the disability issue, in which even the provisions of this policy will apply. Agenda Information Sheet September 16, 2003 The Policy Statement has been changed to reflect and change in title which is intended to simplify reference to the policy for employees and change of the term "probationary period" to "introductory period" in order to be consistent with Introductory Period Policy (No. 104.02). PRIOR ACTION/REVIEW There has been no prior action or review on this agenda item. FISCAL INFORMATION There is no fiscal impact on the City of Denton associated with this recommendation. Respectfully submitted: Ca~rla j~. ~c~m~i'n~~k~-- Director of Human Resources RESOLUTION NO. A RESOLUTION OF THE CITY OF DENTON, TEXAS APPROVING REVISED CITY POLICY REGULATING ILLNESS AND OFF DUTY INJURIES OF CITY EMPLOYEES; AND DECLARING AN EFFECTIVE DATE. WHEREAS, the City of Denton, Texas has a illness and off duty injury policy for city employees to consistemly handle the illness and off duty injuries of city employees; and WHEREAS, the Director of the Human Resources Departmem for the City of Demon has presemed a revised policy regarding employee rules and regulations concerning the illness/off duty injury policy; and WHEREAS, the City Council, desires to adopt such policy as an official policy regarding employment with the City; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY RESOLVES: SECTION 1. That Policy numbered 107.05 "Illness/Off Duty Injury" of the Personnel Policies and Procedure Manual of the City of Demon attached hereto and incorporated by reference herein, is hereby approved as official policy of the City of Demon, Texas, and replaces former policy 107.05. SECTION 2. That the foregoing policy is attached hereto and made a part hereof and shall be filed in the official records with the City Secretary. SECTION 3. That this resolution shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the __day of ,2003 EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: S:\Our Documents\Resolutions\03\Illness off duty injury Policy.do~ CITY OF DENTON , POLICY/ADMINISTRATIVE PROCEDURE/ADMINISTRATIVE DIRECTIVE SECTION: HUMAN RESOURCES REFERENCE NUMBER: 107.05 SUBJECT: EMPLOYEE BENEFITS AND SERVICES iNITIAL EFFECTIVE DATE: 11/01/94 TITLE: ILLNESS/OFF DUTY INJURY POLICY LAST REVISION DATE: 9/16/03 POLICY STATEMENT: The ability of the City to provide timely and adequate salary continuation and benefit programs to assist City employees absent from the job due to an injury or illness is dependent upon the City's ability to coordinate its handling of each individual case. This policy seeks to create a coordination and uniformity of the handling of all City employee disability or injury cases, it is expected that employees will assist and cooperate with the City in obtaining recommended medical treatments or therapy and rehabilitative services in order to return to work at the earliest possible date. This policy applies to all regular full-time and regular part-time employees who have completed the six month introductory period. On-the-job injury or illness is addressed in the "Occupational injury Policy" (409.1) with the exception of"business necessity termination" (Section iii of this policy). Civil Service employees will be governed by the provisions outlined in Chapter 143 of the Texas Local Government Code unless Chapter 143 does not address the disability issue, in which event the provisions of this policy will apply. ADMINISTRATIVE PROCEDURES i. DEFINITIONS Essential functions - The major duties essential to a position (with or without reasonable accommodation). These are determined by the job description of each position. The following should be considered in determining if a job function is essential: 1. The position exists, in part, to perform the function. 2. There are a limited number of other employees available to perform the function or among whom the function can be distributed. 3. A function is highly specialized, and the person in the position is hired for special expertise or ability to perform it. Reasonable Accommodation - A modification of the work environment or work process that enables a person with a disability to perform the essential functions of a job pursuant to the Americans with Disabilities Act of 1990 ("ADA") and associated regulations. The determination of what accommodations are reasonable shall be the determination of the City, but will be in compliance with the provisions of the ADA. The determination of reasonable accommodation will also include consideration of whether an undue hardship will be posed on PAGE 20Fll POLICY/ADMINISTRATIVE PROCEDURE/ADMINISTRATIVE DIRECTIVE (Continued) TITLE: OFF-DUTY INJURY OR ILLNESS POLICY REFERENCE NUMBER: 107.05 the operations of the department or division, or if a direct threat to the health or safety of the employee or others will be posed. l Jn&~e Hardship - defined by the ADA as an action that is excessively costly, extensive, substantial, or disruptive, or that would fundamentally alter the nature or operation of the business. Direct Threat - a health or safety risk that, based on valid medical and/or other objective evidence, is determined to pose a significam risk of substamial harm, and which cannot be reduced to an acceptable level with reasonable accommodation. Disability - Under the ADA, an individual with a disability is a person who has: a physical or mental impairment that substantially limits one or more major life activities; a record of such an impairmem; or is regarded as having such an impairmem. F. Illness: lnfi~ry: or Medical Condition - A temporary physical or memal impairmem that does not substamially limit one or more of the major life activities of an individual. Business NecessiW Termination - Occurs when a departmem's or division's productivity or ability to deliver services is adversely affected because an employee is unable to perform the essemial functions of the position for which that employee is hired, and no reasonable accommodation can be made. H. Modified Duty - Any restriction placed on an employee by a treating physician that requires an employee to do less than his/her full job. Modified duty will not extend beyond 120 days. Extended l,eave of Absence - Leave of absence that has been approved by the City Manager or his/her designee after an employee has already had more than twelve (12) weeks of absences in a twelve (12) month period, not including leave pursuam to the Family and Medical Leave policy. An Extended Leave of Absence shall not exceed twenty-four (24) weeks. Notice - When the City of Demon is required to give notice under the following administrative procedures, notice shall be written and sent by United States first-class mail to the employee's last known home address as provided to the Human Resources department. Date of the notice is the same date the notice is placed and postmarked into the United States mail. Il.PROCEDURES A. When an employee is unable to perform the essential functions of his/her position due to a disability, injury, illness, or medical condition (and reasonable accommodation is not possible), HR/POLICY/107.05 PAGE 30Fll POLICY/ADMINISTRATIVE PROCEDURE/ADMINISTRATIVE DIRECTIVE (Continued) TITLE: OFF-DUTY INJURY OR ILLNESS POLICY REFERENCE NUMBER: 107.05 the City may separate the employee due to business necessity and fill the position except as is restricted by the Family and Medical Leave Act. (See Section III below.) Eligibility for benefits as defined in this procedure is dependent upon the complete compliance of the employee with the responsibilities outlined in this procedure and the requirements and procedures stated in the employee benefit booklets or appropriate benefit policies. An employee who experiences an off-the-job injury or illness that renders the employee incapable of performing his/her regularly assigned duties shall use his/her accrued sick, vacation and, if applicable, compensatory leave balances. The employee shall use his/her available leave balances until the earlier off The date the employee has exhausted all such leave balances (if exhausted, refer to "Personal Leave Without Pay Policy" [111.08] or the "Family and Medical Leave Policy" [107.04]); 2. The date the employee is able to return to work and perform the essential functions of his/her position; or The date the employee has accumulated twelve (12) weeks of absences in a twelve (12) month period, not including FMLA leave, unless the employee applies for and is approved for a Extended Leave of Absence by the City Manager or his/her designee. An employee who is unable to perform the essential functions of his&er position due to a disability, injury, illness, or medical condition (and reasonable accommodation is not possible) is not guaranteed a return to his&er position at the completion of his&er injury or illness leave except that in the case of Family and Medical Leave the employee will return to an equivalent position with equivalent benefits, pay and other terms and conditions of employment, in accordance with FMLA regulations. If after consultation with Human Resources and the Risk Manager (in the case of an on the job injury), a supervisor determines that a department's or division's productivity or ability to deliver services is adversely affected because an employee is unable to return to his&er position, the employee may be administratively removed from his&er position during his/her leave. When an employee who has been administratively removed from his&er position is able to return to work with the appropriate medical releases, that employee will be considered for any open position in the City for which that employee is qualified. Employees who are not disabled as defined by the ADA will be required to compete for open positions. HR/POLICY/107.05 PAGE 40Fll POLICY/ADMINISTRATIVE PROCEDURE/ADMINISTRATIVE DIRECTIVE (Continued) TITLE: OFF-DUTY INJURY OR ILLNESS POLICY REFERENCE NUMBER: 107.05 E. Benefits will be calculated as listed below: Employees who are absent from work due to an injury, illness or approved Extended Leave of Absence shall continue to accrue vacation and sick leave for as long as they are receiving paid leave (i.e. sick, vacation, or compensatory time). 2. Benefit accrual and usage would follow the provisions of the "Family and Medical Leave Policy" (107.04). An employee shall not be eligible to receive tuition reimbursement unless it is for an approved course which was already in progress at the time the employee became unable to perform his/her job duties and the course has been successfully completed and documented as required by the "Tuition Reimbursement Policy" (107.09). The City will continue to pay its portion of benefits for the employee as provided by the Family and Medical Leave Act (FMLA) of 1993 and the Family and Medical Leave policy (107.04). The employee and eligible dependents will remain qualified for benefits coverage through the City's group plans as long as the premiums for the employee and dependent coverage under the City plans are paid on a timely basis by the employee (either through payroll deduction or personal payment), it is the responsibility of the employee to make arrangements for the payment of these premiums if they cannot be made by a payroll deduction. Regular full-time and regular part-time employees who are not able to work for an extended period of time may be eligible to apply for long-term disability benefits. The employee is responsible for contacting the Risk Management office as soon as he/she is able in order to discuss eligibility qualifications. Some benefits may not be available if the employee fails to apply for the benefits within the time mandated by the benefit provider. F. Employees who qualify for FMLA leave must comply with all provisions of the Family and Medical Leave policy (107.04). iii. BUSINESS NECESSiTYTERMINATiON DUE TO UNIFORM ABSENCE CONTROL An employee may be terminated as a business necessity due to uniform absence control when the employee has been unable to perform the essential functions of his/her job with or without reasonable accommodation for a period of twelve (12) weeks within a twelve month period, not including the use of any FMLA leave. This time need not be consecutive. This section applies to both on-the-job and off-the-job injuries or illnesses for employees who have completed their HR/POLICY/107.05 PAGE 50Fll POLICY/ADMINISTRATIVE PROCEDURE/ADMINISTRATIVE DIRECTIVE {Continued) TITLE: OFF-DUTY INJURY OR ILLNESS POLICY REFERENCE NUMBER: 107.05 introductory period. The City will use a "rolling" 12-month period measured backward from the first date an employee uses any leave for either on-the job or off-the-job injuries or illnesses in order to calculate the twelve weeks. Supervisors shall obtain approval from the Director of Human Resources or his/her designee prior to initiating a termination due to uniform absence control. The Risk Manager shall also be consulted if any absence is due to an injury that occurred on the job. In the case of an employee with a disability as determined by the ADA, termination would not be considered unless no reasonable accommodation (which would not cause undue hardship on the organization or pose a direct threat to the health or safety of the employee or others) exists that would enable the employee to perform the essential functions of his/her position, and no job reassignment is available (see Section VII of this policy entitled "Job Reassignment"). If after reviewing these factors, the supervisor with the guidance of the Human Resources Director or his/her designee and, in cases of on the job injuries, the Risk Manager determines that the employee cannot return to perform the essential functions of his/her job, then the employee will be notified in writing of the proposed termination at least two weeks before the termination will take effect. An employee who receives notice of intent to terminate under this section shall be afforded the right to seek an Extended Leave of Absence, as more fully discussed below in section iii. D. Business necessity termination due to uniform absence control is not a disciplinary action and does not operate to deny an employee the use of accrued benefits as outlined in appropriate policies. An employee who has received notice of the City's intent to terminate the employee for absences in excess of twelve (12) weeks in a twelve month period or for absences due to an off- duty injury or illness may apply for an Extended Leave of Absence for up to twenty-four (24) weeks of additional leave to the City Manager or his/her designee, in order to apply for the Extended Leave of Absence, the employee must present a written request to his/her supervisor and the Director of Human Resources stating the length of additional leave requested and identifying reasons in support of the request for additional leave. The Director of Human Resources or his/her designee and, in the case of on-the-job injuries, the Risk Manager will review the employee's request and make a recommendation to the City Manager or his/her designee. The decision on whether to approve the employee's request for additional leave is left to the sole discretion of the City Manager or his/her designee. The following shall be taken into consideration when reviewing the employee's request for Extended Leave of Absence: A doctor's prognosis indicating whether or not the employee will be able to perform his/her regular duties or modified duties if available, in the case of an employee with a disability as defined by the ADA, termination would not be considered unless no reasonable accommodation (which would not cause undue hardship on the organization or pose a direct threat to the health or safety of the employee or others) exists that would enable the HR/POLICY/107.05 PAGE 60Fll POLICY/ADMINISTRATIVE PROCEDURE/ADMINISTRATIVE DIRECTIVE (Continued) TITLE: OFF-DUTY INJURY OR ILLNESS POLICY REFERENCE NUMBER: 107.05 employee to perform the essential functions of his/her position, and no job reassignment is available (see Section VII of this policy entitled "Job Reassignment"). 2. A doctor's prognosis indicating when the employee may be able to return to work. 3. The length of time it would take to replace the employee in his/her position. 4. Whether the employee is willing to accept placement in a different, available position for which the employee is qualified. 5. Whether the employee has been willing to accept a modified duty assignment after expiration of any available FMLA leave for an on-the-job injury. Whether the employee is able to present satisfactory evidence of his/her inability to return to work, either in a limited duty capacity if such work is available, or to regular duty according to the timetable established in this procedure or upon request by the City. 7. Whether the employee has made any falsifications or misrepresentations concerning his/her physical condition or capacity. 8. Whether the employee fails or refuses to return to regular duty on the day specified by the treating physician. Whether the employee maintained contact with his/her immediate supervisor on a regular basis (as directed by his/her supervisor) and notified him/her of his/her condition and expected return-to-work date. If the employee was unable to make contact personally, he/she should have someone contact his/her supervisor on his/her behalf. 10. Whether the employee provided requested progress reports from the treating physician. SUPERVISOR RESPONSIBILITIES FOR DISABILITY, INJURY, ILLNESS, OR MEDICAL CONDITION: Within seven (7) days of the date the employee's disability, injury, illness, or medical condition begins, the supervisor must notify the employee in writing of his/her obligation to contact the supervisor on a regular basis. (The recommended reporting time is once a week, but the supervisor can elect to change this reporting time to more frequently or less frequently after consulting with the Human Resources Department). Each supervisor shall establish procedures for this reporting requirement, inform the disabled, injured, or ill employee of the procedures, and notify the employee that failure to follow these procedures could result in disciplinary action. HR/POLICY/107.05 PAGE 70Fll POLICY/ADMINISTRATIVE PROCEDURE/ADMINISTRATIVE DIRECTIVE (Continued) TITLE: OFF-DUTY INJURY OR ILLNESS POLICY REFERENCE NUMBER: 107.05 Each supervisor, with the consultation of the Human Resources department and the Risk Manager in the case of an on the job injury, shall notify the disabled, ill or injured employee in writing of his/her obligation to provide a monthly progress report, if applicable, from his/her attending physician regarding his/her medical condition and rehabilitation options as they relate to his/her ability to return to full duty. This report shall include: 1. Whether the employee will be able to return to full duty with no restrictions. If so, when? 2. Whether rehabilitation is an option? If not, why not? 3. Are any accommodations necessary for the employee to return to full duty? if so, describe. C. Upon exhaustion of paid sick and/or vacation time, the supervisor shall submit an "Employee Status Form" to notify Human Resources to stop leave accrual. EMPLOYEE RESPONSIBILITIES FOR DISABILITY, iNJURY, ILLNESS, OR MEDICAL CONDITION: A. Employees who are disabled, ill, injured, or have a medical condition are required to notify their immediate or designated supervisor immediately if they are going to be absent from work. B. The employee will periodically provide a progress report from his/her treating physician as indicated in Section iV.B. of this policy. The employee must contact his&er supervisor as established in Section iV.A. of this policy until he/she returns to work or the end of the twelve (12) week period, not including leave pursuant to the Family and Medical Leave policy (107.04), in which the employee is unable to perform the essential functions of his&er position. If the employee is unable to make contact personally, he/she shall have someone contact his&er supervisor on his&er behalf. The City must be aware of the employee's status in order to plan and assign work duties and responsibilities in an efficient manner. An employee who fails to contact accordance with this policy shall be "Disciplinary Action Policy" (109.01). his&er supervisor or provide prognosis report(s) in subject to disciplinary action in accordance with the VI. RETURN TO WORK FOR FULL DUTY A. The following reporting requirements apply when an employee returns to work from an off-the- job disability, illness, injury, or medical condition: 1. An employee returning to duty at the expiration of his/her Family and Medical Leave or HR/POLICY/107.05 PAGE 80Fll POLICY/ADMINISTRATIVE PROCEDURE/ADMINISTRATIVE DIRECTIVE (Continued) TITLE: OFF-DUTY INJURY OR ILLNESS POLICY REFERENCE NUMBER: 107.05 after being unable to work for ten (t0) or more working days due to a disability, illness, injury, or medical condition which is not covered by the FMLA must provide a written release to the supervisor from the attending physician indicating the employee's fitness to return to full duty. The supervisor must then forward the release to the Director of Human Resources or his/her designee. In the case of an employee who returns to work from a disability, illness, injury, or medical condition in less than ten (t0) working days, the employee is not automatically required to furnish a doctor's release to his/her supervisor, unless the employee's leave was pursuant to the Family and Medical Leave policy (107.04) in which case the employee must always furnish a doctor's release if the leave was taken for the serious health condition of the employee. The supervisor, at his/her discretion, may require the employee to furnish a release from the attending physician if he/she feels the employee's disability, injury, illness, or medical condition may not permit the employee to safely perform the job. When the supervisor requires such a release from the attending physician, the employee must take his/her release to the supervisor who must then forward it to the Director of Human Resources. The City reserves the right to require an independent physical or mental assessment, at the City's expense, upon the return to work of an employee from a disability, illness, injury, or medical condition to determine whether the employee is able to perform the essential functions of the job. If the independent physical or mental assessment differs from the opinion of the employee's attending physician and the employee disputes the City's independent assessment, a third physical or mental assessment by an independent physician, to be agreed upon by the employee and the City, may be made at the City's expense and the third opinion will be the determinative assessment. Upon return from leave within a twelve (12) week period, excluding any applicable Family and Medical Leave, after the beginning date of a disability, illness, injury, or medical condition, an employee who exercises any right provided under this section, if able to perform the essential functions of the position with or without reasonable accommodation, shall: 1. return to the position held by the employee when the leave commenced; or be placed in an equivalent position with equivalent benefits, pay and other terms and conditions of employment, if the employee is on Family and Medical Leave and timely returns to work in accordance with the Family and Medical Leave policy (107.04); or 3. be placed in a vacant position which he/she is qualified to perform. VII. JOB REASSIGNMENT HR/POLICY/107.05 PAGE 90Fll POLICY/ADMINISTRATIVE PROCEDURE/ADMINISTRATIVE DIRECTIVE (Continued) TITLE: OFF-DUTY INJURY OR ILLNESS POLICY REFERENCE NUMBER: 107.05 VIII. A. Job reassignment will be provided as follows when an employee is unable to return to his/her current position due to a disability, illness, injury, or medical condition: If a position for which the employee is qualified and physically able to do is vacant, the employee may be considered for transfer to a job reassignment. Job reassignment will only be considered within the twelve (12) week period, excluding any applicable Family and Medical Leave, from the date of disability, illness, injury, or medical condition. It will be the employee's responsibility to contact the Human Resources Director or his&er designee to identify positions for which he/she may be qualified and physically able to perform, and to request such job reassignment. Should an employee be unable to return to work in his/her current position due to a disability, the City may provide job reassignment as a reasonable accommodation in accordance with the Americans With Disabilities Act of 1990. Job reassignments are not guaranteed. Such requests will be discussed with the Director of Human Resources and the Department Director of the hiring department before such a decision will be made. Interviews with the hiring supervisor will be conducted. Rate of pay will be determined by the Compensation/Classification Guidelines for the position to which the employee is being reassigned. MODIFIED DUTY Modified duty assignments may be considered based on the following when an employee is unable to perform the duties of his/her current position due to a disability, illness, injury, or medical condition: If a modified duty position in the department is available which the employee is physically able to do. Modified duty status will only be considered during the twelve (12) week period from the date of disability, illness, injury, or medical condition in addition to any Family and Medical Leave used. It will be the employee's responsibility to contact his/her supervisor and the Human Resources Director to determine if a modified duty position for which he/she may be qualified and is physically able to perform, is available. Modified duty assignments are considered temporary and will last no longer than 120 workdays. Type and length of modified duty assignments will be contingent upon availability and a doctor's statement indicating any restrictions in performing modified duty assignments. HR/POLICY/107.05 PAGE 10 OF 11 POLICY/ADMINISTRATIVE PROCEDURE/ADMINISTRATIVE DIRECTIVE (Continued) TITLE: OFF-DUTY INJURY OR ILLNESS POLICY REFERENCE NUMBER: 107.05 C. Modified duty assignments are not guaranteed. Such requests will be discussed with the Department Director and Human Resources Director prior to assignment. IX. REASONABLE ACCOMMODATION A. Reasonable accommodation will be provided to any otherwise qualified employee with a known disability as defined by the Americans With Disabilities Act of 1990. Reasonable accommodation will be provided only when it enables the employee to perform the essential functions of the job and it does not prove to be an undue hardship, as determined by the Americans With Disabilities Act of 1990, to the organization. Requests for reasonable accommodation must be submitted by the individual to the Director of Human Resources or his/her designee. The requests for reasonable accommodation will be reviewed in accordance with the City's "American's With Disabilities Act Policy" (100.02). X. SEPARATION OF EMPLOYMENT This procedure does not preclude an employee from being terminated under policy 109.01, or under an official reduction-in-force due to budget reductions. XI. RESPONSE HEARING PROCEDURES The City Manager or his/her designee shall consider any response to a decision made pursuant to this policy or any decision made by the ADA Committee. All response heating requests must be submitted in writing to the Director of Human Resources within ten (10) working days of the action or decision (as outlined in "Disciplinary Appeals Policy" [109.03]). XII. MEDICAL RECORDS All medical records obtained pursuant to this procedure will be kept in confidential medical files as required by the Americans With Disabilities Act of 1990. HR/POLICY/107.05 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: September 16, 2003 Human Resources Kathy DuBose, Fiscal and Municipal Services SUBJECT Consider approval of a resolution of the City Of Demon, Texas approving City policy regulating incemive/recognition programs of City employees and declaring an effective date. BACKGROUND As part of a recent audit of employee incentive and recognition programs, the City Auditor recommended that a policy be developed that would ensure that the programs were administered in a consistem and fair manner and subject to the City Manager's oversight and approval. Accordingly, the Human Resources Department, with the assistance of the Departments that use employee incentive and/or recognition programs, developed the policy that is currently presented. Currently before you is a recommended new policy titled Incentive/Recognition Programs Policy (106.10). This policy has been recommended in order to standardize actual and existing practices of City departments in relation to their Employee Incentive and/or Recognition Programs. The policy statement follows: INCENTIVE/RECOGNITION PROGRAMS POLICY STATEMENT: The City of Demon recognizes the importance of rewarding employees when their actions positively contribute to the success of the City's mission, goals, and objectives. As a result, the City Manager or his/her designee has the authority to implement incentive and/or recognition programs that promote the success of the City's mission, goals, and objectives. This policy does not create any new incentive or recognition programs. On the contrary, it formalizes existing plans and practices in order to better ensure appropriate oversight and consistency. PRIOR ACTION/REVIEW There has been no prior action or review on this agenda item. Agenda Information Sheet September 16, 2003 FISCAL INFORMATION There is no fiscal impact on the City of Demon associated with this recommendation because the programs described in the policy are curremly in use and have already been incorporated imo the budget. Respectfully submitted: Director of Human Resources RESOLUTION NO. A RESOLUTION OF THE CITY OF DENTON, TEXAS APPROVING CITY POLICY REGULATING INCENTIVE/RECOGNITION PROGRAMS OF CITY EMPLOYEES; AND DECLARING AN EFFECTIVE DATE. WHEREAS, the City of Denton, Texas desires to establish an incentive/recognition program policy for city employees to establish policy to develop incentives and recognition programs to enhance city employees; and WHEREAS, the Director of the Human Resources Department for the City of Denton has presented a policy regarding employee rules and regulations concerning the incentive/recognition programs policy; and WHEREAS, the City Council, desires to adopt such policy as an official policy regarding employment with the City; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY RESOLVES: SECTION 1. That Policy numbered 106.10 "Incentive/Recognition Programs" of the Personnel Policies and Procedure Manual of the City of Denton attached hereto and incorporated by reference herein, is hereby approved as official policy of the City of Denton, Texas. SECTION 2. That the foregoing policy is attached hereto and made a part hereof and shall be filed in the official records with the City Secretary. SECTION 3. That this resolution shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the __day of ,2003 EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: S:\Our Documents\Resolutions\03\Incentive and recognition program Policy.doc CITY OF DENTON POLICY/ADMINISTRATIVE PROCEDURE/ADMINISTRATIVE DIRECTIVE SECTION: HUMAN RESOURCES REFERENCE NUMBER: 106.10 SUBJECT: WAGE AND SALARY PLAN iNITIAL EFFECTIVE DATE: 09-16-03 TITLE: INCENTIVE/RECOGNITION PROGRAMS LAST REVISION DATE: POLICY STATEMENT: The City of Demon recognizes the importance of rewarding employees when their actions positively contribute to the success of the City's mission, goals, and objectives. As a result, the City Manager or his/her designee has the authority to implemem incemive and/or recognition programs that promote the success of the City's mission, goals, and objectives. ADMINISTRATIVE PROCEDURES: I. General Guidelines Any departmem head wishing to implemem an incemive and/or recognition program in his&er departmem should submit a recommendation to the City Manager or his&er designee for his&er approval. The recommendation should include the following: A. Purpose of the incemive and/or recognition program, specifically defining how it will contribute to the success of the City's mission, goals, and objectives B. Eligibility criteria C. Amicipated duration of the program D. Type and value of award(s) that will be distributed (i.e., monetary, gift certificates, tangible property, etc.) E. Frequency of distribution of award(s) F. Source of funding for the award(s) G. Approval by the Assistam City Manager for the affected area Prior to the final approval of any incemive and/or recognition program, the City Manager or his/her designee will review the program to ensure (1) compliance with this policy, (2) consistency with City practices and standards, (3) the Managemem and Budget departmem has reviewed the program for compliance with IRS regulations. A copy of any incemive and/or recognition program should be forwarded to the Human Resources department. HR/POLICY/106.02 PAGEZ2_OF5 POLICY/ADMINISTRATIVE PROCEDURE/ADMINISTRATIVE DIRECTIVE (Continued) TITLE: INCENTIVE/RECOGNITION PROGRAMS REFERENCE NUMBER: 106.10 II. Categories oflncemive/Recognition Programs A. Service Awards This program recognizes employees for their dedicated service to the City of Demon during a Service Awards Banquet. Employees are recognized for years of service in 5-year incremems (i.e., 5 years, 10 years, 15 years, 20 years, etc.) with a certificate, lapel pin and gift for the appropriate years of service. The Human Resources departmem is responsible for the oversight and coordination of this program. B. Safety Awards The City of Demon is committed to the developmem of an aggressive city-wide safety program that promotes a safe work environment throughout the City organization. A program that recognizes employees for their achievements in promoting and maintaining a safe work environment is a valuable tool in meeting this goal. All safety incemive programs must be documemed and based on measurable goals directly related to the type of work performed by the employees receiving the incentive and/or industry benchmarks for the subject work unit. Developmem of any safety incemive program should be coordinated through Risk Managemem or Utility Safety and Training, as applicable. Risk Management and Utility Safety and Training shall work together to assure a coordinated safety program for the City. A copy of all safety/recognition program documemation must be filed with Risk Management as well as the Human Resources department. C. Long-term Business Incentive Strategy This incemive program allows departmem heads to award an employee up to a 5% lump sum award (calculated on the employee's annual base salary) when he/she contributes to the City's mission, goals, and objectives in the following areas: Aggressively involving citizens and businesses to help deliver services; Aggressively involving citizens in selecting services and products; Idemifying and implememing new alternative revenue sources; Becoming a unique and special city in the metroplex; Expanding and diversifying the local economy by attracting and expanding desirable commercial, industrial, and education emerprises; HR/POLICY/106.02 PAGE_3_OF5 POLICY/ADMINISTRATIVE PROCEDURE/ADMINISTRATIVE DIRECTIVE (Continued) TITLE: INCENTIVE/RECOGNITION PROGRAMS REFERENCE NUMBER: 106.10 implememing new programs/services, enhancing currem programs/services or receiving special recognition that contribute to the City's mission, goals, and objectives; Excellence in achieving operation goals and objectives. Any award over $500 should be approved by the Assistant City Manager for the area. The Human Resources departmem is responsible for the oversight of this program; however, awards are paid by individual departmems through savings in their existing operating budget. Programs or services should not be abandoned in order to fund these awards. Any director graining an incemive award should submit a memorandum and an employee status record to the Human Resources departmem for processing. The memorandum should include a justification as to why the award is being grained, the amount of the award (i.e., percem awarded), how the award will be funded, and the effective date for the award. Because this program should only be used for recognition when employees go above and beyond their normal responsibilities, awards typically should not be granted to an individual more than once a year. D. Attendance Awards This program allows departmems to recognize employees for not having any absences relating to sick time. However, any departmem director wishing to implemem such a program needs to ensure employees who have used sick time under the Family Medical Leave Act are not penalized, pursuam to section 825.215 of the Departmem of Labor Final Rules and Regulations. Oversight and coordination of such a program is the responsibility of individual departmems. E. General Recognition/Achievemem Awards The City of DeNon encourages the creation and promotion of a work environmem that recognizes, motivates, and rewards employees for a job well done. Creating positive employee morale is critical to ensuring employee longevity with the organization. As a result, it is recognized that department directors may want to develop departmental specific programs. Any recognition program must be approved by the City Manager or his/her designee and must comply with all aspects of this policy. iii. Cash and Cash Equivalem Awards HR/POLICY/106.02 PAGE 4 OF5 POLICY/ADMINISTRATIVE PROCEDURE/ADMINISTRATIVE DIRECTIVE (Continued) TITLE: INCENTIVE/RECOGNITION PROGRAMS REFERENCE NUMBER: 106.10 Awards may be given in the form of cash or cash equivalents. Cash equivalents include such things as gift certificates, tickets to movies or sporting events or meals. If the award is to be given in the form of a check, the check must be produced by the City's payroll department. If cash, gift certificates, tickets, etc. are to be given, the following information must be provided to the City's payroll department two weeks prior to the presentation of the award: [] The name and JDEdwards address number of each employee [] The amount of each award [] The date the award will be given [] The type of award (i.e., safety, incentive) As these types of awards are taxable to the employee (see Section IV), the payroll department will ensure that the tax records of each employee are properly updated. Please note that these procedures apply without regard to the value of the award. IV. Taxability Criteria Service awards, safety awards, and other achievement awards may be subject to federal income tax withholding, social security, Medicare, and federal unemployment tax if certain conditions are not met. A. Length of Service Awards The award must meet the following criteria to be excluded from the employee's income and from federal income and employment taxes: 1. The award must be tangible personal property. Awards of cash, cash equivalents, gift certificates, or other intangible property must be included in the employee's income and are subject to federal income and other employment taxes. 2. The award must be given under conditions and circumstances that do not create a significant likelihood of the payment of disguised compensation. 3. The award must be given as part of a meaningful presentation. 4. The employee cannot receive the award during the first five years of his or her service. 5. The employee may not have received another length-of-service award (other than one of very small value) during the same year or in any of the prior four years. B. Safety Achievement Awards The award must meet the following criteria to be excluded from the employee's income and HR/POLICY/106.02 PAGE~5_OF5 POLICY/ADMINISTRATIVE PROCEDURE/ADMINISTRATIVE DIRECTIVE (Continued) TITLE: INCENTIVE/RECOGNITION PROGRAMS REFERENCE NUMBER: 106.10 from federal income and employment taxes: 1. The award must be tangible personal property. Awards of cash, cash equivalents, gift certificates, or other intangible property must be included in the employee's income and are subject to federal income and other employment taxes. 2. The award must be given under conditions and circumstances that do not create a significant likelihood of the payment of disguised compensation. 3. The award must be given as part of a meaningful presentation. 4. The award may not be given to a manager, administrator, clerical employee or other professional employee. 5. During the tax year, not more than 10% of the organization's employees, excluding those listed above, may have received a safety achievement award (other than one of very small value). If an award meets the criteria listed above AND is a qualified plan award (part of an established written plan or program that does not favor highly-compensated employees), then awards up to $1,600 may be excluded from the employee's income and from federal taxation. If the award is NOT a qualified plan award, then the exclusion amount is $400. HR/POLICY/106.02 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: September 16, 2003 Human Resources Kathy DuBose, Fiscal and Municipal Services SUBJECT Consider approval of a resolution of the City of DeNon, Texas approving revised City policy regulating use of'tobacco products City employees and declaring an effective date. BACKGROUND In the previous three years, an Employee Policy Review Committee was established to examine and review the City's employmem policies, administrative procedures and administrative directives comained in the "City of, DeNon Policies and Procedures Manual." The manual is designed f,or employee guidance and reference. The review process is coordinated by the Human Resources Department in conjunction with Legal staff. When there is a discrepancy between the written reference and the Organization's practice, the Committee makes a determination to either change or to reinforce through training and communication the affected policy, procedure or directive. For the most part, the policies and amendments are primarily administrative in nature so as to reflect the actual practices throughout the Organization. Currently before you are recommended amendments to the "Policy Statement" portion of, the Use of, Tobacco Products Policy (No. 108.03). This Policy Statemem has been updated in order to combine two previous policies imo one policy [the Smoke-Free Workplace Policy (108.03A) and the Use of, Smokeless Tobacco Products Policy (No. 108.03B)]. The revised Policy Statement follows: USE OF TOBACCO PRODUCTS POLICY STATEMENT: The City of, DeNon desires to conduct its operations with the utmost regard f,or the safety of, its employees, its customers, and the public. One of, the most valuable assets of'the City of'Demon is its employee workf,orce. In recognition of that belief`, the City promotes the health, safety, and well-being of, each individual through progressive health and benefit programs. The City's obligations include concern f,or all employees in all areas of, known hazards and because environmemal tobacco smoke is a carcinogen shown to cause disease, including cancer, in healthy non-smokers, as well as aggravate allergic reactions including watery eyes, coughing and headaches in susceptible individuals, all of, which lead to impaired performance and increased health care costs. In addition, the use of, smokeless tobacco is offensive to many people, citizens and co- workers alike. A work environmem in which employees are allowed to use smokeless tobacco products promotes an image that many regard as unsanitary and unprofessional. It is therefore the policy of, the City of, DeNon to limit use of, Agenda Information Sheet September 16, 2003 smoking tobacco products and the use of smokeless tobacco products by City employees to certain areas designated by the City Manager or his/her designee. The Policy Statement is a combination of the Policy Statements of the two previous policies relating to the use of tobacco products and contains no significant changes. PRIOR ACTION/REVIEW There has been no prior action or review on this agenda item. FISCAL INFORMATION There is no fiscal impact on the City of Denton associated with this recommendation. Respectfully submitted: Carla J. Rom~ne Director of Human Resources RESOLUTION NO. A RESOLUTION OF THE CITY OF DENTON, TEXAS APPROVING REVISED CITY POLICY REGULATING USE OF TOBACCO PRODUCTS BY CITY EMPLOYEES; AND DECLARING AN EFFECTIVE DATE. WHEREAS, the City of Demon, Texas has a smoke free workplace policy for city employees to regulate the use of tobacco products by city employees; and WHEREAS, the City of Demon, Texas desires that the smoke free workplace policy should be expanded to include other tobacco products; and WHEREAS, the Director of the Human Resources Departmem for the City of Demon has presemed a revised policy regarding employee rules and regulations concerning the tobacco products policy; and WHEREAS, the City Council, desires to adopt such policy as an official policy regarding employment with the City; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY RESOLVES: SECTION 1. That Policy numbered 108.03 "Use of Tobacco Products" of the Personnel Policies and Procedure Manual of the City of Demon attached hereto and incorporated by reference herein, is hereby approved as official policy of the City of Demon, Texas, and replaces former policy 108.03. SECTION 2. That the foregoing policy is attached hereto and made a part hereof and shall be filed in the official records with the City Secretary. SECTION 3. That this resolution shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the __day of ,2003 EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: S:\Our Documents\Resolutions\03\Use of Tobbacco Products Polic2.doc CITY OF DENTON POLICY/ADMINISTRATIVE PROCEDURE/ADMINISTRATIVE DIRECTIVE SECTION: HUMAN RESOURCES REFERENCE NUMBER: 108.03 SUBJECT: STANDARDS OF CONDUCT FOR EMPLOYEES iNITIAL EFFECTIVE DATE: 06/01/92 TITLE: USE OF TOBACCO PRODUCTS LAST REVISION DATE: 9/16/03 I. POLICY STATEMENT The City of Demon desires to conduct its operations with the utmost regard for the safety of its employees, its customers, and the public. One of the most valuable assets of the City of Demon is its employee workforce. In recognition of that belief, the City promotes the health, safety, and well-being of each individual through progressive health and benefit programs. The City's obligations include concern for all employees in all areas of known hazards and because environmental tobacco smoke is a carcinogen shown to cause disease, including cancer, in healthy non-smokers, as well as aggravate allergic reactions including watery eyes, coughing and headaches in susceptible individuals, all of which lead to impaired performance and increased health care costs. In addition, the use of smokeless tobacco is offensive to many people, citizens and co-workers alike. A work environment in which employees are allowed to use smokeless tobacco products promotes an image that many regard as unsanitary and unprofessional. It is therefore the policy of the City of Denton to limit use of smoking tobacco products and the use of smokeless tobacco products by City employees to certain areas designated by the City Manager or his/her designee. II. ADMINISTRATIVE PROCEDURES A. Definitions: "Municipal Facility" means any building or structure owned or operated by the City of Demon. "Open air vehicle" means any vehicle owned or operated by the City of Demon which, by its design, is incapable of isolating passengers from the free flow of outside air. An "open air vehicle" does not include automobiles, buses, vans or trucks. "Smoking" means the combustion of any product or material containing tobacco. "Smokeless Tobacco Products" means any product or preparation containing tobacco, including chewing tobacco, snuff, and smokeless tobacco, but not including cigarettes, cigars, or pipe tobacco. "Vehicle" means any car, truck, bus, or van owned or operated by the City of Demon, used for conveying persons, supplies, equipment, etc. HR/POLICY/108.03A PAGEZ2_OF3 POLICY/ADMINISTRATIVE PROCEDURE/ADMINISTRATIVE DIRECTIVE (Continued) TITLE: USE OF TOBACCO PRODUCTS REFERENCE NUMBER: 108.03 The use of all tobacco products, including smokeless ones, is prohibited within any municipal facility of the City of Demon with the following exceptions: 1. Suspects and witnesses may smoke in designated areas of the Police Departmem during imerviews and imerrogations. Employees may not smoke in these areas at any time. 2. Smoking is permitted in a designated area of the jail. The use of tobacco products is prohibited in City of Demon vehicles. The use of tobacco products in open-air vehicles is subject to the discretion and approval of the supervisor of that area. The Director of Facilities Maimenance or designee shall conspicuously place "No Smoking" signs at the entrances of all municipal facilities and shall additionally place signs designating authorized smoking areas in the Police Department. Employees will be allowed to smoke outside the City of Denton facilities during their normal break period and lunch so long as they are at least twenty (20) feet away from an entrance or exit to the building. An entrance or exit to the building is defined to include any entry steps or ramps. An employee shall responsibly dispose of all waste products generated by his or her use of tobacco products. Notwithstanding any other provision of this policy allowing the use of smokeless tobacco products, a supervisor may prohibit the use of smokeless tobacco products in any area where employees fail to responsibly dispose of waste products generated by the use of smokeless tobacco products. Any employee who uses tobacco products in violation of this policy is subject to disciplinary action as outlined in Policy 109.01 Disciplinary Action. Smoking Cessation Programs: City employees who experience performance or personal difficulties while overcoming a nicotine addiction may seek help through the City's health insurance program or Employee Assistance Program (EAP), outlined in Policy 107.10 Employee Assistance Program. Interested employees or supervisors may contact a representative of the Human Resources Department for assistance. Supervisors are responsible for communicating this policy to, and enforcing the policy upon, their employees. HR/POLICY/108.03A AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: September 16, 2003 Materials Management Questions concerning this acquisition may be directed to Vance Kemler 349-8044 ACM: Kathy DuBose, Fiscal and Municipal Services SUBJECT Consider adoption of an Ordinance accepting comp etitive bids and awarding an annual contract for the purchase of refuse bags; providing for the expenditure of funds therefore; and providing an effective date (Bid 3058-Annual Price Agreement for Refuse Bags awarded to Dyna Pak Corporation in the amount of five cents per bag ($2.68/ro11) for an annual estimated amount of $80,400). BID INFORMATION This bid is for the annual contract to supply refu se bags for the Denton Solid Waste Department. These items are carried in the Warehouse work ing capital inventory for easy access. RECOMMENDATION We recommend that Section B1 of this bid be awarded to Dyna Pak Corporation in the amount of five cents per bag ($2.68/ro11) for an annua 1 estimated amount of $80,400. Section A1 will not be awarded due to the significant price difference of the blue bags. PRINCIPAL PLACE OF BUSINESS Dyna Pak Corporation Lawrenceburg, TN ESTIMATED SCHEDULE OF PROJECT This price agreement will be in effect for a period of one year from the date of award and may be extended for additional one-year periods if agreed to by both parties, with all pricing, terms and conditions remaining the same. FISCAL INFORMATION This item will be funded out of the Warehouse working capital account and charged back to the using department. Agenda Information Sheet September 16, 2003 Page 2 Attachment 1: Bid Tabulation 1-AlS-Bid 3058 Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING AN ANNUAL CONTRACT FOR THE PURCHASE OF REFUSE BAGS; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE (BID 3058-ANNUAL PRICE AGREEMENT FOR REFUSE BAGS AWARDED TO DYNA PAK CORPORATION IN THE AMOUNT OF FiVE CENTS PER BAG ($2.68/ROLL) FOR AN ANNUAL ESTIMATED AMOUNT OF $80,400). WHEREAS, the Cityhas solicite d, 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 ma terials, equipment, supplies or services as shown in the "Bid Pr oposals" 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 fo llowing numbered bids for materials, equipment, supplies, or services, shown in the "B id Proposals" on file in the office of the City Purchasing Agent, are hereby accep ted and approved as being the lowest responsible bids for such items: BID ITEM NUMBER NO VENDOR AMOUNT 3068 Section B 1 Dyna Pak Corporation 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, st andards, quantities and specified sums contained in the Bid Proposal a nd 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 ,2003. