HomeMy WebLinkAbout2021-01-26 Agenda and BackupCity Council
City of Denton
Meeting Agenda
City Hall
215 E. McKinney St.
Denton, Texas 76201
www.cityofdenton.com
Council Work Session Room2:00 PMTuesday, January 26, 2021
Special Called Meeting
WORK SESSION BEGINS AT 2:00 P.M. IN THE COUNCIL WORK SESSION ROOM
CITY COUNCIL CONSIDERATION OF THE CONSENT AGENDA AND ITEMS FOR
INDIVIDUAL CONSIDERATION WILL BEGIN IMMEDIATELY FOLLOWING THE WORK
SESSION IN THE COUNCIL WORK SESSION ROOM
Note: Mayor Gerard Hudspeth and Council Members Birdia Johnson, Connie Baker, Jesse Davis, John
Ryan, Deb Armintor and Paul Meltzer will be participating in the work session, closed meeting and the meeting
via video/teleconference.
REGISTRATION GUIDELINES FOR ADDRESSING THE CITY COUNCIL
Due to COVID-19 precautions, members of the public will not be able to attend the January 26, 2021,
City Council meeting in-person. To accommodate and receive input on agenda items, citizens will be able
to participate in one of the following ways (NOTE: Other than public hearings, citizens are only able to
comment one time per agenda item; citizens cannot use both methods to comment on a single agenda item.
Public comments are not held for work session reports.):
• Virtual White Card – On January 22, the agenda was posted online at
www.cityofdenton.com/publicmeetings. Once the agenda is posted, a link to the Virtual White Card, an
online form, will be made available under the main heading on the webpage. Within this form, citizens may
indicate support or opposition and submit a brief comment about a specific agenda item. Comments may
be submitted up until the start of the meeting, at which time, the Virtual White Card form will be closed.
Similar to when a citizen submits a white card to indicate their position on the item, these comment forms
will be sent directly to City Council members and recorded by the City Secretary.
City Council Members review comments received in advance of the meeting and take that public input into
consideration prior to voting on an agenda item. The Mayor will announce the number of Comment Cards
submitted in support or opposition to an item during the public comment period. Comments will not be
read during the meeting. The City Secretary will reflect the number of comments submitted in
favor/opposition to an item, the registrant’s name, address, and (summary of) comments within the Minutes
of the Meeting, as applicable.
OR
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January 26, 2021City Council Meeting Agenda
• By phone – Citizens wishing to speak over the phone during this Council meeting, may call (940)
349-7800 beginning 30 minutes prior to the meeting start time. Comments by phone will be accepted until
the item is opened for discussion by the Council. When the call is initially received, a staff member will
receive the caller’s information and either: 1) offer to call the citizen back when it is time for them to speak,
or 2) record the caller’s information, support or opposition, and comment. If the caller chooses to record
their support or opposition, rather than speaking during the meeting, the Mayor will announce the number
of comments submitted in support or opposition to the item. If the caller wishes to receive a call back, the
voice of each caller will be broadcast into the meeting during the public commenting time of their desired
agenda item. Individuals will be able to comment once per agenda item, no matter the method.
• At regular meetings only, citizens can speak on any topic that is not on the agenda (Open Microphone).
Alert the call taker if you wish to speak under the Open Microphone category. If you would like to give a
public report, see the information below.
After determining that a quorum is present, the City Council of the City of Denton, Texas will convene in a
Work Session on Tuesday, January 26, 2021, at 2:00 p.m. in the Council Work Session Room at City Hall,
215 E. McKinney Street, Denton, Texas at which the following items will be considered:
WORK SESSION
1. Citizen Comments on Consent Agenda Items
This section of the agenda allows citizens to speak on any item listed on the Consent Agenda prior to its
consideration. Each speaker will be given a total of three (3) minutes to address any item(s). Any person
who wishes to address the City Council regarding these items may do so by utilizing the "By Phone"
registration process as referenced under the REGISTRATION GUIDELINES FOR ADDRESSING THE
CITY COUNCIL detailed at the beginning of this agenda. Registration is required prior to the time the City
Council considers this item. Registrants may call in and remain on hold or receive a call back at the time the
Work Session is called to Order and are encouraged to ensure they remain accessible to accept the call.
2. Requests for clarification of agenda items listed on this agenda.
3. Work Session Reports
Receive a report, hold a discussion, and give staff direction regarding an update to the
City of Denton’s COVID-19 response.
ID 20-2117A.
Receive a report, hold a discussion, and give staff direction on the City’s Extraterritorial
Jurisdiction (ETJ) and possible updates to the Interlocal Agreement with Denton County.
ID 20-1668B.
Receive a report, hold a discussion, and give staff direction regarding the May 1, 2021
General Election, and any runoff election if applicable, including locations, dates, and
times.
ID 20-2399C.
Receive a report, hold a discussion, and give staff direction regarding a proposed plan for
the annual City Council retreat.
ID 21-122D.
Following the completion of the Work Session, the City Council will convene in a Closed Meeting to consider
specific item(s) when these items are listed below under the Closed Meeting section of this agenda. The City
Council reserves the right to adjourn into a Closed Meeting on any item on its Open Meeting agenda consistent
with Chapter 551 of the Texas Government Code, as amended, or as otherwise allowed by law.
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January 26, 2021City Council Meeting Agenda
1. Closed Meeting:
Deliberations regarding Real Property - Under Texas Government Code, Section
551.072; and Consultation with Attorneys Under Texas Government Code, Section
551.071.
Receive information from staff, discuss, deliberate, and provide staff with direction
pertaining to the potential disposal, exchange, sale, or acquisition of certain real property
interests located in the David Hough Survey, Abstract Number 646, generally located in
the 2100 block of South Mayhill Road, in the City of Denton, Denton County, Texas.
Consultation with the City's attorneys regarding legal issues associated with the potential
disposal, exchange, sale, or acquisition involving the real property described above where
a public discussion of these legal matters would conflict with the duty of the City's
attorneys to the City of Denton and the Denton City Council under the Texas Disciplinary
Rules of Professional Conduct of the State Bar of Texas, or would jeopardize the City’s
legal position in any negotiation, administrative proceeding, or potential litigation.
ID 21-006A.
Deliberations regarding Personnel Matters - Under Texas Government Code Section
551.074.
Deliberate and discuss the evaluation, duties, discipline, dismissal, compensation, and/or
contract of the Municipal Judge.
ID 21-108B.
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
decision, or vote is taken in the Closed Meeting in accordance with the provisions of Section 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 Texas Government Code, Section 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 Sections 551.071-551.086 of the Texas Open Meetings Act.
NOTE: Any item for which a formal action at the Special Called Meeting has been taken by Council
may be subject to a request for a motion for reconsideration at any time during the meeting, at the
Concluding Items Section, or after the meeting. In order to comply with the Texas Open Meetings
Act, a request for a motion for reconsideration made during, at the end of, or after a Council meeting
will be placed on the agenda and considered at the next official meeting of the City Council.
Following the completion of the Closed Meeting, the City Council will convene in a Special Called Meeting to
consider the following items:
1. CONSENT AGENDA
Each of these items is recommended by Staff and approval thereof will be strictly on the basis of the Staff
recommendations. Approval of the Consent Agenda authorizes the City Manager or his designee to
implement each item in accordance with the Staff recommendations. The City Council has received
background information and has had an opportunity to raise questions regarding these items prior to
consideration.
Listed below are bids, purchase orders, contracts, and other items to be approved under the Consent
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January 26, 2021City Council Meeting Agenda
Agenda (Agenda Items A – G). This listing is provided on the Consent Agenda to allow Council Members
to discuss or withdraw an item prior to approval of the Consent Agenda. If no items are pulled, the Consent
Agenda Items will be approved with one motion. If items are pulled for separate discussion, they may be
considered as the first items following approval of the Consent Agenda.