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: 3-ORD-BID Exhibit A BID # 3058 Date 08/19/03 ANNUAL AGREEMENT FOR REFUSE BAGS No. Qty. DESCRIPTION VENDOR Dyna Pak Corporation Principle Place of Business: Lawrenceburg, TN B1 Black Plastic Refuse Bags 2.68 Samples Yes Shipment 21 Days AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET September 16, 2003 Materials Management Kathy DuBose, Fiscal and Municipal Services Questions concerning this acquisition may be directed to Vance Kemler 349-8044 SUBJECT Consider adoption of an Ordinance accepting comp etitive bids and awarding an annual contract for the purchase of multipurpose paper; providing for the expenditure of funds therefore; and providing an effective date (Bid 3060-Annual Price Agreement for Multipurpose Paper awarded to Western Paper Company, inc. in the amount of $1.80 per ream of paper ($18/carton) for an estimated annual amount of $28,800). BID INFORMATION This bid is for the annual contract to supply mu ltipurpose paper to all City departments. Only item 1 for 8 ½" x 11" white premium grade 4 multipurpose paper is recommended for award at this time. Items 2-18 will not be awarded due to their small estimated annual volume. These items can be spot purchased as needed for a more competitive price, item 1 will be carried in the Warehouse working capital inventory for easy access. RECOMMENDATION We recommend the award of Bid 3060 Item 1 to Western Paper Company, Inc. in the amount of $1.80 per ream of paper ($18/carton) for an annual estimated amount of $28,800. PRINCIPAL PLACE OF BUSINESS Western Paper Company, Inc. Grand Prairie, TX ESTIMATED SCHEDULE OF PROJECT This price agreement will be in effect for a period of one year from the date of award and may be extended for additional one-year periods if agreed to by both parties with all pricing, terms and conditions remaining the same. FISCAL INFORMATION This item will be funded out of the Warehouse working capital account and charged back to the using department. Agenda Information Sheet September 16, 2003 Page 2 Attachment 1: Bid Tabulation 1-AlS-Bid 3060 Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent Bid # 3060 Attachment Date: 8/7/03 White Multi Purpose Paper Principle Place of Business: 8 1/2'xll'White premiurr grade 4 multipurpose 1600 015-55- paper, minimum 84% 1 $19.80 $18.00 $18.99 $22.70 $18.34 cartons 700 brightness. Xerox part # 3R2047, HP part # HPC8511 or equal. 8 1/2" x 11" White, 24#, 38 015-55- minimum 93% bright 3 $58.50 $23.00 No Bid $31.40 $34.67 cartons 715 paper, Xerox part # 3Rl1380 or equal. 8 1/2" x 11" white, 80# 50 015-55- gloss coated paper. 5 $63.00 $12.67 $41.19 $64.60 No Bid cartons 725 Xerox part #: 3Rl1330 ol equal. 18" x 12" White, 80# 50 015-55- 7 cartons 735 coated cover paper. $67.50 $53.13 $55.66 $77.40 No Bid Xerox part # 3Rl1335. 50 015-55- 8 1/2" x 14" green, 20# 9 cartons 300 paper. Xerox part # $38.20 $33.10 $31.05 $48.00 $29.35 3Rl1075 or equal. 50 015-55- 8 1/2"x 14" yellow, 20# 11 cartons 302 paper. Xerox part # $38.20 $33.10 $31.05 $48.00 $29.35 3Rl1077 or equal. 50 015-55- 8 1/2"x 14" cherry, 20# 13 cartons 304 paper. Xerox part $38.20 $33.10 $24.74 $42.80 No Bid #3Rl1083 or equal. 50 015-55- 11" x 17" yellow, 20# 15 cartons 306 paper. Xerox part # $29.60 $26.00 $24.74 $33.60 No Bid 3Rl1089 or equal. 50 015-55- 11" x 17" pink, 20# 17 cartons 308 paper. Xerox part # $29.60 $26.00 $24.74 $33.60 No Bid 3Rl1088 or equal. SHIPMENT 3-5 Days 5 Days 2 Days 1-10 Days 3 Days ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING AN ANNUAL CONTRACT FOR THE PURCHASE OF MULTIPURPOSE PAPER; PROViDiNG FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE (BID 3060-ANNUAL PRICE AGREEMENT FOR MULTIPURPOSE PAPER AWARDED TO WESTERN PAPER COMPANY, iNC. IN THE AMOUNT OF $18/CARTON FOR AN ESTIMATED ANNUAL AMOUNT OF $28,800). WHEREAS, the Cityhas solicite d, 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 ma terials, equipment, supplies or services as shown in the "Bid Pr oposals" 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 fo llowing numbered bids for materials, equipment, supplies, or services, shown in the "B id Proposals" on file in the office of the City Purchasing Agent, are hereby accep ted and approved as being the lowest responsible bids for such items: BID ITEM NUMBER NO VENDOR AMOUNT 3060 1 Western Paper Company, Inc. 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, st andards, quantities and specified sums contained in the Bid Proposal a nd 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 ,2003. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: 3-ORD-BID 3060 0 0 0 0 CO E .E ~ EEg Z AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET September 16, 2003 Materials Management Kathy DuBose, Fiscal and Municipal Services Questions concerning this acquisition may be directed to Barbara Ross 349-7235 SUBJECT Consider adoption of an Ordinance accepting competitive bids and awarding a contract for infant and Child Care Programs for Low-income Families; providing for the expenditure of funds therefore; and providing for an effective date (Bid 3069A-infant & Child Program for Low-income Families awarded to Fred Moore Day Nursery School, inc. in the amount of $39,000). BID INFORMATION This bid is to provide licensed childcare services on a sliding fee scale for children of low-to-moderate income working parents, parents enrolled full time in school or a training program, unemployed individuals who are actively seek ing employment, and parents working and enrolled in school part time. The service accepts children of ages six weeks to five years from 7:00 A.M. to 6:00 P.M., and includes well-balanced meals and a learning development curriculum. RECOMMENDATION We recommend this be awarded to the sole bidder, Fred Moore Day Nursery School, in the amount of $39,000. PRINCIPLE PLACE OF BUSINESS Fred Moore Day Nursery School, Inc. Denton, TX ESTIMATED SCHEDULE OF PROJECT This agreement shall commence upon approval a nd terminate on September 30, 2004, unless sooner terminated in accordance with Section iii "Suspension or Termination" of the contract agreement. FISCAL INFORMATION CDBG funds have been appropriated for this pr ogram from account 220099.7762 216856 A. Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent Attachment 1: Tabulation Sheet 1-MS-Bid 3069A Infant and Child Care Program Bid # 3069A Attachment 1 Date: 9/9/03 INFANT & CH[LDCARE PROGRAM FOR LOW [NCOIVlE HOUSEHOLDS Fred Moore Day I TOTAL BASE BID $39,000.00 ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING A CONTRACT FOR INFANT AND CHILD CARE PROGRAMS FOR LOW-INCOME FAMILIES, PROViDiNG FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING FOR AN EFFECTIVE DATE (BID 3069A-INFANT & CHILD PROGRAM FOR LOW-INCOME FAMILIES AWARDED TO FRED MOORE DAY NURSERY SCHOOL, INC. IN THE AMOUNT OF $39,000). WHEREAS, the City has solicite d, 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 following competitive bids for ma terials, equipment, supplies, or services, described in the "Bid Proposals" on file in the office of City' s Purchasing Agent filed according to the bid number assigned hereto, are hereby accepted and approved as being the lowest responsible bids for such items: BID ITEM NUMBER NO. CONTRACTOR AMOUNT 3069A 1 Fred Moore Day Nursery School, Inc. $39,000 SECTION 2. That the acceptance and approval of the above competitive 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 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 designat ed representative is hereby authorized to execute the written contracts which shall be attached hereto; provided that the written contract is in accordance with the terms, conditions, specifications, st andards, quantities and specified su ms contained in the Bid Proposal and related documents herein approved and accepted. SECTION 4. That bythe acceptance and approval of the above competitive 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 the day of ,2003. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: 3-ORD-BID 3069A INFANT CHILD CARE PROGRAM AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET September 16, 2003 Materials Management Kathy DuBose, Fiscal and Municipal Services Questions concerning this acquisition may be directed to Barbara Ross 349-7235 SUBJECT Consider adoption of an Ordinance accepting comp etitive bids and awarding a contract for Self- Sufficiency Program for Low-income & Homeless Households, providing for the expenditure of funds therefore; and providing for an effective date (Bid 3070-Self-Sufficiency Program for Low income & Homeless Households awarded to HOPE, inc., in the amount of $30,000). BID INFORMATION This bid is for providing services to the homel ess and potentially homeless in Denton who can help themselves, and desire to do so, therefore moving toward establishing and maintaining self-reliance and becoming reintegrated as productive members of th e community. Services include providing crisis management, verification a nd assistance with application to the Housing Authority for homeless or involuntary displaced persons, coordinating services for the entire family and assisting in budget planning, goal setting and job searching. RECOMMENDATION We recommend this be awarded to the sole bidder, HOPE, inc., in the amount of $30,000. ESTIMATED SCHEDULE OF PROJECT This agreement shall commence upon approval a nd terminate on September 30, 2004, unless sooner terminated in accordance with Section XXVi "Termination" of the contract agreement. PLACE OF BUSINESS HOPE, Inc. Denton, TX FISCAL INFORMATION CDBG funds have been appropriated for this program from account 90200211.1360.10100. Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent Attachment 1: Tabulation Sheet 0 z 0 0 0 ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING A CONTRACT FOR SELF-SUFFICIENCY PROGRAM FOR LOW-INCOME & HOMELESS HOUSEHOLDS, PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING FOR AN EFFECTIVE DATE (BID 3070-SELF-SUFFICIENCY PROGRAM FOR LOW INCOME & HOMELESS HOUSEHOLDS AWARDED TO HOPE, INC., iN THE AMOUNT OF $30,000). WHEREAS, the Cityhas solicite d, 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 ma terials, 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 following competitive bids fo r materials, equipment, supplies, or services, described in the "Bid Proposals" on file in the office of City' s Purchasing Agent filed according to the bid number assigned hereto, are hereby accepted and approved as being the lowest responsible bids for such items: BID ITEM NUMBER NO. CONTRACTOR AMOUNT 3070 1 HOPE, Inc. $30,000 SECTION 2. That the acceptance and approval of the above competitive 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 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 design ated representative is hereby authorized to execute the written contracts 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 competitive 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 the dayof .,2003. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: 3-ORD-BID 3070 AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET September 16, 2003 Materials Management Kathy DuBose, Fiscal and Municipal Services Questions concerning this acquisition may be directed to Barbara Ross 349-7235 SUBJECT Consider adoption of an Ordinance accepting competitive bids and awarding a comract for Childcare Expansion Program for Low-Income Children; providing for the expenditure of funds therefore; and providing for an effective date (Bid 3071-Child care Expansion Program for Low-Income Children awarded to DeNon Christian Preschool in the amoum of $30,000). BID INFORMATION The Childcare Expansion Program for Low-Income Ch ildren will provide licensed childcare services on a sliding fee scale to at-risk preschool children from low-income households. The children are ages three and four years old, and are at-risk of not succeeding in the public school system without early intervention. RECOMMENDATION We recommend this be awarded to the sole bidd er, Denton Christian Preschool, in the amount of $30,000. PLACE OF BUSINESS Denton Christian Preschool Denton, TX ESTIMATED SCHEDULE OF PROJECT This agreement shall commence upon approval and terminate on September 30, 2004, unless the contract is sooner terminated under Section VII "Suspension or Termination" of the contract agreement. FISCAL INFORMATION CDBG funds have been appropriated fo r this program from accoum 220099.7762 325307 A. Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agem Attachment 1: Tabulation Sheet LU 0 Z 0 0 0 0 X ILl ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING A CONTRACT FOR CHiLDCARE EXPANSION PROGRAM FOR LOW-INCOME CHILDREN; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING FOR AN EFFECTIVE DATE (BID 3071-CHiLDCARE EXPANSION PROGRAM FOR LOW- INCOME CHILDREN AWARDED TO DENTON CHRISTIAN PRESCHOOL IN THE AMOUNT OF $30,000). WHEREAS, the City has solicite d, received and tabulated competitive bids for the purchase of necessary materials, equipmem, 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, equipmem, 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, equipmem, supplies or services approved and accepted herein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the following competitive bids for ma terials, equipmem, supplies, or services, described in the "Bid Proposals" on file in the office of City' s Purchasing Agem filed according to the bid number assigned hereto, are hereby accepted and approved as being the lowest responsible bids for such items: BID ITEM NUMBER NO. CONTRACTOR AMOUNT 3071 1 DeNon Christian Preschool $30,000 SECTION 2. That the acceptance and approval of the above competitive bids, the City accepts the offer of the persons submitting the bids for such items and agrees to purchase the materials, equipmem, supplies or services in accordance with the terms, specifications, standards, quamities and for the specified sums contained in the Bid Invitations, Bid Proposals, and related documents. SECTION 3. That 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 designat ed represemative is hereby authorized to execute the written contracts which shall be attached hereto; provided that the written contract is in accordance with the terms, conditions, specifications, st andards, quamities and specified su ms comained in the Bid Proposal and related documems herein approved and accepted. SECTION 4. That bythe acceptance and approval of the above competitive 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 the day of ,2003. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: 3-ORD-BID 3071 AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET September 16, 2003 Materials Management Kathy DuBose, Fiscal and Municipal Services Questions concerning this acquisition may be directed to Barbara Ross 349-7235 SUBJECT Consider adoption of an Ordinance accepting competitive bids and awarding a comract for Daycare Program for Low-Income Families; providing for the ex penditure of funds therefore; and providing for an effective date (Bid 3072-Daycare Program for Low-Income Families awarded to DeNon City Coumy Day School in the amoum of $38,000). BID INFORMATION This bid is for a licensed childcare program provider for children of low-to-moderate income working parems, parems enrolled full time in school or a training program, unemployed parems who are seeking employmem, and parems working and enrolled in school part time. Services will be extended to children 18 months to five years, with hours of operation from 6:30 A.M. to 5:30 P.M. The program includes well-balanced meals and a learning developmem curriculum. RECOMMENDATION We recommend award of this bid to the sole bidder, Denton City County Day School, in the amount of $38,000. PLACE OF BUSINESS Denton City County Day School Denton, TX ESTIMATED SCHEDULE OF PROJECT This agreemem is for October 1, 2003 through September 30, 2004, unless the comract is sooner terminated under Section VII "Suspension or Termination" of the contract agreement. FISCAL INFORMATION CDBG funds have been appropriated fo r the program from accoum 220099.7762 325323 A. Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agem Attachment 1: Tabulation Sheet 1-MS-Bid 3072 Daycare Program ul o ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING A CONTRACT FOR DAYCARE PROGRAM FOR LOW-iNCOME FAMILIES; PROViDiNG FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROViDiNG FOR AN EFFECTIVE DATE (BID 3072-DAYCARE PROGRAM FOR LOW-INCOME FAMILIES AWARDED TO DENTON CITY COUNTY DAY SCHOOL IN THE AMOUNT OF $38,000). WHEREAS, the Cityhas solicite d, received and tabulated competitive bids for the purchase of necessary materials, equipmem, 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 ma terials, equipmem, 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, equipmem, supplies or services approved and accepted herein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the following competitive bids fo r materials, equipmem, supplies, or services, described in the "Bid Proposals" on file in the office of City' s Purchasing Agem filed according to the bid number assigned hereto, are hereby accepted and approved as being the lowest responsible bids for such items: BID ITEM NUMBER NO. CONTRACTOR AMOUNT 3072 1 DeNon City Coumy Day School $38,000 SECTION 2. That the acceptance and approval of the above competitive bids, the City accepts the offer of the persons submitting the bids for such items and agrees to purchase the materials, equipmem, supplies or services in accordance with the terms, specifications, standards, quamities and for the specified sums comained in the Bid invitations, Bid Proposals, and related documems. SECTION 3. That 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 design ated represemative is hereby authorized to execute the written contracts which shall be attached hereto; provided that the written contract is in accordance with the terms, conditions, specifications, standards, quamities and specified sums comained in the Bid Proposal and related documems herein approved and accepted. SECTION 4. That by the acceptance and approval of the above competitive 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 the day of ., 2003. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: 3-ORD-BID 3072 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: September 16, 2003 Materials Management Questions concerning this acquisition may be directed to Alex Pettit 349-8595 ACM: Kathy DuBose, Fiscal and Municipal Services SUBJECT Consider adoption of an Ordinance awarding a contract for the purchase of an automated tape library as awarded by the State of Texas Building and Procurement Commission through the Catalog information Service Vendor (CiSV) Catalog Program; providing for the expenditure of funds therefore; and providing an effective date (File 3075-Purchase of Automated Tape Library awarded to Eagle Software, inc. in the amount of $64,441). FILE INFORMATION This Automated Tape Library is being purchased in order to upgrade the City's Tape Backup operations to higher capacity, faster equipment. The current tape library will not be sufficient to effectively support the amount of digital data being acquired and stored by City Departments. The amount of data being acquired through the Street Pavement Analysis Project will exceed the available capacity of the current system. Tape backups are necessary for preservation and restoration of valuable City information. This tape library will meet current needs for tape storage, as well as allow for cost effective upgrades as necessary to meet the future needs of City Departments. RECOMMENDATION We recommend award of this item to Eagle Software, Inc. in the amount of $64,441. PRINCIPAL PLACE OF BUSINESS Eagle Software, Inc. Salina, KS ESTIMATED SCHEDULE OF PROJECT Installation and configuration of the new tape library will be completed by October 1, 2003. FISCAL INFORMATION Funding for this item will be provided from Technology Services project number 830018443.1355.30100. Agenda Information Sheet September 16, 2003 Page 2 Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent Attachment 1: Eagle Software quotation 1-AlS-File 3075 Attachment 1 August 22, 2003 123Indiana Ave. 785-823-7257 PH 800-477-5432 800477-5433 Software, [nc. Salina, KS 67401 785-823-6185 FX www.eaglesoft, com Mr. Tom Shaw City of Denton 901 A Texas St. Denton, TX 76201 Dear Mr. Shaw: Following is the quotation you requested for Spectra Logic Tape Library. This Spectra 20K 1/braW is at or below the State of Texas CISV/QISV price. VID# 1480926369300 This quote is good for 30 days. QUOTATION Qt¥ Item unit Price Price 1 1 1 1 2 2 4 2 2 1 Spectra 20K library, 30 slot, 4 AIT-3 drives, 1 LQIP, $45,165 Shared Library Services (SLS) N/C 1 Year of next day on site services N/C 1 Year of Assisted Self Maintenance (ASM) $3,610 $3,610 Days of on site Installation & Training $3,500 $7,000 Cleaning tapes $45 $90 230m AIT-3 Cert. Media pack (1 5 tapes) $1,299 $5,196 6' SCSI Cable $90 $180 Adpatec 29160 LVD SCSI controller $350 $700 Remote Library Controll (RLC) $2,500 $2,500 TOTAL $64,441 $45,165 EAGLE Software, Inc. FederaI tax ID NO. 480926369 Freight terms are F.O.B. shipping point. Payment terms are Net 30. Sales tax may apply. Thank you for your interest in EAGLE Software and our products. Please feel free to contact me if you have any questions. Sincerely, EAGLE Sol,are, Inc. Mark Van Bunnen ORDINANCE NO. AN ORDINANCE AWARDING A CONTRACT FOR THE PURCHASE OF AN AUTOMATED TAPE LIBRARY AS AWARDED BY THE STATE OF TEXAS BUiLDiNG AND PROCUREMENT COMMISSION THROUGH THE CATALOG iNFORMATiON SERVICE VENDOR (CiSV) CATALOG PROGRAM; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE (FILE 3075-PURCHASE OF AUTOMATED TAPE LIBRARY AWARDED TO EAGLE SOFTWARE, INC. iN THE AMOUNT OF $64,441). WHEREAS, the City Council of the City of Denton has heretofore adopted Resolution 92- 019 pursuant to Section 2157.067 of the Texas Government Code and Sections 271.082 and 271.083 of the Texas Local Government Code which authorizes the Cityto participate in the State Purchasing Building and Procurement Commissi on Qualified information Servi ce Vendor Catalogue Purchase Method provided for in Subchapter B of Chapter 2157 of the Texas Government Code (the "CiSV Catalogue"); and WHEREAS, the herein described vendor is a qua lifted vendor in the CiSV Catalogue and the contract authorized by this ordinance is in the best interests of the City and complies with the requirements ofSubchapter B of Chapter 2157 of the Texas Government Code as a CiSV Catalogue purchase; and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the materials, equipment, supplies or services approved and accepted herein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The numbered items in the following numbered file for materials, equipment, supplies, or services, shown in the "Purchase Orde rs" listed hereon, and on file in the office of the Purchasing Agent, are hereby approved: FILE NUMBER VENDOR AMOUNT 3075 Eagle Software, Inc. $64,441 SECTION 2. By the acceptance and approval of the above numbered items set forth in the attached purchase orders, the City accepts the offer of the persons submitting the bids to the Building and Procurement Commission for such items and agrees to purchase the materials, equipment, supplies or services in accordance with the term s, conditions, specifications, standards, quantities and for the specified sums contai ned in the bid documents and re lated documents filed with the Services Commission, and the purchase orders issued by the City. SECTION 3. Should the City and persons submitting approved and accepted items set forth in the attached purchase orders wish to enter into a formal written agreement as a result of the City's ratification of bids awarded bythe General Servic es Commission, the CityManager or his designated representative is hereby authorized to execute the written contract; provided that the written contract is in accordance with the terms, conditions, specifi cations and standards contained in the Proposal submitted to the General Services Commission, quantities and specified sums contained in the City's purchase orders, and related documents herein approved and accepted. SECTION 4. By the acceptance and approval of the above numbered items set forth in the subject purchase orders, the City Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with the approved purchase orders or pursuant to a written contract made pursuant thereto as authorized herein. SECTION 5. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this day of ,2003. ATTEST: JENNIFER WALTERS, CITY SECRETARY EULINE BROCK, MAYOR BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: 3-Ord-File 3075 AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET September 16, 2003 Materials Management Kathy DuBose, Fiscal and Municipal Services Questions concerning this acquisition may be directed to Alex Pettit 349-8595 SUBJECT Consider adoption of an Ordinance awarding a contract for the purchase of a RS6000 Server, computer hardware, operating system software, and first year annual maintenance as awarded by the State of Texas Building and Procurement Commission through the Catalog Information Service Vendor (CiSV) Catalog Program; providing for the expenditure of funds therefore; and providing an effective date (File 3076-Purchase of RS6000 Server awarded to international Business Machines, inc. (iBM) in the amount of $80,595.14). FILE INFORMATION This Server is being purchased in order to upgrade the JD Edwards Financial system to faster, more powerful equipment. The current server supporting the JD Edwards system, which is used citywide, is 4 years old and will be re-assigned to other processes. This new server will increase operational speed of the Financial System. The attached quote includes the server computer hardware and the operating system software at a cost of $76,875.14. The annual maintenance is shown as a monthly charge of $310 for a total of $3720. RECOMMENDATION We recommend award of this item to International Business Machines, Inc. in the amount of $80,595.14. PRINCIPAL PLACE OF BUSINESS International Business Machines, Inc. Dallas, TX ESTIMATED SCHEDULE OF PROJECT Migration of JD Edwards to the new server hardware is to be completed by December 31, 2003. FISCAL INFORMATION This item will be funded from Technology Services project number 830013441.1355.30100. Agenda Information Sheet September 16, 2003 Page 2 Attachment 1: Attachment 2: 1-AlS-File 3076 Proposal from IBM CISV Letter Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent At tach~e~t 1 City of Denton pSeries p650 6-way t.45GHz SMP Server 12GB Memory, 2 x 146.8GB Internal UltraSCSI Disk (ROOTVG Mirror) (2) 64-bit Gigabit Fibre Channel Adapters, (2) Gigabit Ethernet Adapters 60/150GB 8mm Tape Drive, 48x DVD-RAM Drive, Redundant Power Supplies, Cables A~X V5.1, 3yr Software Maintenance Machine Feature I List Price Discounted Pricing Mo. Maintenance Description Qty Unit I Extended [DiscountI Unit I Extended Unit Extended Rack Server 1 :PSERIES 650 1 3,212.00 3,212.00 10% 2,890.80 2,890.80 115.00 115.00 LC-SC 50 MICRON FIBER CONV CAB 2 83.00 166.00 10% 74.70 149.40 15X/45X SCSi AUTO-DOCK DVD ROM I 400.00 400.00 10% 360.00 360.00 146.8GB 10K RPM U3 SCSi DDRASS 2 4,082.00 8,164.00 10% 3,673.80 7,347.60 BAKPLANE AUTO-DOCKING MEDIA DR 1 400.00 400.00 10% 360.00 360.00 INT CAB INTEG CONTR 2SCSI BKPL I 292.00 292,00 10% 262.80 262,80 INT.CAB,MEDiA BACKPLAN E(4PACK) 1 25.00 25.00 10% 22.50 22.50 4096MB DIMMS 208PIN 8NS ST DDR 1 8,800.00 8,800.00 10% 7,920.00 7,920.00 RACK INDICATOR, RACK 1 1 N/C N/C 10% NtC N/C SOFTWARE PREINSTALL 1 N/C N/C 10% N/C N/C ?.-WAY 1.2GHZ PWR4+ PROCCARD 1 14,500.00 14,500.00 10% 13,050.00 13,050.00 PROC CARD BACKPL 6WAY CONFfG 1 300.00 300,00 10% 270.00 270.00 10/10011000 BASETX ETH PClX AD 2 1,066.00 2, I32.00 10% 959.40 1,918.80 80/160GB INT AUTO-DOCK TAPE DR 1 2,600.00 2,600.00 10% 2,340.00 2,340.00 2 GIGAB FIBRE CHANN PCI-X ADPT 2 2,582.00 5,164.00 10% 2,323.80 4,647.60 6287 AC POWER SUPPLY, 1100 W 2 1,000.00 2,000.00 10% 900.00 1,800.00 6415 RIO-2 RMT ilo LOOP ADPT, PRIMAR 1 1,000.00 1,000.00 10% 900.00 900.00 6578 U3 SCSi BAKPL HS DISKS I 600.0C 600.00 10% 540.00 540.00 8050 2WAY 1.2GHZ PWR4+ PROC CARD 2 N/C N/C 10% N/C N/C 8052 4096MB DIMMS EXPRESS CONFIG 2 N/C N/C 10% N/C N/C 8054 ENTITLEMENT FC EXPRCONFG 400M I 24,772.00 24,772.00 10% 22,294.80 22,294.80 9172 POWER SPECIFY, AC 1 N/C N/C 10% NIC NIC 9300 LANG GRP SPEC,-US ENGLISH 1 N/C N/C 10% NIC 9581 RIO-2 ENABLEMENT INDICATOR 1 N/C N/C 10% N/C N/C 991 t F=WR CORD SPEC.-ALL 1 N/C N/C 10% N/C N/C Total 7038-6M2 74,527.00 67,074.30 7038-6M2 2456 2635 3275 4251 4255 4261 4453 4651 5005 5122 5123 5701 6169 6239 65,00 65.00 65.00 130.00 310.00 5692-A5L SYSTEM PROGRAM ORDER 1 N/C N/C 0% N/C N/C 907 AIX V5.1 POWER UPDATE CD 1 N/C N/C 0% N/C N/C 919 5765-E61 AIX 5L FOR POWER V5.1 1 N/C N/C 0% N/C N/C 920 AIX 5.1 BONUS PACK 1 N/C N/C 0% N/C N/C 921 AIX 5.1 EXPANSION PACK 1 N/C N/C 0% N/C N/C 1004 MEDIA PROCESS CHARGE CD ROM 1 50.00 50.00 0% 50.00 50.00 2924 ENGLISH 1 N/C N/C 0% N/C NIC 3410 MEDIA CD-ROM 1 N/C N/C 0% N/C N/C 5005 PREINSTALL 1 N/C N/C 0% N/C N/C 5924 ENGLISH 1 N/C NIC 0% N/C N/C 9001 ASSET REGISTRATION t N/C NIC 0% N/C N/C Total 5692-ASL 50.00 50.00 5765-E61 AIX 5L FOR POWER V5.1 I N/C N/C 27% N/C NtC 1 AIX 5LV5. i PER PROCESSOR 8 N/C N/C 27% N/C N/C 5005 PRE-INSTALL OF AIX 1 N/C N/C 27% N/C N/C 9001 ASSET REGISTRATION 1 N/C N/C 27% N/C N/C Total 5765-E61 5773-SPT SW MAINT AIX 3 YR SUPPORT 1 N/C N/C 17% N/C N/C 278 PROC F5 SUPPORT 3YR REG/RENE 6 1,418.00 8,508.00 17% 1,176.94 7,061.64 Total 5773-SPT 8,508.00 7,061.64 5773-SUB SW MAINT AIX 3 YR SUBSCRIPTION i N/C NIC 17% N/C N/C 290 PROC F5 SUBSCR 3YR REG/RENEW 6 540.00 3,240.00 17% 448.20 2,689.20 Total 5773-SUB 3,240.00 2,689.20 Note: Prices and discounts ara subject to change. Lease rates and Sen/iceSuite pdcing are for ptanning purposes only. Prepared by: mpautsch 8/8/2003 (~ 8:45:19 AM Page 1 of 2 / Cibj of Denton Ex[3ress [3650 Total Server Hardware 74,527.00 67,074.30 310,00 Total Software (including Maintenance) 1 t,796.00 9,800.84 Total Storage & Peripitera[s Total Services Solution Total 86,325.00 76,875.14 310.00 Note: Prices and discounts are subject to change. Lease rates and ServiceSuite pricing are for ptanning purposes only. Prepared by: mpautsch 8/8/2003 @ 8:45:19 AM Page 2 of 2 / City of Denton Express p650 Attachnent 2 September 3~ 2003 Dear M~, h~ e_efe_.rc~cc ro ',he pricing )-BM ha~ offered the CiE. of D~mtvn tot the follovAng cvnfigur~don~ the disco~.mted prices providcd arc a! ~r belo',v CISV a~t~[o,~ ?ich~g~ Sincerely. ** TOTAL PRGE. fi2 ** ORDINANCE NO. AN ORDINANCE AWARDING A CONTRACT FOR THE PURCHASE OF A RS6000 SERVER, COMPUTER HARDWARE, OPERATING SYSTEM SOFTWARE, AND FIRST YEAR ANNUAL MAINTENANCE AS AWARDED BY THE STATE OF TEXAS BUILDING AND PROCUREMENT COMMISSION THROUGH THE CATALOG INFORMATION SERVICE VENDOR (CiSV) CATALOG PROGRAM; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE (FILE 3076-PURCHASE OF RS6000 SERVER AWARDED TO iNTERNATiONAL BUSINESS MACHINES, iNC. (iBM) iN THE AMOUNT OF $80,595.14). WHEREAS, the City Council of the City of Denton has heretofore adopted Resolution 92- 019 pursuant to Section 2157.067 of the Texas Government Code and Sections 271.082 and 271.083 of the Texas Local Government Code which authorizes the City to participate in the State Purchasing Building and Procurement Commission Qualified information Service Vendor Catalogue Purchase Method provided for in Subchapter B of Chapter 2157 of the Texas Government Code (the "CiSV Catalogue"); and WHEREAS, the herein described vendor is a qualified vendor in the CISV Catalogue and the contract authorized by this ordinance is in the best interests of the City and complies with the requirements of Subchapter B of Chapter 2157 of the Texas Government Code as a CiSV Catalogue purchase; and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the materials, equipment, supplies or services approved and accepted herein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The numbered items in the following numbered file for materials, equipment, supplies, or services, shown in the "Purchase Orders" listed hereon, and on file in the office of the Purchasing Agent, are hereby approved: FILE NUMBER VENDOR AMOUNT 3076 International Business Systems $80,595.14 SECTION 2. By the acceptance and approval of the above numbered items set forth in the attached purchase orders, the City accepts the offer of the persons submitting the bids to the Building and Procurement Commission for such items and agrees to purchase the materials, equipment, supplies or services in accordance with the terms, conditions, specifications, standards, quantities and for the specified sums contained in the bid documents and related documents filed with the Services Commission, and the purchase orders issued by the City. SECTION 3. Should the City and persons submitting approved and accepted items set forth in the attached purchase orders wish to enter into a formal written agreement as a result of the City's ratification of bids awarded by the General Services Commission, the City Manager or his designated representative is hereby authorized to execute the written contract; provided that the written contract is in accordance with the terms, conditions, specifications and standards contained in the Proposal submitted to the General Services Commission, quantities and specified sums contained in the City's purchase orders, and related documents herein approved and accepted. SECTION 4. By the acceptance and approval of the above numbered items set forth in the subject purchase orders, the City Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with the approved purchase orders or pursuant to a written contract made pursuant thereto as authorized herein. SECTION 5. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this day of .,2003. ATTEST: JENNIFER WALTERS, CITY SECRETARY EULINE BROCK, MAYOR BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: 4-Ord-File 3076 AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET September 16, 2003 Materials Management Kathy DuBose, Fiscal and Municipal Services Questions concerning this acquisition may be directed to Alex Pettit 349-8595 SUBJECT Consider adoption of an Ordinance awarding a contract for the purchase of a Mitsubishi 50kVA Uninterruptible Power Supply and Distribution System as awarded by the State of Texas Building and Procurement Commission through the Catalog information Service Vendor (CiSV) Catalog Program; providing for the expenditure of funds therefore; and providing an effective date (File 3079-Purchase of Mitsubishi 50kVA Uninterruptible Power Supply and Distribution System awarded to DataCom Power, inc. in the amount of $89,155). BACKGROUND The data center located at City Hall East provides mission critical support for applications used by all Departments within the City including Police, Fire, Engineering, Finance, Accounting, Municipal Court, Tax, Customer Service, Library, Solid Waste, and Facilities Management. The supporting UPS and distribution system would be used to support disaster recovery for Departments within the City utilizing Technology Services. RECOMMENDATION: We recommend award of this item to DataCom Power, Inc. in the amount of $89,155. PRINCIPAL PLACE OF BUSINESS DataCom Power, Inc. Piano, TX ESTIMATED SCHEDULE OF PROJECT Installation of the uninterruptible power supply and distribution system will be completed by October 31, 2003. FISCAL INFORMATION This item will be funded from Technology Services account 830600.8545 Agenda Information Sheet September 16, 2003 Page 2 Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent Attachment 1: Attachment 2: 1-AlS-File 3079 DataCom Power, Inc. QISV Letter DataCom Power, Inc. Proposal Attnchment 1 DataCom Power, Inc. Critical Power and Environmental Specialists August 27, 2003 City of Denton Attn: John Durnell 601 E. Hickory, Suite A Denton, Texas 76205 Dear Mr. Durnell, The turnkey UPS / PDU pricing that Datacom Power, Inc. is providing to the City of Denton is at or below current ClSV pricing. Please feel free to call me if you have any questions. Sincerely, Steve (ac man 3020 Legacy Dr. #100-380 · Piano, Texas · 75023-8321 · (972)491-0987 · (972)491-0718 Fax e-maiI: SteveBlackman@DataComPower.com · www. DataComPower.com Tulsa (918)477-9400 · Oklahoma City (405)917-5100 Attachaent 2 DataCom Power, Inc. City of Denton PDU and UPS System Installation Critical Power and Environmental Specialists August 21, 2003 Proposal P-03233C Provide all engineering, project management, and labor to install a new Mitsubishi 50kVA UPS and STS/distribution system to backup the computer room loads which includes: 1. Provide and install new Mitsubishi 50kVA UPS and 28 Minute battery system. 2. Provide and install new Maintenance Bypass Switch. 3. Provide and install new UPS Monitoring Package. 4. Provide and install new Static Transfer Switch / PDU Combination 5. Provide and install new pedestals under new UPS and battery system 6. Provide freight and inside delivery of equipment to building. 7. Provide feeds to and from new UPS and Maintenance Bypass Switch. 8. Provide a new feed from the new UPS to the new STS/PDU. 9. Provide start up and testing of new equipment. 10. Clean premises as they were when project began. TOTAL PRICE FOR ITEMS 1 thru 10 $89,155 All work will be performed in a professional manner. A Master Electrician with over 25 years of experience installing UPS equipment will be on site at all times during the installation. Payment terms are net 30 days shipment. Pricing is exclusive of any applicable Federal, State or Local Taxes. All PDU output cables provided by others. 3020 Legacy Dr. #100-380, Piano, Texas · 75023-8321 · (972)491-0987 · (972)491-0718 Fax e-maih ChrisHowell@DataComPower.com · www, DataComPower.com Tulsa (918~477-9400 · Oklahoma City (4053917-5100 ORDINANCE NO. AN ORDINANCE AWARDING A CONTRACT FOR THE PURCHASE OF A MITSUBISHI 50KVA UNINTERRUPTIBLE POWER SUPPLY AND DISTRIBUTION SYSTEM AS AWARDED BY THE STATE OF TEXAS BUILDING AND PROCUREMENT COMMISSION THROUGH THE CATALOG INFORMATION SERVICE VENDOR (CiSV) CATALOG PROGRAM; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE (FILE 3079-PURCHASE OF MITSUBISHI 50KVA UNINTERRUPTIBLE POWER SUPPLY AND DISTRIBUTION SYSTEM AWARDED TO DATACOM POWER, iNC. iN THE AMOUNT OF $89,155). WHEREAS, the City Council of the City of Denton has heretofore adopted Resolution 92- 019 pursuant to Section 2157.067 of the Texas Government Code and Sections 271.082 and 271.083 of the Texas Local Government Code which authorizes the City to participate in the State Purchasing Building and Procurement Commission Qualified information Service Vendor Catalogue Purchase Method provided for in Subchapter B of Chapter 2157 of the Texas Government Code (the "CiSV Catalogue"); and WHEREAS, the herein described vendor is a qualified vendor in the CISV Catalogue and the contract authorized by this ordinance is in the best interests of the City and complies with the requirements of Subchapter B of Chapter 2157 of the Texas Government Code as a CiSV Catalogue purchase; and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the materials, equipment, supplies or services approved and accepted herein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The numbered items in the following numbered file for materials, equipment, supplies, or services, shown in the "Purchase Orders" listed hereon, and on file in the office of the Purchasing Agent, are hereby approved: FILE NUMBER VENDOR AMOUNT 3079 DataCom Power, Inc. $89,155 SECTION 2. By the acceptance and approval of the above numbered items set forth in the attached purchase orders, the City accepts the offer of the persons submitting the bids to the Building and Procurement Commission for such items and agrees to purchase the materials, equipment, supplies or services in accordance with the terms, conditions, specifications, standards, quantities and for the specified sums contained in the bid documents and related documents filed with the Services Commission, and the purchase orders issued by the City. SECTION 3. Should the City and persons submitting approved and accepted items set forth in the attached purchase orders wish to enter into a formal written agreement as a result of the City's ratification of bids awarded by the General Services Commission, the City Manager or his designated representative is hereby authorized to execute the written contract; provided that the written contract is in accordance with the terms, conditions, specifications and standards contained in the Proposal submitted to the General Services Commission, quantities and specified sums contained in the City's purchase orders, and related documents herein approved and accepted. SECTION 4. By the acceptance and approval of the above numbered items set forth in the subject purchase orders, the City Council hereby authorizes the expenditure of funds therefor in the amount and in accordance with the approved purchase orders or pursuant to a written contract made pursuant thereto as authorized herein. SECTION 5. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this day of .,2003. ATTEST: JENNIFER WALTERS, CITY SECRETARY EULINE BROCK, MAYOR BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY 4-Ord-File 3079 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: September 16, 2003 Materials Management Questions concerning this acquisition may be directed to Tom Shaw 349-7100 ACM: Kathy DuBose, Fiscal and Municipal Services SUBJECT Consider adoption of an Ordinance authorizing the City Manager or his designee to execute a professional services agreement with the firm of Booziotis & Company Architects to provide architectural services for the renovation of the Civic Center and Emily Fowler Library; authorizing the expenditure of funds therefore and providing an effective date (RFSP 3030-in the amount of $184,190). BID INFORMATION The 2000 Capital Improvement Program included funds for the renovation of Emily Fowler and Civic Center Upgrade. The two buildings need major renovations to bring them up to code by having fire sprinklers installed and to make them more ADA accessible. Both of these facilities were designed by renowned Denton architect O'Neill Ford. Because of the need to ensure the architectural integrity of both of these renovation projects, the City commissioned the firm of Ford, Powell & Carson Architects (the firm of the late O'Neil Ford) to serve as consultants and assist in the review of proposals and selection of an architectural firm to renovate and remodel these two facilities. In addition, Ford, Powell & Carson will provide oversight of the schematic design to insure that the integrity of the O'Neil design is maintained. Fourteen proposals were received in response to the Request for Proposal for this project. An evaluation committee comprised of architect Carolyn Peterson with Ford, Powell & Carson, and staff from Facilities Management, Libraries, and Parks and Recreation reviewed the proposals and narrowed the field to four firms, which were interviewed. The Committee selected the firm of Booziotis & Company. This architectural firm is very sensitive to the O'Neil Ford design and is also dedicated to completing the redesign and renovation of both buildings without disturbing the O'Neil Ford architecture. In addition, the firm has excellent references. They have successfully handled similar projects such as the library at the University of Texas at Dallas, and the Dallas Public Library, as well as the successful renovation of many Frank Lloyd Wright designed homes located throughout the United States. RECOMMENDATION We recommend award of this project to Booziotis & Company Architects in the amount of $184,190. Agenda Information Sheet September 2, 2003 Page 2 PRINCIPAL PLACE OF BUSINESS Booziotis & Company Dallas, TX STAFF ESTIMATE The Engineer's estimate on this project was $184,500. ESTIMATED SCHEDULE OF PROJECT Architectural services are scheduled to be completed by June 2004. Construction is scheduled to be completed by spring of 2005. FISCAL INFORMATION This bid will be funded from 2003 General Obligation Bonds under project accounts 100080442 for Emily Fowler Library Renovation, and 100087442 for Civic Center Building Renovation. Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent Attachment 1: Attachment 2: 1-AIS-RFSP 3030 Respondent Sheet Top Four Interview Evaluation Sheet I-- 0 Z 0 _1 I- 0 Z 0 _1 ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH THE FIRM OF BOOZIOTIS & COMPANY ARCHITECTS TO PROVIDE ARCHITECTURAL SERVICES FOR THE RENOVATION OF THE CIVIC CENTER AND EMILY FOWLER LIBRARY; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE (RFSP 3030 -1N THE AMOUNT OF $184,190). 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 in compliance with Chapter 2254 of the Texas Government Code, known as the "Professional Services Pr ocurement Act"; 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, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble of this ordinance are incorporated herein by reference. SECTION 2. The City Manager or his designee, is hereby authorized to enter into a professional service agreement with the Provider, Booziotis & Company Architects, to provide architectural services for the renovation of the Civic Center and Emily Fowler Library in substantially the same form as the professional services agreement which is attached hereto and incorporated herein by reference (the "Agreement"). SECTION 3. The City Manager or his designee is authorized to expend the funds set forth in the Agreement. SECTION 4. This ordinance shall become elf ective immediately upon its passage and approval. PASSED AND APPROVED this the day of ., 2003. EULINE BROCK, MAYOR Q:\Agenda Item Shared\September 2003\September 16 - 2003\Consent Agenda Captions September 16, 2003\RFSP 3030 Architectural Svcs for Renovation of Civic Center & Emily Fowler Library\4-ORD-File 3030.doc ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: Page 2 E~rh :[_b ~t A' PROFESSIONAL SERVICES AGREEMENT FOR ARCI-IITECT OR ENGINEER THIS AGREEMENT is made and entered into as of the t6th day of September, 2003, by and between the City of Denton, Texas, a Texas municipal corporation, with its principal office at 215 East McKirmey Street, Denton, Denton County, Texas 76201, hereinafter called "Owner" and Booziotis & Company Architects, w/th its corporate office at 2400 A Empire Central Drive, Dallas, Texas 75235- 4398 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 Request for Proposal 3030, the Proposal, the General Conditions, and other attachments to this Agreement that are referenced in Section 3, in connection w/th the Project. The Project shall include, without limitation, (describe the Project in the space below or /n an attachment) ' J~?c-h~t~ct~al ~r~ii'e-s'-f6ffffi~ i~nogafi6h 6'f'the'~entOn including schematic design, design development, construction documents, construction contract procurement, adm/nistration of construction contract and construction phase as defined in the General Conditions (the '*Basic Services") and such additional services as may be authorized by the Owner. 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 $ 184,190.00 2.1.2 Progress payments for Basic Services shall be paid in the following percentages for of the total compensation for the Basic Services satisfactorily completed at the end of the following phases of the Proj eot: Schematic Design Phase Design and Development Phase Construction Documents Phase Bidding Phase Construction Phase 30% 50% 65% 75% 100% Page 1 $:\prch\Contraets Docuraents~3030 PSA Revised 9-5-03.DOC 2.2 ADDITIONAL SERVICES 2.2.1 Compensation for additional services authorized by Owner shall be in accordance with the hourly billing rate as set forth in Attachment B or at the fixed fee rate for site visits as provided in Attachment A, at the option oft. he Owner. 2.3 REIMBURSABLE EXPENSES Reimbursable Expenses shall be a multiple of 1.I times the expenses incurred by the Design Professional, the Design Professional's employees and consultants/n the interest of the Project as defined in the General Conditions but not to exceed a total of $23,300.00 without the prior written approval of the Owner. The dollar mount for the Reimbursable Expenses has been included in the total contract amount of$184,190.00. ARTICLE I INSURANCE During the performance of the services under this Agreement, CONSULTANT 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 Carders of at least an A- or above: Compreherrsive"@enerai Li~Iity'Iu~-u~/h~ w~th B'6i~'I?' Inj~ iii~f.