Consider approval of the minutes of January 4, January 5, and January 12, 2021.ID 21-101A.
Consider adoption of an ordinance of the City of Denton releasing, abandoning, and
vacating a 715.20 square foot Electric Utility Easement granted to the City of Denton by
James H. Jones, H.M. Burgess, Billy R. Jones, and J. Dan Harvey, recorded as
Instrument No. 1978-2348 in the Deed Records of Denton County, Texas; providing for
severability and an effective date. (Park 7 Addition, electric easement abandonment -
Mark Laird)
ID 21-009B.
Consider adoption of an ordinance approving an encroachment on easement agreement
between the City of Denton and the Oncor Electric Delivery Company, LLC, relating to
the construction, operation, and maintenance of public facilities (“Taylor Park Boulevard”
crossing including a ten (10) foot wide sidewalk crossing, four (4) by two (2) foot RCB
crossing, twenty-one (21) inch RCP crossing, eighteen (18) inch RCP crossing, eight (8)
inch waterline crossing, eight (8) inch sanitary sewer crossing, and a Denton Municipal
Electric line bore crossing) within Oncor’s Easement; authorizing the City Manager to
execute the agreement; authorizing the expenditure of funds; and providing an effective
date. “Cambridge Brook Oncor Encroachment Agreement - Mark Laird”
ID 21-011C.
Consider adoption of an ordinance of the City of Denton, a Texas home-rule municipal
corporation, authorizing the City Manager, or his designee, to execute an Interlocal
Cooperative Purchasing Agreement with the City of Midlothian, under the Texas
Government Code, Section 791.001, to authorize City of Denton contracts for the
purchase of various goods and services; authorizing the expenditure of funds therefor; and
declaring an effective date (File 7590 - award an Interlocal Cooperative Purchasing
Agreement with the City of Midlothian).
ID 21-091D.
Consider adoption of an ordinance of the City of Denton authorizing the City Manager, or
his designee, to accept the TSLAC CARES Grant Program-Cycle 2 (Grant
CAR2-21007) for State Fiscal Year 2021 (Federal Award Identification
#LS-246561-OLS-20) from the Texas State Library and Archives Commission through
the Institute of Museum and Library Services, in the amount of $20,929.00, for the period
of April 1, 2020, through August 31, 2021; authorizing the City Manager to carry out all
duties of the City pursuant to the grant; providing a savings clause; and providing an
effective date.
ID 21-092E.
Consider approval of a resolution of the City Council of the City of Denton revising the
City’s Cash Disbursements policy; and providing an effective date.
ID 21-119F.
Consider adoption of an ordinance approving a Settlement Agreement and Release
implementing the terms of the settlement in litigation styled “Stonetown Country View,
LLC v. City of Denton, Texas and Board of Adjustment for City of Denton, Texas,”
Cause No. 19-10653-442, pending in the 442nd Judicial District Court, Denton County,
ID 21-141G.
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January 26, 2021City Council Meeting Agenda
Texas, as discussed in closed session; and directing the City Manager, or his designee,
and the City’s attorneys to effectuate as necessary and appropriate the terms of a
Settlement Agreement and Release to effectuate this approval; and declaring an effective
date.
2. ITEMS FOR INDIVIDUAL CONSIDERATION
Consider adoption of an ordinance adopted concurrently with the cities of Garland,
Greenville, Bryan and Denton, approving the execution by the Texas Municipal Power
Agency (“Agency”) of an asset purchase agreement for the sale of the Agency’s Gibbons
Creek Steam Electric Station and related assets in Grimes County, Texas; approving an
associated generation budget amendment; and providing an effective date.
ID 20-2507A.
Consider nominations and appointments to the Downtown Denton Tax Increment
Financing Reinvestment Zone No. One Board (Downtown TIRZ), including appointment
of a Board Chair.