~ o'f h8~ for each occurrence and not less than $500,000 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. Automobile Liability Insurance with bodily injury limits o fnot t ess than $ 500,000 for e ach person and not less than $500,000 for each accident, and with property damage limits of not less than $i00,000 for each accident. - .................. C: Worker's Compensation InsuranCe in accordance with statutory requirements, and Employers' Liability Insurance with limits of not less than $ t 00,000 for each accident. Professional Liability Insurance with limits of not less than $1,000,000 annual aggregate. The CONSULTANT shall furnish insurance certificates or insurance policies at the OWNER's request to evidence such coverages. The inSUrance policies shall name the OWNER as an additional insured on ail such policies, and shall contain a provision that such insUrance shall not be canceled or modified without thirty (30) days' prior written notice to OWNER and CONSULTANT. In such event, the CONSULTANT shall, prior to the effective date of the change or cancellation, serve substitute policies furnishing the same coverage. $:\prehXCon~raet~ Document~3030 PSA Revised 9-5-03.DOC Page 2 ARTICLE II ARBITRATION AND ALTERNATE DISPUTE RESOLUTION The parties may agree to settle any disputes under th/s 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 HI TERMINATION OF AGREEME1NT 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 t o fulfill i ts obligations under t iris Agreement. N o such termination w ill b e a fleeted unless the other party is given (1) written notice (delivered by certified ma/l, 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 opportun/ty for consukation with the terminating party prior to term/nation. 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 OBrN~R.-wi~ i~3-0-~days~ afl:er'lke-'d~-~e~ati6fiT "T15~DWNER- s~lI"'~ay CONSULTANT for ali services properly rendered and satisfactorily performed and for reimbursable expenses to termination incurred prior to the date of termination, in accordance with Article V "Compensation." Should the OWNER subsequently contract with a new consultant for the continuation of services on the Project, CONSULTANT shah cooperate in providing information. The CONSULTANT shall tam over all documents prepared or furnished by CONSULTANT pursuant to this Agreement to the OWNER on or before the date of t~hnafion, but may maintain copies of such documents for its use. ARTICLE IV RESPONSIBILITY FOR CLAIMS AND LIABILITIES Approval by the OWNER shall not constitute, nor be deemed a release of the responsibility and liability 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 OWNER for any defect in the design or other work prepared by the CONSULTANT, its employees, subcontractors, agents, and consultants. S:\preh\Contra~ts Documentsk3030 PSA Revised 9-5-03,DOC Page 3 ARTICLE V NOTICES All notices, communications, and reports requked 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. Ma/led notices shall be deemed communicated as of three (3) days' maihng: S:\preh\Ccmtracts Documentsk3030 PSA Revised 9-5-03.DOC Page 4 SECTION 3 ENTIRE AGREEMENT Tiffs Agreement includes this executed agreement and the following documents all of which are attached hereto and made a part hereof by reference as iff-ally set forth herein: 1. City of Denton General Conditions to Agreement for Architectural or Engineering Services. 2. Request for Proposal 3030 3. The Design Professional's Proposal-Attachment A 4, The Design Professional's Billing Rate Table-Attachment B 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: BY: MICHAEL A. CONDUFF 'CITY MA/xTAGER ..... APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: WITNESS: . S:¥roh\Contracts Docume~tsl3030 PSA Reviacd 9-$-03.DOC Name: Title: Page 5 ATTACHMENT A MATERIALS MANAGEMENT DMSION · 90lB TEXAS STREET · DENTON, TEXAS 76201 940.349.7100 · DFW METRO 817.267.0042 · FAX 940.349.7302 City of Denton Architectural Services for Renovation of Civic Center and Emily Fowler Library August 21, 2003 Final Offer Total Project Budget estimated at $2,050,000,Construction Budget of $1,750,000.00. Total Architectural Fee $184,190.00 ....... B_ asic_..D_.e_si_ga_far. Library Basic Design for Civic Center Sub-total $ 98~000~00 . $ 47~250.00 $145,250.00 (8.3% of 1,750,000.00) Additional Services not Design Allowance,~e~burs able Total Contract $ 15,740.00 Alternate (if funding available) for Design of $3,000,000.00 ($16,875.00) .. $ 23,200.00 ........... $184,190.00 (8.9% of $2,050,000.00) totalproject budget Approximately $80,000 set aside for other Owner expenses including but not limited to: O-Nell Ford office Geotectmical Lab Testing Lab Asbestos survey and potential abatement costs Fees and permits Overall Project Contingencies Other Owner expenses Page 6 "Dedicated to Quality and Service" www. c#yo f denton, corn Note: these two allowances totaling $300,000 were used to generate a construction budget of $!, 750,000 to be used as the basis of this proposal. These numbers can and will vary as the fee proposal is developed. Construction Budget and Contingency assumed at $1,750,000 The following fee chart is based upon these assumptions. If the construction budget/scope is adjusted more than 5~ from the $]. 75 M estimate prior to the beginning of the Design Development phase, the fee will be adjusted at 7% of the variance. Assumes total needs list to equal approximately $3,000,000 Construction/Furnishings Dollars with detailed estimate for each line item. Furniture location, types, quantities and budgets included in this work $16,875.00 (Contingent on additional funds) Description of Work o[Phase .....IBasic Development of a Master Plan A menu of design options, developed to schematic design level Programming Meetings/Interviews with key stakeholders. As.s_..ume 4 ~ $450. o0 ] .......... $1,8oo. to Design Phases "B~as-~Service~ based'~6~'873~bTC6r[s~trffctiofi~ Ct~t~' incI//s~;ce Mechanical, Electrical, Plumbing and Fire Protection $145,250.00 Schematic Design Basic Services per AIA standard Includes 30%, 50%, 75% and 100% progress meetings...!n,,.Denton ....... Special Services during SD phase City of Denton Facilities Department Meetings $1,80~. O0 4 ~, $450.00. Provides for meetings/working sessions between. City of Denton Facilities and Technical Consultants Construction Schedule ..... $1,250.00 Develop and Set Construction Budget - professional estimating required for ........ $2,750.00 Detailed Estimate Design Development Phase per AIA standard Includes 30%, 50%, 75% and 100% progress meetings in Denton Additional M~e~gs (luring DD phase City of Denton Facilities Department Meetings $1,440.00 4 meetings Revise Schedule and Budget $1,500.00 Construction Document Phase per AIA standard includes 50%, 75% and 100% progress meetings. ADA/TAS approval prior to bid award. Additional Meetings during CD phase Special Review and Approval Meetings at end of Phase '" $2,700.00 6 meetings ~ $450.00 ea. Page 7 "Dedicated to Quality and Service" www. cityofdenton, com Adjust Project Schedule and Estimate $2,500.00 Bidding Phase Basic Services Construction Phase Includes monthly Owners meeting and Weekly construction meeting at site. Architect to manage Owners meeting, take notes, Contractor to moderate, take and distribute notes at consU'uetion meeting. Architect wilt produce field report at each site visit, and handle all routine construction forms and processes including but not 1/mited to shop drawings, rtl's, closeout documents, etc. ADAJTAS inspection at substantial completion. Subtotal Basic Services $145,250. O0 Subtotal Additional Services $i5,740. O0 The following Additional Services may be requ/red, but assumptions of scope and cost have been made in areas where a reasonable assessment can be made. An allowance or contingency for additional meetings or other consultants is identified below.' Civil TBD Landscape Fees and Construction Costs are Parks Department expense and not NIC included in this proposal. IT Allowance for Coordination $2,000.00 Security Allowance for Coordination $2,000.00 AV NIC _Acoustician~}~il__o.w .......................................... '~- ...................... $3,1)_0_0~00 ADA/TAS During Design Phases $2,500.00 Architects management and coordination and Accessibility Consultant for Programming Phase Review and design Development Phase Review, with a final pre-submission review at approximately 85% complete Construction Documents Inspections during construction with Accessibility Consultants, final TAS inspection $1,500.00 at punch list . .. State Energy Approvals $1500.00 Completion of Fumiture/Desi'gn' Selec~i0n Included in Basic Services Based on Furniture Acquisition from pre-negotiated vendors assuming Furniture cost remains in project budget Post Construction Services Warranty Review 2 meetings/onsite reviews ~ $450.00 $900. O0 Allowance for Reimbursable 7% Fee Cost $9,800. O0 Actual x 1.1 with receipts Subtotal Allowances CAPPED $23,200.00 SUMMARY Subtotal Basic SerVic~ ....... $145,250. O0 Subtotal Additional Services $15,740. O0 Subtotal Fee Allowances Including reimbursable expenses .... $23,200. O0 Page 8 "Dedicated to Quality and Service" www. cityo f denton, com Proj oct Grand Total l $184,190. O0 Fees/Allowances/Reimbursables Other Services Additional Meetings above and beyond those identified above $450.00 per ske visit or meeting, or hourly at Owner's option Note I: Services of Professional Estimator required if Contract requires redesign at Architect's Expense. Note 2: Bill Booziotis will attend City Council meetings related to Architects contract discussions and Construction Contract discussions. Additionally, Mr. Booziotis will attend two meetings with the Library Board or Community .Groups Note 3: Architect agrees to use S Toub & Associates, presuming fees do not exceed industry standard fees. Note 4: Operations and Maintenance Cost calculations as part of design are not included per City of Denton representatives Note 5: Adjustments to scope and budget wilt result in a 7°,% fee for those mounts exceeding the original $1,750,000 assumed constmction cost limitation. Allowances: · Architects allowance for coordination of IT and Security-no charge Acoustician and/or Accessibility Consultant at Architect's cost x 1.1 · Architect's allowance for participation in additional TAS reviews and inspection and State energy review-no charge. · Other consultants determined to be required, such as Civil Engineer, or other specialized consultant, at Architect's cost x I. 1 Reimbursable allowance shall be subject to the following conditions: Architect's obligation to the City of Denton shall not exceed two record copies of each progress review and three record copies at the end of each design phase. Architect will supply three record copies and original reproducible copy to be placed at a local reproduction house at the end of the construction document phase. At the end of the project, architect will supply four record copies.and a CD containing one electronic file copy of each drawing and each specification section contained in the bidding and/or construction set. Also, the architect will supply a CD in CAD format of as built. Page 9 "Dedicated to Quality and Service" www. cityo f denton, com Contract Clarifications: At this fee, Architect shall provide a single set of bid documents, including additive or deductive alternates designed to generate a final bid that is equal to or less than the Owner's Construction Cost Limitation, for a single bid phase, and for a single construction management phase (concurrent construction contract for both project buildings) not to exceed ten months in duration. Architect agrees to contract language to extend ownership of documents to the City of Denton subject to the following conditions: Architect cannot guarantee that consultants will be willing to agree to this clause, but will extend the industry customary license to the Owner to maintain and use copies of the documents for the Owner's use in maintaining the property as allowed by copyright laws and laws governing the practice of architecture in Texas. Architect will convey design and design details developed for the exclusive use of the project. Architect does not agree to convey Ownership of standard or typical details developed in house used in other or similar projects, or those obtained by license from outside sources and publications. Architect agrees to use S Toub & Associates, Inc. for the Mechanical Electrical Plumbing portion of the project work with the following conditions: S Toub carries professional errors and omissions insurance in amounts equal to that carried by the Architect, and if S Toub & Associates' proposed fee and services do not exceed industry standard fees. Architect s obligation to prowde written documentation from the State of Texas regarding the accessibility requirements shall be satisfied by the employment of an Independent Contract Provider, licensed to perform accessibility reviews and inspections by the State of Texas, to review the project site and design documents during the Schematic Design Phase and provide written assessment of existing conditions, to review the Architects Design Documents at the 75% complete Design Development and 75% Construction Document Phases for compliance with TAS, and to provide a pre substantiaI completion site review of the construction site with written comments at each stage. These are add/tional services at architect's cost With a 1.1 multiplier as noted above. The same reviewer will be employed to review the completed construction documents and make the state mandated inspections at the conclusion of construction as allowed by Texas law. The architect agrees to incorporate and include IT and security system designs from the Owner's separate or in-house consultants, per the City of Denton requirement. The fee for coordination does not alter this agreement in any way. Page 10 "Dedicated to Quality and Service" www. cityo f denton, corn ATTACHMENT B Booziotis & Company Architects Billing Rate Table Bill C. Booziotis, FAIA $275 Holly S. Hall, AtA $135 Aaron L. Farmer, AIA $135 Donald W. Roberts, AIA $125 Thomas Powell, AIA $110 Jess Galloway, AIA $110 Ronald Gordon $ 90 Larry Paschalt $ 80 ' l~atth-ewCrummey,'-'AIA' '$" 7,~ LOis McGinnis $ 75 Joe Riley $ 75 Yvette Jarvis $ 75 Maria Nadeau $ 70 Charlotte Johnson $ 70 David Lewis $ 65 Mary Gunn $ 60 Jo Schoonover $ 60 Debra Robinson $ 50 Vincelee Stevens $ 50 Page 11 "Dedicated to Quality and Service" www. cityo f denton, com AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: September 16, 2003 Materials Management Questions concerning this acquisition may be directed to Sharon Mays 349-8487 ACM: Kathy DuBose, Fiscal and Municipal Services SUBJECT Consider adoption of an Ordinance approving the expenditure of funds for the purchase of the renewal of annual support maintenance for DeNon Municipal Elect ric' s Supervisory CoNrol and Data Acquisition System (SCADA) available from only one source in accordance with the provision for state law exempting such purchases from requiremeNs of competitive bids; and providing an effective date (File 3084-Renewa 1 of SCADA Maintenance AgreemeN awarded to Advanced CoNrol Systems in the amouN of $31,452). FILE INFORMATION This post-warranty maintenance agreement is for software and hardware support for the Advanced CoNrol Systems (ACS) Supervisory C oNrol and Data Acquisition (SCADA) System. This system is very sophisticated in its design. It combines hardware from several manufacturers with software that is proprietary to ACS. The SCADA system controls and monitors the entire electric system. A support agreemeN covering hardware and so ftware is critical to the coNinued safe operation of the electric system. DeNon Municipal Electric is curreNly covered under an ACS support agreement that will expire October 1, 2003. Chapter 252 of the Texas Local Government Code exempts from the competitive bid process, those supplies and resources protected by copyright or paten and available from only one source. This maintenance agreement falls in this category. RECOMMENDATION We recommend approval of File 3084 in the amouN of $31,452. PRINCIPAL PLACE OF BUSINESS Advanced Control Systems Norcross, GA ESTIMATED SCHEDULE OF PROJECT This agreemeN will be in effect from October 1, 2003 through September 30, 2004. Agenda Information Sheet September 16, 2003 Page 2 FISCAL INFORMATION Funding for this item 600400.6528.5920. is available from DME accounts 600400.6528.5700 and Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent Attachment 1: Maintenance Agreement Proposal 1-AlS-File 3084 A~aclment 1 .. ADDENDUM II POST-WARRANTY Ci~_ of Denton Munic(oal Utilities 8/12/03 Option 1 May we recommend the foilowin8 foz superio~ support services: ACS Software Full Subscription Support HP Software Full Subscription Support ACS Hardware Full Subscription Support HP Hardware Full Subscription Support © Total Full Subscription $ $ $ $ $ Standard HelpDesk Services are included in the above numbem. Option 2 Baseline Support includes basic ACS coverage, but does not cover SW upgrades. ACS Software Baseline Support NIA ACS Hardware Baseline Support $ ACS HelpDesk Baseline Support $ O Total Baseline Subscription $ 2,120 /Month ~- 32 /Month* '.118 /Month 352 / Month* 2,621 118 / Month 613 / Month 731 / Month Add any of the following options to your support agreement: 24 X 7 Emergency HelpDesk Coverage OSS1 - On-site Services, Level I (3 Days On-srm/yr) OSS2 - On-site Services, Level 2 (5 Days On,site/yr) Standard Hourly ACS Support Fees (for services in addition to those p~ovided as part of the above support fees); Fees for non-warranty and non-support Agreement. Help Desk services ( in one-hour increments). $ 655 $ 30o $ 500 $185.00~our ! Month ! Month I Month The annual support fees are payable quarterly by Licensee upon execution of this Agreement. Any additional fees and charges witt be billed by ACS to Licensee by invoice. Licensee shall pay all such fees and charges within thirty (30) days of invoice. Any delinquent payments shall bear interest at a rate of one and a half percent (1 1/2%) per month or the maximum rate permitted by applicable law. Effective Date: October 1, 2003 - September 30, 2004 ORDINANCE NO. AN ORDINANCE APPROVING THE EXPENDITURE OF FUNDS FOR THE PURCHASE OF THE RENEWAL OF ANNUAL SUPPORT MAINTENANCE FOR DENTON MUNICIPAL ELECTRIC'S SUPERVISORY CONTROL AND DATA ACQUISITION SYSTEM (SCADA) AVAILABLE FROM ONLY ONE SOURCE IN ACCORDANCE WITH THE PROVISION FOR STATE LAW EXEMPTING SUCH PURCHASES FROM REQUIREMENTS OF COMPETITIVE BIDS; AND PROVIDING AN EFFECTIVE DATE (FILE 3084-RENEWAL OF SCADA MAINTENANCE AGREEMENT AWARDED TO ADVANCED CONTROL SYSTEMS IN THE AMOUNT OF $31,452). WHEREAS, Section 252.022 of the Local Government Code provides that procurement of items that are only available from one source, including; items that are only available from one source because of patents, copyrights, secret processes or natural monopolies; films, manuscripts or books; el ectricity, gas, water and other utility purchases; captive replacement parts or components for equipment; and library materials for a public library that are available only fr om the persons holding exclusive distribution rights to the materials; need not be submitted to competitive bids; and WHEREAS, the City Council wishes to procure one or more of the items mentioned in the above paragraph; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the following purchase of materials, equipment or supplies, as described in the "Purchase Orders" listed hereon, and on file in the office of the Purchasing Agent, and the license terms attached hereto are hereby approved: FILE NUMBER VENDOR AMOUNT Advanced Control Systems 3084 $31,452 SECTION 2. That the acceptance and approval of the above items shall not constitute a contract between the City and the person submitting the quotation for such items until such person shall comply with all requirements specified by the Purchasing Department. SECTION 3. That the City Manager is hereby authorized to execute any contracts relating to the items specified in Section I and the expenditure of funds pursuant to said contracts is hereby authorized. SECTION 4. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2003. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: 3-ORD-File 3084 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: September 16, 2003 Materials Management Questions concerning this acquisition may be directed to Sharon Mays 349-8487 ACM: Kathy DuBose, Fiscal and Municipal Services SUBJECT Consider adoption of an Ordinance of the City of DeNon, Texas providing for, authorizing, and approving the expenditure of funds for the purchase of Promotional Commercials from Comcast Advertising, DeNon, Texas, pertaining to DeNon Municipal Electric, which are available from only one source in accordance with the pertinent provisions of Chapter 252 of the Texas Local Government Code exempting such purchases from the requirements of competitive bidding; and providing an effective date (File 3085-Comcast Advertising in the amoum of $41,028). BID INFORMATION Beginning in 1997, survey results indicated customers lacked awareness of DeNon Municipal Electric (DME). In an effort to improve image and brand idemity among DeNon area customers, DME comracted with Charter Media (formerly known as Marcus Media) in February of 1999. Charter Media produced and aired three (3) commercials on nine (9) differem networks, for a seven and one-half (7 1/2) momh period. Results from a customer survey conducted by DME in October of 1999, concluded that 93.5% of the survey respondents with cable television had viewed DME commercials. Seventy-seven% felt positive about their viewing experience, 18% were indifferem, and 5% did not respond. Thus, allowing the conclusion that the cable television marketing campaign had been effective in reaching customers and branding DME with a positive image. From February 2001 to February 2002, DME contracted with Charter Media to produce and air four (4) thirty-second informational commercials focusing on educating DeNon residems regarding electric retail deregulation and the DeNon City Council's "wait and see" approach to opting into retail competition. From December 2001 to September 2002, DME contracted with Charter Media to produce and air four (4) thirty-second educational commercials. The focus for the campaign was to educate customers on energy conservation and the various customer services that DME provided. Agenda Information Sheet September 16, 2003 Page 2 From February 13-20, 2002, the University of North Texas conducted a phone based customer survey. Since the educational commercials had been airing such a short time, the survey's results were based on the branding and deregulation commercials that had been airing previously. The survey was used to help determine the effectiveness of the selected networks and air times for DME's informational spots. It was concluded from the survey that more than 60% of residents surveyed subscribed to Charter Cable Communications and 67.7% had seen DME's informational commercials. It was also determined that 76.1% of the respondents voted in the last city election. With these promising statistics, the Marketing staff believed the airtime for the 2003 fiscal year would continue to benefit Denton residents by further educating them on energy conservation and the additional customer services provided by DME. The educational campaign focused on helping customers manage their energy consumption more efficiently while helping them lower their electric bills. With the sluggish economy, DME's 2004 fiscal year campaign will focus on energy conservation and other free customer services for residems to help lower their electric bill and manage their accoums more effectively. With a DeNon viewing audience of more than 24,000, Comcast Advertising (formally known as Charter Media) proves to be one of the most effective mediums in the area to reach our residents with such vital information. The use of Comcast Advertising will cominue to provide DME the ability to effectively serve customers by improving residemial awareness of the services that DME offers while maintaining brand awareness in the Denton area. This is a sole source item because Comcast is the only current cable television provider that has significant City of Denton viewership. Network television is not acceptable because their market is not specifically directed to Denton and satellite television is not acceptable because it does not have significant market penetration in Denton. PRIOR ACTION/VIEW (COUNCIL, BOARDS, COMMISSIONS) The Public Utility Board will discuss this item on September 15, 2003. RECOMMENDATION We recommend approval of this item in the amoum of $41,028. PRINCIPAL PLACE OF BUSINESS Comcast Advertising Denton, TX Agenda Information Sheet September 16, 2003 Page 3 ESTIMATED SCHEDULE OF PROJECT The schedule for advertisements runs from October 1, 2003 through September 29, 2004. FISCAL INFORMATION Funding will be provided from account 600900.7912.9130A. Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent Attachment 1: Advertising Insertion Order Attachment 2: Commercial Descriptions 1-AlS-File 3085 Attachment 1 St Exhibit II Denton Municipal Electric Cable TV Schedule 2003-2004 Network Start End Start Time per week spot rate Total Spots Tot. Amt. 1. Comedy 9/29/03 9/26/04 M-F 6pm-12m 5 $7.00 260 $1,820 Comedy 9/29/03 9/26/04 Sa-Su 6a-12m 5 $2.00 260 $520 2. CNN 9/29/03 9/26/04 M-F 6a-9a 5 $8.00 260 $2,080 CNN 9/29/03 9/26/04 M-F 6p-12m 5 $15.00 260 $3,900 CNN 9/29/03 9/26/04 Sa-Su 6a-12m 5 $8.00 260 $2,080 3. FoxN. 9/29/03 9/26/04 M-F 6a-9a 5 $4.00 260 $1,040 Fox N. 9/29/03 9/26/04 M-F 6p-12m 5 $11.00 260 $2,860 FoxN. 9/29/03 9/26/04 Sa-Su 6a-12m 5 $5.00 260 $1,300 4. HGTV 9/29/03 9/26/04 M-F 6p-12m 10 $18.00 520 $9,360 HGTV 9/29/03 9/26/04 Sa-Su 6a-12m 5 $8.00 260 $2,080 5. MSNBC 9/29/03 9/26/04 M-F 6a-9a 5 $2.00 260 $520 6.Discovery 9/29/03 9/26/04 M-F 6p-12m 7 $22.00 364 $8,008 Discovery9/29/03 9/26/04 Sa-Su 6a-12m 5 $13.00 260 $3,380 7. MTV 9/29/03 9/26/04 M-Su 6a-12m 10 $4.00 520 $2,080 Weekly Totals: 82 commercials Campaign Total: 4,264 commercials Total Cost: $41,028 Accepted by Advertiser/Date Title Title *Any cancellation requires a 14-day wrkten notice 5001 Spring Valley Road, Suite 350 East Dallas, Texas 75244 Tele: 972.774.9500 Fax972.774.9502 Attachment 2 Exhibit H Commercial De scriptions Commercial 1 · Topic- Insulation and Weatherization · Service Emphasized- Budget Billing Commercial 2 · Topic-Water Heating/Energy Efficient Appliances · Service Emphasized- Pre-Authorized Bill Payment Program Commercial 3 · Topic-Heating and Cooling Tips · Service Emphasized-Energy Audits/EnergySave Program Commercial 4 · Topic/Service-P-L-U-S One Program (Availability and request for donations) Commercial 5 · Online Payment Service Commercial 6 · Pay By Phone Service *Commercials five and six are specifically designed to help with Customer Service' s traffic during busy connect and disconnect seasons. ORDINANCE NO. 2002 AN ORDINANCE OF THE CITY OF DENTON, TEXAS PROVIDING FOR, AUTHORIZING, AND APPROVING THE EXPENDITURE OF FUNDS FOR THE PURCHASE OF PROMOTIONAL COMMERCIALS FROM COMCAST ADVERTISING, DENTON, TEXAS, PERTAINING TO DENTON MUNICIPAL ELECTRIC, WHICH ARE AVAILABLE FROM ONLY ONE SOURCE IN ACCORDANCE WITH THE PERTINENT PROVISIONS OF CHAPTER 252 OF THE TEXAS LOCAL GOVERNMENT CODE EXEMPTING SUCH PURCHASES FROM THE REQUIREMENTS OF COMPETITIVE BIDDING; AND PROVIDING AN EFFECTIVE DATE (FILE 3085-COMCAST ADVERTISING IN THE AMOUNT OF $41,028). WHEREAS, §252.022(a)(7) of the Texas Local Government Code provides that procurements of certain items or services that are only available from one source, as described therein, need not be submitted to the competitive bid process; and WHEREAS, the City Council wishes to purchase promotional commercial spots pertaining to Denton Municipal Electric ("DME") from the City's sole local cable provider, Charter Media of Denton, which services are presently available from only one source, and are permitted in accordance with §252.022 of the Texas Local Government Code; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the following purchase of services, as described in the "File Number" listed below, and on file in the office of the City' s Purchasing Agent, is hereby authorized and approved: FILE NUMBER VENDOR AMOUNT 3085 Comcast Advertising $41,028 SECTION 2. That the acceptance and approval of the above item shall not constitute a contract between the City and Charter Media of Denton submitting the price quotation for such commercials until Charter Media of Denton shall comply with all requirements specified by the City' s Purchasing Department. SECTION 3. That the City Manager is hereby authorized to execute any contracts or other related documents relating to the item specified in Section 1. hereof, and the expenditure of funds pursuant to said contract or written order, is hereby authorized. SECTION 4. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the __ day of ., 2003. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY By. APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: 4-ORD-File 3085 AGENDA DATE: DEPARTMENT: ACM: AGENDA INFORMATION SHEET September 16, 2003 Materials Management Kathy DuBose, Fiscal and Municipal Services Questions concerning this acquisition may be directed to Jim Coulter 349-7194 SUBJECT Consider adoption of an Ordinance accepting comp etitive bids and awarding a contract for the purchase of an Inductively Coupled Plasma Ma ss Spectrophotometer (ICPMS); providing for the expenditure of funds therefore; and providing an effective date (Bid 3062-Inductively Coupled Plasma Mass Spectrophotometer (ICPMS) awarded to Perkin Elmer Instruments in the amount of $121,637). BID INFORMATION This item is to purchase an Elan 9000 Inductiv ely Coupled Plasma Ma ss Spectrometer (ICPMS) to replace an eleven-year-old atomic absorption spectrometer/graphite furnace. This piece of equipment will increase the Municipal Laboratory' s capabilities to analyze for additional metals, lower detection limits, and increase turnaround times. By increasing efficiency in the metals area, it will allow the Laboratory to move into other analyses without increasing staff. RECOMMENDATION We recommend award of this bid to Perkin Elmer Instruments in the amount of $121,637. PRINCIPAL PLACE OF BUSINESS Perkin Elmer Instruments Shelton, CT ESTIMATED SCHEDULE OF PROJECT This item can be shipped 30 days from the date of Council approval. FISCAL INFORMATION Funding for this item will be provided from project numbers 630087516.1355.40100 ($42,000) and 640059540.1355.40100 ($79,637). Agenda Information Sheet September 16, 2003 Page 2 Attachment 1: Bid Tabulation 1-AlS-Bid 3062 Respectfully submitted: Tom Shaw, C.P.M., 349-7100 Purchasing Agent o 0 I-- 0 -I- 0 LU U~ U~ U~ U~ ILl .-I 0 o ORDINANCE NO. AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING A CONTRACT FOR THE PURCHASE OF AN INDUCTIVELY COUPLED PLASMA MASS SPECTROPHOTOMETER (iCPMS); PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROViDiNG AN EFFECTIVE DATE (BID 3062-INDUCTIVELY COUPLED PLASMA MASS SPECTROPHOTOMETER (iCPMS) AWARDED TO PERKIN ELMER INSTRUMENTS iN THE AMOUNT OF $121,637). WHEREAS, the Cityhas solicite d, 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 ma terials, equipment, supplies or services as shown in the "Bid Pr oposals" 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 fo llowing numbered bids for materials, equipment, supplies, or services, shown in the "B id Proposals" on file in the office of the City Purchasing Agent, are hereby accep ted and approved as being the lowest responsible bids for such items: BID NUMBER VENDOR AMOUNT 3062 Perkin Elmer Instruments $121,637 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, st andards, quantities and specified sums contained in the Bid Proposal a nd 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 ,2003. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: 3-ORD-Bid 3062 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: September 16, 2003 Parks and Recreation Department Howard Martin, Assistant City Manager 349-8232 SUBJECT Consider approval of a resolution allowing La Mexicana Restaurant to be the sole participant allowed to sell alcoholic beverages at the Fuego Y Alma Event on September 27, 2003, 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. BACKGROUND The third annual Fuego Y Alma Event is a Latino cultural festival, co-sponsored by the City of Denton, Parks and Recreation Department. It is held in Civic Center Park and includes local vendors, children's activities and entertainment. The admission is $4.00 per person. The Fuego Y Alma Committee, made up of community volunteers, voted for the third year to support the sale of alcohol at the event, allowing La Mexicana Restaurant to be the sole proprietor of this product. La Mexicana Restaurant will be responsible for rental of the booth space, obtaining the temporary license, and securing the temporary permit. All proceeds from the sale will support further Fuego Y Alma events. OPTIONS Council options include the approval or denial of the ordinance and agreement as submitted. Council may also opt to modify the agreement to include additional or modified requirements. 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 Fuego Y Alma Event is September 27, 2003, from 12:00 p.m. - 10:00 p.m. The sale of alcohol will be limited to the one-day event. PRIOR ACTION/REVIEW At the June 23, 2003, meeting the Parks, Recreation and Beautification Board 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 La Mexicana Restaurant. BID INFORMATION Not applicable EXHIBITS 1. Resolution 2. Contract 3. Parks Board Minutes of June 23, 2003 RESPECTFULLY SUBMITTED: Janet Simpson, Interim Director Parks and Recreation Department Prepared by: Janie McLeod, Administrative Assistant Parks and Recreation Department RESOLUTION NO. A RESOLUTION ALLOWING LA MEXICANA TO BE THE SOLE PARTICIPANT ALLOWED TO SELL ALCOHOLIC BEVERAGES AT THE FUEGO Y ALMA ON SEPTEMBER 27, 2003, 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 Denton ("City") is the owner of the Civic Center Park and through the Park and Recreations Department co-sponsors a Fuego Y Alma Celebration at the Civic Center Park; WHEREAS, the consumption of alcoholic beverages is allowed in the Civic Center Park pursuant to City of Denton Code, §22-32 (b); WHEREAS, the City Council finds that it is in the public interest to select only one vendor of alcoholic beverages at the Fuego Y Alma; and WHEREAS, Valentin Carmona, doing business as La Mexicana (called "La Mexicana") has requested that they be sole participant allowed to sell alcoholic beverages at this year's Fuego Y Alma Celebration on September 27, 2003; and WHEREAS, the Parks and Recreation Board has recommended that La Mexicana be the sole participant allowed to sell alcoholic beverages at the Fuego Y Alma 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. La Mexicana shall be the sole participant allowed to sell alcoholic beverages at the Fuego Y Alma Celebration on September 27, 2003 at the Civic Center Park upon the following conditions: o They shall be responsible for rental of any booth space necessary; They shall be responsible to obtain the temporary license and permit for selling alcoholic beverages approved by appropriate state agency; They shall provide the security necessary for the sale of alcoholic beverages; They shall provide general comprehensive liability insurance fi.om a responsible carrier, with the City as an additional insured, in the amount of $500,000.00. EXHIBIT 1 Agrees to indemnify the City of Denton against any liability incident to the selling of alcoholic beverages at the Fuego Y Alma Celebration. SECTION 2. The City Manager or his designee is authorized to execute an agreement in conformity with this resolution, which shall be substantially in the form of the agreement 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 ,2003. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY S:\Our Documents~Resolutions'03Wuego y Alma alcohol sell.doc CMC CENTER AGREEMENT FOR TIlE FUEGO Y ALMA CELEBRATION STATE OF TEXAS COUNTY OF DENTON § This Agreement, made this __ day of...._. . __, 2003, by and between the City of Denton, a municipal corporation, hereinat~er referred to as the "CITY" and Valentin Carmona doing business as La Mexicana (called "La Mexicana "). WlTNESSETH, 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 La Mexicana the exclusive privilege to sell alcoholic beverages, subject to the exceptions and conditions hereinafter set forth, for the Fuego Y Alma celebration on September 27, 2003, to be held at the Civic Center Park. Attached hereto and made a part hereof by is a copy of the resolution passed by the City Council of Denton, Texas authorizing this privilege. This privilege does not extend beyond the date of the Fuego Y Alma celebration set for the year 2003. ARTICLE 2 SCOPE OF SERVICES La Mexicana in order to exercise the privilege to sell alcoholic beverages must perform the following: La Mexicana shall be solely responsible for the rental and payment for any booth space necessary for the sale of alcoholic beverages at the Fuego Y Alma Celebration. La Mexicana shall be solely responsible to obtain any temporary license and permit necessary for the selling of alcoholic beverages at the Fuego Y Alma Celebration. La Mexicana shall be solely responsible for the obtaining and paying for any security necessary for their sale of alcoholic beverages at the Fuego Y Alma Celebration. La Mexicana'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 Fuego Y Alma Celebration. EXHIBIT 2 ARTICLE 3 LOCAL RULES AND REGULATION La Mexicana agrees to abide by all municipal, county, state and federal laws, ordinances, rules and regulations and specifically, without limitation, the Denton Civic Center 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. La Mexicana 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. La Mexicana will exercise reasonable care and due diligence in their sate of alcoholic beverages at the Fuego Y Alma Celebration. ARTICLE 4 INDEMNITY AGREEMENT La Mexicana shall indemnify and save and hold harmless the CITY and its officers, agents, 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 La Mexicana or it 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. ARTICLE 5 INSURANCE During the performance of the Agreement, La Mexicana 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 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. La Mexicana 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 Fucgo Y Alma Celebration Agreement - Page 2 shall not be canceled or modified without written notice to the CITY and La Mexicana. In such event, La Mexicana 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 otherwise specified herein. Mailed notices shall be deemed communicated as of three (3) days' mailing: To La Mexicana ' To CITY: La Mexicana: Valentin Carmona 619 S.' Locust Denton, Texas 76201 CITY OF DENTON: City Manager 215 E. McKinney Denton, Texas 76201 Ail 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 no 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 SEVERAB[LITY 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. Fucgo Y Alma Celebration Agreement - Page 3 ARTICLE 9 DISCRIMINATION PROHIBITED In performing the services required hereunder, La Mexicana 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 La Mexicana 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 La Mexicana 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. Fuego Y Alma Celebration Agreement - Page 4 IN WITNESS HEREOF, the City of Denton, Texas has caused this Agreement to be executed by its duly authorized City Manager, and La Mexicana has executed this Agreement through its duly authorized undersigned officer on this the day of , 2003. 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 WITNESS: BY: Fuego Y Alma Cclebrafion Agreement - Page 5 Parks, Recreation and Beautification City Hall Conference Room June 23, 2003 Members preseN: Don Edwards, Teresa Andress, Dale Yeatts, Cassandra Berry, and Brandon Barnes. Staff present: Janet Simpson, Emerson Vorel, Bob Tickner, John Whitmore, Janie McLeod and Lancine Bentley. Others present: Vincent Ramos and Patrick Vasquez with Fuego Y Alma and Anna Broderick with DeNon County Girls Softball Association. Chairman Don Edwards called the meeting to order at 6:02 p.m. Awards and Recognition - Keep DeNon Beautiful, Governor's Community AchievemeN Award. Lancine discussed the award KDB had received and the various areas that were recognized. Approval of Minutes of May 15, 2003. Dale made a motion to approve the minutes from the May 15th meeting. Geri seconded the motion and it was passed unanimously. ACTION ITEMS Consider approval of request to sell of alcoholic beverages at Fuego Y Alma. VinceN Ramos with Fuego Y Alma said that this would be the third year that the committee has hosted the eveN, which is an outreach to the Latino community. VinceN asked for approval for the sell of alcoholic beverages. Dale asked if there had been any problems in the past during the eveN. VinceN responded that there had not been any trouble that security is always provided. Vincent stated that they are still working on a sponsor for the alcohol permit. Dale made the motion to approve the request to sell alcoholic beverages at the 2003 Fuego Y Alma eveN. Cassandra seconded the motion and it was passed unanimously. Consider approval of cooperative agreement between UNT and the City of Denton for UNT's improvements to and use of Denia Park Softball Complex. Janet said that the UNT athletic director and coach had approached the department requesting the use of Denia ballfields while the Liberty School fields are being renovated for UNT to use. UNT will make approximately $40,000 worth of improvemeN to the facilities. The agreemeN ends in December 2004, then the fields will return to normal use. On June 30~h, Parks and UNT staff will meet with Denia neighborhood residents to discuss their concerns about the traffic, lights and noise. UNT will direct users to enter from Roselawn Avenue so not to disturb the neighborhood. The DeNon County Girls Softball Association has been consulted and is supportive of the join use of the facilities. Anna Broderick with the girls baseball association was present to voice the support of the association. Brandon made a motion to approve the cooperative agreemeN between UNT and the City of Denton for UNT's improvement to and use of Denia Park Softball Complex. Teresa seconded the motion and it was approved unanimously. EXHIBIT 3 Consider approval of an agreement with Denton Soccer Association for the construction, operation and use ora new building at the North Lakes Park Soccer Complex. Bob said the agreement with the Soccer Association would be for thirty years with two 1 O-year renewal terms and can be terminated for reasonable cause. The building would become City of Denton property on completion. PARD can use the building by scheduling with the Soccer Association when the association doesn't already have it in use. Bob added that the design would match the existing building in the park. There will be concession on the west end of the building and restrooms on the east side of the facility. There will be a meeting room in the middle portion of the building. Teresa made a motion to approve the agreement with the Denton Soccer Association for the construction, operation and use of a new building at the North Lakes Park Soccer Complex. Geri seconded the motion and it was passed unanimously. DISCUSSION ITEMS - None DIRECTOR'S REPORT Denton Branch Rail Trail/Loop 288 By-Pass Route. Bob said City Council was supportive of trail and planning for a trail bridge over the new Loop 288 for the rail trails. Bob said he would continue to monitor the progress of the bypass trail. Project Status Report. There were no questions. Keep Denton Beautiful Report. There were no questions. OTHER ITEMS. John presented a power point presentation of the status of the Water Works Park. Janet said the dedication was a success and that attendance has been good at the park. Janet added that the yellow speed slide would be operational by the end of week. Reappointments: Teresa asked about when reappointments would be made to the board and if we knew the status of the appointments. Janie said that the appointments are usually made in July and that the board members are to continue serving on the board until notified. Items for Next Meeting. None There being no further business, the meeting was adjourned at 6:55 p.m. AGENDA INFORMATION SHEET AGENDA DATE: September 16, 2003 DEPARTMENT: CM/DCM/ACM: Airport and Transit Operations Jon Fortune, Assistam City Manager SUBJECT Consider adoption of an ordinance of the City of Demon, Texas approving an amendmem to an Airport Lease between the City of Demon and John Kristoferson dated June 4, 2002; and providing an effective date. BACKGROUND Dr. John Kristoferson emered into an airport lease agreemem on June 4, 2002 with the City of DeNon and initiated the developmem of an aircraft hangar pursuam to his lease. During the developmem of the hanger, a number of technical issues have caused delay of completion of the project. The project was delayed by more than four momhs and the Airport Advisory Board requested that Dr. Kristoferson's contract be extended four months to match the amount of delay during the construction of the hangar. Staff concurs with this request. OPTIONS 1. Approve the lease extension as proposed. 2. Provide staff direction with additional options. RECOMMENDATION The Airport Advisory Board and staff recommend the approval of the lease extension as proposed. ESTIMATED SCHEDULE OF PROJECT The 30-year lease would be extended a total of four momhs at the end of the primary term, effective June 4, 2032 through October 4, 2032. PRIOR ACTION/REVIEW The City Attorney has reviewed this extensi on and the Airport Advisory Board unanimously recommends approval of the extension. FISCAL INFORMATION The rent for the four additional months will be ab ated, there will be no change to the lease rate established in the original lease of June 4, 2002. EXHIBITS Ordinance Lease Amendment Respectfully submitted: Mark Nelson Director of Airport and Transit Operations ~ S:\Our Documents\Ordinances\03XAirport Lease Amendment -Kristoferson.doc ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS APPROVING AN AMENDIVi~NT TO AN AIRPORT LEASE BETWEEN THE CITY OF DENTON AND JOHN KRISTOFERSON DATED JUNE 4, 2002; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON, TEXAS HERBY ORDAINS: SECTION 1. The City Council hereby approves the Amendment to Airport Lease between the City of Denton and John Kr/stoferson in substantially the form of the Amendment attached hereto and made a part of this ordinance for all purposes (the "Lease Amendment"). SECTION 2. The City Manager, or his designee, is authorized to sign the Lease Amendment on behalf of the City of Denton. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2003. ATTEST: JENNIFER WALTERS, CITY SECRETARY EULINE BROCK, MAYOR BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: ~ AMENDMENT TO AIRPORT LEASE BETWEEN THE CITY OF DENTON AND JOHN KRISTOFERSON This Agreement is made between the City of Denton, Texas, a municipal corporation (the "City") and John Kristoferson (the "Lessee"). WHEREAS, the City and Lessee entered into that certain Airport Lease Agreement dated June 4, 2002 and approved by Ordinance No. 2002-164 (the "Airport Lease"); and WHEREAS, due to circumstances beyond the control of Lessee the construction of the leasehold improvements was delayed thereby depriving Lessee of substantial use and enjoyment of the lease premises for a period of four months; and WHEREAS, the City has determined that due to these unforeseen circumstances which in part were caused by the City, it is equitable that the Airport Lease be extended for an additional four month period and rent be abated during that time period; NOW, THEREFORE, in consideration of the performance of the mutual covenants and promises contained herein the City and Lessee agree as follows: 1. The term of the Airport Lease is hereby extended four months which is from June 4, '2032 through October 4, 2032 and rent will abated for that four month time period. 2. The time for issuance of a building permit and completion of the construction of the required leasehold improvements is hereby extended for an additional four month period. 3. Ali other terms of the Airport Lease not amended by this Amendment shall remain in full force and effect. Signed effective as of the __ day of ,2003. CITY OF DENTON, TEXAS BY: EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO FORM: HERBE~~~y, CITY ATTORNEY Page 2 CSDocumentsl .doc and Settings'a¥1ANELSON~My DocumentsXCouncii~AGENDA ITEMS~Airport Lease AgreementLKristoferson Amd AGENDA INFORMATION SHEET AGENDA DATE: September 16, 2003 DEPARTMENT: CM/DCM/ACM: Airport and Transit Operations Jon Fortune, Assistam City Manager SUBJECT Consider the adoption of an ordinance of the City of Demon, Texas approving the conveyance of business assets of Avionics Ime rnational Supply, Inc. ("Avionics") a tenam at the DeNon Municipal Airport and other emities co-located therewith to complete Aviation Supply Services Imernational Inc. ("Complete Aviation"); and approving an assignmem of a commercial airport lease dated December 19, 1995 from avionics to H & J Building Emerprises, L.L.C. (H&J) and further approving ora ground sublease and separate lease of the improvemems thereon from H & J to Complete Aviation; and providing an effective date. BACKGROUND Mr. Don Hawkins and Mr. Andy Johnson, owners of Avionics Imernational have requested the City of Demon to authorize the assignmem of the Avionics airport lease with the City of Demon to Complete Aviation. Mr. Hawkins and Mr. Johnson (H&J) will continue to manage the business located on Airport property and will cominue to conduct daily operations as outlined in the initial term of the lease agreement. This assignment is structured so that Complete Aviation will own the business assets and H & J Management will manage the property. No change will be made to any terms in the existing agreement. OPTIONS 1. Approve the lease as proposed. 2. Provide staff direction with additional lease options. RECOMMENDATION The City Attorney has reviewed this assignmem. Airport Staff and the Airport Advisory Board unanimously recommend the approval of the assignmem. ESTIMATED SCHEDULE OF PROJECT The lease assignmem would become effective September 16, 2003 and cominue through the 19th day of December 2025 (end of currem lease). PRIOR ACTION/REVIEW The City Attorney' s Office has reviewed the proposed assignment. The Airport Advisory Board unanimously recommends approva 1 of the lease assignment. FISCAL INFORMATION There will be no change to the lease rate established in the original lease of December 19, 1995 or subsequent amendments made to the lease agreement. EXHIBITS Ordinance Lease Assignment Respectfully submitted: Mark Nelson Director of Airport and Transit Operations ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS APPROVING TI-IE CONVEYANCE OF BUSINESS ASSETS OF AVIONICS INTERNATIONAL SUPPLY, INC. ("AVIONICS") A TENANT AT TIlE DENTON MUNICIPAL A/RPORT AND OTHER ENTITIES CO- LOCATED THEREWITH TO COMPLETE AVIATION SUPPLY SERVICES INTERNATIONAL, INC. ("COMPLETE AVIATION"); AND APPROVING AN ASSIGNMENT OF A COMMERCIAL AIRPORT LEASE DATED DECEMBER 19, 1995 FROM AVIONICS TO H&J BUILDING ENTERpRIsES, L.L.C. ("H&J") AND FURTHER APPROVING OF A GROUND SUBLEASE AND A SEPARATE LEASE OF THE IMPROVEMENTS THEREON FROM H&J TO COMPLETE AVIATION; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Council hereby approves the following: a. The assignment of a Commercial Airport Lease dated December 19, 1995 between the City of Denton and Avionics International Supply, Inc. ("Avionics") to H & J Building Enterprises, L.L.C. ("H&J") in substantially the form of the assignment attached hereto and made a part of this ordinance for all purposes (the "Lease Assignment'); b. The conveyance of business assets of Avionics and other entities co-located therewith to Complete Aviation Supply Services International, Inc. ("Complete Aviation"); and c. A ground sublease and a separate lease of the improvements thereon from H&J to Complete Aviation. SECTION 2. The City Manager, or his designee, is authorized to sign consent to the Lease Assignment on behalf of the City of Denton including all other documents necessary to carry out the intent of this ordinance.. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ,2003. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: ~~'-- · Page 2 STATE OF TEXAS COUNTY OF DENTON ASSIGNMENT OF LEASE WHEREAS a lease made on or about December 19, 1995 by and between the City of Denton, Texas, as Lessor and Avionics International Supply, Inc. as Lessee was entered into concerning the property located at 1750 Westcourt Dr., Denton, Texas, as more particularly described in Exhibit A attached hereto and included herein by reference the "Main Lease," and WHEREAS the Lessee, Avionics international Supply, inc. desires to assign its interest in the "Mail Lease" to H. & J. Building Enterprises, LLC, a Texas limited liability company, AND WHEREAS the City of Denton, Denton County, Texas, as Lessor, has consented to the assignment herein contained and as set out hereinafter as evidenced by the signature of the proper City Official(s) below, NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, The Assignor, Avionics international Supply, Inc., assigns, transfers, and delivers all of its right, title and interest in and to the above-described premises and "Main Lease" to the Assignee, H. & J. Building Enterprises, LLC. It is agreed and understood by and among the parties to this Agreement that: 1. Assignee agrees to accept the "Main Lease," pay all rents and punctually perform all of Assignor's obligations under the "Main Lease" accruing on and after the date of delivery of possession to the Assignee as contained in this agreement. The Assignee further agrees to indemnify and save harmless the Assignor from any breach of Assignee's obligations hereunder. 2. Assignor shall deliver possession of the leased premises to Assignee on the date of the execution hereof. Ail rents and other charges accrued under the "Main Lease" prior to that date shatl be fully paid by Assignor, and thereafter by the Assignee. 3. Lessor consents to this Assignment of Lease, provided that: a. Assent to the assignment shall not discharge Assignor of Assignor's obligations under the "Main Lease" in the event of breach by Assignee; b. In the event of breach by Assignee, Lessor shall provide Assignor with written notice of that breach and Assignor shalt have full fights to commence alt actions to recover possession of the leased premises (in ASSIGNMENT OF GROUND LEASE PAGE 1 the name of Lessor, if necessary) and retain all rights for the duration of the "Main Lease," provided it shall pay all accrued rents and cure any other default within a reasonable time; There shall be no further assignment of the "Main Lease" without prior written consent of the Lessor. This Agreement shall be binding upon and inure to the benefit of the parties, their successors, assigns, and personal representatives, SIGNED under seal this the ~ Denton County, Texas. day of ,2003, in Denton, Avionics International Supply, Inc., Lessee-A, sei~g nor .~ H. & J. Building Enterprises, LLC, By 1/'~,'~ ~ Its m~'~nage~,~''' The City of Denton, Denton County, Texas, Lessor By Title: By. Title: APPROVED AS T..O.F'~ORM: CITY ATTORI~"~../ AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: September 16, 2003 Police Jon Fortune, Assistant City Manager SUBJECT Consider adoption of an ordinance amending Section 6-27(b) of Chapter 6, Animals, providing an exception for Equestrian Developments; providing a penalty not to exceed $500.00; providing for a severability clause; providing a savings clause; providing for publication; and providing an effective date. BACKGROUND Lakeview Ranch, on East Hwy 380, was developed and is marketed as a horse-friendly neighborhood and includes amenities for horses such as equestrian trails. Section 6-27(b) requires that horses must be housed and maintained at least two-hundred (200) feet from any residence, excluding the owner' s residence. The lot configurations in Lakeview Ranch do not provide the opportunity for residents to house horses in compliance with that ordinance. Staff received a request to resolve this issue so that residents who purchased property in that neighborhood because of its equestrian emphasis could use the property to house horses. The Denton Development Code encourages equestrian developments in the rural and neighborhood districts. This ordinance will exempt designated equestrian developments from the distance requirement for horses. It does not include any other classification of livestock and it does not exempt property owners from any other provision of Section 6-27, including the square footage required for each horse or the responsibility for proper maintenance of all yards, stables, or other enclosures that are used to house the animals. PRIOR ACTION/REVIEW: None. FISCAL IMPACT: None Respectfully submitted, Joanie Housewright Captain, Operations Bureau S:\Our Documen~s\Ordinances\03kEQUESTrian Developrnvnt. DOC ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON, TEXAS AMENDING SECTION 6-27(b) OF CHAPTER 6 ANIMALS, PROVIDING AN EXCEPTION , FOR EQUESTRIAN; DEVELOPMENTS; PROVIDING A PENALTY NOT TO EXCEED $500.00; PROVIDING FOR A SEVERABILITY CLAUSE; PROVIDING A SAVINGS CLAUSE; PROVIDING FOR PUBLICATION; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Denton, Texas adopted the Denton Development Code on February 20, 2002; and WHEREAS, the Denton Development Code encourages Equestrian Developments in the Rural and Neighborhood Residential Districts; and WHEREAS, Chapter 6, Animals, of the Code of Ordinances of the City of Denton, Texas does not allow horses to be kept 200' from an adjacent property's residence; and WHERE,, this provision conflicts with the intent of the City Council of the City of Denton, Texas to encourage and provide for Equestrian Developments within the City of Denton, Texas; and WHEREAS, the City Council of the City of Denton, Texas desires the amend Chapter 6, Animals, of the Code of Ordinances of the City of Denton, Texas to provide for Equestrian Developments. NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1: That the findings in the preamble of this ordinance are incorporated by reference, herein. SECTION 2: That Secti°n 6-2. Definitions is hereby amended to add a definition for Equestrian Developments as follows: "Equestrian Developments" are residential developments which are designed to accommodate equestrian activities and which provide such facilities as community stables, riding rings, pastures, and riding trails. In addition, private stables may be located on individual residential lots. SECTION 2: That Section 6-27(b). Livestock; sanitary conditions is hereby amended to add an exception for Equestrian Developments as follows: It shall be unlawful for any person to keep or harbor any livestock within the corporate limits of the city in any pen, stable, shed or other enclosure at a distance of less than two-hundred (200) feet from any residence, business, commercial establishment, office, school, hospital or nursing home. This does not apply to the livestock owner's residence, business, commercial establishment or office. This does not apply to Equestrian Developments as determined by the Director of Planning and Development pursuant to the provisions of the Denton Development Code. SECTION 3: That any person violating any provision of this ordinance, shall upon conviction, be fined a sum not exceeding $500.00. Each day that a provision of this ordinance is violated shall constitute a separate and distinct offense. SEC___~TION 4: That if any section, subsection, paragraph, sentence, clause, phrase or word in this ordinance, or application thereof to any person .or circumstance is held invalid by any court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this ordinance, and the City Council of the City of Denton, Texas hereby declares it would have enacted such remaining portions despite any such invalidity. SECTION 5 :. That save and except as amended hereby, all the sections, sentences, and clauses of Chapter 6 Animals of the Code of Ordinances of the City of Denton, Texas shall remain in full force and effect. SECTION 6: That 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, the official newspaper of the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the ~ day of ,2003 EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY AGENDA DATE: DEPARTMENT: CM/DCM/ACM: AGENDA INFORMATION SHEET September 16, 2003 Engineering Jon Fortune, Assistant City Manager SUBJECT Consider adoption of an ordinance approving a change order to that certain Professional Services Contract between the City of Denton and Steven J. Kunkel and Associates, Inc., dated March 13, 2003 to provide real property appraisal services for acquisitions for th e Clear Creek Interceptor Sewer Line Project; and providing an effective date. BACKGROUND The City of Denton contracted for real estate appraisal services from Steve Kunkel & Associates, Inc. for the Clear Creek Sanitary Sewer Project with an original contract approved by the City Manager, dated March 7, 2003, in the amount of $22,000.® (see attached Exhibit "A"). The alignment of the project was changed, which created a need for an additional real estate appraisal. The scope of the original contract will be expanded to include pr eparation and expert testimony for condemnation. A change order to the original contract is requested in the amount orS 15,000.® (see Attachment 1). OPTIONS 1. Approve the ordinance, or 2. Denial, or 3. Table for future consideration RECOMMENDATION The Staff recommends approval of the addendum to the contract. ESTIMATED PROJECT SCHEDULE Fall 2003 PRIOR ACTION/REVIEW None FISCAL INFORMATION Revised contract amount is $37,000. ATTACHMENTS Draft Ordinance Original Contract Change Order Prepared By: Doreen E. Devore Technical Assistant Real Estate & Capital Support Respectfully submitted: David W. Salmon, P.E, Assistant Director, Engineering Department for Charles Fiedler, Director Engineering Departmem ORDINANCE NO. AN ORDINANCE APPROVING A CHANGE ORDER TO THAT CERTAIN PROFESSIONAL SERVICES CONTRACT BETWEEN THE CITY OF DENTON AND STEVEN J. KUNKEL & ASSOCIATES, 1NC. DATED MARCH 13, 2003 TO PROViDE REAL PROPERTY APPRAISAL SERVICES FOR ACQUISITIONS FOR TIlE CLEAR CREEK INTERCEPTOR SEWER LINE PROJECT; AND PROViDING AN EFFECTIVE DATE. WHEREAS, the City of Denton and Steven J. Kunkel & Associates, Inc. entered into that certain professional services agreement dated March 13, 2003 in the mount of $22,500.00 for real property appraisal services for the Clear Creek Interceptor Sewer Line Project (the "Project"); and WHEREAS, changes in the Project have necessitated the need for additional appraisal services requiring a change order in the amount of $15,000.00 as more particularly described in the Addendum 1 attached hereto and made a part hereof by reference (the "Change Order"); and WHEREAS, the original contract mount together with the Change Order amount exceeds $25,000.00, thereby requiring City Council approval; and WHEREAS, the City Council finds that the Change Order is in the public interest; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble of the ordinance are incorporated herein by reference. SECTION 2. The Change Order is hereby approved and the City Manager, or his designee, is hereby authorized to execute the Change Order on behalf of the City. SECTION 3. The City Manager or his designee is hereby authorized to make the expenditures set forth in the Change Order. SECTION 4. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of ~ 2003. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: Page 2 EXHIBIT "A" PROFESSIONAL SERVICES AGREEMENT FOR APPRAISAL RELATING TO THE CLEAR CREEK INTERCEPTOR SEWER LINE PROJECT STATE OF TEXAS COUNTY OF DENTON § THIS AGREEMENT is made and entered into as of the 7th day of March , 2003, by and between the City of Denton, Texas, a Texas municipal corporation, with its principal office at 2t5 East McKinney Street, Denton, Texas 76201, hereinafter called "OWNER"; and Steven J. KunkeI & Associates, Inc., with its offices at 301 S. Center Street, Suite 404, Arlington, Texas 76010, hereinafter called "CONSULTANT"; OWNER and CONSULTANT are acting herein, by and through their duly-authorized officials and representatives. WlTNESSETH, that in consideration of the covenants and agreements herein contained, the parties hereto do mutually AGREE as follows: ARTICLE I EMPLOYMENT OF CONSULTANT The OWNER 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 (hereinafter referred to as the "Project"): The Project shall include, without limitation: A. The project shall include without limitation, all appraisal services necessary, as described in Exhibit "A", to assist the city in acquiring right-of-way for the Clear Creek Interceptor Project, within the City of Denton, and unincorporated Denton County, Texas ("Project"). ARTICLE II SCOPE OF SERVICES The CONSULTANT shall perform the following services in a professional manner: The CONSULTANT shall perform all those Basic Services as necessary, and as described in the CONSULTANT'S December 30, 2002 letter to the OWNER, which is attached hereto and incorporated herewith by reference as Exhibit "A". If there is any conflict between the terms of this Agreement and exhibits attached to this Agreement, the terms and conditions of' this Agreement will control over the terms and conditions of the attached exhibits. ARTICLE III ADDITIONAL SERVICES Additional services to be performed by the CONSULTANT, if authorized by the OWNER, which are not included in the above-described Basic Services, are described as follows: Assisting OWNER or contractor in the defense or prosecution of litigation in connection with or in addition to those services contemplated by this Agreement. Such services, if any, shall be furnished by CONSULTANT on a fee basis negotiated by the respective parties outside of and in addition to this Agreement. B. Any additional services not included in Basic Services. ARTICLE IV PERIOD OF SERVICE This Agreement shall become effective upon execution of this Agreement by the OWNER and the CONSULTANT and upon the issuance of a notice to proceed by the OWNER, 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 OWNER. This Agreement may be sooner terminated in accordance with the provisions hereof. Time is of the essence in this Agreement. The CONSULTANT shall make all reasonable efforts to complete the services set forth herein as expeditiously as possible and to meet the schedule established by the OWNER, acting through its City Manager or his designee. ARTICLE V COMPENSATION COMPENSATION TERMS' "Subcontract Expense" is defined as expenses incurred by the CONSULTANT in employment of others in outside firms for services. "Direct Non-Labor Expense" is defined as that expense for any assignment incurred by the CONSULTANT for supplies, transportation, travel, communications, subsistence, and lodging away from home, and similar incidental expenses in connection with that assignment. C:\W'D*~,O WS.~,~,d ~'rof ,'~iC ~ ,~ r'emeaLda,c BILLING AND PAYM2ENT: For and in consideration of the professional services to be performed by the CONSULTANT herein, the OWNER agrees to pay a total fee, including reimbursement for direct non-labor expenses, not to exceed Twenty-Two Thousand Five Hundred Dollars and No Cents ($22,500.00). Partial payments to the CONSULTANT will be made on the basis of detailed monthly statements rendered to and approved by the OWNER through its City Manager or his designee; however, under no circumstances shall any monthly statement for services exceed the value of the work performed at the time a statement is rendered. The OWNER may withhold the final five percent (5%) of the contract amount until satisfactory completion of the Project. Nothing contained in this Article shall require the OWNER to pay for any Work which is unsatisfactory, as reasonably determined by the City Manager or his designee, or which is not submitted in compliance with the terms of this Agreement. The OWNER 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 OWNER for any charge, expense, or reimbursement above the maximum not to exceed fee as stated, without first having obtained written authorization from the OWNER. The CONSULTANT shall not proceed to perform the services listed in Article III "Additional Services,'.' without obtaining prior written authorization from the OWNER. ADDITIONAL SERVICES: For additional services authorized in writing by the OWNER in Article III hereinabove, the CONSULTANT, as stipulated in CONSULTANT'S December 30, 2002 letter to the OWNER, attached hereto and incorporated herewith by reference as Exhibit "A", shall submit invoices for additional services and such invoices shall be due and payable upon submission by the CONSULTANT with CONSULTANT's regular monthly statement as provided for hereinabove. Statements shall not be submitted more frequently than monthly. PAYMENT: If the OWNER fails to make payments due the CONSULTANT for services and expenses within thirty (30) days after receipt of the CONSULTANT's undisputed statement thereof, the amounts due the CONSULTANT will be increased by the rate of one and one-quarter percent (1.25%) per month from the said thirtieth (30th) day, and, in addition, the CONSULTANT may, after giving seven (7) days written notice to the OWNER, 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 OWNER to pay the late charge of one and one-quarter percent (1.25%) set forth herein if the OWNER reasonably determines that the work is unsatisfactory, in accordance with this Article V, "Compensation." ARTICLE VI OBSERVATION AND REVIEW OF THE WORK The CONSULTANT will exercise reasonable care and due diligence in discovering and promptly reporting to the OWNER any defects or deficiencies in the work of the CONSULTANT or any subcontractors or subconsultants. ARTICLE VII OWNERSHIP OF DOCUMENTS All documents prepared or furnished by the CONSULTANT (and CONSULTANT's subcontractors or subconsuttants) pursuant to this Agreement are instruments of service, and shall become the property of the OWNER upon the termination of this Agreement. The CONSULTANT is entitled to retain copies of all such documents. The documents prepared and furnished by the CONSULTANT are intended only to be applicable to this Project, and OWNER's use of these 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 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 VIII INDEPENDENT CONTRACTOR CONSULTANT shall provide services to OWNER as an independent contractor, not as an employee of the OWNER. CONSULTANT shall not have or claim any right arising from employee status. ARTICLE IX INDEMNITY AGREEMENT The CONSULTANT shall indemnify and save and hold har.rnless the OWNER and its officials, 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's 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, agents, employees, subcontractors and subconsultants, 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 taw 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. ARTICLE X INSURANCE During the performance of the services under this Agreement, CONSULTANT 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 A. M. Best Rate Carriers 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 than $100,000 for each occurrence and not less than $100,000 in the aggregate. Automobile Liability Insurance with bodily injury limits of not tess 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. The CONSULTANT shall furnish insurance certificates or insurance policies at the OWNER's request to evidence such coverages. The insurance policies shall name the OWNER as an additional insured on all such policies to the extent possible, and shall contain a provision that such insurance shall not be cancelled or modified without thirty (30) days prior written notice to OWNER and CONSULTANT. In such event, the CONSULTANT shall, prior to the effective date of the change or cancellation, deliver to OWNER substitute policies or certificates furnishing the same coverage. ARTICLE XI 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 XII 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 opportunity 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 OWNER within thirty (30) days after the date of termination. The OWNER 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 V "Compensation." Should the OWNER 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 furnished by CONSULTANT pursuant to this Agreement to the OWNER on or before the date of termination, but may maintain copies of such documents for its own use. ARTICLE XIII RESPONSIBILITY FOR CLAIMS AND LIABILITIES Approval by the OWNER shall not constitute, nor be deemed a release of the responsibility and liability of the CONSULTANT, its employees, associates, agents, subcontractors, and subconsultants for the accuracy and competency of their work; nor shall such approval be deemed to be an assumption of such responsibility by the OWNER for any defect in the work prepared by the CONSULTANT, its employees, associates, agents, subcontractors and subconsultants. ARTICLE XIV 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 addresses shown below, certified mail, return receipt requested, unless otherwise specified herein: To CONSULTANT: To OWNER: Steven J. Kunket Steven J. Kunket & Associates, Inc. 301 S. Center Street, Suite 404 Arlington, Texas 76010 Paul Williamson Real Estate & Capital Support Manager City of Denton 601 East Hickory Street, Suite B, Denton, Texas 76205 All notices shall be deemed effective upon receipt by the party to whom such notice is given, or within three (3) days after the date of mailing. C:\'W~D 0 W.~,~ ur~el Pro£ Scrvi~:~ A~x'~ n~'m,doc ARTICLE XV ENTIRE AGREEMENT This Agreement, consisting of ten (10) pages and one (I) 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 contemporaneous offers, promises, representations, negotiations, discussions, communications, understandings, and agreements which may have been made in connection with the subject matter of this Agreement. ARTICLE XVI 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 XVH 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 XVIII 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 XIX PERSONNEL The CONSULTANT 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, nor have any contractual relations with the OWNER. CONSULTANT shall inform the OWNER of any conflict of interest or potential conflict of interest that may arise during the term of this Agreement. Bo 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 XX 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 OWNER. ARTICLE XXI 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 by the parties. The parties further agree that the provisions of this Article will not be waived unless as set forth herein. ARTICLE XXII MISCELLANEOUS The following Exhibit is attached to, incorporated herewith by reference, and made a part of this Agreement: Exhibit A: Letter from CONSULTANT to OWNER dated December 30, 2002 CONSULTANT agrees that OWNER 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 OWNER 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. OWNER shall give CONSULTANT reasonable advance notice of intended audits. Venue of any suit or cause of action under this Agreement shall lie exclusively in Denton County, Texas. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas. For the purpose of this Agreement, the key person who will perform most of the work hereunder shall be Steven J. Kunkel. 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 carried on by the OWNER. The OWNER shall assist the CONSULTANT by placing at the CONSULTANT's disposal ali available information pertinent to the Project, including previoug reports, any other data relative to the Project, and arranging for the access thereto, and make all provisions 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, OWNER and CONSULTANT have hereby executed this Agreement in four (4) original counterparts; the OWNER acting by and through its duly- authorized City Manager; and the CONSULTAN]~T~actlng~by and through its duly-authorized, undersigned officer, on this the ],~ day of '~_t~x-_C,~._ ,2003. CITY OF DENTON, TEXAS ^. co.urn MANAGER ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY "CONSULTANT" STEVEN J. KUNKEL & ASSOCIATES, By: ~'~ ~~ STEVEN J. KUNKEL WITNE S S: EXHIBIT "A" STEVEN J. KUNKEL & ASSOCIATES, INC. Professional Real Estate Services Steven J. Kunkel, MAI December 30, 2002 Ms. Doreen Devore City of Denton Engineering & Transportation Department 601 E. Hickory Street, Suite B Denton, Texas 76205 Valuation Services Proposal - Clear Creek Sanitary Sewer Line Project Parcel Nos. 1 - 17 Denton County, Texas Dear Ms. Devore: I appreciate the opportunity to submit this proposal to provide valuation services in connection with the above-captioned project. It is my understanding that the City of Denton is the client in this assignment and the intended user of the appraisals. It is also my understanding that the intended use of the appraisals is to function as an aid in negotiating the purchase of the defined interests in the above-referenced real properties, and that the appraisals may be utilized for condemnation purposes. It is my understanding that the purpose of each appraisal will be to develop a current opinion of the total compensation for the purchase of the defined interest in each of the above-referenced properties. The value premise will be that of the property's "as is" condition as of the effective date valuation. Our opinion of the total compensation will reflect the "market value" of the defined property interests in the above-referenced real properties, as well as ali "compensable" damages to each remainder property. The scope of the assignment will include a complete identification and analysis of each whole property. If the above-captioned properties are part of an economic unit that differs from the whole site, we will develop an opinion of the total compensation attributed to each of the different economic units, but will not develop an opinion of the value of the whole site. The scope of the assignment will also include a complete analysis of the effect of the proposed use of each of the above-referenced properties on the remainder property. The scope of the assignment will also include a limited inspection and analysis of the whole property improvements, but will not include a valuation of each whole property as presently improved. 301 S. Center Street, Suite 404 · Arlington, Texas 76010 Metro (8t7) 261-6428 · Fax (817) 277-6473 December 30, 2002 Mr. Doreen Devore Page 2 The appraisal assignment will include the development of "Complete Appraisals" and the data and our total compensation conclusions and analyses wilt be presented in "Summary Reports" utilizing a narrative format~ This assignment will be completed in conformity with the Uniform Standards of Professional Appraisal Practice (USPAP) promulgated by the Appraisal Foundation, and the Code of Professional Ethics of the Appraisal Institute. My fee is based on the amount of time spent on the assignment, as well as the complexity of the assignment. In this instance, my fee will be $22,500, which includes all expenses incurred in the completion of this assignment. However, my fee is subject to change in the event that unexpected circumstances are encountered during the assignment that result in significant additional time and/or expenses required in completing the assignment. However, your written approval is required prior to commencement of additional services and/or modification of the fee. An itemized listing of the total fee is shown on the attached page. I anticipate completion of the assignment and delivery of two original copies of each report within 45 days of your acceptance of this proposal. However, if relevant information needed for the completion of the assignment is not received in a timely manner, the completion date may be delayed. Each report will be delivered upon completion during the assignment period, along with an attached invoice. If this proposal meets with'your approval, please sign the attached copy of this letter and return it to my office. The fee will be due and payable upon completion of the assignment and/or receipt of each appraisal report. Please call me at (817) 261-6428 if you have any questions regarding this proposal. I look forward to working with you on this assignment. Sincerely, Steven J. Kunkel, MAI ACKNOWLEDGED AND AGREED: SIK/sjk Itemized Appraisal Fees Parcel No. Property_ Owner Fee Hann~ $ 1,800 2,3&4 Carter $ 3,900 5 King $ 1,800 6&7 Noe $ 1,500 8,9&10 Chain 7 Ranch $ 3,100 11 Meyerdirk $ 1,800 12 & 13 Shephard $ 2,900 14 LVF Corp. $ 1,800 15, 16, & 17 Williams $ 3,900 $22,500 ATTACHMENT 1 STEVEN J. KUNKEL & ASSOCIATES, INC. Professional Real Estate Services (PAGE 1 OF Steven J. Kunkcl, MAI September 4, 2003 Ms. Doreen Devore City of Denton Engineering & Tram~rtafion Deparm~t 601 E. Hickory Street, Suite B Denton, Texas 76205 Re; Valuation Services Proposal - Clear Creek Sanitary Sewer Line Project Denton County, Texas Additional Services- Appraisal (Parce~ No. 7) & Condemnation Support Dear Ms, Devore: I appreciate the opportunity to submit this proposal to provide additional valuation services in connection with the above-captioned project. It is my understanding that the City of Denton is the client in this assigranent and the intended user of the appraisal. It is also my understanding that the intended use of the appraisal is to function as an aid in negotiating the purchase of the defined interests in the above-referenced real property, and that the appraisal may be utilized for condemnation purposes. tt is my understanding that the purpose of the appraisal is to develop a current opinion of the total compemation for the purchase of the defined interest in the above-referenced property. The value premise ~11 be that of the property's "as is" condition as of the effective date valuation. Our opin/on of the total compensation will reflect the "market value" of the defined property interests in the above-referenced real property, as well as ali "compensable" damages to the remainder property. The scope of the appraisal assigranent will include a complete identific~_~_;oa and analysis of the whole property. If the above-captioned property is part of an econo~c unit that differs from the whole site, we will develop an opinion ofthe total comlmnsation atm'buted to ~¢h of the different economic units, but will not develop an op~on of the value ofthe whole site. The scope of the assignment wilI also include a complete analysis of the effect ofthe proposed use of the above~referermed property on the remainder property. The scope of the assignment will also include a limited inspection and analysis of the whole property improvement.,, but will not include a valuation of the whole property as presently improved. 301 S. Center Street, Suite 404 · Arlington, Texas 76010 Metro fa t7~ 261-6428 · Fax t'817~ 277-6473 ATTACHMENT (PAGE 2 OF 2) September 4, 2OO3 Ms. Dorenm Devore Page 2 The scope of the condemnation support assignment will include review o£ previously prepared appraisals, research and analysis of market transactions, and inspection, research and analysis of subject parcels. The scope of service also includes expert witness testimony, including depositions, hearings, interrogatories, meetings, and preparation time. The appraisal assigmnent will include the development of a "Complete Appraisal" and thc data and. our total compensation conclusion and analyses will be presented in a "Summary Report" utilizing a narrative format. This assignment will be completed in conformity with the Uniform Standards of Professional Appraisal Practice (USPAP) promulgated by the Appraisal Foundation, and the Code of Professional Ethics of the Appraisal Institute. My fee is based on the amount of time spent on the assignment, as well as the complexity of the assignment. In this instance, my total fee will not exceed $15,000, which includes $3,500 for the appraisal assignment and $1 t,500 for the condemnation support assignment, with an hourly rate of $150. The total fee includes all expenses incurred in the completion of' this assignment. However, my fee is subjec~ to change in the event that unexpected circumstances are encountered during the assignment that results in significant additional time and/or expenses required in completing the assignment. However, your written approval is required prior to commencement of additional services and/or modification o£the fee. I anticipate completion of the assignment and delivery of two original copies of the written report within 30 days of' your written acceptance of this proposal. However, if relevant information needed for the completion of the assignment is not received in a timely manner, the completion date may be delayed. If this proposal meets with your approval, please sign the attached copy of this letter and return it to my office. The fee will be due and payable upon completion of the assignment and/or receipt of the appraisal report. Please call me at (817) 261-6428 if you have any questions regarding this proposal. I look forward to working with you on this assignment. Sincerely, Steven J. Kunke[ MAI ACKNOWLEI~ED AND AGREED: BY: DATE: AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: September 16, 2003 Water/Wastewater Howard Martin, ACM/Utilities 349-8232 SUBJECT Consider adoption of an ordinance of the City of Demon, Texas, authorizing the City Manager to execute the Swisher Road Waterline Extension Project Agreement between Swisher Road Water Supply Corporation, the City of Demon, Texas, Nortex Regional Planning Commission and Demon County, Texas; providing for the expenditure of funds therefor: and providing for an effective date. BACKGROUND The Swisher Road Water Supply Corporation (SRWSC), a non-profit organization represeming a community (Exhibit I) of 21 private residences and 2 duplexes, has requested water service from the City of Demon. The community is located outside the city limits, and inside the City's ETJ and CCN. The SRWSC was formed to accept the role, through receivership, of temporarily managing and operating the Powell Farms Well system. The Powell Farms Well is a deteriorating system that has a long history of being under regulatory scrutiny, has been in violation of State regulations for public water supply systems, and has been placed into receivership by the TCEQ (formerly TNRCC). In addition to the regulatory problems, the well system is failing to meet the current water demands of the community. To resolve their water supply problem the SRWSC has acquired a Texas Community Developmem Block Gram, which is administered by Demon County. Because the SRWSC has been unsuccessful in finding a qualified contractor to complete the necessary work within their budget, they have asked the City of Denton for assistance. Assisting the SRWSC in obtaining a safe and sustainable water supply has several advamages for the City of Demon including: · Approximately $90,000.00 of aid in construction revenue to offset labor and equipment costs allocated to this project · Expanding the customer base and service area · Collection of impact fees and increased residemial customer revenue · Insuring that the waterline extensions are properly constructed to City specifications and inspected upon installation · Recognition from, and improved working relationships with other governmem agencies In addition, helping the community at this time may prevent potential future liabilities in the event that the area is annexed and the community petitions the City to extend the water system at the rate payer's expense or the system is placed imo receivership again and the City is approached by TCEQ to accept ownership. It was first suggested by SRWSC that the grant funds would be used to connect the Powell Farms Well system to the City's water distribution system through an air-gap connection. Future phases would have included replacing the currem pressure maimenance and distribution system. However, SRWSC ultimately decided to construct a completely new distribution system, which would be operated, maimained, and owned by the City, allowing for the disbanding of their public water supply responsibilities and TCEQ regulatory compliance issues. This would ensure quality comrol and eliminate the risk and liability involved with connecting to a failing water system. Because the SRWSC is operating under limited funds, staff has proposed to build the system for cost plus 20%, in accordance with the fee structure stipulated in the City Code of Ordinances, Chapter 26, ARTICLE iV, Sec. 26-126.1 (d). The structure of the grant does not allow for the release of any funds in advance, but does allow for reimbursemem paymems up to $100,000.00 once the work has commenced. This condition would require the City to provide labor, equipmem, and some materials up-from, and be reimbursed by the grant upon completion of the project. To reduce the up-front costs and take advantage of the reimbursement conditions of the grant, as well as complying with the grant administration requirements, the new distribution system will be constructed in two Phases (Exhibit ii). Phase 1 will consist of connecting the new distribution system to Demon's existing system and installing approximately 1900 feet of 8" waterline and 10 service taps south along the Swisher Road easement. Phase 2 includes the installation of approximately 600 feet of 6" waterline and 9 service taps north along the Swisher Road easement and 1300 feet of 6" waterline and 7 service taps east along a private drive. The conditions of the gram, the up-from expenditures of Water Utilities, and the responsibilities of the SRWSC necessitate a three-party agreemem. The following are the recommended principles of the proposed three-party agreemem: · Upon completion and final inspection of the project, Demon County (Gram Administrator) is responsible for paymem to the City of Demon for the construction of the new water distribution system. · The SRWSC must supply the pipe for the water main, provide plans and as builts, purchase all necessary permits, acquire all necessary easemems, and convey the system to the City of Demon upon completion and final inspection of the project. · The City of Denton will construct the new water distribution system according to the plans provided, operate and maintain the system in the interim, and accept ownership upon completion of the project. · Because the SRWSC has made a reasonable attempt to agree to terms with the City regarding this issue prior to May 29, 2003, impact fees will be based on the old impact Fee Ordinance (City Code of Ordinances, Chapter 26, ARTICLE Vi, Sec. 26-219(b)). · The impact Fee Ordinance includes a provision (City Code of Ordinances, Chapter 26, Article iV, Sec. 26-222(d)) to allow impact fees to be paid in momhly installmems if the housing unit is an owner occupied single-family homestead and the owner executes a promissory note, deed of trust, or other document prepared by the City Attorney sufficient to establish an enforceable lien on the real property. The three-party agreemem will comain the necessary language for the enforcemem of this provision for all owner occupied single-family homestead units represented by the SRWSC. Finally, due to the potential for adjacent property to develop, staff is considering oversize participation of this project to increase the waterline size to 12 inches. Any funds used to oversize the line would come from the Water Department's oversize waterline account and would not be reflected in the proposed three-party agreement. OPTIONS Approve the contract (Exhibit IV) as recommended by the PUB and as approved by Swisher Road Water Supply Corporation, Nortex Region Planning Commission, and Denton County, Texas. 2. Modify the contract and request Swisher Road Water Supply Corporation, Nortex Region Planning Commission, and Denton County, Texas to approve the modified contract. RECOMMENDATION Staff recommends approval of the contract, as recommended by the PUB based on the business points (Exhibit V), and as approved by Swisher Road Water Supply Corporation, Nortex Region Planning Commission, and Denton County, Texas. ESTIMATED SCHEDULE OF PROJECT The construction of both phases of the new water distribution system will take 60-90 days to complete. PRIOR ACTION/REVIEW (Council, Boards, Commissions) Denton County, Texas Commissioners Court approval of the Swisher Road Waterline Extension Project contract - September 2, 2003 City of Denton PUB approval to enter into a contract for the Swisher Road Waterline Extension Project - July 7, 2003 FISCAL INFORMATION The funds authorized under the waterline replacement program will be used to supply the materials, labor, and equipment for the construction of each phase. Grant payments to the City will reimburse the funds used for the project, including an additional 20%. Phase 1 Phase 2 Materials $28,313.38 Materials $13,714.13 Labor $19,660.00 Labor $19,660.00 Equipment $23,680.00 Equipment $24,320.00 Survey 3% $ 2,149.60 Survey 3% $ 1,730.82 Total $73,802.98 Total $59,424.95 Phase 1 Oversize Participation Phase 2 Oversize Participation Exhibit I Exhibit II Exhibit III Exhibit IV Exhibit V $17,600.58 $6,928.68 SRWSC site map SRWSC proposed distribution system Ordinance Swisher Road Waterline Extension Contract July 7, 2003 Public Utilities Board Meeting Minutes Prepared by: Respectfully submitted: Howard Martin Assistant City Manager for Utilities Tim Fisher, P.E. Assistant Director of Water Utilities Swisher Road Water Supply Corporation (SRWSC) Site Map ~ I ~ . Peckrus Page - ~e~ ~]~! ~' ~ EXHIBIT I SRWSC Proposed Water Distribution System ORDINANCE NO. 2003- AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AUTHORIZING THE CITY MANAGER TO EXECUTE THE SWISHER ROAD WATERLINE EXTENSION PROJECT AGREEMENT BETWEEN SWISHER ROAD WATER SUPPLY CORPORATION, THE CITY OF DENTON, TEXAS, NORTEX REGIONAL PLANNING COMMISSION AND DENTON COUNTY, TEXAS; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR: AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City of Denton, Texas, Swisher Road Water Supply Corporation ("SRWSC"), Nortex Regional Planning Commission ("NORTEX") and Denton County, Texas (the "County") are entering into a "Swisher Road Waterline Extension Project Agreement Between Swisher Road Water Supply Corporation, the City of Denton, Texas, Nortex Regional Planning Commission and Denton County, Texas" which provides for implementation of a project that provides for the acquisition, construction, improvement, operation and maintenance of the improvements for the purpose of providing a safe and adequate water supply; and WHEREAS, Denton County, Texas has a contract with NORTEX for the management of the installation of the subject water supply system, for the benefit of SRWSC, and desires to implement a Texas Community Development Block Grant under the general direction of the Small Town Environmental Program ("STEP") with the Texas Community Development Program; and WHEREAS, the parties to the above Agreement intend to implement a project that provides for the acquisition, construction, improvement, operation and maintenance of improvements, for the purpose of providing the residents with a safe and adequate water supply; and WHEREAS, SRWSC, a private non-profit corporation, has elected to have the City of Denton construct and install the improvements for good and valuable considerations; NOW THEREFORE THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager is hereby authorized to execute on behalf of the City Council of the City of Denton, Texas, the "Swisher Road Waterline Extension Project Agreement Between Swisher Road Water Supply Corporation, the City of Denton, Texas, Nortex Regional Planning Commission and Denton County, Texas;" a copy of said Agreement is attached hereto and incorporated by reference herein. ~qF, CTION 2. The expenditure of funds as set forth in the Agreement is hereby authorized. EXHIBIT III SECTJ[D/:J23.. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the __ day of ,2003. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY By: ~ S:\Our Documents\Ordinances\03~Swisher Road Water Line Agreement ord - 2003.doc 2 THE STATE OF TEXAS § COUNTY OF DENTON § SWISHER ROAD WATERLINE EXTENSION PROJECT AGREEMENT BETWEEN SWISHER ROAD WATER SUPPLY CORPORATION, THE CITY OF DENTON, AND DENTON COUNTY WHEREAS, the City of Denton, a Municipal Corporation with is offices located at 215 East McKinney, Denton, Texas 76201, hereafter referred to as "Denton", desires to participate in the construction and installation of a waterline extension to its existing water distribution system known as the "Swisher Road Waterline Extension Project", hereafter referred to as "Improvement," that will extend generally along Swisher Road between Pocl~us Page Road and Edwards Road, in Denton County, Texas; and WHEREAS, the Swisher Road Water Supply Corporation, a public non-profit Corporation, hereafter referred to as "SRWSC", elects to have Denton construct and install the improvement; and WHEREAS, Denton Coumy, a political subdivision of the State of Texas, tlereafter referred to as the "County," for the benefit of the SRWSC desires to implement a Texas Community Development Block Grant under the general direction of the Small Town Environmental Program (."STEP,) with the Texas Community Development Prggram; and WHEREAS, the parties hereto intend to implement a project that provides for the acquisition, construction, improvement, operation and maintenance of the Improvement for the purpose of providing a safe and adequate water supply; and WHEREAS, Denton County has a .contract with the Nortex Regional Planning Commission, hereinafter referred to as Nortex R.P.C. or as the "Firm", a political subdivision of the State of Texas organized under Local Government Code, Subtitle C, Chapter 391, Regional Plmming Commissions, Vernon's Texas Codes Annotated, acting by and tltrough its duly authorized Executive Director, for the management of the ' ' installation of the subj eot water supply system, and also as the administrator of the Texas Community Development Block Grant, Small Town Environmental Program grant, hereafter referred to as "STEP Grant," which is the funding source for this proj'¢ct. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein SRWSC, Denton, Nortex R.P.C. and the County do hereby AGREE as follows: EXHIBIT IV Covenants of the SRWSC. SRWSC agrees as folloYvs: Prior to beginning construction of the improvement, the SRWSC shall obtain, at the expense of SRWSC, all necessary permits and easements. The SRWSC shall also supply Denton with the project plans, designed by Isbell Engineering Group, Inc., and the "as builts," i£necessary. SWRSC shalt also supply volunteer labor sufficient to assist in the construction activities, in compliance with the terms of the STEP Grant. Denton shall not be liable for any delays in beginning, continuing, or completing construction due to S WRSC's failure to obtain the necessary volunteer labor, permits, and easements. SRWSC shall provide Denton with approximately 3800 linear feet of 6- inch water pipe, which must meet Denton's specifications and standards for water pipe. If Denton deems a portion or all of the water pipe unusable, the SRWSC must replace, at the expense of SRWSC, the water pipe material deemed unusable by Denton. No cross-connections between the improvement, or its service lines, and the existing Powell Farms well system shall be permitted. Denton shall terminate service to the Improvement, if any cross-connection between the Improvement and the existing Powell Farms well system is made. Prior to connecting to the improvement apd receiving water from Denton, each SRWSC residence requesting service must have a customer service inspection of its plumbing system conducted by a Denton official. Each property represented by SRWSC requesting water service from Denton shall pay, or shall timely finance impact fees prior to connecting to the Improvement. Impact fees shall be assessed for each connection to the Improvement and will be charged at a rate of $2,044 per service unit for all initial com~ections. SRWSC shall be obligated to notify all residences of road closures necessary to construct the improvement. Covenants of Denton. Denton agrees to the following: a. Denton shall install and construct the Improvement which includ~es, but not limited to, approximately 3800 linear feet of water pipe (more or less), along With all the necessary appurtenances (service taps and hydrants) thereto, as generally shown on Exhibit t, attached hereto and incorporated herein by reference. b4 Denton shall supply sufficient labor, equipment, and materials necessary for the construction of the project; with the exception of 3800 linear feet of 6-inch water pipe, which shall be furnished by SRWSC. Denton shall assess impact fees, in connection with City of Denton Ordinance No. 98-301, to each new cmmection to the Improvement. In accordance with Ordinance No. 98-301, owner occupied single-family homesteads may choose to pay impact fees in monthly installments, provided that the owner execute a valid promissory note, deed of trust, homestead affidavit, and/or other documents to be prepared by the City of Denton, City Attorney, sufficient to establish an enforceable lien on the affected real property. Mutual Covenants of SRWSC and Denton. agree as follows: SRWSC and Denton mutually The construction of the improvement will be built in two Phases thereto, as generally shown on Exhibit 71I, attached hereto and incorporated herein by reference. SWRSC shall pay $73,600.58 for Phase 1 of the project and $59,424.95 for Phase 2. Both payments shall be paid by Denton County as set forth below in paragraph 4.a. tlvough the funding provided by the "STEP Grant." Denton may choose to increase the size o~'the waterline to an 8-inch or 12- inch water pipe. In the event that Denton elects to oversize the waterlin'e, Denton will be responsible for supplying the Pipe and .absorbing the additional cost of increasing the size of the 6-inch water pipe to an 8-inch or 12-inch water pipe. Denton shall, upon completion of the project, which completion date shall be at least seventy-five (75) days after final approval of this agreement by the last party signatory hereof, operate and maintain the Improvement and provide water service to custorners who have completed the plumbing inspection and who have paid or law~ttly financed impact fees. The completion date set forth in this para,apb further considers that there wili be no delays caused by SRWSC in securing or acquiring necessary easements or constructio~n permits. As it now exists, the STEP Grant is extended until November 9, ;~003. Ail parties hereto agree to fully cooperate in securing a timely extension of that date so that the grant may be extended. Upon completion of the construction and the finalization and close-out of the Irnprovement according to the conditions of the STEP Grant, the Improvement and all easements shall become the property of the City of Denton free and clear of all liens, claims, charges or encumbrances of any kind. o Covenants of Denton County. Denton County agrees to the following: ao The County, upon completion of the phase, or project, in accordance with, and under the general direction of the Small Town Environmental Program with the Texas Community Development Program, shall provide payment to Denton for the construction of the improvement, through the release of funds awarded to SRWSC by the STEP grant. Covenants of Nortex R.P.C. Nortex R.P.C. agrees to the following: Nortex R.P.C. agrees to continue to perform all its obligations as grant administrator under the Interlocal Cooperation Agreement between Nortex R.P.C. and the County dated July 24, 2001 ("ICA"). Pursuant to this agreement, Nortex R.P.C. shall no longer serve as the construction manager for the project. Mutual Covenants This Agreement is not intended to extend the liability of the parties beyond that provided by law. Neither the County, SRWSC, Nortex R.P.C. nor Denton waives, nor shall be deemed l~ereby to waive, any immunity or defense that would otherwise be available to it against claims arising by third parties. This Agreemem represents the entire agreement between the County, SRWSC and Denton and snpersedes al'l prior negotiations, representations and/or agreements, either written or oral. This Agreement may be amended only by written instrument signed by the governing bodies of County, SRWSC and Denton or those authorized to sign on behalf of those governing bodies. The validity of this Agreement and of any of its terms or provisions, as well as the rights and duties of the parties hereto, shall be governed by the laws of the State of Tex.as, Further, this Agreement shall be performable in Denton County, Texas. ', In the event that any portion of this Agreement shall be found to be contrary to law, it is the intent of the parties hereto that the remaining portions shall remain valid and in full force and effect to the extent possible. The undersigned officer and/or agents of the parties hereto are the properly authorized officials and have the necessary authority to execute this Agreement on behalf of the parties hereto, and each party hereby certifies to the other that any necessary resolutions extending said authority have' been duly passed and are now in full force and effect. IN WITNESS WHEREOF, the above stated parties have executed this Agreement on this the __ day of ,2003. "Denton" CITY OF DENTON, TEXAS A Texas Municipal Corporation By: Michael A. Conduff, City Manager ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY By: "SRWSC" SWISHER ROAD WATER SUPPLY CORPORATION By: Kevin McCormack President, SRWSC "County" DENTON COUNTY, TEXAS Mary Horn, C y Judge "Nortex R.P.C." NORTEX REGIONAL PLANNING COMMISION -By: Dennis Wilde, Executive Director 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 CITY OF DENTON, TEXAS PUBLIC UTILITIES BOARD MEETING MINUTES July 7, 2003 9:00 A.M. After determining that a quorum of the Public Utilities Board of the City of Demon, Texas was presem, the Public Utilities Board convened imo an Open Meeting on Monday, July 7, 2003, at 9:00 a.m. in the Service Cemer Training Room, City of Demon Service Cemer, 901-A Texas Street, Denton, Texas. PRESENT: George Hopkins, Charldean Newell, Dick Norton, Rob Rayner, Dick Smith and Don White EX OFFICIO MEMBERS Mike Conduff, City Manager Howard Martin, ACM/Utilities ABSENT: Bill Cheek ITEMS FOR INDIVIDUAL CONSIDERATION: 4) Consider the approval of an agreement between the City of Denton, Denton County, and the Swisher Road Water Supply Corp. for the extension of the City's water distribution system to supply the residences currently on the Powell Farms Wells system with City of Denton water. Tim Fisher, Assistant Director of Water, presented this item. Fisher reported to the Board that in 1993 the City became aware of the problems associated with the Powell Farm Well system. Fisher explained to the Board that at that time there was no infrastructure in place to extend a water line and the associated cost of about one quarter of a million dollars made the project cost prohibitive. Fisher reported that the Swisher Road Water Supply Corporation (SRWSC) applied for and received a one hundred thousand dollar ($100,000.00) Texas Community Developmem Block Gram to be administered by Demon County. But, because the SRWSC has been unsuccessful in finding a contractor to complete the work within their budget, they have asked the City of Denton for assistance. Fisher explained that staff thinks that helping the SRWSC obtain a safe and sustainable water supply might prevent future liabilities in the event that the City annexes the area. Fisher asked that the Board approve a three-way agreement between the City of Denton, Denton County and the Swisher Road Water Supply Corporation to use the grant funds awarded to the SRWSC to extend a water line and provide service. The agreement will require that the City provide labor, equipmem and some material up from and be 1 EXHIBIT V 1 2 3 4 5 6 7 reimbursed by the grant upon completion of the project. Fisher also stated that, due to potential development in that area, staff is considering oversizing the proposed 8" line to 12". Funds used for the oversizing would come from the Water Department oversize account and not be reflected in the three-way agreement. Hopkins moved to approve Agenda Item 4 with a second from Board Member Dick Norton. The motion was approved unanimously. AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: September 16, 2003 Management and Budget Kathy DuBose, Fiscal and Municipal Services SUBJECT Consider adoption of an Ordinance of the City of DeNon approving an agreemem in the amoum of $500.00 between the City of Demon, Texas and the DeNon Holiday Festival Association, inc. for the installation and maintenance of decorative lighting in the Downtown Square and related holiday activities; providing for the expenditure of funds therefore; and providing for an effective date. BACKGROUND Council Member Pete Kamp has requested that $500.00 from her City Council comingency funds for FY 2002-03 be provided to the DeNon Holiday Festival Association, inc. The funds will be used to fund the fees associated with renting equipment, the maintenance and upkeep of existing lighting and the cost of advertisement. Since public funds are being provided to an outside agency, an agreemem outlining the purpose for the expenditure and reporting requiremems on the expenditure of funds is necessary. There is no current agreement in place with the Denton Holiday Festival Association, Inc.; therefore, a new one needs to be approved. ESTIMATED SCHEDULE OF PROJECT The agreemem is to be completed by December 31, 2003. PRIOR ACTION/REVIEW None FISCAL INFORMATION The agreemem is for $500.00 and is funded from City Council comingency fund 160099.7746. EXHIBITS Ordinance/Agreemem Respectfully submitted: Anna Mosqueda Director of Management and Budget ORDINANCE NO. AN ORDINANCE OF THE CITY OF DENTON APPROVING AN AGREEMENT IN THE AMOUNT OF $500.00 BETWEEN THE CITY OF DENTON, TEXAS AND DENTON HOLIDAY FESTIVAL ASSOCIATION FOR THE INSTALLATION AND MAINTENANCE OF DECORATIVE LIGHTING IN THE DOWNTOWN SQUARE AND RELATED HOLIDAY ACTIVITES; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the Denton Holiday Festival Association, Inc. (the "Organization") offers a specialized service for the installation and maintenance of decorative lighting in the Downtown Square and related holiday activities (the "Program"); and WHEREAS, the City Council of the City of Denton hereby finds that the Program and the agreement between the Organization attached hereto and made a part hereof by reference (the "Agreement") serve a municipal and pubIic purpose and the Agreement is in the public interest; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings set forth in the preamble of this ordinance are incorporated by reference into the body of this ordinance as if fully set forth herein. SECTION 2. The Agreement is hereby approved, and the City Manager, or his designee, is hereby authorized to execute the Agreement and to carry out the duties and responsibilities of the City under the Agreement, including the expenditure of funds as provided in the Agreement. SECTION 3. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of_ , ,2003. ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: EULINE BROCK, MAYOR AGREEMENT This Agreement is hereby entered into by and between the City of Denton, Texas, a Home Rule Municipal Corporation, hereinafter referred to as "City" and Denton Holiday Festival Association, Inc., a Texas non-profit corporation, hereinafter referred to as "Organization"; WHEREAS, City has determined that the Organization will perform an important public service for the residers of the City of Denton without regard to race, religion, color, age or national origin by providing for certain services related to the installation and maintenance of decorative lighting in the Denton Square and related holiday activities; and WHEREAS, this agreement is in the public interest; NOW, THEREFORE, the parties hereto mutually agree as follows: 1. SCOPE OF SERVICES Organization shall in a satisfactory and proper manner perform the following tasks, for which the monies provided by the City may be used: installation and maintenance of decorative lights in the Denton Town Square including the rental of port-a-lets and other related activities authorized by the City. 2. OBLIGATIONS OF ORGANIZATION In consideration of the receipt of funds from the City, Organization agrees to the following terms and conditions: A. The funds provided for in this Agreement shall onlybe expended for the purposes set forth in Section 1 above, subject to Section 4.A. and for no other purpose. B. The Organization shall expend the funds in a manner that will allow for a tracing of funds and a review of the specific expenditures for which the funds were utilized. C. The Organization shall permit authorized officials of Cityto review its books at anytime. D. The Organization will reduce to writing all of its roles, regulations, and policies and file a copy with City's Main Street Division along with any amendments, additions, or revisions whenever adopted. E. The Organization shall not enter into any contracts that would encumber City funds for a period that would extend beyond the term of this Agreement. F. As funds are expended, the Organization shall provide documentation in the form of cancelled checks and corresponding receipts detailing expenditure. G. The Organization shall appoint a representative who will be available to meet with City officials when requested. H. The Organization shall indemnify and hem harmless City from any and all claims and suits arising out of the activities of Orgauization, its employees, and/or contractors. I. The Organization shall submit to City copies of year-end audited financial statements. 3. TIME OF PERFORMANCE The services funded by City and County shall be undertaken and completed by Organization by December 31, 2003. 4. PAYMENTS A. PAYMENTS TO ORGANIZATION. As of the effective date of this Agreement, the City shall pay to the Organization the sum of $500.00 to be used solely for the purposes set forth in Section 1 above. B. EXCESS PAYMENT. Organization shall refund to City within ten (10) working days of Citfs request, any snm of money which has been paid by City which City at any time thereafter determines: 1) has resulted in overpayment to Organization; or 2) has not been spent strictly in accordance with the terms of this Agreement; or 3) is not supported by adequate documentation to fully justify the expenditure. C. DEOBLIGATION OF FUNDS/REVERSION OF ASSETS. In the event that actual expenditures deviate from Organization's provision of a corresponding level of performance, City hereby reserves the fight to reappropriate or recapture any such under expended funds. If City find that Organization is unwilling and/or unable to comply with any of the terms of this Agreement, City may require a refund of any and all money expended pursuant to this Agreement by Organization, as well as any remaining unexpended funds which shall be refunded to City within ten working days of a written notice to Organization to revert these financial assets. The reversion of these financial assets shall be in addition to any other remedy available to City either at law or in equity for breach of this Agreement. D. AGREEMENT CLOSE OUT. Organization shall submit the Agreement close out package to City, together with a final expenditure report, for the time period covered by the last invoice representing final expend/tare of funds under this Agreement, within fifteen (15) working days following the close of the Agreement period. Organization shall utilize the form agreed upon by City and Organization. 5. SUSPENSION OR TERMiNATION A. The City may terminate this Agreement for cause if the Organization violates any covenants, agreements, or guarantees of this Agreement, the Organization's insolvency or filing of bankruptcy, dissolution, or receivership, or the Organization's violation of any taw or regulation to which it is bound under the terms of this Agreement. The City may terminate this Agreement for other reasons not specifically enumerated in this paragraph. B. The City may terminate this Agreement for convenience at any time. If the City terminates this Agreement for convenience, Organization will be paid an mount not to exceed the total amount of accrued expenditures as of the effective date of termination, in no event will this compensation exceed an mount that bears the same ratio to the total compensation as the services actually performed bears to the total services of Organization covered by the Agreement, less payments previously made. In case of suspension, City shall advise Organization, in writing, as to conditions precedent to the resumption of funding and specify a reasonable date for compliance. In case of termination, Organization will remit to City any unexpended City and County funds. Acceptance of these funds shall not constitute a waiver of any claim City may otherwise have arising out of this Agreement. 6. EQUAL OPPORTUNITY AND COMPLIANCE WITH LAWS A. Organization shall comply with all applicable equal employment opportunity and affirmative action laws or regulations. B. Organization will furnish all information and reports requested by City and will permit access to its books, records, and accounts for purposes of investigation to ascertain compliance with local, State and Federal roles and regulations. C. In the event of Organization's non-compliance with the non-6iscrimination requirements, the Agreement may be canceled, terminated, or suspended in whole or in part, and Organization may be barred from further contracts with City. 7. WARRANTIES ORGANIZATION represents and warrants that: A. All information, reports and data heretofore or hereafter requested by City and furnished to City, are complete and accurate as of the date shown on the information, data, or report, and, since that date, have not undergone any significant change without written notice to City. 3 B. Any supporting financial statements heretofore requested by City and furnished to City, are complete, accurate and fairly reflect the financial conditions of Organization on the date shown on said report, and the results of the operation for the period covered by the report, and that since said data, there has been no material change, adverse or otherwise, in the financial condition of Organization. C. No litigation or legal proceedings are presently pending or threatened against Organization. D. None of the provisions herein contravenes or is in conflict with the authority under which Organization is doing business or with the provisions of any existing indenture or agreement of Organization. E. Organization has the power to enter into this Agreement and accept payments hereunder, and has taken all necessary action to authorize such acceptance under the terms and conditions of this Agreement. F. None of the assets of Organization are subject to any lien or encumbrance of any character, except for current taxes not delinquent, except as shown in the financial statements furnished by Organization to City Each of these representations and warranties shall be continuing and shall be deemed to have been repeated by the submission of each request for payment. 8. CHANGES AND AMENDMENTS A. Any alterations, additions, or deletions to the terms of th. is Agreement shall be by written amendment executed by the parties, except when the terms of this Agreement expressly provide that another method shall be used. B. Organization cannot significantly change the nature, intent, or scope of the program funded under this Agreement without the prior written approval of the City. C. It is understood and agreed by the parties hereto that changes in the State, Federal or local laws or regulations pursuant hereto may occur during the term of this Agreement. Any such modifications are to be automatically incorporated into this Agreement without written amendment hereto, and shall become a part of the Agreement on the effective date specified by the Iaw or regulation. D. Organization agrees to notify City of any proposed change in physical location for work performed under this Agreement at least thirty (30) calendar days in advance of the change. E. Organization shall notify City of any changes in personnel or governing board composition. F. It is expressly tmderstood that the transfer of funds between or among programs of the Organization will not be permitted. 9. INDEMNIFICATION A. It is expressly understood and agreed by parties hereto that City is contracting with Organization as an independent contractor and that as such, Organization shall save and hold City, its officers, agents and employees harmless from all Habllity of any nature or kind, including costs and expenses for, or on acconnt of, any claims, audit exceptions, demands, suits or damages of any character whatsoever resulting in whole or in part from the performance or omission of any employee, agent or representative of Organization. B. Organization agrees to provide the defense for, and to indemnify and hold harmless City its agents, employees, or contractors from any and all claims, suits, causes of action, demands, damages, losses, attorney fees, expenses, and liability arising out of the use of these contracted funds and program administration and implementation except to the extent caused by the willful act or omission of City, or its agents or employees. 10. INSURANCE A. Organization shall observe sound business pratt/ecs with respect to providing such bonding and insurance as would provide adequate coverage for services offered under this Agreement. B. The premises on and in which the activities described in Section 1 are conducted, the employees, agents or contractors conducting these activities, shall be covered by premise liability insurance, commonly referred to as "Owner/Tenant" coverage with City named as additional insureds. Upon request of Organization, City may, at its sole discretion, approve alternate insurance coverage arrangements. C. Organization will comply with applicable workers' compensation statutes and will obtain employers' liability coverage where available and other appropriate liability coverage for program participants, if applicable. D. Organization will maintain adequate and continuous liability insurance on all vehicles owned, leased, or operated by Organization. All employees of Organization who are required to drive a vehicle in the normal scope and course of their employment must possess a valid Texas Drivels license and automobile liability insurance. Evidence of the employee's current possession of a valid license and insurance must be maintained on a current basis in Organization's files. E. Actual losses not covered by insurance as required by'~his Section are not allowable costs under this Agreement, and remain the sole responsibility of Organization. F. The policy or policies of insurance shall contain a clause which requires that City and Organization be notified in writing of any cancellation or change in the policy at least thirty (30) days prior to such change or cancellation. 11. CONFLICT OF INTEREST A. Organization covenants that neither it nor anymember of its governing bodypresentlyhas 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. Organization 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. Organization further covenants that no member of its governing body or its staff, subcontractors or employees shaI1 possess any interest in or use his/her position for a purpose that is or gives the appearance of being motivated by desire for private gain for himself/herself, or others; particularly those with which he/she has family, business, or other ties. C. No officer, member, or employee of 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 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. 12. NEPOTISM Organization 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 Organization, or is a member of Organ/zafion% governing board. The term "member of immediate family" includes: wife, husband, son, daughter, mother, father, brother, sister, in-laws, aunt, uncle, nephew, niece, .stepparent, stepchild, half-brother and half-sister. 13. NOTICE Any notice or other written instrument requited or permitted to be delivered under the terms of this Agreement shall be deemed to have been delivered, whether actually received or not, when deposited in the United States mail, postage prepaid, registered or certified, return receipt requested, addressed to Organization or City, as the case may be, at the following addresses: CITY ORGANIZATION City of Denton, Texas Atto: City Manager 215 E. McKinney Denton, TX 76201 Denton Holiday Festival, Inc. Attention: Bob Moses, Chairman 115 W. Hickory Street Denton, TX 76205 Either party may change its mailing address by sending notice of change of address to the other at the above address by certified mail, return receipt requested. 14. MISCELLANEOUS A. Organization shall not transfer, pledge or otherwise assign this Agreement or any interest therein, or any claim arising thereunder to any party or parties, bank, trust company or other financial institution without the prior written approval of City. B. Ifanyprovision of this Agreement is held to be invalid, illegal, or unenforceable, the remaining provisions shall remain in full force and effect and continue to conform to the original intent of both parties hereto. C. In no event shall anypayment to Organization hereunder, or any other act or failure of City to insist in any one or more instances upon the terms and conditions of this Agreement consti- tute or be construed in any way to be a waiver by City of any breach of covenant or default which may then or subsequently be committed by Organization. Neither shall such payment, act, or omission in any manner impair or prejudice any right, power, privilege, or remedy available to City to enforce its rights hereunder, which rights, powers, privileges, or remedies are always specifically preserved. No representative or agent of City may waive the effect of this provision. D. This Agreement, together with referenced exhibits and attachments, constitutes the entire agreement between the parties hereto, and any prior agreement, assertion, statement, understanding, or other commitment .occurring during the term of this Agreement, or subsequent thereto, have any legal force or effect whatsoever, unless properly executed in writing, and if appropriate, recorded as an amendment of this Agreement. E. This Agreement shall be interpreted in accordance with the laws of the State of Texas, is fully performable in Denton County, Texas and venue of any litigation concerning this Agreement shall be in a court of competent jurisdiction sitting in Denton County, Texas. IN WITNESS WHE~OF, the parties do hereby affix their signatures and enter into t/tis Agreement as of the __ day of ,2003. DENTON HOLIDAY FESTIVAL, INC. BY: Bob Moses, Chairperson ATTEST: BY: Organization Secretary CITY OF DENTON, TEXAS ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: Michael A. Conduff, City Manager BY: APPROVED AS TO LEGAL FORM: BY: ~ f~ ~//~/' AGENDA DATE: DEPARTMENT: CITY ATTORNEY: AGENDA INFORMATION SHEET September 16, 2003 Legal Department Dorothy G. Palumbo, Senior Assistant City Attorney/ Legislative Coordinator SUBJECT: Consider approval of a resolution of the City of Denton City Council requesting the Texas Municipal League to oppose legislation that erodes a city's ability to charge an equal and uniform drainage fee; and providing for an effective date. BACKGROUND: During the 2003 regular session, the legislature enacted legislation that exempts state properties, state colleges and universities from paying municipal storm water utility fees. Floor amendment #2 to H.B. 9 (second called session) exempted private institutions of higher learning from paying a drainage utility fee. (The amendment would have amended Section 430.003, Local Govemment Code, as added by the 78th Legislature, Regular Session.). This legislation did not pass. These private entities benefit from the flood prevention and storm water control provided by storm water utilities, and to exempt them from fees would begin a "piling-on" of other private entities or public entities wanting exemptions from municipal fees. Public and private entities should pay their fair share of the city's efforts to prevent flooding and to respond to costly federal mandates relating to storm water nm-off. When public and private entities are continually exempted from municipal drainage fees, the remaining rate payers make up the difference. This resolution would ask TML to oppose further exemptions of other private entities or public entities wanting exemptions from municipal drainage fees. FISCAL: The exemption for state properties and state universities impacted the municipal drainage fee by approximately $252,000.00. This caused a 7 ½ % increase to the remaining rate payers. OPTIONS: The City Council may adopt the resolution, direct staff to make changes to the resolution or decide not to adopt the resolution. Respectfully submitted, Senior Assistant City Attorney/ Legislative Coordinator RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS, REQUESTING THE TEXAS MUNICIPAL LEAGUE OPPOSE LEGISLATION THAT ERODES A CITY'S ABILITY TO CHARGE AN EQUAL AND UNIFORM DRAINAGE FEE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, during the 2003 regular session, the legislature enacted legislation that exempts state properties and state colleges and universities from paying municipal storm water utility fees; and WHEREAS, Floor Amendment No. 2 to H.B. 9 (second called session) exempts private institutions of higher learning from paying a drainage utility fee mending Section 430.003, Local Government Code, as added by the 78th Legislature, Regular Session; and WHEREAS, these private entities benefit from the flood prevention and storm water control provided by storm water utilities, and to exempt them from fees would begin a "piling- on" of other private entities or public entities wanting exemptions from municipal drainage fees; and WHEREAS, public and private entities should pay theft fair share of the City's efforts to prevent flooding and to respond to costly federal mandates relating to storm water run-off; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY RESOLVES: SECTION 1. That the City Council requests that the Texas Municipal League oppose legislation for private entities or public entities wanting exemptions from municipal drainage fees. SECTION 2. That the City Manager is authorized to forward a copy of this resolution to Mr. Frank Sturzl, Executive Director of the Texas Municipal League. SECTION 3. That this resolution shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the __ day of ,2003. ATTEST: JENNIFER WALTERS, CITY SECRETARY EULINE BROCK, MAYOR BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: Page 2 AGENDA DATE: DEPARTMENT: CITY ATTORNEY: AGENDA INFORMATION SHEET September 16, 2003 Legal Department Dorothy G. Palumbo, Senior Assistant City Attorney/ Legislative Coordinator SUBJECT: Consider approval of a resolution of the City of Denton City Council requesting the Texas Municipal League to oppose legislation that erodes a city's ability to charge an equal and uniform impact fec; and providing for an effective date. BACKGROUND: Chapter 395 of the Texas Local Government Code allows a city to enact an impact fee. Many public and private ent/ties have asked the City to waive the impact fee. To exempt public and private entities from impact fees would erode a city's ability to impose an equal and uniform impact fee. Public and private entities should pay their fair share of the impact fee imposed as a result of their development. When public and private entities are continually exempted from municipal impact fees, the remaining developers would have to make up the difference. This resolution would ask TML to oppose further exemptions of other private entities or public entities wanting exemptions from municipal impact fees. FISCAL: This information will be in the City Attorney status report on September 11~h. OPTIONS: The City Council may adopt the resolution, direct staff to make changes to the resolution or decide not to adopt the resolution. Respectfully submitted, Dorothy G. Palutfibo Senior Assistant City Attorney/ Legislative Coordinator C:~OCI. H~I ~adicE, LOCA.L~ I\T~p~O S1MP~ 1 .DOC RESOLUTION NO. A RESOLUTION OF TIlE CITY COUNCIL OF THE CITY OF DENTON, TEXAS, REQUESTING THE TEXAS MUNICIPAL LEAGUE OPPOSE LEGISLATION THAT ERODES A CITY'S ABILITY TO IMPOSE AN EQUAL AND UN~ORM IMPACT FEE; AND PROViDING AN EFFECTIVE DATE. WHEREAS, Chapter 395 of the Texas Local Government Code allows a city to enact an impact fee; and fee; WHEREAS, many public and private entities have asked the City to waive the impact WHEREAS, to exempt public and private entities from impact fees would erode a city's ability to impose an equal and uniform impact fee; and WHEREAS, public and private entities should pay their fair share of the impact fee imposed as a result of their development; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY RESOLVES: SECTION 1. That the City Council requests that the Texas Municipal League oppose iegislation for public or private entities wanting exemptions from municipal impact fees. SECTION 2. That the City Manager is authorized to forward a copy of this resolution to Mr. Frank Sturzl, Executive Director of the Texas Municipal League. SECTION 3. That this resolution shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the __ day of ,2003. ATTEST: JENNIFER WALTERS, CITY SECRETARY EULINE BROCK, MAYOR BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: Page 2 AGENDA DATE: DEPARTMENT: CITY ATTORNEY: AGENDA INFORMATION SHEET September 16, 2003 Legal Department Herbert L. Prouty, City Attorney SUBJECT. - A Resolution of the City of Demon, Texas adopting the City of Demon's 2003 State Legislative Program for the 78th Third Called Legislative Session; providing a repealer; and providing an effective date. BACKGROUND. - The City Council has met in workshops, participated in legislative seminars and have had input from the city staff and various groups to develop the City of Demon's 2003 State Legislative Program and adopted its legislation program for the 78th First Called Legislative Session and Second Called Legislative Session. Governor Perry added a Third Called Special Session for redistricting and other issues affecting the operation of local government and school districts. This resolution addresses the issues that pertain to the City of Denton. More detailed information is in this week's City Attorney Status Report. OPTIONS. - The City Council may adopt the resolution as the City of Demon's 2003 State Legislative Program for the Third Called Session, direct staff to make changes and then adopt the legislative program as amended or decline to adopt the Resolution. Respectfully submitted, Herbert L. Prouty City Attorney S:\Our Documents~Agenda Info State Legislative.DOC RESOLUTION NO. A RESOLUTION OF THE CITY OF DENTON, TEXAS ADOPTING THE CITY OF DENTON'S 2003 STATE LEGISLATIVE PROGRAM FOR THE 78TM THIRD CALLED LEGISLATIVE SESSION; PROVIDING A REPEALER; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, Governor Rick PelTy has called a third special session commencing on September 15, 2003;and WHEREAS, redistricting, general government, public school finance issues and many legislative issues affecting local government will be considered; and WHEREAS, the City of Denton desires to adopt its legislation program for the 78th Second Called Legislative Session, attached as Exhibit "A", NOW, THEREFORE THE CITY COUNCIL OF THE CITY OF DENTON HEREBY RESOLVES: SECTION 1' That the City of Denton's Legislative Program 78th Second Called Legislative Session for the City of Denton is adopted as set forth in Attachment "A", incorporated herein and made a part of this resolution for all purposes. SECTION 2: That the Mayor and City Council, City Manager and the City Attorney, or their designees shall communicate the items included in the state legislative program to members of the Texas Legislature. SECTION 3: The City Attorney is directed to draft appropriate legislation, seek a sponsor, and actively pursue passage of such legislation by providing testimony from the Mayor and City Council and City staff and through other appropriate means. SECTION 4: That the Mayor, City Manager and the City Attorney, or their designees are directed to communicate to the members of the Texas Legislature and actively oppose any legislation which diminishes the City of Denton's home-rule authority or has a negative impact on the City of Denton's governmental authority. SECTION 5. That all previous resolutions and orders or parts of resolutions or orders in force when the provisions of this Resolution become effective which are inconsistent or in conflict with the terms or provisions contained in this Resolution are hereby repealed to the extent of any such conflict. SECTION 6: This resolution shall take effect immediately from and after its passage in accordance with the provisions of the Charter of the City of Denton and it is accordingly so resolved. PASSED AND APPROVED this the __ day of ,2003. ATTEST: JENNIFER WALTERS, CITY SECRETARY EULINE BROCK, MAYOR BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: Exhibit A City of Denton Legislative Program for the 78th Third Called Legislative Session The City of Denton supports the following Legislative Issues: Legislation adopting a Congressional Redistricting Map that maintains the City of Denton and Denton County in Congressional District 26, respecting communities of interest as required by the Federal Voting Rights Act. Legislation to re-establish the first Saturday in May as the May uniform election date. Legislation relating to corrections to HB 3588 from the just completed regular session that maintains local authority over regional transportation issues. Legislation that assists State Universities to contribute to the economic development of the university's surrounding region. Legislation that restores Telecommunications Infrastructure Fund (TIF) funding to local governmental libraries. Legislation relating to state fiscal management, including adjustments to certain school district fiscal matters made necessary by recent changes in state fiscal management; making related appropriations. Legislation that allows a city to charge an equal and uniform drainage fee to both public and private entities. The City of Denton will actively oppose any legislation that diminishes the City of Denton's home-rule authority or has a negative impact on the City of Denton's governmental authority. AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM/DCM/ACM: September 16, 2003 General Government Betty Williams, Director of Management & Public Information Michael A. Conduff, City Manager SUBJECT: Consider adoption of an ordinance of the City Council of the City of Denton, Texas, on first reading, granting an Interim Grant of Authority to Denton Telecom Partners I, LP d/b/a Advantex Communications to construct, reconstruct, operate and maintain a cable television system in the City of Denton, Texas and setting forth conditions accompanying the granting of this Interim Grant of authority; providing for a penalty for the violation of this ordinance; providing for a savings clause; providing for the effect of this ordinance upon other ordinances and resolutions; and providing an effective date. BACKGROUND: In December 2001, the City learned that CoServ Communications L.L.C., d/b/a CoServ Communications (CoServ) was providing cable television to the Robson Ranch Development. Research revealed that CoServ was using public easements within the Denton city limits to provide cable television service, without a cable television franchise with the City. This is a violation of Ordinance 99-121, Sections 8-164 through 8-167. In January 2002, CoServ was contacted by the City and requested that CoServ apply for a cable television franchise. CoServ met with the City and revealed that they had filed for bankruptcy in November 2001. CoServ did file an application for a cable television franchise on March 4, 2002. In May 2002, the City sent CoServ an Interim Grant of Authority that would allow CoServ to provide cable service, until a Cable Franchise could be negotiated. In July 2002, the City was notified that CoServ was in the process of coming out of bankruptcy and the assets (system) were to be sold or transferred to the creditor bank. In December 2002, the City received notice that CoServ cable television operations had been assigned by the bankruptcy court to Denton Telecom Partners I, LP d/b/a Advantex Communications (Advantex). In January 2003, the City sent Advantex a proposed Interim Grant of Authority and a cable television franchise application. The City requested that Advantex begin negotiations on the Interim Grant of Authority agreement for the cable service being provided to the Robson Ranch development. The Interim Grant of Authority that was submitted to Advantex contained similar but not identical language that is found in the current cable franchise agreement with Charter Communications. ADA/EOE/ADEA www.cityofdenton.com (TDD 800-735-2989) September 16, 2003 Advantex Interim Grant of Authority Page 2 of 3 Advantex responded in February 2003, stating that the proposed agreement was "...voluminous and comprehensive agreement reflective of the large system operated by Charter throughout the City." They recommended a revised franchise agreement, "which is reflective of the small size of our system." In March 2003, the City responded to Advantex that the City desires to keep the terms of our cable franchise agreements comparable. Advantex has a small cable system and we have inserted language in the agreement that would delay the activation of several of the requirements until a certain subscriber threshold is reached. We also referenced the cable related needs of our community and requested a meeting within 30 days to begin the negotiation process. In March 2003, the City did receive a partial cable television franchise application. In April 2003, Advantex rejected the City's proposed Interim Grant of Authority and instead submitted their own proposal. The City reviewed Advantex's proposal and rejected it because it failed to meet several cable community needs. In April 2003, Advantex contacted the city and questioned whether the Interim Grant of Authority adhered to the Telecommunications Act of 1996 and portions of the 1984 and 1992 federal acts.. The City researched these issues and found that the Interim Grant of Authority was in compliance with the federal Communications Act of 1984, as amended 1992 and 1996, and Chapter 8 of the Code of Ordinances of the City of Denton, Texas. In June, The City notified Advantex of our findings and again requested a meeting with them within 30 days to begin the negotiation process. On August 7, 2003, Advantex met with the City and began the negotiation process on the Interim Grant of Authority. Advantex also submitted a payment for franchise fees and a completed cable television franchise application. On August 19, 2003, the Denton City Council held a public hearing on the application filed by Advantex for a cable television franchise. Robson Ranch development was contacted about the heating and they put out an information letting residents know of the heating. Council did not receive any comments by the public at the hearing. OPTIONS: 1) Approve the ordinance granting an Interim Grant of Authority to Denton Telecom Parmers I, LP d/b/a Advantex Communications to construct, reconstruct, operate and maintain a cable television system in the City of Denton to October 7, 2004, or the date upon which the City grants or denies a cable franchise renewal to Advantex, whichever occurs first. 2) Deny the ordinance and direct staff to continue working on the terms of the Interim Grant of Authority with Advantex Communications. RECOMMENDATION Staff recommends option #1 ADA/EOE/ADEA www.cit¥ofdenton.com (TDD 800-735-2989) September 16, 2003 Advantex Interim Grant of Authority Page 3 of 3 PRIOR ACTION/REVIEW (Council~ Boards~ Commission): 1. Legal Status Report on May 2, 2003. 2. Public Hearing at Council Regular Session, August 19, 2003 FISCAL INFORMATION: City will receive 5% of Advantex gross revenues as franchise fees. Advantex is currently not providing cable modem service on their system. Respectfully subm. itted: B[tty W~lliams Director of Management and Public Information Prepared by: ~51~l-(~abrales Jr. (J u?,glflic Information Officer Attachments 1. Ordinance 2. Advantex Interim Grant of Authority ADA/EOE/ADEA www.cityofdenton.com (TDD 800-735-2989) ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS GRANTING AN INTERIM GRANT OF AUTHORITY TO DENTON TELECOM PARTNERS I, LP D/B/A ADVANTEX COMMUNICATIONS TO CONSTRUCT, RECONSTRUCT, OPERATE AND MAINTAIN A CABLE TELEVISION SYSTEM IN THE CITY OF DENTON, TEXAS AND SETTING FORTH CONDITIONS ACCOMPANYING THE GRANTING OF THIS INTERIM GRANT OF AUTHORITY; PROVIDING FOR A PENALTY FOR THE VIOLATION OF THIS ORDINANCE; PROVIDING FOR A SAVINGS CLAUSE; PROVIDING FOR THE EFFECT OF THIS ORDINANCE UPON OTHER ORDINANCES AND RESOLUTIONS; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, all cable operators providing cable service within the City of Demon ("City") are required to obtain a cable franchise; and WHEREAS, Marcus Cable Operating Company, L.L.C., doing business a Charter Communications ("Charter"), curremly provides cable service in the City under three sets of agreemems generally described as an "Initial Gram," the "1995 Amendmems" and the "1999 Amendmems" (collectively "Charter Franchise") corresponding to Parts I, II and III hereof; and WHEREAS, CoServ, L.L.C. d/b/a CoServ Communications ("CoServ"), had agreed to enter into an Interim Grant of Authority generally based on the Charter Franchise so that it has legal authority to provide cable service in the City on terms generally comparable to those of Charter while a more permanent franchise authorizing CoServ to provide such service in the City is prepared and negotiated; and WHEREAS, CoServ had filed for bankruptcy, and on December 13, 2002, prior to an agreement being reached, certain assets of CoServ were assigned by the bankruptcy court to Demon Telecom Partners I, LP d/b/a Advamex Communications ("Advamex") to operate and preserve the asset and to offer certain assets, including the cable system, for sale; and WHEREAS, On August 7, 2003 Advantex filed their complete application for a cable franchise in the City of Denton and is continuing to preserve the asset, the cable system, for sale and continuing to provide cable service to the Robson Ranch Subdivision; and WHEREAS, it is in the public interest for the City to grant Advantex this Interim Gram of Authority effective through October 7, 2004 generally based on the documems incorporated, herein. NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON TEXAS HEREBY ORDAINS: SECTION 1. Incorporation of Preamble. The above and foregoing preamble is incorporated imo the body of this Ordinance as if copied, herein, in its emirety. SECTION 2. Imerim Gram of Authority. The City and Demon Telecom Partners I, LP d/b/a Advantex Communications hereby mutually agree to be bound by the terms of this Interim Grant of Authority for Advantex, as listed in ATTACHMENT A to this ordinance, and to continue to preserve the asset as ordered by the Bankruptcy Court and provide cable service to the Robson Ranch subdivision either umil October 7, 2004 or umil such time as the City shall formally gram or deny a cable franchise consistent with the provisions of the Cable Communications Policy Act of 1984, as amended, whichever occurs first. SECTION 3. By its signature below, Advantex, the Interim Grantee, hereby agrees that consideration, the receipt and sufficiency of which is hereby acknowledged, has been provided for by the changes made herein, and agrees to be bound by and comply with such changes. Advantex further represents and agrees that the person signing below on behalf of Advantex is the properly authorized official of that corporation and has the necessary authority to execute this document and further certifies to the City that any necessary resolution or other act extending such authority has been duly passed and is now in full force and effect. SECTION 4. This Ordinance shall be cumulative of all other Ordinances and shall not repeal any of the provisions of such Ordinances except for those instances where there are direct conflicts with the provisions of this Ordinance. Ordinances or parts thereof in force at the time this Ordinance shall take effect and that are inconsistent with this Ordinance are hereby repealed to the extent that they are inconsistent with this Ordinance. SECTION 5. If any section, article, paragraph, sentence, clause, phrase or word in this Ordinance or application thereof to any person or circumstance is held invalid or unconstitutional by a Court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Ordinance, and the City Council hereby declares it would have passed such remaining portions of this Ordinance despite such invalidity, which remaining portions shall remain in full force and effect. SECTION 6. The City Secretary of the City of Demon is hereby directed to engross and enroll this Ordinance by copying the exact caption and effective date in the minutes of the City Council and by filing this Ordinance in the ordinance records of the City. SECTION7. In accordance with Section 13.02 of the City Charter, this ordinance shall become effective twenty-one days after final approval. The full text of this ordinance shall be published once each week for two consecutive weeks in the official newspaper of the City, the emire expense of which shall be borne by Advamex. The City Secretary is hereby directed to publish the full text of this ordinance in such official newspaper of the City once each week for two consecutive weeks immediately following the passage of this ordinance on second reading. SECTION 8. The Imerim Gram of Authority may be assigned or transferred by contract of sale with notice to the City of Denton no later than the closing date of the contract of sale. PASSED AND APPROVED this the __day of ,2003. ATTEST: JENNIFER WALTERS, CITY SECRETARY EULINE BROCK, MAYOR BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: The City of Demon, Texas, acting herein by its duly constituted authorities, hereby declares the foregoing Ordinance passed on first reading on the __ day of ,2003; and passed on second reading on the __ day of ,2003; and being finally effective as of the __ day of ,2003. /s/ /s/ Euline Brock, Mayor /s/ Pete Kamp, Council Member Mark Burroughs, Council Member /s/ Perry McNeill, Council Member Is/ Is/ Bob Montgomery, Council Member Raymond Redmon, Council Member /s/ Jack Thomson, Council Member The above and foregoing ordinance read, adopted on first reading and passed to second reading by the following votes, this the __ day of ,2003, at a regular session of the City Council. Euline Brock, Mayor, voting __ Mark Bourroughs, Council Member, voting __ Pete Kamp, Council Member, voting __ Perry McNeill, Council Member, voting __ Bob Montgomery, Council Member voting __ Raymond Redmon, Council Member, voting __ Jack Thomson, Council Member, voting __ The above and foregoing ordinance read, adopted on the second reading and passed by the following votes, this the __ day of ,2003, at a regular session of the City Council. Euline Brock, Mayor, voting __ Mark Bourroughs, Council Member, voting __ Pete Kamp, Council Member, voting __ Perry McNeill, Council Member, voting __ Bob Montgomery, Council Member voting __ Raymond Redmon, Council Member, voting __ Jack Thomson, Council Member, voting __ ACCEPTANCE of WHEREAS, the City Council of the City of Demon, Texas, did on the __ ,2003 enact an Ordinance entitled: day ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS GRANTING AN INTERIM GRANT OF AUTHORITY TO DENTON TELECOM PARTNERS I, LP D/B/A ADVANTEX COMMUNICATIONS TO CONSTRUCT, RECONSTRUCT, OPERATE AND MAINTAIN A CABLE TELEVISION SYSTEM IN THE CITY OF DENTON, TEXAS AND SETTING FORTH CONDITIONS ACCOMPANYING THE GRANTING OF THIS INTERIM GRANT OF AUTHORITY; PROVIDING FOR A PENALTY FOR THE VIOLATION OF THIS ORDINANCE; PROVIDING FOR A SAVINGS CLAUSE; PROVIDING FOR THE EFFECT OF THIS ORDINANCE UPON OTHER ORDINANCES AND RESOLUTIONS; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, said Ordinance was on the day of , 2003 duly approved and subscribed by the Mayor of said City, and the seal of said City was thereto affixed and attested to by the City Secretary; NOW, THEREFORE, Advamex, hereby in all respects ACCEPTS, APPROVES AND AGREES TO said Ordinance, and the same shall constitute and be a binding comractual obligation of Advamex, and of the City, without waiver of any other remedy by Advantex, does hereby file this, its written acceptance, with the City Secretary of the City of Demon, Texas, in her office. DATED this the day of ,2003. DeNon Telecom Partners, ILP D/B/A Advamex Communications By: Title: ATTEST: By: Title: ATTACHMENT A 2003 NON-EXCLUSIVE INTERIM GRANT OF AUTHORITY TO PROVIDE CABLE SERVICE BETWEEN THE CITY OF DENTON, TEXAS AND DENTON TELECOM PARTNERS I, LP d/b/a/ADVANTEX COMMUNICATIONS : :ODMA\PCDOCS\GRR\689668\9 TABLE OF CONTENTS GRANT OF AUTHORITY, PART I ............................................................................... 1 SECTION I. TITLE ............................................................................................................ 1 SECTION II. PREAMBLE ................................................................................................. 1 SECTION III. DEFINITIONS ............................................................................................ 1 SECTION IV. GRANT OF AUTHORITY ........................................................................ 2 SECTION ¥. POLICE POWER ......................................................................................... 2 SECTION VI. SYSTEM TIMETABLE ............................................................................. 2 SECTION VII. IDEMNIFICATION AND INSURANCE ................................................ 4 SECTION VIII. COMPLAINT PROCEDURE .................................................................. 5 SECTION IX. CONSTRUCTION AND MAINTENANCE .............................................. 6 SECTION X. CONSTRUCTION AND EXTENSION ...................................................... 7 SECTION XI. CONSTRUCTION BOND REQUIRED ....................................................8 SECTION XII. GOVERNING LAW ................................................................................. 8 SECTION XIII. GRANT TERM ........................................................................................ 9 SECTION XIV. SECTION XV. SECTION XVI. SECTION XVII. SECTION XVIII. SECTION XIX. SECTION XX. SECTION XXI. SECTION XXII. RENEWAL PROCEDURE ..................................................................... 9 PERFORMANCE REVIEW ..................................................................... 9 SECURITY FUND .................................................................................. 9 LIQUIDATED DAMAGES ................................................................. 11 FORFEITURE ..................................................................................... 11 TRANSFERS ......................................................................................... 12 FRANCHISE FEE ................................................................................... 12 RATES ................................................................................................... 12 ACCESS TO SERVICES AND FACILITIES ..................................... 13 SECTION XXIII. SECTION XXIV. SECTION XXV. SECTION XXVI. SECTION XXVII. SECTION XXVIII. SECTION XXIX. SECTION XXX. SECTION XXXI. SECTION XXXII. EMERGENCY OVERRIDE ............... Error! Bookmark not defined. PROGRAMMING MIX ..................................................................... 15 FORCE MAJEURE .............................................................................. 16 NOTICES ............................................................................................ 16 SAVINGS CLAUSE ......................................................................... 17 CONFLICTING ORDINANCES AND RESOLUTIONS ............... 17 FEES AND COSTS ............................................................................ 17 PAYMENT OF TAXES ....................................................................... 18 NON-LIABILITY ............................................................................... 18 WAIVERS ......................................................................................... 18 SECTION XXXIII ............................................................................................................. 18 PART I. Exhibit A. Insurance .......................................................................................... 20 PART I. Exhibit B. Production Equipment ...................................................................... 22 PART I. Exhibit C. Local Studio Equipment ................................................................... 23 PART I. Exhibit D. Local Programming .......................................................................... 24 GRANT OF AUTHORITY, PART II ............................................................................ 25 SECTION I ........................................................................................................................ 25 SECTION II ....................................................................................................................... 25 SECTION III ...................................................................................................................... 25 SECTION IV ..................................................................................................................... 26 SECTION ¥ ....................................................................................................................... 26 SECTION VI ..................................................................................................................... 26 SECTION VII .................................................................................................................... 26 PART II. Exhibit A ............................................................................................................ 27 GRANT OF AUTHORITY~ PART III .......................................................................... 33 ii 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 25. 26. PART iii. Exhibit A. Covenants Binding ................................................................................................. 33 This Section is left blank ........................................................................................ 33 This Section is left blank ........................................................................................ 33 Customer Service ................................................................................................... 33 This Section is left blank ........................................................................................ 33 Validity of Grant .................................................................................................... 33 Grant for Cable Only ............................................................................................. 33 This Section is left blank ........................................................................................ 33 Access to Records .................................................................................................. 33 This Section is left blank ........................................................................................ 33 This Section is left blank ........................................................................................ 34 Cable Modem, High-Speed Data and internet Services ........................................ 34 This Section is left blank ........................................................................................ 34 Frequency of Rate Increases .................................................................................. 34 Other Matters ......................................................................................................... 34 Institutional Network ............................................................................................. 36 HDTV .................................................................................................................... 38 Leased Access and PEG Channels ......................................................................... 39 Transfer .................................................................................................................. 40 This Section is left blank ........................................................................................ 40 Definitions .............................................................................................................. 40 This Section is left blank ........................................ Error! Bookmark not defined. Fees and Costs ........................................................................................................ 42 Approval and Acceptance ...................................................................................... 42 Customer Service and Consumer Protection ................................. 44 iii 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. Customer Service Standards ...................................................................... 44 City Monitoring ......................................................................................... 44 Scrambling/Blocking ................................................................................. 44 Pay Per View .............................................. Error! Bookmark not defined. Notification ................................................................................................ 45 Notice of Changes ...................................................................................... 45 Telephone Service Standards ..................................................................... 46 Office/Home Delivery-Pick Up ................................................................. 46 Installation Standards ................................................................................. 47 Installations/Service Calls: ......................................................................... 47 Service Call Charges .................................................................................. 48 Service Interruptions: ................................................................................. 49 Log of Complaints ..................................................................................... 49 Bills ............................................................................................................ 49 Refunds and Credits ................................................................................... 50 Late Payment for Cable Service ................................................................ 50 Disconnection ............................................................................................ 51 Truth In Advertising .................................................................................. 52 Reports: ...................................................................................................... 52 FCC Technical Standards .......................................................................... 53 Liquidated Damages - Telephone Service, Installation, Service Calls ........................................................... Error! Bookmark not defined. Liquidated Damages - Other ...................... Error! Bookmark not defined. Procedure for Assessment of Liquidated DamagesError! Bookmark not defined. Payment of Liquidated Damages ............... Error! Bookmark not defined. Ombudsman ............................................................................................... 56 iv 26. 27. City Liaison: ............................................................................................... 56 Definitions: ................................................................................................ 57 V INTERIM GRANT OF AUTHORITY PART I. SECTION T. TITLE. This ordinance shall be known and may be cited as "Tmerim Gram of Authority." SECTION TT. PREAMBLE. This ordinance was passed after a full, open and public hearing upon prior notice and opportunity of all imerested parties to be heard and upon consideration of Advamex's qualifications, including its legal, financial and technical qualifications. SECTION TTT. DEFINITIONS. For the purpose of Parts T, TT and TTT of this ordinance, and when not inconsistem with comext, words used herein in the presem tense include the future, the word "shall" is always mandatory. The captions supplied herein for each section are for convenience only. Said captions have no force of law, are not part of the section, and are not to be used in construing the language of the section. The following terms and phrases, as used herein, shall be given the meanings set forth below: "Cable Ordinance" shall mean Chapter 8 of the Code of Ordinances of the City of Denton, Texas. (2) "City" is the CITY OF DENTON, TEXAS, a municipal corporation under the laws of the State of Texas. (3) "City Council" is the City Council of the CITY OF DENTON, TEXAS, or its designated representatives. (4) "Gramee," "Advamex" or "Company" means Demon Telecom Partners T, LP d/b/a/ Advamex Communications a limited partnership organized and existing under the laws of the State of Texas, duly qualified and authorized to do business in the State of Texas, and it is the grantee of rights under this Interim Grant of Authority. (5) "Robson Ranch" shall mean the Robson Ranch Developmem in the City of Denton. As used in this documem, a word shall have the meaning set forth in Chapter 8 of the Code of Ordinances of the City of DeNon, Texas (hereinafter, the "Cable Ordinance") at Section 8-2, unless it is apparem from the comext that it has a differem meaning, or unless such word is specifically defined herein. The term "Gramee" shall refer to Advamex or a wholly-owned subsidiary of Advamex or a company under common wholly-owned subsidiary of Advamex or a company under common control with or controlling Advantex (provided that the liability of Advantex and each affiliated entity acting as Grantee hereunder shall be joint and several), and its successors hereunder. SECTION IV. INTERIM GRANT OF AUTHORITY. There is hereby granted by the City to Grantee an interim grant of the right and privilege to construct, reconstruct, erect, operate and maintain, in, upon, along, across, above, over or under the streets, alleys, easements, public ways and public places now laid out or dedicated and all extensions thereof and additions thereto in the City, all poles, wires, cables, underground conduits, manholes and other conductors and fixtures necessary for the maintenance and operation in the City of a cable television system for the transmission of television signals and other signals, either separately or upon or in conjunctions with any public utility maintaining the same in the City, with all of the necessary and desirable appliances and appurtenances pertaining thereto. Without limiting the generality of the foregoing, this Interim Grant of Authority shall and does hereby include the right in, over, under, and upon streets, sidewalks, alleys, easements, and public grounds and places in the City to install, erect, operate or in any way acquire the use of, as by leasing or licensing, all lines and equipment necessary to the Grantee's cable system and the right to make connections to subscribers and the right to repair, replace, enlarge and extend said lines, equipment and connections. SECTION V. POLICE POWER. Grantee shall, at all times during the term of this Interim Grant of Authority, be subject to all lawful exercise of the police power of the City. The right is hereby reserved to the City to adopt, in addition to the provisions herein contained and any other existing applicable ordinances, such additional applicable ordinances as it shall find necessary in the exercise of its police power; provided that such additional ordinances shall be reasonable, shall not substantially or materially conflict with or alter in any manner the rights granted herein, and shall not conflict with the laws of the State of Texas, the laws of the United States of America, or the rules of the Federal Communications Commission. All terms, conditions, and provisions of the Cable Ordinance shall be deemed to be embodied in this Agreement and Grantee does hereby agree to comply with the terms of said Ordinance. SECTION VI. SYSTEM TIMETABLE. (a) Within the time period specified in (b) of this section, the Grantee shall have completely constructed a Cable System which has the capability of delivering at least sixty (60) video channels over at least 860 MHZ Cable bandwidth (the "Cable System Upgrade") and the Grantee shall use its best efforts to maximize usage of such capacity with non-duplicated video channels. (b) The Grantee shall exercise its best good faith efforts to expedite construction of the Cable System Upgrade as required in subsection above in a sound and economical manner. Subject to the provisions of Section XXV (Force Majeure) hereof, Grantee shall meet the following schedule: Submission of all applications for authorizations necessary for construction of the Cable System Upgrade on or before October 29, 2004. (2) Securing all authorizations necessary to begin initial construction of the Cable System Upgrade on or before October 29, 2004. (3) This Section is left blank. (4) The Cable System Upgrade shall have the capability to transmit video, voice and data services in two directions simultaneously ("two way services"). Two-way services shall be instituted at such time as it is consistent with federal and state laws and regulations and it is economically and technically feasible; provided, however, it shall be Grantee's burden to demonstrate to the City at any time, that it is not economically or technically feasible to institute such two-way services. (5) Grantee shall have completed the installation of alternative (standby) power sources at the headend on or before October 29, 2004. Thereafter, Grantee shall maintain such power sources so that all Cable System and work lines and sub-stations may be maintained at full power for at least two (2) hours beyond the time when normal power sources serving the Cable System have ceased. (6) Grantee shall provide the capability for insertion of video programming and other video, voice and data messages into the Cable System from the following points in the City or other locations mutually agreed upon by the City and the Grantee: Municipal Building, 215 E. McKinney; Central Fire Station, 332 E. Hickory; Service Center, 901 Texas Street; Police Station, 601 E. Hickory; Library, 502 Oakland; Library, 3020 N. Locust; Library, 3228 Teasley Ln. and Civic Center, 321 E. McKinney. In addition to the above-designated points for insertion of video programming and other video, voice and data messages into the Cable System described above, Grantee shall provide a central insertion point for the Cable System within the City, which shall be one of the points described above and which shall include signal switching and processing equipment as is reasonably required to allow those utilizing the insertion points listed above to transmit to the other insertion points of the Cable System, or to transmit to all subscribers, at the City's option. Prior to designating the central insertion point for the Cable System within the City, Grantee shall obtain the prior written consent of the City Manager to such (7) designation. The terms of this section will be activated when the terms in PART I, SECTION XXXIII (COMPLIANCE REQUIREMENTS) are met. Grantee shall, not later than October 29, 2004, provide and maimain five access channels as follows: (a) A local governmem channel to be administered by the City or its designee. (b) An education channel to be administered by the DeNon Independent School District or its designee (c) A higher education channel to be administered by Texas Woman's University or its designee. (d) A higher education channel to be administered by the University of North Texas or its designee. (e) A public access channel. The terms of this section will be activated when the terms in PART I, SECTION XXXIII (COMPLIANCE REQUIREMENTS) are met. (8) Grantee shall provide and maintain at its expense all lines, facilities and equipmem (such as modulators and coders/decoders) necessary for it to receive access programming at each of the studios for the five access channels described above and simultaneously distribute such programming on the cable system. The terms of this section will be activated when the terms in PART I, SECTION XXXIII (COMPLIANCE REQUIREMENTS) are met. (9) Unless otherwise agreed by City in writing, the local govemmem channel shall be on channel 26; the education channel shall be on channel 24; the higher education channel for Texas Woman's University shall be on channel 23; the higher education channel for the University of North Texas shall be on channel 22; and the public access channel shall be on channel 25. (c) The Gramee shall submit its drawings and specifications for the Cable System Upgrade to the City not later than October 29, 2004, provided, however, that the City assumes no liability or responsibility whatsoever for the design or construction of the Cable System Upgrade by virtue of its receipt of such drawings and specifications, it being understood that the City's approval of such drawings and specifications shall not be required. At the time the Grantee submits such drawings and specifications to the City, the Gramee shall also submit a detailed plan of action for the accomplishmem of the Cable System Upgrade, including, without limitation, performance criteria which will permit the City to monitor the Grantee's progress toward completing the Cable System Upgrade in a timely fashion. SECTION VII. INDEMNIFICATION AND INSURANCE. GraNee shall hold the City harmless from all loss sustained by the City on accouN of any suit, judgmeN, execution, claim or demand whatsoever against the City resulting from any negligent act or omission on the part of Grantee in the construction, operation or maintenance of its Cable System in the City in accordance with Section 8-142, insurance RequiremeNs, and Section 8-144, indemnification, of Chapter 8, Cable Television, of the Code of Ordinances of the City of DeNon, Texas. For this purpose, GraNee shall carry property damage and personal injury liability policies shall be written by carriers licensed to do business in Texas and with companies with [A+] or better rating in accordance with the curreN Best Key Rating Guide, or with nonadmitted carriers that have a financial rating comparable to carriers licensed to do business in Texas approved by the City. The amouNs of such insurance to be carried for liability shall be not less than those amouNs set forth in the Cable Ordinance and such insurance shall comply with "Part i, Exhibit A" to this Ordinance. SECTION VIII. COMPLAINT PROCEDURE. (a) Initially, GraNee shall do all the following: (i) maiNain a business office within 18 miles of Robson Ranch, which shall include a place where subscribers may pay their bills, pickup and return converter boxes and comparable items and receive information on GraNee and its services, (ii) maiNain a convenieNly located bill paymeN office within Robson Ranch where subscribers may pay their bills as soon as a commercial business (such as a bank, drug store or convenience store) is open within Robson Ranch (iii) at no charge to subscribers, pick up and deliver to subscribers converter boxes, remotes and similar GraNee-provided customer premises equipmeN (under normal operating conditions such deliveries and pickups shall occur within 48 hours of a subscriber request for same), and (iv) provide telephone customer service with live operators 24 hours per day, seven days per week. When GraNee has at least 5000 subscribers in the City of DeNon, it shall maiNain a business office within the City of DeNon, which shall include a place where subscribers may pay their bills, pickup and return converter boxes and comparable items and receive information on Company and its services. The office shall be open at least from 8:30 AM to 5:30 PM Monday through Friday. (b) GraNee shall establish procedures for receiving, acting upon, and resolving subscriber complains and complains by the City to the satisfaction of the City Manger and the proposed initial procedures shall be submitted to the City Manager upon GraNee's acceptance of this Agreement. Grantee shall provide written notice of such procedures to subscribers at least one a year. (c) The GraNee shall respond to complains made by the City or subscribers of the Cable System promptly and, if possible, shall resolve complains made by the City or subscribers not more than twenty-four (24) hours following receipt of the complain by GraNee. GraNee shall maintain complete, detailed records relating to its maintenance and operation of the Cable System, which shall be available for inspection by represeNatives of the City at any time during normal business hours of the City. Upon the City's request, GraNee shall respond to City in writing within twenty-four (24) hours following receipt of such request by the GraNee regarding any complaint, which takes longer than one week to resolve. (d) Grantee shall provide a local, toll-free telephone service for subscriber complaints to be answered twenty-four (24) hours each day. Such telephone number shall be prominently displayed on the first page of each customer bill and in the telephone directory of the City of Denton. (e) Grantee shall provide at least ten (10) days written notice prior to discontinuance of service to any subscriber of the Cable System. If Grantee has improperly disconnected Cable System service to any subscriber, it shall provide free reconnection to the Cable System to such subscriber. (f) All personnel, agents and representatives of Grantee, including subcontractors, shall wear photo-identification badges, prominently displayed, when acting on behalf of the Grantee in the City. (g) Grantee shall provide advance notice in writing to the resident, of any private property within the City prior to entry onto such property wherever the Grantee desires that any of its personnel, agents or representatives should enter such property. This requirement shall apply only when it is reasonable under the circumstances at the time and Grantee shall not be required to provide such notice in emergencies. (h) Grantee shall notify each subscriber of the Cable System in advance of the expected time of any service visit to such subscriber's premises. Such notification shall specify whether the anticipated service visit will be before or after noon. Grantee shall accommodate the subscriber with respect to the subscriber's expressed preference for a morning or afternoon service visit. (i) Grantee shall, not less than once a year, provide subscribers of the Cable System, and potential subscribers, with a complete list of service offerings, options, prices, and credit policies associated with the Cable System. (j) Grantee shall establish and maintain sufficient telephone lines and personnel so as to not delay unreasonably the answering of all telephone calls. The City, upon receipt of documented complaints from more than ten subscribers during a single business day between the hours of 8:30 a.m. and 6:00 p.m. regarding their inability to reach a live, personal representative of Grantee during non-emergency, non-system outage periods, may seek liquidated damages as provided in Section 8-128 of the Cable Ordinance. SECTION IX. CONSTRUCTION AND MAINTENANCE. (a) All structures, lines and equipment erected by Grantee within the City shall be so located as to cause minimum interference with the proper use of streets, alleys, easements, and other public ways and places and to cause minimum interference with the rights or reasonable convenience of property owners, and Grantee shall comply with all reasonable, proper and lawful ordinances of the City now or hereafter in force. Existing poles, posts, conduits, and other such structures of any electric power system, telephone company, or other public utility located in the City shall, when possible, be made available to Grantee for leasing or licensing upon reasonable terms and rates and shall be used to the extent practicable in order to minimize interference with travel and avoid unnecessary duplication of facilities. Poles owned by City shall be made available to Grantee for its use under the terms, conditions and provisions of a separate Pole Rental Agreement to be negotiated between the parties. (b) Grantee shall not open or disturb the surface of any street, sidewalk, driveway or public place for any purpose without first having obtained a permit to do so in accordance with the applicable ordinances, including, but not limited to, Chapter 21 of the Code of Ordinances of the City of Denton, Texas, except that Grantee shall not be required to post a bond prior to commencing such disturbance. Grantee specifically agrees to pay any fees in connection herewith required by City Ordinances. In case of any disturbance by the Grantee of pavements, sidewalk, driveway, or other surfacing, Grantee shall, at its own cost and expense and in a manner approved by the City, replace and restore all paving, sidewalk, driveway or surface so disturbed in as good condition as before said work was commenced. (c) the City shall the relocation the City, shall In the event that at any time during the period of this Interim Grant of Authority elect to alter or change any street, alley, easement, or other public way requiring of Grantee's facilities, then in such event, Grantee, upon reasonable notice from remove, relay, and relocate the same at its own expense. (d) Grantee shall, on the request of any person holding a building moving permit issued by the City, temporarily raise or lower its lines to permit the moving of the building. The expense of such temporary removal shall be paid by the person requesting the same, and Grantee shall have the authority to require such payment in advance. (e) All poles, lines, structure or other facilities owned by Grantee in, on, over and under the streets, sidewalks, alleys and easements and public grounds or places of the City shall be kept by Grantee at all times in a safe and substantial condition. SECTION X. CONSTRUCTION AND EXTENSION. (a) Grantee will submit a construction plan that will include system design details, equipment, specifications and design performance criteria. The plan will also include a map of the entire authorized areas of service and the mandated areas of service, and the dates by which service must be provided to each area. The areas within the authorized area where the cable system is currently available to subscribers, including a schedule of construction for each year that construction or reconstruction is proposed. (2) The areas within the authorized area where the cable system cannot reasonably be extended due to lack of present or planned development or other similar reasons, with the areas and the reasons for not serving them clearly identified on the map. (b) provisions: In regards to the mandated areas of service, Grantee must adhere to the following (1) [Robson Ranch] Gramee shall install and extend the cable system as utilities are installed in Robson Ranch and be capable of providing cable service to dwelling units therein as they are occupied. As dwelling units are occupied, the Gramee shall provide cable services to any and all persons requesting service at any location in Robson Ranch. Due to the currem or expected density of population within Robson Ranch, the Grantee agrees not to impose on any current or future subscriber within Robson Ranch any line extension charge or comparable charge for extending the cable system to the subscriber's location. (2) [Other subdivisions] Gramee does not imend to provide cable services outside of the Robson Ranch development. If grantee desires to provide cable service outside of the Robson Ranch developmem, within the City of Demon, grantee shall be required to receive permission from the City of Denton prior to providing any cable service outside of the Robson Ranch development, and this agreement shall be amended to reflect the terms and conditions of the provision of cable service by gramee. (c) Nothing in this section shall prevent the Grantee from constructing or reconstructing the system earlier than planned. However, any delay in the system construction beyond the times specified in the plan report timetable must be submitted to and approved by the City Council. (d) Grantee shall construct, install, operate and maintain its system in a manner consistent with any construction standards submitted by Grantee as a part of its application. Grantee agrees to comply with applicable codes, and any supplements or amendments thereto, including any codes referenced in its application. SECTION XI. CONSTRUCTION BOND REQUIRED. Pursuant to Section 8-129, Construction Bond of Chapter 8, Cable Television, of the Code of Ordinances of the City of Demon, Texas, the Gramee shall file with the City a construction bond in the amount of $1,000,000 when the grantee notifies the City of Denton of its intent to construct the cable system outside of the Robson Ranch development. The construction bond shall be terminated only after the City Council finds that the Grantee has satisfactorily completed construction of the cable system pursuant to the terms of the Cable Ordinance and this Imerim Gram of Authority. SECTION XII. GOVERNING LAW. This Imerim Gram of Authority is governed by and subject to all applicable provisions of the Communications Act of 1934, as amended through 1996; regulations promulgated by the Federal Communications Commission pursuant thereto prior to acceptance by Grantee of this Interim Grant of Authority as provided in Part III, Section 26; as well as the laws of the State of Texas, not inconsistent therewith. SECTION XIII. INTERIM GRANT OF AUTHORITY TERM. This Imerim Gram of Authority shall take effect and be in full force from and after acceptance by Gramee as provided in Part III, Section 26, and the same shall cominue in full force and effect umil one year from the effective date. SECTION XIV. RENEWAL PROCEDURE. This Imerim Gram of Authority shall be subject to renewal in accordance with the terms and conditions of Section 626 of the Cable Communications Policy Act of 1984, 47 U.S.C. 546, as amended through 1996, except the Gramee hereby unconditionally and irrevocably waives the application of the "formal renewal" process set forth in Section 626 with the same force in effect as if the "written renewal notice" set forth in the second semence of Section 626 (a)(1), 47 U.S.C. 546 (a)(1), was never provided. SECTION XV. PERFORMANCE REVIEW. The parties agree that the City shall have the right to conduct a performance evaluation with the Grantee and the citizens of the City relating to this Interim Grant of Authority. The Grantee agrees to incur the costs of the evaluation and the City's ascertainment of the current cable-related needs and interests of the City's residents; provided, however, that the total paymem by the Gramee shall not exceed Twenty-Five Thousand ($25,000.00) Dollars. This sum shall be adjusted on the basis of the proportion that the then all Urban Consumer Price Index (CPI-U) for the Dallas/Fort Worth Standard Metropolitan Statistical Area bears to the February, 1988 index, which was 114.0. The City shall provide Gramee with the names of three nationally recognized independem cable television consulting firms and the Gramee, together with the City, shall select one of the three consultants to perform the evaluation. Grantee agrees that such costs are in addition to and not to be deducted from the franchise fees due the City. The terms of this section will be activated when the terms in PART I, SECTION XXXIII (COMPLIANCE REQUIREMENTS) are met. SECTION XVI. SECURITY FUND. (a) Within twenty (20) days after the effective date of the Imerim Gram of Authority, the Grantee shall provide an acceptable surety/performance bond or letter of credit with the City's Executive Director of Finance, and maintain on deposit through the term of the Interim Gram of Authority, the sum of Ten Thousand ($10,000) Dollars in monies, as security for the faithful performance by it of all the provisions of this Imerim Gram of Authority, and compliance with all orders, permits and directions of any agency of the City having jurisdiction over its acts or defaults under this contract, and the payment by the Grantee of any claims, liens and taxes due the City which arise by reason of the construction, reconstruction, operation or maintenance of the system and the payment by the Grantee of any penalties or liquidated damages due the City pursuant to this Interim Grant of Authority. (b) The City Manager may draw upon the security fund in the even of any of the occurrences set forth in this Section and in Section 8-128 (Liquidated Damages), of Chapter 8, Cable Television, of the Code of Ordinances of the City of DeNon, Texas. Within ten (t0) days after notice to it that any amount has been withdrawn, or paid out as is appropriate from the security fund deposited pursuaN to subdivision (a) of this section in accordance with Section 8- 128 (Liquidated Damages), the GraNee shall pay to or deposit with the Executive Director of Finance a sum of money sufficient to restore such security fund to the original amount of Ten Thousand ($ t0,000) Dollars. Failure to restore said security fund to the original amouN shall constitute a material breach. (c) Examples of a basis for drawing upon the security fund include, but are not limited to the following: (1) failure of the GraNee to pay to the City any taxes after ten (t0) days written notice of delinquency; (2) failure of the GraNee to pay to the City after ten (10) days written notice, any amouNs due and owing the City by reason of the indemnity provision of Section 8-144 of Chapter 8, Cable Television, of the Code of Ordinances of the City of DeNon, Texas; (3) failure by the GraNee to pay to the City, any liquidated damages due and owing to the City pursuant to Section 8-128 of Chapter 8, Cable Television, of the Code of Ordinances of the City of DeNon, Texas; (4) failure by the Grantee to pay to the City any amounts due pursuant to Section 8-57(g) of the Chapter 8, Cable Television, of the Code of Ordinances of the City of DeNon, Texas; (5) failure by the GraNee to pay, upon ten (10) days written notice, any amounts owing as franchise fees pursuant to Section 8-135 of Chapter 8, Cable Television, of the Code of Ordinances of the City of Denton, Texas. (d) The security fund deposited pursuaN to this Section shall become the property of the City in the event that this contract is cancelled by reason of the default of the Grantee. The GraNee, however, shall be eNitled to the return of such security fund, or portion thereof, as remains on deposit with the Executive Director of Finance at the expiration of the term of the Interim Grant of Authority, provided that there is then no outstanding default on the part of the Grantee. t0 (e) The rights reserved to the City with respect to the security fund are in addition to all other rights of the City whether reserved by this coNract or authorized by law, and no action, proceeding or exercise of a right with respect to such security fund shall affect any other right the City may have. SECTION XVII. LIQUIDATED DAMAGES. (a) The parties agree to the liquidated damages specified in Section 8-128, Liquidated Damages of Chapter 8, Cable Television, of the Code of Ordinances of the City of DeNon, Texas, as adopted on the 1st day of November, 1988, but without prejudice to any other remedies available to the parties hereto to the extent permitted by law. The parties agree that the liquidated damages set forth in the ordinance may be greater or less than the City's actual damages and such damages represent the best estimate by the parties hereto as the likely extent of such damages. The liquidated damages are not intended to constitute a penalty, but rather, are designed to save the parties from having to engage in costly litigation with regard to the extent of such damages. In addition to the amounts set forth in the Cable Ordinance, the following liquidated damages shall apply: For breach of any service standards adopted pursuaN to Section VIII, hereof $200 per (b) If the City Manager determines that the GraNee is liable for liquidated damages, he shall issue to the Grantee by certified mail a notice of intention to assess liquidated damages. The notice shall set forth the basis for the assessment, and shall inform the Grantee that liquidated damages will be assessed from the date of the notice unless the assessment notice is appealed for hearing before the City Council. If the GraNee desires a hearing before the City Council, it shall send a written notice of appeal by certified mail to the City Manager within ten (10) days of the date on which the City sen the notice of iNeNion to assess liquidated damages. In the event the City Manager receives such a notice from the Grantee, the hearing on the GraNee's appeal shall be held within thirty (30) days of the date on which the City sen the notice of intention to assess liquidated damages unless mutually extended by the City and the GraNee. After such hearing, and based on the facts before it, if the City Council finds (a) that an extension of time or other relief should be graNed, or (b) that there was never a violation, then it shall waive the City Manager's assessmeN of liquidated damages. If the City finds that the facts warraN the assessmeN of liquidated damages, or any portion thereof, the City may at any time thereafter draw the amouN of liquid damages from the security fund established pursuaN to Section 8-128 of the Cable Ordinance up to the full amouN of accrued liquidated damages to such date. In considering whether or not to waive all or a portion of any liquidated damages assessable against the Grantee hereunder, the City shall consider, without limitation, the number, frequency and magnitude of any prior breaches of this Agreement by the Grantee and the speed with which the GraNee cured breach or breaches. SECTION XVIII. FORFEITURE. If Grantee should violate any of the terms, conditions or provisions of this grant or if GraNee should fail to comply with any reasonable provisions of any ordinance of the City 11 regulating the use by Grantee of the streets, alleys, easement or public ways of the City, and should Grantee further continue to violate or fail to comply with the same for a period of thirty (30) days after Gramee shall have been notified in writing by the City to cease and desist from any such violation or failure to comply so specified, then Gramee may be deemed to have forfeited and annulled and shall thereby forfeit and annul all the rights and privileges grained by this Imerim Grant of Authority; provided, that such forfeiture shall be declared only by written decision of the City Council after following the procedures set forth in Section 8-59 of the Cable Ordinance and an appropriate public proceeding before the City Council affording Gramee due process and full opportunity to be heard and to respond to any such notice of violation or failure to comply; and provided further that the City Council may, in its discretion and upon a finding of violation or failure to comply, impose a lesser penalty than forfeiture of this Imerim Gram of Authority or excuse the violation or failure to comply upon a showing by Grantee of mitigating circumstances. Grantee shall have the right to appeal any finding of violation or failure to comply and any resultam penalty to or seek relief in any court of competem jurisdiction. In the event of any determination by the City to revoke this Interim Grant of Authority, such a determination shall be stayed during the pendancy of any judicial review thereof. SECTION XIX. TRANSFERS. All of the rights and privileges and all of the obligations, duties, and liabilities created by this Imerim Gram of Authority shall pass to and be binding upon the successors of the City and the successors and assigns of Grantee; and the same shall not be assigned or transferred without the prior written approval of the City Council, which approval shall be sought and obtained in accordance with Section 8-62 of Chapter 8, Cable Television, of the Code of Ordinances of the City of Denton, Texas. Grantee specifically agrees to comply with the provisions of said Section 8-62 of Chapter 8, Cable Television, of the Code of Ordinances of the City of Demon, Texas. SECTION XX. FRANCHISE FEE. In consideration of the terms of this Interim Grant of Authority if this Interim Grant of Authority is extended beyond September 11, 2006, then for the first ten years from the date of Grantee's acceptance of the terms of the initial Interim Grant of Authority, Grantee agrees to pay to the City a sum of money equal to five percem (5%) of Gramee's gross subscriber revenues per year pursuant to the provisions of Article I of the Cable Ordinance. The Grantee shall pay to the City in quarterly installmems within forty-five (45) days after March 30, June 30, September 30 and December 31 of each year the franchise fee attributable to gross receipts of the Grantee during the preceding quarter. SECTION XXI. RATES. To the extent permitted by federal and state law, the City may regulate the following rates, fees and charges: Rates for the provision of basic cable service to subscribers whether residemial or commercial, including multiple tiers of basic cable service. 12 (2) Rates for the initial installation or the rental of one set of the minimum equipment, which is necessary for the subscribers' receipt of basic cable service. (3) Any other rates for any type of services delivered by the Grantee that may become subject to local regulation. The Grantee may petition the Council for a change in rates subject to regulation by filing a proposed rate schedule with the City Clerk. The procedures outlined in Section 8-136 of the Cable Ordinance shall then be followed. SECTION XXII. ACCESS TO SERVICES AND FACILITIES. Grantee shall provide the minimum range of services required from time to time by the FCC as its regulations presently exist or may hereafter be amended including, without limiting the foregoing, public, educational and governmental use channels in accordance with the following conditions: (a) Grantee shall provide and maintain five channels for public programming, educational programming and governmental programming as set forth in Sections VI (b)(7) and VI (b)(8) above. The terms of this section will be activated when the terms in PART I, SECTION XXXIII (COMPLIANCE REQUIREMENTS) are met. (b) This Section left blank. (c) The public access channel described in Section VI (b)(7)(e) above shall be made available for non-commercial use to qualifying applicants without charge when requested all in accordance with the rules hereinafter mentioned. The terms of this section will be activated when the terms in PART I, SECTION XXXIII (COMPLIANCE REQUIREMENTS) are met. (d) Rules shall be established by the cooperative effort of City and the Grantee regarding access programming, priority of use for the access channel, prohibition of lottery information, obscene or indecent matter, and permitting public inspection of the complete record of names and addresses of all persons or groups requesting access time. The terms of this section will be activated when the terms in PART I, SECTION XXXIII (COMPLIANCE REQUIREMENTS) are met. (e) Should a dispute arise between the user of an access channel and the Grantee relative to the quality of the audio or visual signal, at the request of either, the dispute will be submitted to an independent engineer to be jointly selected by City and Grantee. The party requesting that such testing be performed shall be required to pay for the cost of testing and analysis performed by the engineer, unless the engineer shall find that there is a distortion of signal quality. If a distortion is found, the party responsible for causing the distortion shall pay the cost of testing. The terms of this section will be activated when the terms in PART I, SECTION XXXIII (COMPLIANCE REQUIREMENTS) are met. 13 (f) The Grantee shall provide "A/B switches" and "lock boxes," or similar parental control devices, at a reasonable price to any subscriber upon such subscriber's request. (g) Subject to Section 8-101 of the Cable Ordinance, the Grantee agrees to provide reasonable equipment to be used by access cable casters with the aid of a technical and production staff to be provided by the cable operator. Equipment that can store programs for later showing shall be provided. In addition, Grantee shall make available a centrally located studio to all access users on a first-come, first-serve basis. Grantee shall provide, at a minimum, the production equipment and facilities designated in "Part I, Exhibit B." All equipment shall be maintained in good working order by Grantee and shall be replaced as needed, consistent with good operating practice. The terms of this section will be activated when the terms in PART I, SECTION XXXIII (COMPLIANCE REQUIREMENTS) are met. (h) Grantee agrees to maintain a local programming studio containing the equipment specified in "Part I, Exhibit C," and shall provide adequate staffing for the local programming studio and for training of the public in the use of production equipment. Grantee shall keep a log of inquiries by citizens requesting such training and shall conduct free training sessions in use of cablecasting equipment cablecasting techniques not less than once each three months during the term hereof. The terms of this section will be activated when the terms in PART I, SECTION XXXIII (COMPLIANCE REQUIREMENTS) are met. (i) Grantee also agrees to provide an instructor and the facilities to train, without charge, once per year, potential access users through sessions offered through the Denton Independent School District. The terms of this section will be activated when the terms in PART I, SECTION XXXIII (COMPLIANCE REQUIREMENTS) are met. (j) Grantee shall establish rules and rates if necessary, to ensure that the studio is available in an equitable manner provided that Grantee shall not, charge for use of the public and educational access channels unless City has approved the charging of the proposed. The terms of this section will be activated when the terms in PART I, SECTION XXXIII (COMPLIANCE REQUIREMENTS) are met. (k) The parties hereby incorporate by reference the provisions of 47 U.S.C. 532, which provisions are hereby amended to apply to the Grantee and the City, as appropriate. These provisions are incorporated herein to assure that the widest possible diversity of information sources are made available to the residents of the City from the Cable System in a manner consistent with the growth and development of the Cable System. Grantee shall undertake any and all construction installation necessary to keep current with the latest technological and economically feasible developments in the state-of-the-art cable television, whether with respect to increasing channel capacity, developing new services, and instituting two-way service or any other state-of-the-art technology. Further, Grantee specifically agrees to comply with Section 8-163 of the Cable Ordinance. SECTION XXIII. EMERGENCY OVERRIDE. 14 Grantee shall provide and maintain the equipment necessary for the City to maintain an emergency alert system to override, by any telephonic means, the audio and/or video signal to transmit a message regarding a bona fide emergency over all cable video channels simultaneously. At City's option such message shall be transmitted either by a text crawl across the bottom of the screen or by audio override and video blanking on all channels. For telephonic activation of the emergency alert system, Grantee shall provide City with the ability to activate the system from any telephone but with an appropriate security code and procedures. Grantee shall provide appropriate training to City personnel as may be necessary to operate the systems, equipment and facilities described in this Section. Grantee shall designate a channel, which will be used for emergency broadcasts. Grantee shall provide a remote data terminal, telephone lines, modems, cables and any other items needed to adequately supply this service. Such equipment shall be maintained at a location designated by City. SECTION XXIV. PROGRAMMING MIX. (a) Grantee agrees to provide programming that at least maintains the mix of distinct and separate channels listed in "Part I, Exhibit D." In accordance with the Cable Act, the Grantee shall, for the term of this Agreement, maintain at least the mix, quality and level of programming set forth in "Part I, Exhibit D." (b) In addition to the programming mix indicated above, Grantee will use the upgraded system to provide a wide range and assortment of optional programming services. Grantee shall provide, at a minimum, the following additional services: Provision of an additional full channel space for films and cultural entertainment programming (2) Provision of an additional full channel space for children's entertainment programming (3) Addition of a full channel space for documentary, public broadcasting programming (4) Addition of a full channel space devoted to weather information service (5) Addition of a Pay-Per-View Channel. The terms of this section will be activated when the terms in PART I, SECTION XXXIII (COMPLIANCE REQUIREMENTS) are met. (c) The following services shall be provided not later than October 7, 20 05. Grantee agrees to produce a minimum of 400 hours of local origination programming annually. One hundred (100) hours of such programming may be supplied from other of Grantee local origination sources. The terms of this section will be activated when the terms in PART I, SECTION XXXIII (COMPLIANCE REQUIREMENTS) are met. 15 SECTION XXV. FORCE MAJEURE. In the event the Grantee's diligent performance of any of the terms, conditions, obligations or requirements of this Agreement is prevented or impaired due to any cause beyond its reasonable comrol which was not reasonably foreseeable to the parties hereto, such inability to perform shall be deemed to be excused for the period of such impairmem, and no penalties or sanctions shall be imposed. Before invoking this Section, the Gramee must have exercised good faith in attempting to perform such terms, conditions, obligations or requirements. Causes beyond the Grantee's reasonable control and not reasonably foreseeable to the parties hereto shall include, without limitation, labor unrest and strikes. Upon its best good faith efforts to obtain all authorizations on an expedited basis, the Gramee shall also be excused for time delays in construction requirements in Section VI which are caused by unreasonable delays on the part of utility companies or the City in issuing licenses, permits or authorizations for poles and conduits or other authorizations necessary to continue construction. Where the Grantee cannot obtain access to any individual's property, after due diligence and a good faith effort by the Grantee to obtain access to such property, compliance with the terms of this Agreement shall be excused by the City as to that individual and the consequemial effects thereof only, and only for such period as the property is inaccessible. Where the cause beyond the Gramee's comrol is either an act of God or civil emergency, an inability to perform during such period shall not be an independem ground for termination of this Imerim Grant of Authority. SECTION XXVI. NOTICES. All notices, statements, demands, requests, consents, approvals, authorizations, offers, agreements, appointments or designations hereunder by any party to another shall be in writing and shall be sufficiemly given and served upon the other party, immediately if delivered personally or by telex or telecopy (provided with respect to telex and telecopy that such transmissions are received on a business day during normal business hours), on the second business day after dispatch if sent by first class mail, registered or certified, return receipt requested, postage prepaid and addressed as follows: The City: City Manager City of DeNon, Texas 215 E. McKinney Street Denton, Texas 76201 Public Information Officer City of DeNon, Texas 215 E. McKinney Street Denton, Texas 76201 City Attorney City of DeNon, Texas 16 215 E. McKinney Street Denton, Texas 76201 The Grantee: Advantex Communications 7701 South Stemmons, Suite 210 Corimh, Texas 76210 Attention: Legal Dept. SECTION XXVII. SAVINGS CLAUSE. If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held invalid or unconstitutional by a federal or state court or administrative or governmemal agency of competem jurisdiction, specifically including the Federal Communications Commission, such portion shall be deemed a separate, distinct and independem provision, and such holding shall not affect the validity of the remaining portions thereof. SECTION XXVIII. CONFLICTING ORDINANCES AND RESOLUTIONS. Conflict: In the event of any conflict between the terms of Parts I, II, and III this Interim Gram of Authority, Part II of this Imerim Gram of Authority (including exhibits thereto) shall prevail over Part I, and Part III of this Imerim Gram of Authority (including exhibits thereto) shall prevail over Parts I and II. In the event of any conflict between the terms of this Interim Gram of Authority and any City Ordinance, that provision which provides the greatest benefit to the City, in the opinion of the City Council, shall prevail. SECTION XXIX. FEES AND COSTS. (a) The Gramee shall provide to the City a lump sum gram of $4,000 for capital facilities for the PEG Channels on the dates and in the amoums set forth below. City shall allocate such grants among the entities administering the PEG Channels as it determines is in the public interest. The grant will be paid upon acceptance of this Interim Grant of Authority by the Grantee. The terms of this section will be activated when the terms in PART I, SECTION XXXIII (COMPLIANCE REQUIREMENTS) are met. (b) The Gramee will reimburse the City all its costs in association with the preparation and award of this Imerim Gram of Authority, not to exceed $1,500, including publication costs and costs of consultants and attorneys. In addition, the Grantee will reimburse the City all its costs in association with the preparation and award of a replacement for this Interim Grant of Authority with a more permanent agreement, including publication costs and costs of consultants and attorneys. The preceding reimbursement requirement applies whether the permanent agreement is executed on or before October 29, 2004 as is currently anticipated, or at some subsequent point in time by renewal, extension or otherwise. (c) The Gramee will remit its check for such costs within ten days of the City invoicing the Grantee for same. Reimbursement of costs under this provision shall not be considered a 17 payment of franchise fees and shall not reduce the franchise fees otherwise payable and shall not be passed through to subscribers. Company specifically waives any claim to the contrary. SECTION XXX. PAYMENT OF TAXES. The Grantee covenants and agrees that it will pay and discharge, or cause to be paid and discharged, in timely fashion all payments in lieu of taxes, service charges, assessments, utility fees, user fees and other governmental charges which may lawfully be imposed upon the Grantee with respect to the Grantee or the Cable System or any portion thereof or relating thereto, or upon the revenues and income therefrom and will pay all lawful claims for labor, material and supplies which, if unpaid, might become a lien or charge upon any of said properties, revenues or income or which might impair the security interest granted by this Agreement or the value of the Cable System or the Grantee; provided that nothing in this Section shall require the Grantee to make any such payment so long as the Grantee in good faith shall contest the validity thereof. SECTION XXXI. NON-LIABILITY. The City shall not be liable to the Grantee or any other person or entity for death or personal injury or for loss, damage or destruction of property in, on or about the Cable System or any part thereof by or from any cause whatsoever other than the City's own negligence or willful misconduct, nor shall the City be liable in any way or regard to the Grantee or to any of Grantee's affiliates, officers, directors, members, agents or employees if any claim is asserted against the Grantee by any taxing authority or other entity as the result of any election or decision which the Grantee may make or may have made with respect to the Cable System for purposes of filing federal or state income or franchise tax returns or making any other type of filing whatsoever; and the Grantee shall indemnify and save harmless the City and its officers, agents and employees from, and defend the same against, any and all claims, liens, liabilities, expenses (including attorneys' fees and disbursements), losses and judgments arising from death or personal injury or from the loss, damage or destruction of property of any person or entity resulting directly or indirectly from any acts, omissions or negligence of the Grantee, its officers, agents or employees with respect to the use of, occupancy of, or operation in, on, of, or about the Cable System or the Grantee. SECTION XXXII. WAIVERS. No waiver by City of any breach, default or violation of the terms, covenants or conditions hereof to be performed, kept and observed by Grantee shall be construed to be or act as a waiver of any subsequent default of any of such terms, covenants and conditions. SECTION XXXIII. (COMPLIANCE REQUIREMENTS) When Grantee's cable subscribers exceed Five Thousand (5000) within the City of Denton, the Grantee will be required to comply with the below listed sections, or parts of sections, upon request from the City. For the purposes of this section, cable subscriber shall mean a person lawfully receiving cable service from the Grantee. Where the grantee bills on a 18 "bulk basis," each individual household, office or other emity lawfully receiving the service shall be considered a subscriber, regardless of whether or not they are billed directly by the Gramee. Section VI, SYSTEM TIMETABLE, (b), (6), (7) and (8). Section XV, PERFORMANCE REVIEW. Section XXII, ACCESS TO SERVICES AND FACILITIES, (a), (c), (d), (e), (g), (h), (i) and (j). Section XXIV, PROGRAMMING MIX, (b) (5), and (c). Section XXIX, FEES AND COSTS. 19 PART I. EXHIBIT A. INSURANCE Coverage Required. Prior to beginning any construction in or installation of the Cable System in the Public Rights-of-Way Grantee shall obtain insurance as set forth below and file certificates evidencing same with City. Such insurance shall be maintained in full force and effect until the end of the term of this Interim Grant of Authority. Commercial general liability insurance, including Completed Operations Liability, Independent Contractors Liability, Contractual Liability coverage, railroad protective coverage and coverage for property damage from perils of explosion, collapse or damage to underground utilities, commonly known as XCU coverage, in an amount not less than Five Million Dollars ($5,000,000). Liability insurance for sudden and accidental environmental contamination with minimum limits of Five Hundred Thousand Dollars ($500,000) and providing coverage for claims discovered within three (3)years after the term of the policy. Automobile liability insurance in an amount not less than One Million Dollars ($1,000,000). Worker's compensation and employer's liability insurance with statutory limits, and any applicable Federal insurance of a similar nature. The coverage amounts set forth above may be met by a combination of underlying (primary) and umbrella policies so long as in combination the limits equal or exceed those stated. If more than one insurance policy is purchased to provide the coverage amounts set forth above, then all policies providing coverage limits excess to the primary policy shall provide drop down coverage to the first dollar of coverage and other contractual obligations of the primary policy, should the primary policy carrier not be able to perform any of its contractual obligations or not be collectible for any of its coverages for any reason during the term of this Interim Grant of Authority, or (when longer) for as long as coverage could have been available pursuant to the terms and conditions of the primary policy. Additional Insured. City shall be named as an additional insured on all policies (other than worker's compensation and employer's liability). All insurance policies shall provide that they shall not be canceled, modified or not renewed unless the insurance carrier provides thirty (30) days prior written notice to City. Grantee shall annually provide City with a certificate of insurance evidencing such coverage. All insurance policies (other than environmental 20 contamination, worker's compensation and employer's liability insurance) shall be written on an occurrence basis and not on a claims made basis. Qualified Insurers. All insurance shall be issued by insurance carriers licensed to do business by the State of Texas or by surplus line carriers on the Texas Insurance Commission approved list of companies qualified to do business in Texas. All insurance and surplus line carriers shall be rated A+ or better by A.M. Best and Company. Deductibles. If the insurance policies required by this Exhibit A are written with retainages or deductibles in excess of $50,000, they shall be approved by City's Manager in advance in writing. Grantee shall indemnify and save harmless City from and against the payment of any deductible and from the payment of any premium on any insurance policy required to be furnished hereunder. Contractors. Grantee's contractors and subcontractors working in the Public Rights-of-Way shall carry in full force and effect commercial general liability, environmental contamination liability, automobile liability and worker's compensation and employer liability insurance which complies with all terms of this Exhibit A. In the alternative, Grantee, at its expense, may provide such coverages for any or all its contractors or subcontractors (such as by adding them to Grantee's policies). Insurance Primary_. Grantee's insurance coverage shall be primary insurance with respect to City, its officers, agents, employees, elected and appointed officials, departments, boards, and commissions (collectively "them"). Any insurance or self-insurance maintained by any of them shall be in excess of Grantee's insurance and shall not contribute to it (where "insurance or self- insurance maintained by any of them" includes any contract or agreement providing any type of indemnification or defense obligation provided to, or for the benefit of them, from any source, and includes any self-insurance program or policy, or self-insured retention or deductible by, for or on behalf of them). 21 PART I. EXHIBIT B. PRODUCTION EQUIPMENT This Section left blank. 22 PART I. EXHIBIT C. LOCAL STUDIO EQUIPMENT This Section left blank. 23 PART I. EXHIBIT D. LOCAL PROGRAMMING MIX This Section left blank. 24 INTERIM GRANT OF AUTHORITY PART II. SECTION i. That the City Council hereby confirms the imerim Gram of Authority Part i subject to the following terms and conditions and the terms of this Part II: A) Execution by Gramee of the acceptance referred to in Part iii, Section 26 of this Ordinance, which includes accepting the agreemem attached as Exhibit A to this Part II, including, without limitation, Gramee's agreemem to pay liquidated damages not less than $4,000 for failure to comply with customer service standards in accordance with Section D 1 of the agreemem that is attached as Exhibit A to this Part II, including, without limitation, the following conditions: Gramee will by October 29, 2004 provide the capability for insertion of video programming and other video, voice, and data messages imo the cable system at the points in the City in accordance with the terms required under Section Vi (b) (6) of Part i of the imerim Gram of Authority, and will comply completely with the above section of the Interim Grant of Authority. The terms of this section will be activated when the terms in PART ii, SECTION iii (COMPLIANCE REQUIREMENTS) are met. (2) This Section is left blank. (3) This Section is left blank. (4) This Section is left blank. B) This Section is left blank. SECTION ii. Gramee may, at any time and from time to time, assign or gram or otherwise convey one or more liens or security imerests in its assets, including its rights, obligations and benefits in and to the cable television system and Imerim Gram of Authority, to any lender providing financing to Gramee. Any assignmem or transfer by a lender or as a result of a foreclosure will require the City's consem as provided in the Imerim Gram of Authority. SECTION iii. (COMPLIANCE REQUIREMENTS) When Gramee's cable subscribers exceed Five Thousand (5000) within the City of Demon, the Gramee will be required to comply with the below listed sections, or parts of sections, upon request from the City. For the purposes of this section, cable subscriber shall mean a person lawfully receiving cable service from the Gramee. Where the Gramee bills on a "bulk basis," each individual household, office or other emity lawfully receiving the service shall be considered a subscriber, regardless of whether or not they are billed directly by the Grantee. Section i, (A), (1). Part ii, Exhibit A, Section H, Service Equipmem for Public Facilities, (1). 25 Part II, Exhibit A, Section O, Other Provisions, (a) SECTION IV. This Section is left blank. SECTION V. (CONFLICT) In the even of any conflict between the terms of Parts I, II, and III this Imerim Gram of Authority, Part II of this Imerim Gram of Authority (including exhibits thereto) shall prevail over Part I, and Part III of this Imerim Gram of Authority (including exhibits thereto) shall prevail over Parts I and II. In the even of any conflict between the terms of this Imerim Gram of Authority and any City Ordinance, that provision which provides the greatest benefit to the City, in the opinion of the City Council, shall prevail. SECTION VI. This Section is left blank. SECTION VII. This Section is left blank. SECTION VIII. This Section is left blank. 26 PART II. EXHIBIT A A. The promises, covenants, and conditions contained herein inure to the benefit of the City and are binding on Grantee. B. This Section is left blank. C. This Section is left blank. D. Customer Service. Grantee will comply with the customer service rules of the FCC as presently in effect, 47 CFR § 76.309. Grantee's compliance shall be measured and enforced as follows: ao For the purpose of such rules "normal business hours" therein are deemed to be 8:30 AM to 5:30 PM Monday through Friday. bo Transfer to or answering by a voice mail system (or other automated response system) does not constitute answering "by a trained customer representative" under § 76.309(c)(ii) or analogous provisions of such rules. Co Within 20 business days of the close of each calendar quarter (or monthly, if the City requests same), Grantee will provide the City with a report in such form as the City and Grantee may reasonably agree, setting forth on a consistent basis, fairly applied, Grantee's performance as compared to such standards, including in particular as compared to the standards for telephone answer time, busy signals, standard installations, service interruptions, appointment windows, refunds and credits. do Such reports shall show and use the telephone calls originating from within the City if that information is readily available from the system, and as to installations, service interruptions, appointment windows, refunds, credits and the like shall show and use data only for subscribers in the City. eo Such reports shall show Grantee's performance including and excluding any periods of abnormal operating conditions, and if Grantee contends that any such abnormal conditions occurred during the reporting period in question, they shall also describe the nature and extent of such conditions. 27 Grantee acknowledges that noncompliance with customer service standards will harm subscribers and the City and that the extem of harm will be difficult or impossible to measure. The City may therefore assess liquidated damages against Gramee for non- compliance with the preceding customer service standards as follows: The FCC Rules curremly state as to § 76.309(c)(1)(ii) and (iv); and § 76.309(c)(2)(I), (ii), (iii) and (iv) (collectively "quarterly customer service standards") that the standards set forth therein "shall be met no less than ninety (90) percem of the time under normal operating conditions measured on a quarterly basis." (i) Liquidated damages may be assessed if Gramee does not meet the ninety (90) percem standard for a given subsection (for example, §76.309(c)(2)(ii)) of the quarterly customer service standards in a given calendar quarter as follows. First Second Third and subsequem Noncompliance Noncompliance Noncompliance $1,000 $2,000 $4,000 (ii) The City may collect liquidated damages from any bond, letter of credit, or security fund furnished under the Imerim Gram of Authority. In the evem ora change in 47 CFR § 76.309 that makes any of the Federal customer service standards therein less stringent than those in effect in July, 1995, the City may adopt customer service regulations as to the subject matter of the portion of the rule that is changed. City agrees to meet with Grantee on any proposed changes prior to taking action on them, and to provide Grantee with at least 60 days notice of such action. Grantee agrees to comply with any such provisions that are no more stringem than those comained in 47 CFR § 76.309 as in effect in July, 1995 and to such extent agrees that it is not entitled to recover the costs of such compliance through external cost treatment or otherwise. Gramee acknowledges that under applicable law the City may unilaterally establish and enforce reasonable customer service regulations that exceed or are not addressed by the standards established by the FCC or the standards currently established by the Interim Grant of Authority. Gramee will provide at minimum the same quality of customer service that Grantee is currently providing, but in all events no less than the quality of service required by the Interim Gram of Authority, Chapter 8 "Cable Television" of the Code of Ordinances of the City of Demon, and any other applicable City ordinances and applicable FCC regulations. As 28 evidence of and to assist in compliance with such commitmem, the City and Gramee agree as follows: On an annual basis Gramee will provide the City with historical expenditure information and staffing levels on customer service related matters; the customer service standards currently used; its materials, if any, on same as used by its customer service representatives; and its procedures and forms used to measure compliance with applicable customer service standards. Gramee will provide such other information as the City reasonably requests relating to customer service matters. E. Signal Quality. The following shall apply to Gramee's implememation of and compliance with the rules and regulations relating to cable television technical standards for signal quality adopted by the FCC in MM Dockets 91-169 and 85-38 on February 13, 1992 and subsequent amendments thereto: All testing for compliance with the FCC technical standards shall be done by a person with the necessary expertise and substantial experience in cable television matters. Upon request, Grantee shall provide the City with the written report of such testing. Gramee shall establish the following procedures for resolving complaims from subscribers about the quality of the television signal delivered to them: All complaints shall go initially to the manager of Grantee's local office. All matters not resolved by the manager shall at Grantee's or the subscriber's option be referred to City for attempted resolution. All matters not resolved at that step shall be referred to the FCC for it to resolve. 4. Gramee shall annually notify its subscribers of the preceding. Upon request by the City, Grantee at its expense will test the system in areas or at subscriber locations specified by City where there are apparem problems and provide City with the written report of such testing. If the test shows a non-compliance with such standards, Grantee will bring the system into compliance with such standards within 180 days. F. This Section is left blank. G. Validity oflnterimGrantofAuthority. Grantee accepts and agrees to be bound by the terms and conditions of the City Charter, Chapter 8 "Cable Television" of the Code of Ordinances of the City of Demon, Texas, the Imerim Gram of Authority and all other 29 ordinances applicable to its operation. Gramee does not contend that any provision of the Imerim Gram of Authority is unlawful or unenforceable, nor is it aware of any other ordinance or any provision in the City Charter which it comends is unlawful or unenforceable. The City acknowledges that the Imerim Gram of Authority is in full force and effect. H. Service and Equipmem for Public Facilities. Gramee will provide the "basic service" and "cable programming services" tiers of Cable Service, including installation and service and converter boxes, without charge to public facilities as required by the Imerim Gram of Authority, Chapter 8 "Cable Television" of the Code of Ordinances of the City of Demon, Texas, or any other applicable city ordinance, except that such service is limited to (a) City, school, county, state and Federal buildings located within 5,000 feet of Gramee's cable system; (b) PlO office, Municipal Building, 215 E. McKinney; (c) Demon Police Departmem, 601 E. Hickory; (d) Demon Fire Departmem, Central Fire Station, 332 East Hickory; and (e) Utility Service Cemer, 901 Texas Street. The terms of this section will be activated when the terms in PART II, SECTION III (COMPLIANCE REQUIREMENTS) are met. In addition, at the City's request Gramee will provide to the public facilities idemified in the Imerim Gram of Authority or other applicable city ordinances the highest level of installation and service without charge as it provides to any other community in the Dallas-Fort Worth Metroplex area. If any service or equipmem for public facilities provided pursuam to subsections (1) and (2) above exceeds the requiremem of the Imerim Gram of Authority, Chapter 8 "Cable Television" of the Code of Ordinances of the City of Demon, Texas, or other applicable city ordinance, Grantee will not pass through the costs as so-called "external costs" or as new grant requirements, except that Grantee may pass through the cost of such services under subsection (2) above that exceeds the requiremems of the Imerim Gram of Authority or other applicable city ordinance to the extent that cost exceeds $2,500 per year in the City of Denton. I. EEO Matters. Gramee agrees to faithfully adhere to all applicable federal, state and city laws, rules and regulations relating to non-discrimination, equal employment and affirmative action. J. Access to Records. The records and reports of the grantee which are to be submitted to the City or otherwise made available for the City (such as for inspection by the City) pursuam to the Imerim Gram of Authority or other ordinance or charter provision of the 30 City shall include records maintained by Grantee and its affiliates to the extent necessary for the City to discharge its responsibilities under the Imerim Gram of Authority, Chapter 8 "Cable Television" of the Code of Ordinances of the City of Demon, Texas, FCC rules or state or local law, or to insure compliance with the Interim Grant of Authority or this Agreement. K. Interim Grant of Authority Requirement. Gramee will give the City 60 days notice in writing prior to allowing any telecommunications entity other than Grantee to use or lease its facilities (other than towers) in the City or capacity thereon or to amending any agreement with such an entity. No such arrangements or uses are presently in existence except as have been disclosed. "Telecommunications emity" means any emity subject to the jurisdiction of or regulated by the Federal Communications Commission (such as under the Communications Act of 1934 as amended) or the Texas Public Utility Commission or their successors, including telephone, alternative access and cable companies. Gramee will provide the City with such documems relating to the foregoing as the City may reasonably request, including copies of the agreemems. Gramee will give the City 60 days notice in writing prior to providing telecommunications services within the City or making its facilities (other than towers) available to others for that purpose. "Telecommunications services" means conventional telephone services, such as alternative access service, which connect user locations and connect users to long distance companies. Nothing herein shall expand or modify any restrictions or limitations under the Imerim Gram of Authority or applicable law on use for telecommunication purposes of the facilities being acquired by Grantee. L. This Section is left blank. M. Other Matters. In the event of any conflict between the terms of this Interim Grant of Authority, Chapter 8 of the Code of Ordinances of the City of Demon, Texas, the City Charter, or any City Ordinance, that provision which provides the greatest benefit to the City, in the opinion of the City Council, shall prevail. Gramee will join the City in obtaining from the FCC any waivers from time to time necessary to effectuate the provisions of this Interim Grant of Authority. 3. This Section is left blank. 31 4. This Section is left blank. The term "affiliate" means any individual, partnership, association, joint stock company, trust, corporation, or other person or entity who owns or comrols, or is owned or comrolled by, or is under common ownership or control with the entity in question. 6. This Section is left blank. This Section is left blank. Other Provisions. a. Grantee will promptly, but no later than twelve months from the effective date of the ordinance approving the Interim Grant of Authority to Gramee, provide the capability for insertion of video programming and other video, voice and data messages into the cable system at the poims in the City required under Section Vi (b)(6) of Part i of the imerim Gram of Authority and will comply in all respects with that section of the Interim Grant of Authority. The terms of this section will be activated when the terms in PART ii, SECTION iii (COMPLIANCE REQUIREMENTS) are met. b. This Section is left blank. Upon request of the City, Gramee will collect from subscribers and pay to the City a momhly amoum of no more than $1.00 for each subscriber within the City limits for the purpose of assisting in financing local access activities. Such charge shall be set out as a separate line item on the subscriber's bill and shall not be deemed a paymem for basic service but a pass-through of an access and government programming fee. The charge will not be part of revenue for purposes of calculating the franchise fee. Advamex will remit the money to the City monthly. d. This Section is left blank. This Section is left blank. This Section is left blank. 32 INTERIM GRANT OF AUTHORITY PART iii. This Part iii relates to the Interim Grant of Authority granted by the City of Denton ("City") in Part i of this imerim Gram of Authority, as amended and supplememed by Part ii of this Interim Grant of Authority. The foregoing Part i and Part ii and this Part iii are hereinafter referred to collectively as the "Interim Grant of Authority." 1. Covenams Binding: The promises, covenams, and conditions comained herein inure to the benefit of the City and are binding on Gramee. 2. This Section is left blank. 3. This Section is left blank. 4. Customer Service. Grantee will comply with the customer service and consumer protection provisions set forth in "Part iii, Exhibit A." 5. This Section is left blank. Validity of Interim Grant of Authority. Grantee accepts and agrees to be bound by the terms and conditions of the City Charter, the imerim Gram of Authority and all ordinances applicable to Grantee's operations. Grantee does not contend that any provision of the imerim Gram of Authority is unlawful or unenforceable, nor are they aware of any ordinance or any provision in the City Charter which they comend is unlawful or unenforceable. The City acknowledges that the imerim Gram of Authority is in full force and effect. Interim Grant of Authority for Cable Only. Grantee acknowledges that the Interim Gram of Authority is grained solely for the provision of Cable Service including services described in Section 12. 8. This Section is left blank. Access to Records: The records and reports of the Grantee which are to be submitted to the City or otherwise made available for the City (such as for inspection by the City) pursuant to the Interim Grant of Authority or other ordinance or charter provisions of the City shall include records maimained by Grantee and its Affiliates to the extent necessary for the City to discharge its responsibilities under the Interim Grant of Authority, FCC rules or state or local law, or to insure compliance with this Interim Grant of Authority. 10. This Section is left blank. 33 11. 12. 13. 14. 15. 16. This Section is left blank. Cable Modem, High-Speed Data and Imernet Services. The Federal Telecommunications Act of 1996 modified the definition of "cable services" in the Federal Cable Act (Title VI of the Communications Act of 1934, 47 USC Section 115 and following). The change addresses cable companies' ability to provide Enhanced, Advanced Cable Services over a Cable System as a cable service (and not as a telephone service, with accompanying telephone regulation.) Gramee imends to provide Enhanced, Advanced Cable Services where economically feasible. 12.1 To remove any uncertainty on Gramee's authority to provide Enhanced, Advanced Cable Services the parties agree that Grantee has the authority to provide Enhanced, Advanced Cable Services under the Imerim Gram of Authority and that the revenues therefrom shall be included in gross revenues for the purpose of computing and paying cable franchise fees. 12.2 If Gramee provides any Enhanced, Advanced Cable Services to residemial subscribers in the areas the Grantee serves, then without any initial or ongoing charge it shall provide the City cable modems and associated access to the Internet with a speed of up to 250 kbs. Such modems and service shall be provided to each City library and to three (3) additional locations specified by the City in City buildings in areas the Gramee serves. This Section is left blank. This Section is left blank. Frequency of Rate Increases. Grantee will not file a submission to increase its rates for basic cable service, equipmem, or service calls regulated by the City more than once in each calendar year. Other Matters. 16.1 Conflict: In the event of any conflict between the terms of Parts I, II, and III this Interim Grant of Authority, Part II of this Interim Grant of Authority (including exhibits thereto) shall prevail over Part I, and Part III of this Imerim Gram of Authority (including exhibits thereto) shall prevail over Parts I and II. In the event of any conflict between the terms of this Imerim Gram of Authority and any City Ordinance, that provision which provides the greatest benefit to the City, in the opinion of the City Council, shall prevail. 34 16.2 16.3 16.4 16.5 16.6 16.7 16.8 16.9 16.10 Waivers: The Gramee will join the City in obtaining from the FCC any waivers or other relief from time to time necessary to effectuate the provisions of this Imerim Gram of Authority. This Section is left blank. 16.3.1 This Section is left blank. 16.3.2 This Section is left blank. This Section is left blank. Venue and Choice of Law: Venue of any suit under or arising out of this Interim Grant of Authority shall be exclusively in Denton County, Texas or in the United States District Court for the Northern District of Texas. This Imerim Gram of Authority shall be construed in accordance with the laws of the State of Texas. Treatment of Liquidated Damages: Grantee acknowledges and agrees that liquidated damages under this Imerim Gram of Authority (including its exhibits) do not constitute franchise fees, do not reduce the amoums otherwise payable as franchise fees, and will not be passed through to subscribers. This Section is left blank. This Section is left blank. Rate Orders: Unless a final order of the FCC (affirmed on appeal if an appeal is taken) determines that franchise authority rate orders are automatically stayed by the filing of an appeal to the FCC, Grantee will implemem each rate order adopted by the City unless and umil Gramee obtains an order of the FCC or a court of competent jurisdiction staying the effectiveness of the rate order. Grantee will reimburse all attorneys fees and other expenses incurred by the City as a result of a violation of this Section 16.9. Franchise Fee Calculation: Grantee will comply with the decision of the United States Court of Appeals for the Fifth Circuit in City of Dallas v FCC, 118 F3d 393 (1997). 16.10.1 Gramee will pay the additional franchise fees due under the Fifth Circuit decision with interest and without pass- through to subscribers for the time period from September 1997 forward. 35 16.10.2 This Section is left blank. 17. Institutional Network: Grantee shall provide, construct, operate and maintain an institutional Network (excluding coders/decoders, interface and other terminal equipment which will be supplied by Users) that will provide the City and other i- NET Users with Institutional Network Services. The I-NET shall be as set forth below. Unless the City agrees otherwise in writing, the I-NET, including the individual fiber optic fibers constituting all or a portion of it, shall be owned and maintained by Grantee but provided for the exclusive use of the City and other i- NET Users and shall be provided without any charge to the City or I-NET Users. The terms of this section will be activated when the terms in PART iii, SECTION 23 (COMPLIANCE REQUIREMENTS) are met. 17.1 This Section is left blank. 17.2 Grantee shall install and terminate additional fiber optic pairs ("incremental I-NET Fiber") in Grantee's future new and replacement fiber optic installations for use as an I-NET as follows. The terms of this section will be activated when the terms in PART iii, SECTION 23 (COMPLIANCE REQUIREMENTS) are met. 17.2.1 17.2.2 17.2.3 17.2.4 City will inform Grantee in writing from time to time of the additional facilities it would like to have served by an I-NET. Grantee will use such information in its plans for future fiber installations, where (for example) one routing will pass a facility City would like to have served and another (of comparable cost) would not. By January 31 of each year Grantee will provide City with its conceptual plans for new and replacement fiber optic construction for that calendar year. Grantee will also provide City from time to time during the year with written notice of conceptual plans for any additional fiber optic construction during that year (or January of the following year). Such notice shall be provided as soon as is feasible. Upon written request by City, Grantee will provide City with a conceptual cost estimate (and other information City may reasonably require) of installing incremental I-Net Fiber along all or a portion of the routes that are a part of such conceptual plans. Such estimates shall be provided as soon as possible after request by City in order that City may have time to obtain approval (such as from its legislative body) to install such incremental I-Net Fiber. 36 17.2.5 As to any route where City has requested a conceptual cost estimate, Grantee shall provide City with the final cost of installing incremental I-Net Fiber (and such other information as City may reasonably request) as soon as Grantee's design of the fiber for such route is reasonably complete. City will have 60 days after receipt of the final cost figure to notify Grantee to install Incremental I-NET Fiber. 17.2.6 The cost of installing Incremental I-NET Fiber shall be computed on an incremental basis, meaning the difference in cost to Grantee of constructing and installing fiber on a given route (a) with, and (b) without, the incremental I-NET Fiber. 17.2.7 Grantee shall be reimbursed by City for the cost of installing i- NET fibers under this Section 17.2 computed as set forth in Section 17.2.6. 17.3 I-NET Maintenance. Grantee shall provide I-NET users with a reliable level of service, repair and maintenance that at a minimum, meets the following performance standards. The terms of this section will be activated when the terms in PART iii, SECTION 23 (COMPLIANCE REQUIREMENTS) are met. 17.3.1 Grantee shall maintain a minimum of 99.5 percent service availability to I-NET Users measured over a period of one year. 17.3.2 Grantee shall respond to repair requests from an I-NET User for circuits identified as critical pursuant to Section 17.3.4 within 2 (two) hours of the request. Grantee shall respond to other repair requests within four (4) hours of the request. 17.3.3 Grantee shall provide ongoing maintenance at its discretion, as it deems necessary. Grantee shall provide at least one week advance notice to any affected I-NET User of any maintenance requiring temporary interruption of services, except in emergency situations. 17.3.4 Grantee and the City shall develop a mutually agreeable priority listing of critical circuits and their terminal locations. When notifying Grantee of service complaints, an I-NET User shall identify critical circuits requiring priority repair. Grantee shall escalate repair of critical circuits to the extent reasonable under the circumstances. 17.4 Definitions. 37 18. 17.4.1 Institutional Network or 1-NET means the fiber optic communications network described in Section 17 and Schedule 17 to be constructed and operated by Grantee for the provision to i- NET Users (but not Cable Service subscribers) of institutional Network Services. 17.4.2 Institutional Network Services means the provision of usable bandwidth capacity to I-NET Users through fiber optic lines for applications including but not limited to two-way dedicated voice, data, video and telephony channels connecting and interconnecting facilities owned, leased or used by the City, schools, counties, road commissions or other units of state or local government. Other applications include but are not limited to computerized traffic control systems for coordinated traffic control on an area-wide basis; Supervisory Control and Data Acquisition (SCADA) systems for municipally owned water, sewer, gas and electric systems (including street lighting systems); interconnection of facilities serving police, fire and other public safety systems, video arraignment facilities for local courts; interconnection of government buildings for the two or one-way interchange of video signals; and local area networks or wide-area networks connecting governmental buildings, such as for GiS (Geographical informational Systems) purposes. 17.4.3 1-NET User means and is limited to the City and any school or unit of state or local government designated by the City to receive Institutional Network Services under this Interim Grant of Authority. HDTV: Broadcast and cable channels are likely to convert in whole or in part to an HDTV (high definition television) format within the next few years, with channels likely being delivered in both HDTV and conventional analog formats during a transition period. The following provisions address the ability of the City to acquire additional PEG Channels such that one or more Users may have their signals simultaneously delivered by the Cable System in both an HDTV and conventional analog 6 MHz NTSC format for the transition period, and provide funds for Users to convert to an HDTV format. 18.1 Reports: Grantee shall provide quarterly reports to City on its plans and progress for HDTV conversion, including the number of channels to be converted, date, equipment changes, formats to be used and other information reasonably necessary for the City to be able to plan an appropriate and potentially concurrent conversion of PEG Channels and facilities to HDTV format. 38 19. 18.2 interim Grant of Authori _ty: After the date when Grantee provides at least fifty (50) channels in one or more of several high definition television (or successor) formats, as such formats may from time to time be adopted or in effect ("HDTV Format"), then upon request from City, Gramee shall provide a Capital Facilities grant to City sufficient for Users to convert all their facilities and equipmem (including but not limited to studios, vans, video, audio, lighting, comrol, storage and editing equipmem) to the HDTV Format selected by City but with the amount of such grant not to exceed 30¢ per customer per momh when amortized over Company's subscribers as of the end of the calendar quarter preceding the date when the grant is made, using straight line amortization without interest for the lesser of five (5) years or the remaining term of the imerim Gram of Authority. City shall allocate the gram among Users for such purpose as City deems is in the public imerest. Gramee shall modify the cable system whereby Gramee receives PEG signals from each User (for redistribution on its Cable System) so as to be capable of receiving and accepting the User's signals. City shall co-ordinate with Grantee to ensure that the HDTV Format selected by City is compatible with the format employed by Grantee. 18.3 Temporary_ Additional PEG Channels: After the date when Grantee provides at least fifty (50) channels in HDTV Format, City may from time to time request, and Grantee shall provide, one additional PEG Channel so as to allow, to the extent deemed appropriate by City, PEG Channel simulcasting in both 6 MHz analog NTSC format and in an HDTV Format. Gramee need no longer provide the additional PEG Channel described in the preceding semence when Gramee no longer provides any channel of programming on the Cable System in 6 MHz NTSC analog format. 18.4 Allocation of PEG Channels: As of the effective date of this Interim Gram of Authority, City may allocate and reallocate PEG Channels as follows: City may at any time on six (6) momhs notice to Gramee allocate or reallocate the usage of the PEG Channels among and between differem uses and Users. This expressly may include City removing a User or PEG Channel, replacing a User or PEG Channel, requiring several differem persons to share or joimly use a given PEG Channel or conversely allowing one or more persons curremly sharing such a channel to have a channel on which they are the sole User. Leased Access and PEG Channels: The need for a PEG Channel can be removed by Gramee providing the User designated by City of such currem or prospective PEG Channel with an otherwise idemical leased access channel, so long as the leased access rate for such User is One Dollar ($1.00) per year. in the even the preceding semence is exercised it shall be applied first to educational channels and then to public channels, if applied to such channels the channel number on 39 which they are carried shall not be changed and such channels shall be included in the basic tier of service and shall be listed in Company's program guide or comparable listing with an appropriate description, such as "City of DeNon Channel" or "University of North Texas Channel." The need for a PEG Channel is removed only so long as the User in question in fact is provided with such leased access channel. 20. Transfer. City conseN in advance shall be required for a transfer of coNrol of GraNee, which shall include, but is not limited to, any of the following: 20.1 Any change in limited partnership iNerests, non-managing limited liability company interests, or non voting stock representing thirty percent or more of the equity interests in the entity in question. 20.2 Any option, right of conversion or similar right to acquire interests constituting control without substantial additional consideration (such as compared to consideration previously provided). 20.3 Any change in the effective coNrol of Company including that described in 47 C.F.R. § 76.501 and following (including the notes thereto but excluding footnote 2f) as in effect on the date of this Interim Grant of Authority. 20.4 This Section is left blank. 20.5 This Section is left blank. 20.6 This Section is left blank. 21. This Section is left blank. 22. Definitions. The following definitions shall apply for the purpose of this Part iii. and its Exhibits. 22.1 Affiliate means any individual, partnership, association, join stock company, limited liability company, trust, corporation, or other person or eNity who owns or coNrols, or is owned or coNrolled by, or is under common ownership or control with the entity in question. 22.2 Capital Facilities means PEG Channel and I-NET related facilities and equipmeN including fiber lines, studios, production facilities, vans and cameras or other property having a useful life of more than one year, as well as any expenditures which increase or add to the value of the facilities or equipment, adapt the facilities or equipment to new or different uses, or maintain, restore, extend or prolong the useful life of such facilities or equipment. 40 22.3 22.4 22.5 22.5 22.6 22.7 Cable Service means 22.3.1 The one-way transmission to all subscribers of (i) Video Programming, or (ii) other programming services, by which is meant information which Grantee makes available to all subscribers generally, such as digital cable radio service, and 22.3.2 Subscriber interaction, if any, including but not limited to that which is used for the selection or use of such Video Programming or other programming services, selecting from various on-screen options, use of Enhanced, Advanced Cable Services, game channels, interactive services, downloading programs or data access, or ordering merchandise, and 22.3.3 Institutional Network Services. Cable System or System means a facility consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide Cable Services to multiple subscribers within the authorized area, but such term does not include (i) a facility that serves only to re-transmit the television signals of one or more television broadcast stations; (ii) a facility that serves subscribers without using any public right of way; (iii) a facility of a common carrier which is subject, in whole or in part, to the provisions of Title II of the Communications Act of 1934, as amended, except that such a facility shall be considered a Cable System (other than for purposes of Section 621(c) of such Act) to the extent such facility is used in the transmission of video programming directly to subscribers, unless the extent of such use is solely to provide interactive on-demand services; (iv) an open video system that complies with Section 653 of Title VI of the Communications Act of 1934, as amended; or (v) any facilities of any electric utility used solely for operating its electric utility system. Enhanced, Advanced Cable Services means enhanced services, information services, Internet protocol (IP) telephony, high speed data service, Internet access and Internet service (such as that of an Internet service provider). FCC means the Federal Communications Commission. I-NET User has the meaning set forth in Section 17.4.3. Institutional Network or 1-NET has the meaning set forth in Section 17.4.1. 41 22.8 institutional Network Services has the meaning set forth in Section 17.4.2. 22.9 PEG Channels means the public channels, educational channels and government channels provided by Grantee on the cable system under this imerim Gram of Authority, or applicable ordinance, and shall include leased access channels provided pursuam to Section 19 herein. 22.10 User means a person authorized to operate or use a PEG Channel (or a leased access channel provided in lieu of a PEG Channel under Section 19) or the I-NET, and shall include City. if several persons share the operation of a PEG Channel each person shall be a separate User. 22.11 Video Programming means programming provided by, or generally considered comparable to programming provided by, a television broadcast station. 23. COMPLIANCE REQUIREMENTS: When Gramee's cable subscribers exceed Five Thousand (5000) within the City of Demon, the Gramee will be required to comply with the below listed sections, or parts of sections, upon request from the City. For the purposes of this section, cable subscriber shall mean a person lawfully receiving cable service from the Gramee. Where the Gramee bills on a "bulk basis," each individual household, office or other emity lawfully receiving the service shall be considered a subscriber, regardless of whether or not they are billed directly by the Gramee. Sectionl 7, Institutional Network. Section 17.2, 17.2.1, 17.2.2, 17.2.3, 17.2.4, 17.2.5, 17.2.6, and 17.2.7. Section 17.3, I-NET Maintenance PART iii, EXHIBIT A, Section 4. 24. This Section is left blank. 25. Fees and Costs. Grantee will reimburse the City all its costs in association with the grant process for this Interim Grant of Authority, not to exceed $1,500, as set forth in Part i, Section XXiX of this Interim Grant of Authority. In addition, the Grantee will reimburse the City its expenses in connection with a replacement of this Interim Grant of Authority with a more permanent agreement, including publication costs and fees of consultants and attorneys as set forth in Part i, Section XXiX of this Interim Grant of Authority. 26. Approval and Acceptance. In accordance with Section 13.02 of the City Charter of the City of Demon, this ordinance shall become effective twenty-one (21) days after final approval, if, before that date, Company shall give its written acceptance of this ordinance by signing as provided below; and provided that, after final approval and before the expiration of twenty-one (21) days, the full text of this ordinance shall be published once each week for two (2) consecutive weeks in the official newspaper of the City, the expense of which shall be borne by Grantee. 42 2002. 26.1 Grantee, for itself, its successors and assigns ordinance and agrees to be bound by all of its terms and provisions. PASSED AND APPROVED on first reading, this the __ day of PASSED AND APPROVED this the __ day of hereby accepts this ,2003. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: GRANTEE Denton Telecom Partners I, LP BY: ITS: 43 PART iii. EXHIBIT A. CUSTOMER SERVICE AND CONSUMER PROTECTION Customer Service Standards: Grantee shall at all times comply with the more stringent of the customer service and consumer protection provisions of this Part iii, Exhibit A, the Interim Grant of Authority and the FCC. This requirement is in addition to the specific provisions of subsequent sections set forth below. 1.1 Grantee shall continue to comply with the National Cable Television Association's On-Time Customer Service Guarantee, a copy of which is attached as Part iii, Exhibit B 1. The guarantee promises on-time service calls or the customer receives $20.00, and on-time installation calls or the customer receives a free installation. The $20.00 may be in the form of a credit. 1.2 Gramee may provide its Customer Bill of Rights (if any) to its subscribers in the City. City Monitoring: In addition to free outlets, free cable service or services otherwise required by the imerim Gram of Authority, Gramee shall provide one service outlet (which shall be at a Robson Ranch office, unless otherwise specified by City) that shall receive without charge all programming (and any other Cable Services) provided by Gramee, including services of a premium, pay per view or other nature. Such service shall be provided in such a manner that City may monitor the programming and use of the cable system for compliance with the Interim Grant of Authority, this Exhibit, FCC technical standards, and applicable law. The services provided pursuam to this Section 2 shall be in a secure office location and not in a location open to public viewing. Scrambling/Blocking: Gramee shall at all times scramble both the audio and video portions of all channels with predominately adult oriemed programming. 3.1 Upon request by a subscriber, Gramee shall emirely block such subscriber from receiving both the audio and video portion of any channel with predominantly adult oriented programming with devices such as a notch filter which prevent the frequencies containing a specific channel or channels from being transmitted imo the subscriber's premises. Pay Per View: Subscribers shall be given the options of (a) not having pay per view or per program service available at all or (b) only having such service provided upon the subscriber providing a security number selected by an adult representative of the subscriber. The terms of this section will be activated when 44 the terms in PART III, SECTION 23 (COMPLIANCE REQUIREMENTS) are met. Notification: Grantee shall provide written information on at least each of the following matters (a) at the time of installation or reinstallation of service, (b) annually to all subscribers, and (c) at any time upon request of a subscriber or the City. The information shall be dated with the priming, revision, or effective date. 5.1 Products and services offered. 5.2 Prices (rates) and options for Cable Services and conditions of subscription to Cable Service. Prices shall include those for programming, equipment rental, program guides, installation, disconnection, processing charges for late paymem and other fees charged by Company. 5.3 Installation and service maintenance policies. 5.4 Instructions on how to use Cable Services, including procedures and options for pay per view, premium channels and connection to a VCR. 5.5 Channel positions of programming carried on the cable system, including a listing specific to the City showing the channel names and numbers actually available to subscribers in the City. 5.6 Billing and complain procedures with a notice for the subscriber to initially contact Company with complaints and questions. 5.7 Applicable privacy requirements as set forth in the Interim Grant of Authority or provided for by law. 5.8 The availability of lockout devices and the ability to have a channel emirely blocked or trapped (Section 3.1), if required by law. 5.9 The refunds and free service available for violations of Sections 10 and 12 and how to obtain same. 5.10 The procedure for resolving signal quality problems set forth in Section 20.2. 5.11 The office locations, free pick up and delivery options, telephone service availability and paymem locations described in Part I Section VIII. Notice of Changes: Subscribers and the City shall be notified of any changes in rates, Cable Services or channel positions as soon as possible through announcemems on the cable system or in writing. Company will notify City in advance of notifying subscribers and will make every effort to notify City forth- 45 o o five (45) days in advance of a change. Unless a longer time period is required by applicable law or regulation, notice must be given to subscribers a minimum of thirty (30) days in advance of such changes if the change is within the control of Company and as soon as possible if not within the control of Company. In addition, Company shall notify subscribers and the City thirty (30) days in advance of any significant changes in the matters covered by the preceding Section 5. Notifications provided pursuant to this Section shall be dated with the printing, revision or effective date. Telephone Service Standards: 7.1 Company shall have a local or toll-free telephone number available for use by subscribers toll-free twenty-four (24) hours per day, seven (7) days per week. 7.2 The local or toll-free numbers shall be listed, with appropriate explanations, in the directory published by each local telephone company and in any significant directories published by others. 7.3 Trained Company Representatives shall be available to respond to subscriber telephone inquiries twenty-four (24) hours per day, seven (7) days per week. 7.3.1 As to video service matters, the term "Trained Company Representatives" shall mean employees of Company, or contractors, who have the authority and capability while speaking with a subscriber to, among other things, schedule service and installation calls. 7.3.2 This Section is left blank. 7.4 Under Normal Operating Conditions, telephone answer time by a Trained Company Representative, including wait time, shall not exceed thirty (30) seconds from when the connection is made. If the call needs to be transferred, the time to complete the transfer time shall not exceed thirty (30) seconds. These standards shall be met no less than ninety percent (90%) of the time under Normal Operating Conditions, measured on a quarterly basis. 7.5 Under Normal Operating Conditions, the subscriber shall receive a busy signal less than three percent (3%) of the time, measured on a quarterly basis. Office/Home Delive _ry-Pick Up: 46 10. 8.1 Initially, Gramee shall do all the following: (i) maimain a business office within 18 miles of Robson Ranch, which shall include a place where subscribers may pay their bills, pickup and return converter boxes and comparable items and receive information on Gramee and its services, (ii) maimain a conveniently located bill paymem office within Robson Ranch where subscribers may pay their bills as soon as a commercial business (such as a bank, drug store or convenience store) is open within Robson Ranch (iii) at no charge to subscribers, pick up and deliver to subscribers converter boxes, remotes and similar Gramee-provided customer premises equipmem (under normal operating conditions such deliveries and pickups shall occur within 48 hours of a subscriber request for same), and (iv) provide telephone customer service with live operators 24 hours per day, seven days per week. When Gramee has at least 5000 subscribers in the City of DeNon, it shall maimain a business office within the City of DeNon, which shall include a place where subscribers may pay their bills, pickup and return converter boxes and comparable items and receive information on Company and its services. The office shall be open at least from 8:30 AM to 5:30 PM Monday through Friday. 8.1.1 This Section is left blank. Installation Standards: Under Normal Operating Conditions, installations located up to one hundred fifty (150) aerial feet from the existing distribution cable system shall be performed within seven (7) business days after an order has been placed no less than ninety-five percem (95%) of the time, measured on a quarterly basis. Installations/Service Calls: The following shall apply to subscribers (currem or new) requesting installations or service: 10.1 Installations calls shall be available at a minimum from 8:00 AM to 5:00 PM Monday through Friday. Service calls shall be available at a minimum from 8:00 AM to 5:00 PM Monday through Saturday. Company shall at the subscriber's option either (1) schedule the subscriber to be the first call of the day or last call of the day on a first come, first served basis, (2) schedule the appoimmem for a date certain on a "call to meet" basis where as the service technician finishes his/her prior task, the technician calls the subscriber and arranges to meet the subscriber shortly thereafter, or (3) establish an appoimmem window of no more than four (4) hours with the subscriber (or adult represemative of the subscriber) or another appointment window mutually agreed upon between the subscriber and Company. 10.2 Company shall respond to the request for service in accordance with the option selected by the subscriber. 10.3 Company shall not cancel an appointment with a subscriber after 5 PM on the business day prior to the scheduled appointment. 47 10.4 If Company's technician is running late for an appointment with a subscriber and will not be able to keep the appointment as scheduled, the subscriber shall promptly be contacted. The appointment shall be rescheduled, as necessary, at a time, which is convenient for the subscriber. 10.5 In the event access to the subscriber's premises is not made available to Company's technician when the technician arrives during the established appointment window, the technician shall leave written notification stating the time of arrival and requesting that Company be contacted again to establish a new appointment window. 10.6 Notwithstanding the foregoing, if Company's technician or service representative telephones the subscriber during or prior to the appointment window and is advised that the technician will not be given access to the subscriber's premises during the appointment window, then the technician shall not be obliged to travel to the subscriber's premises or to leave the written notification referred to above, and the burden shall again be upon the subscriber (or adult representative of the subscriber) to contact Company to arrange for a new appointment. 10.7 Except as otherwise provided above, Company shall be deemed to have responded to a service or installation request under the provisions of this section when a technician arrives at the service location or is advised by telephone no access will be given. 10.8 Company's service technician or service representative shall take adequate time on each service call to address or correct the problem in question. 10.9 In the event that Company ceases to provide the NCTA On-Time Customer Service Guarantee (Part III, Exhibit Bi) a violation by Company of the provisions of this Section 10 shall automatically entitle the subscriber to one month of free basic service and (if currently purchased by the subscriber) one month of free cable programming service (as defined in 47 C.F.R. § 76.901). 10.10 Under Normal Operating Conditions, Company shall meet the standards of Section 10.1 through 10.3 no less than ninety-five percent (95%) of the time, measured on a quarterly basis. 11. Service Call Charges: No charge shall be made to the subscriber for any service call relating to Company owned and Company maintained equipment after the initial installation of Cable Service unless the problem giving rise to the service request can be demonstrated by Company to have been: 48 11.1 Caused by negligence or malicious destruction of cable equipment by the subscriber, or 11.2 A problem established as having been non-cable in origin. 12. Service Interruptions: 12.1 Under Normal Operating Conditions, Company shall meet the standards of Sections 12.2 and 12.4 no less than ninety-five percent (95%) of the time measured on a quarterly basis. 12.2 Under Normal Operating Conditions, Company shall begin working on a Service Interruption promptly and in no event later than twenty-four (24) hours after the interruption becomes known to Company. 12.3 "Service Interruption" means the loss of picture or sound on one or more cable channels, affecting one or more subscribers. 12.4 Under Normal Operating Conditions, Company shall begin working on subscriber complaints involving impairment or degradation of signal quality (other than a Service Interruption) promptly and in no event later than the next business day after the problem becomes known to Company. 12.5 Company shall be deemed to have begun work under the provisions of this section when a technician arrives at the service location. 12.6 Company shall provide affected subscribers, upon request by the City or the subscriber, with one day's free service (equivalent to the service they were receiving at the time of the interruption) for each day or portion thereof of Service Interruption. 13. Log of Complaints: Company shall maintain a written log, or an equivalent stored in computer memory and capable of access and reproduction in printed form, of a random sampling of all cable-related customer Complaints within the City that are referred to Company's Customer Care Group. Such log shall be in form and substance acceptable to the City and at minimum list the date and time of each such Complaint, identify the customer to the extent allowed by law, and describe the nature of the Complaint and when and what actions were taken by Company in response thereto. The log shall be organized by City. The log shall be kept at Company's office in or near the City for a period of at least two (2) years and shall be available for inspection during regular business hours by the City upon request. 14. Bills: Company shall comply with the following on Cable Service billing: 49 15. 16. 14.1 Bills shall be issued monthly to each subscriber with a balance due or change of service. 14.2 Bills shall be clear, concise and understandable. Bills shall be fully itemized, with itemizations including, but not limited to, basic service, cable programming service, premium service charges and equipment charges. Bills shall also clearly delineate all activity during the billing period, including optional charges, rebates, credits, and late charges. 14.3 Each bill shall prominently display Company's local or toll-free telephone numbers available for use by subscribers. If a bill has more than one portion (for example, one portion that is kept by the customer and one portion that is sent to Company) the numbers shall prominently appear on the front side of the portion of the bill retained by the customer. 14.4 Company shall respond in writing to all written complaints from subscribers regarding billing matters within thirty (30) days. 14.5 Company shall not disconnect a subscriber for failure to pay legitimately contested charges during a billing dispute. However, during a billing dispute Company may disconnect a subscriber for failure to pay charges that are not contested. 14.6 The City shall be given thirty (30) days advance notice of any change in the format of bills. Refunds and Credits: Refund checks for Cable Service shall be issued promptly, but no later than either: 15.1 The subscriber's next billing cycle following resolution of the request or thirty (30) days, whichever is earlier, or 15.2 If service is terminated, 30 days after return of equipment owned by Company or at the time of the next billing cycle, whichever is earlier. 15.3 Credits for Cable Service shall be issued no later than the subscriber's next billing cycle following a determination that a credit is warranted. Late Payment for Cable Service. 16.1 Each bill shall specify on its face in a fashion emphasizing same (such as bold face type, underlined type or a larger font): "For payments received after 16 days after due date, a $4.95 processing fee for late payment may be charged." 50 17. 16.2 No processing fees for late payment, however denominated, shall be added to a subscriber's bill less than sixteen (16) calendar days after the mailing of the bill to the subscriber. 16.3 No processing fees for late payment, however denominated, shall be added to a subscriber's bill by reason of delay in payment other than those described in this Section 16. All such charges shall be separately stated on the subscriber's bill and include the word "late" in the description of them. 16.4 There have been negotiations in connection with this Exhibit regarding the appropriate amount of fees that may be charged for late payment. The parties have agreed to withdraw this issue from consideration without prejudice to any claims and defenses. Disconnection 17.1 Company shall not disconnect a subscriber for failure to pay until at least twenty six (26) days have elapsed after the due date for payment of the subscriber's bill and Company has provided at least ten (10) days written notice separate from the monthly bill to the subscriber prior to disconnection, specifying the effective date after which Cable Services are subject to disconnection. 17.2 Company may disconnect a subscriber at any time if Company in good faith believes that the subscriber has tampered with or abused Company's equipment, that there is a signal leakage problem (or other non- compliance with FCC rules or other standards which poses a risk to lives or property) on the subscriber's premises, or that the subscriber is or may be engaged in the theft of Cable Services. 17.3 Company shall promptly disconnect any subscriber who so requests disconnection. No period of notice prior to requested termination of service shall be required of subscribers by Company. No charge shall be imposed upon the subscriber for or related to disconnection or for any Cable Service delivered after the effective date of the disconnect request (unless there is a delay in returning Company equipment). If the subscriber fails to specify an effective date for disconnection, the effective date shall be deemed to be the day following the date the disconnect request is received by Company provided that Company equipment has been returned. 17.4 The term "disconnect" shall include customers who elect to cease receiving Cable Service from Company and to receive Cable Service or other multi-channel video service from another person or entity. 51 18. 19. Truth in Advertising: Company's bills, advertising and communications to its current or potential subscribers shall be truthful, shall not contain any false or misleading statement and shall comply with the Texas Deceptive Trade Practices- Consumer Protection Act, TEX.BUS. & COM.CODE ANN. §§ 17.41-17.63. (Vernon 1987). For the purposes of the preceding, a statement is false or misleading if it contains an untrue statement of any material fact or omits to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading. Reports: Company shall provide reports to the City monthly (by the 15th business day of the following month) and quarterly (by the 15th business day of the following quarter) as follows: 19.1 The reports shall include the following forms currently used by Advantex or otherwise in form and substance acceptable to the City, showing on a consistent basis, fairly applied, Company's compliance with customer service standards. 19.1.1 System Statistics Report, Part III, Exhibit B2, which covers customer service matters. 19.1.2 Monthly Report of Service Calls by Reason, Part III, Exhibit B3, which shall include an explanation of the categories of reported reasons. 19.1.3 Monthly Outage Summary by Interim Grant of Authority, Part III, Exhibit B4. 19.1.4 Monthly Service Call Availability Analysis and Installation Call Availability Analysis, Part iii, Exhibit B5. 19.1.5 Monthly Customer Call Sample Report, Part III, Exhibit B6, both by City and on an overall basis, showing the results of a random sampling of customer complaints referred to Company's Customer Care Group. 19.1.6 Monthly Call Center Performance Report, Part III, Exhibit B7 (excluding the 2% "assumed" adjustment). 19.2 Such reports shall show Company's performance excluding periods that were not Normal Operating Conditions ("Abnormal Operating Conditions") and if Company contends any such conditions occurred during the period in question, it shall also describe the nature and extent of Abnormal Operating Conditions and show Company's performance both including and excluding the time periods Company contends such conditions were in effect. 52 19.3 At the City's request Company will provide additional information and existing reports reasonably related to the measurement and evaluation of Company's compliance with the customer service requirements of the Imerim Gram of Authority, and this Exhibit A. 19.4 Reports of installations/service calls (Section 10) and service imerruptions (Section 12) shall report matters occurring within the City. Telephone reports may be for a larger area than the City if Company can demonstrate that it is, in fact, representative of the phone service provided within the City, such as where a call cemer receives calls from numerous municipalities with no ability to distinguish between or give preference to calls from one area or City over another. 19.5 The City, by itself or in combination with other municipalities, reserves the right to audit Company (or any Affiliate of Company) to verify the accuracy of the reports required under this Section 19. All records (including those of Affiliates) reasonably necessary to conduct the audit shall be made available at a convenient location in the Fort Worth area. If the audit discloses performance that is three (3) percentage poims worse than any of the standards of the referenced sections (such as compliance 92% of the time versus 95% of the time) Company shall pay the City's costs in connection with the audit within thirty (30) days of submission of an invoice. 20. FCC Technical Standards The following shall apply to Company's implementation of and compliance with the rules and regulations relating to cable television technical standards for signal quality, curremly set forth at 47 C.F.R. § 76.601 and following, and subsequem amendmems thereto: 20.1 Company shall notify the City in advance of testing for compliance with FCC standards. The City may have a representative present to observe such tests and may designate one location to be tested. Company shall provide the City with a report of testing for compliance with such standards upon written request (but not more than twice a year). Such report to City shall state, in pertinent part, that the person doing the testing has reviewed the applicable rules and regulations of the FCC, the industry standards and other materials referenced therein, and that such testing was done fairly and either shows full compliance with such rules and regulations or sets forth with specificity and in detail all areas of non- compliance, their actual or likely scope and causes, and Company's professional recommendation of the best corrective measures to immediately and permanently correct the non-compliance. 20.2 Company shall establish the following procedure for resolving complains from subscribers about the quality of the television signal delivered to 53 them: All complaints shall go initially to Company. All matters not resolved by Company shall at Company's or the subscriber's option be referred to the City for it to resolve. All matters not resolved by the City may be referred to the FCC for it to resolve. 20.3 The City at its expense (no more than twice per year, barring unusual circumstances) upon thirty (30) days written notice to Company may test the cable system for compliance with the FCC technical standards. Company shall cooperate in such tests and provide access to the cable system. Company shall reimburse the City for the full expense of any test, which shows a material non-compliance with such standards. 21. Liquidated Damages - Customer Service Calls: Company acknowledges that non- compliance with the customer service standards identified above will harm subscribers and the City and the amounts of actual damages will be difficult or impossible to ascertain. For the second calendar quarter of 2002 and thereafter, the City may therefore assess the following liquidated damages against Company for non-compliance with the customer service standards set forth in Sections 7.3, 7.4, 7.5, 9, 10.1, 10.2, 10.3, 10.10, 12.1, 12.2 and 12.4 (measured on a quarterly basis). Company acknowledges that the liquidated damages set forth below are a reasonable approximation of actual damages and that this Section 21 is intended to provide compensation and is not a penalty. 21.1 Telephone Standards. The damages for non-compliance with one or more of the standards in Sections 7.3, 7.4 and 7.5 during a calendar quarter are: 21.1.1 First non-compliance: $1.00 per subscriber. 21.1.2 Second non-compliance within three (3) consecutive calendar quarters: $2.00 per subscriber. 21.1.3 Third non-compliance within six (6) consecutive calendar quarters and (subject to Section 21.4) each subsequent non-compliance: $3.00 per subscriber. 21.2 Service and Installation Standards. The damages for non-compliance with one or more of the standards in Sections 9, 10.1, 10.2, 10.3, 10.10, 12.1, 12.2 and 12.4 during a calendar quarter are: 21.2.1 First non-compliance: $1.00 per subscriber. 21.2.2 Second non-compliance within three (3) consecutive calendar quarters: $2.00 per subscriber. 54 21.2.3 Third non-compliance within six (6) consecutive calendar quarters and (subject to Section 21.4) each subsequent non-compliance: $3.00 per subscriber. 21.3 Minimums. The liquidated damages for the first and each subsequent non- compliance under Section 21.1 or Section 21.2 shall be no less than $5,000, unless modified as provided in Section 21.4. 21.4 Effect of Extended Periods of Compliance. If Company complies with all of the standards identified in Sections 21.1 and 21.2 for eight consecutive calendar quarters, the damages for the first subsequent non-compliance with any of those standards will be the greater of 25¢ per subscriber or $3,000. 21.4.1 Following such a non-compliance the damages provided in Sections 21.1 and 21.2 will again be applicable so that the next non-compliance within four (4) consecutive calendar quarters will be subject to Sections 21.1.2 and/or 21.2.2. 21.5 An event of non-compliance will be taken into account in determining whether a later event of non-compliance is a second, third or subsequent event without regard to whether City has assessed liquidated damages or taken any other action with respect to the non-compliance. 21.6 Company shall report the number of subscribers within the City on the last day of the quarter by the 15th business day of the following quarter. 22. Liquidated Damages - Other: 22.1 Liquidated damages in the amount set forth in Section 21.1.1 (but not less than the amount set forth in Section 21.3) may be assessed for failure to timely submit the quarterly reports required by Section 19. 22.2 Liquidated damages may be assessed for violation of the provision of Section 26.4 for submission of reports within five (5) business days in the amount of $1,000 per day. 23. Procedure for Assessment of Liquidated Damages: The procedure for consideration and assessment of liquidated damages is as follows: 23.1 Liquidated damages shall be assessed by the City Manager or his or her designee. 23.2 Company may obtain a review of the assessment by the City Council by making a written request within ten (10) business days after receipt of notice in writing of the assessment and its basis. 55 23.3 Company shall have an opportunity to be heard at a meeting of the City Council or by a person designated by the Council as a hearing officer prior to action being taken by the Council. 23.4 The City Council may adopt additional procedures, including appoimmem ora City official or other person to act as a hearing officer. The Council's decision may be based upon the record of proceedings conducted by the hearing officer or a proposal for decision submitted by the hearing officer. 24. Paymem of Liquidated Damages: Liquidated damages shall be paid on or before the temh (10th) business day following assessmem or, if Company requests review by the City Council, on or before the temh (10th) business day following issuance of the Council's decision. 25. Ombudsman: Company will provide a senior employee (at the Vice Presidem or Director level) as director of governmem affairs and ombudsman reporting directly to a vice president of Company. The director of government affairs will have responsibility for working with the City to address problems that may arise under the Imerim Gram of Authority and shall be Company's ombudsman for both the City and subscribers. Company will give the City an opportunity to commem on the detailed job description of the director of governmem affairs before the position is filled. 26. City Liaison: Company shall provide problem solving liaison services for the City. The purpose of this service is to provide the City with direct access to supervisory level personnel who can obtain prompt action on customer service problems referred by the City to Company. This service shall include at least the following: 26.1 The personnel providing the service shall be located in Demon County. 26.2 The personnel providing the service shall have sufficiem authority and access to Company facilities and personnel in order to investigate and take appropriate remedial action without delay. 26.3 The City shall be given a special direct phone number to use (which may also be used by other cities, but which will not be made available to the general public) which will generally during normal business hours be answered by a live person and will provide immediate access to a person having the authority specified in the preceding section. 26.4 Company shall investigate (including an attempt to comact the subscriber) and respond to the City on each call, fax or written complaim or request by the end of the next business day and shall provide a written report within five (5) business days. 56 27. 26.5 Company shall give the City notice in writing of changes in the key contact personnel or material changes in procedures involved in providing this service. Definitions: For the purposes of this Exhibit A, the following definitions shall apply: 27.1 Cable Administrator means the person designated by City as having principle responsibility for cable matters. 27.2 Complaint means a telephone call or written communication from a customer notifying Company of a problem relating to Company's billing or billing practices, Company's equipment, picture quality, failure to receive one or more channels, a change in Company's practice or policy, Company advertising or other business practice, the conduct of a Company employee or contractor, or the failure of Company or a service representative to comply with customer service regulations. 27.3 Normal Operating Conditions means those service conditions, which are within the control of Company. Those conditions which are not within the control of Company include, but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages, and severe or unusual weather conditions. Those conditions which are within the control of Company include, but are not limited to, special promotions, pay-per-view events, rate increases, regular or seasonal demand periods, changes in the billing cycle, changes in the form of bills and other billing matters, changes in channel lineups or services that are within Company's control, and repairs, rebuilds, maintenance and upgrade of the cable system including computer software and hardware. 27.3.1 This Section left blank. 27.3.2 Labor Disputes. Employee strikes, slowdowns and walkouts of less than 30 days duration are not within the control of Company. :: ODMA\PCDOC S\GRR\689668\9 57 AGENDA INFORMATION SHEET AGENDA DATE: September 16, 2003 DEPARTMENT: Legal Department CM/DCM/ACM: Herb Prouty, City Attorney SUBJECT: Consider an ordinance of the City Council of the City of Denton, Texas providing for the dismissal of TXU Gas Company's requested increase in rates in the event the Company fails to amend its Statement of Intent to remove increases for pipeline services from its requested distribution rates; and providing for an effective date. BACKGROUND: The Council previously suspended the effective date of TXU's requested gas rate increase for 90 days and authorized us to join the alliance of TXU Municipalities (ATM). The Steering Committee for the fifty-one member cities ATM who are working together to respond to TXU's rate request met by conference call on Thursday, August 28, 2003. Based upon the recommendation of counsel, the Steering Committee recommended that TXU's rate request be dismissed unless its Statement of Intent is amended within seven days of the effective date of the dismissal to exclude increases for TXU Lone Star Pipeline. TXU Gas Company consists of two public utilities: TXU Gas Distribution and TXU Lone Star Pipeline. TXU Gas Distribution provides service within the City of Denton and TXU Lone Star Pipeline is a gas storage and pipeline utility which operates outside the City. The City of Denton only has jurisdiction to set rates for the local distribution company. The City has no authority to increase distribution rates by flowing through increases for TXU Lone Star Pipeline. In the Statement of Intent filed by TXU on May 23, 2003 the Company sought to include increases for TXU Lone Star Pipeline in its distribution rates. In the opinion of ATM's legal counsel, adoption of such rates is beyond the authority of the local regulatory authority, the City of Denton. This ordinance gives TXU an opportunity to amend its Statement of Intent within seven days to remove the increases for TXU Lone Star Pipeline from its proposed distribution rates and tariffs. Failure to amend its Statement of Intent will result in the dismissal of TXU's request for any increase in rates. In the unlikely event that a court disagrees with us and holds that the City has jurisdiction of the TXU Lone Star Pipeline Rate Request, the ordinance will be considered a denial of TXU rate request. Additional information on this item is included in the Legal Department' s status report. OPTIONS: The City Council can approve the Ordinance for the dismissal of TXU Gas Company's requested increase in rates in the event the Company fails to amend its Statement of Intent to remove increases for pipeline services from its requested distribution rates. The City Council can choose not to enact the Ordinance. S: Our Document s 'vliscellm~eous 03 als TXU Rate Request091603 DOC Agenda Information Sheet September 16, 2003 Page 2 RECOMMENDATION: Staff recommends that the City Council chooses Option 1 and pass the Ordinance. FISCAL IMPACT: The passage of this ordinance will delay the implementation of a substantial increase in the TXU gas rates which would otherwise have a negative fiscal impact on all Denton ratepayers. Respectfully submitted, Herb Prouty, City Attorney ' Page 2 S: Our Docum~lt s Miscellanemls 03 als IXU Rate Request091603 DOC ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS PROVIDING FOR THE DISMISSAL OF TXU GAS COMPANY'S REQUESTED INCREASE IN RATES IN THE EVENT THE COMPANY FAILS TO AMEND ITS STATEMENT OF INTENT TO REMOVE INCREASES FOR PIPELINE SERVICES FROM ITS REQUESTED DISTRIBUTION RATES; AND PROVIDING FOR AN EFFECTIVE DATE WHEREAS, on or about May 23, 2003, TXU Gas Company ("TXU") filed with the City of Denton, ("City") a Statement of Intent to Increase Rates; and WHEREAS, prior to June 27, 2003, the City adopted a resolution suspending the effective date of the tariffs filed with the City for ninety days from the originally scheduled effective date in order to permit the City to properly review the TXU Statement of Intent; to join a coalition of other Texas cities known as the Alliance of TXU Municipalities ("ATM"); to employ lawyers to represent the City with regard to the Statements of Intent filed at the City and at the Railroad Commission of Texas; to authorize the steering committee of ATM to provide direction and guidance to the lawyers who are representing said cities; and to employ such rate experts as are necessary as recommended by the steering committee for ATM; and WHEREAS, as a result of such review, the City has determined that the increase in distribution rates requested by TXU includes increases in charges or rates for pipeline transmission, transportation and delivery of gas outside the territorial limits of the City; and WHEREAS, the City has no authority to set rates in which increases for pipeline services outside the City are included within the requested increases for distribution rates. NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings set out in the preambles to this Ordinance are hereby in all things approved and adopted. SECTION 2. The City has no authority to set rates in response to the Statement of Intent in light of the fact that the City has no jurisdiction over the bundled distribution/pipeline rates requested by TXU. SECTION 3. TXU will be given seven (7) days from the effective date of this ordinance - September 23, 2003 - to amend its Statement of Intent to remove all requested increases for TXU Lone Star Pipeline or for pipeline services located outside the City from its requested increases in distribution rates. SECTION 4. In the event TXU fails to amend its Statement of Intent to conform to Section 3, then TXU's requested increase in rates is in all respects is dismissed. In the event a court should hold that the City had jurisdiction over the bundled distribution/pipeline rates requested by TXU, this ordinance shall be considered a denial of TXU's Statement of Intent to Increase Rates. SECTION 5. If any term, condition, or section of this Ordinance or the application thereof to any person or circumstance shall, to any extent, be held to be invalid, unenforceable, or unconstitutional, the remainder hereof and the application of such term, condition, or section to persons or circumstances other than those as to whom it shall be held to be invalid, unenforceable, or unconstitutional shall not be affected thereby, and this Ordinance and all the terms, conditions, and sections hereof, shall, in all respects, continue to be effective and to be complied with. It is the intent of the City in adopting this Ordinance that no portion or provision thereof shall become inoperative or fail by reason of any invalidity, unenforceability, or unconstitutionality of any other portion or provision, and to this end all provisions of this Ordinance are declared to be severable. SECTION 6. This Ordinance is cumulative of all other requirements under state law. SECTION 7. Notice of this ordinance shall be faxed and mailed to Mr. Autry Warren, TXU Business Services, Director Gas Regulatory, 1601 Bryan Street, Dallas, Texas 75201-3411 on the date of the adoption of this ordinance. SECTION 8. This ordinance shall be effective as of the date of its adoption. PASSED AND APPROVED this the __ day of _, 2003. MARK BURROUGHS, MAYOR PRO TEM ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: Page 2 AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: ACM: September 16, 2003 Economic Development Mike Conduff, City Manager SUBJECT Consider nominations/appointments to the Economic Development Partnership Board. BACKGROUND The Economic Development Partnership (EDP) Board was created by ordinance at the August 19, 2003, City Council Meeting. The Council appointed Council members Montgomery and Kamp and Denton Chamber Board member Dale Kimble to the nominating committee. The nominating committee was charged with accepting nominations, contacting individuals to determine willingness to serve, and bringing a slate of EDP Board members to the City Council for consideration. For this original Board, four members will serve one-year terms; three will serve two- year terms. Thereafter, four members will be appointed for two-year terms in the even numbered years and three members will be appointed for two-year terms in the odd numbered years. ESTIMATED SCHEDULE OF PROJECT If appointed at this meeting, the Board would begin meeting in October 2003. PRIOR ACTION/REVIEW City Council established the board and appointed the nominating committee at the August 19, 2003, meeting. FISCAL INFORMATION N/A Respectfully submitted: Linda Ratliff, Director Economic Development Department AGENDA INFORMATION SHEET AGENDA DATE: DEPARTMENT: CM: September 16, 2003 City Manager's Office Mike Conduff, City Manager SUBJECT Consider appointing a voting delegate and an alternate voting delegate to the National League of Cities Annual Congress of Cities. BACKGROUND The National League of Cities Annual Business Meeting will be held on Saturday, December 13, 2003 at the Congress of Cities in Nashville, Tennessee. The City of Denton is entitled to cast two votes at the Annual Business Meeting and the delegate(s) must be present to vote. Consideration of the voting delegate and alternate voting delegate should include whether the individual is able to remain a day longer at the conference to participate in the business meeting. Respectfully submitted: Jennifer Walters City Secretary To strengthen and promote cities as centers of opportuni~ leadership, and governance. National League of Cities 1301 Pennsylvania Ave., N.W. Washington, DC 20004-1763 202-626-3000 Fax: 202-626-3043 www. nlc.org 2003 Officers President John DeStefano, Jr. Mayor, New Haven, Connecticut First Vice President Charles Lyons Selectman, Arlington, Massachusetts Second Vice President Anthony A. Williams Mayor, Washington, DC Immediate Past President Karen Anderson Mayor, Minnetonka, Minnesota Executive Director Donald J. Borut RecycledPaper August 22, 2003 MEMORANDUM TO: FROM: SUBJECT: City Clerks of Direct Member Cites//~, /'/11 Donald J. Borut, Executive DirectOr(/' u Congress of Cities Voting and Alternate Voting Delegates The National League of Cities' Annual Business Meeting will be held on Saturday, December 13, 2003, at the Congress of Cities in Nashville, Tennessee. As a direct member city, your elected officials are entitled to vote at the Annual Business Meeting. Based on the population of the city, each member city casts between one to twenty votes. The number of votes each city is allowed can be found on the table on the reverse side of this memorandum. To be eligible to cast a city's vote(s), each voting delegate and alternate must be officially designated by the city using the attached credentials form. This form will be forwarded to NLC's Credentials Committee. NLC Bylaws expressly prohibit voting by proxy. The voting delegate must pick up his/her voting credentials BEFORE the Annual Business Meeting and must be present at the Annual Business Meeting to cast the city's vote(s). Your city elected officials should be made aware of this request so that decisions can be made on who will be the voting delegate and altemate at the Annual Business Meeting. Before the Congress of Cities, NLC will be sending out a special edition of the Policy Informer summarizing the proposed National Municipal Policy amendments and resolutions that are to be voted on at the Annual Business Meeting. This information should be shared with your voting delegates. We ask that you return the completed form to NLC on or before October 14, 2003. Please follow the instructions on the card for filling out the form and make a copy for your own files. A pre-addressed envelope is attached for your convenience. If you have any questions or concerns, contact Keith Kirk at kirk~nlc.org or (202) 626-3176. Past Presidents: Clarence E. Anthony, Mayor, South Bay, Florida · William H, Hudnut, III, Vice Mayer, Town of Chew Chase, Ma,,land · Sharpe James, Mayor, Newark, New Jersey * Bob Knight. Mayor, Wichita, Kansas · Brian J. O'Neill, Councilman, Philadelphia, Pennsylvania * Cathy Re,folds, City Council President, Denver, Colorado * Directed: Brenda S. Bar.er, Mayor, Watertown, South Dakota · Roneld Bates. Councilmember, Los Alamitos, California · $e11¥ D. Baela, Mayor, Centarville, Ohio · Canred W. Bowers. Mayor, Bridgeton, Missouri · Rozelle Bm/d, Councillor, Indianapolis, Indiana · Michael S. Bueblhnrn, Mayor, Swanson, Illinois · Steve Bmkholdnr, Mayor, Lakewood, Colorado · Leo V. Chooey, Jr., Councilmember, Dallas, Texas · Ro~nr C. Cloor, Mayor, Boliegbrook, Illinois · Catherine F. Cooooll¥. Executive Director, League of Arizona Cities and Towns. Jim Deiley, Mayor, little Rock, Arkansas · Alex G. Feket~, Mayer, Pembroke Pines, Florida · C. Vir§ieie Fields, Manhattan Borough President, New York, New York* carolyn L Royd. Mayor, Kodiak, Alaska · Del Hang, Council Member, Buffalo, Minnesota · · Scott A. Hancock, Executive Director, Ma,,land Municipal League · $. Ellis Roakiaa, Executive Oirector, North Carolina League of Municipalities · George R. Hmvell, Jr., Mayor, Millington, Tennessee · Charles Jennie,s. Commissioner, Arkansas City, Kansas. Wille Jo#anon, Councilwoman, Oklahoma City, Oklahoma · Helen Kawagnn. City Clerk, Carson, California ·Mmsie E. Locke, Mayor, Hampton, Virginia · chdstop#ar G. Lockwood. Executive Director, Maine Municipal Association · Cynthia M¢CoROm, Council Member, Madison, Alabama · Don Mol~r, Executive Director, League of Kansas Municipalities · Carlton Moore, Commissioner, Fort Lauderdale, Florida · Nooc¥ Nathoooon. Councilmember, Eugene, Oregon · Kathleoo M. NovelC Mayor, Northglenn, Colorado · Brenda Alliaon Olives, Mayor, Syiva, North Carolina · Alex Peaille, City Council President, Los Angeles, Califnmia· GesrOe Pedro. Executive Director. Wyoming Association of Municipalities · T. J. Patlnmoo. Council Member, Lubbock, Texas ·Alioia D. Ping, Mayor Pro Tern, Saline, Michigan ·Mndn Lopnz Rogers, Vice Mayor, Avondale, Arizona · A~n $imsak, Council Member, Oklahoma City, Oklahoma · Jvenin Smith. Executive Director. Mississippi Municipal League · Daniel $oza. Council Member, Saginaw, Michigan · Don Thompson, Executive Director, League of Wisconsin Municipalities · Vnra White-Ro~molds, Council Member, Harrisburg, Pennsylvania · Billy D. Williams. Councilman, Florence, South Carolina NATIONAL LEAGUE OF CITIES 2003 CONGRESS OF CITIES NASHVILLE, TENNESSEE Number of Votes - Annual Business Meeting Direct Member Cities Article IV, Section 2 of NLC's Bylaws specifics the number of votes that each direct member city of the National League of Cities is entitled to cast at the Annual Business Meeting at the Congress of Cities. All member cities are required by the Bylaws to cast unanimous votes. CITY POPULATION (per 2000 Census) NUMBER OF VOTES Under 50,000 1 vote 50,000 - 99,999 2 votes 100,000 - 199,999 4 votes 200,000 - 299,999 6 votes 300,000 - 399,999 8 votes 400,000 - 499,999 10 votes 500,000 - 599,999 12 votes 600,000 - 699,999 14 votes 700,000 - 799,999 16 votes 800,000 - 899,999 18 votes 900,000 and above 20 votes