ID 20-1898B.
Consider nominations/appointments to the City’s Economic Development Partnership
Board.
ID 20-2550C.
Consider nominations/appointments to the City’s Boards, Commissions, and Committees:
Airport Advisory Board, Animal Shelter Advisory Committee, Board of Ethics,
Committee on Persons with Disabilities, Community Development Advisory Committee,
Health & Building Standards Commission, Human Services Advisory Committee, Library
Board, Parks, Recreation & Beautification Board, Planning & Zoning Commission, Public
Art Committee, Public Utilities Board, Traffic Safety Commission, and Zoning Board of
Adjustment.
ID 21-029D.
3. CONCLUDING ITEMS
A. Under Section 551.042 of the Texas Open Meetings Act, respond to inquiries from the City Council
or the public with specific factual information or recitation of policy, or accept a proposal to place the
matter on the agenda for an upcoming meeting AND Under Section 551.0415 of the Texas Open
Meetings Act, provide reports about items of community interest regarding which no action will be taken,
to include: expressions of thanks, congratulations, or condolence; information regarding holiday schedules;
an honorary or salutary recognition of a public official, public employee, or other citizen; a reminder about
an upcoming event organized or sponsored by the governing body; information regarding a social,
ceremonial, or community event organized or sponsored by an entity other than the governing body that
was attended or is scheduled to be attended by a member of the governing body or an official or employee
of the municipality; or an announcement involving an imminent threat to the public health and safety of
people in the municipality that has arisen after the posting of the agenda.
B. Possible Continuation of Closed Meeting topics, above posted.
C E R T I F I C A T E
I certify that the above notice of meeting was posted on the bulletin board at the City Hall of the City of
Denton, Texas, on the 23rd day of January, 2021 at 11:45 a.m.
__________________________________________
CITY SECRETARY
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January 26, 2021City Council Meeting Agenda
NOTE: THE CITY OF DENTON'S DESIGNATED PUBLIC MEETING FACILITIES ARE
ACCESSIBLE IN ACCORDANCE WITH THE AMERICANS WITH DISABILITIES ACT. THE CITY
WILL PROVIDE ACCOMMODATION, SUCH AS 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 940-349-8309 OR
USE TELECOMMUNICATIONS DEVICES FOR THE DEAF (TDD) BY CALLING 1-800-RELAY-TX
SO THAT REASONABLE ACCOMMODATION CAN BE ARRANGED.
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City of Denton
Legislation Text
City Hall
215 E. McKinney St.
Denton, Texas 76201
www.cityofdenton.com
File #:ID 20-2117,Version:1
AGENDA CAPTION
Receive a report,hold a discussion,and give staff direction regarding an update to the City of Denton’s COVID
-19 response.
City of Denton Printed on 1/22/2021Page 1 of 1
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City of Denton
_____________________________________________________________________________________
AGENDA INFORMATION SHEET
DEPARTMENT: City Manager’s Office
CM/ DCM/ ACM: Todd Hileman
DATE: Jan. 26, 2021
SUBJECT
Receive a report, hold a discussion, and give staff direction regarding an update to the City of Denton’s
COVID-19 response.
BACKGROUND
Beginning in December 2019, a novel coronavirus, now designated SARS-CoV2 which causes the disease
COVID-19, has spread throughout the world and has been declared a global pandemic by the World
Health Organization. Likewise, both the President of the United States and the Governor of Texas have
declared states of emergency regarding the disease.
This work session report will provide an update on the City of Denton COVID-19 response. Prior reports
and presentations were also presented to City Council on March 17, March 20, March 31, April 6, April
21, April 30, May 5, May 12, May 19, May 29, June 9, June 16, June 23, June 30, July 21, August 4,
August 18, August 25, Sept. 15, Oct. 13, and Dec. 1.
On Dec. 17, 2020, City Council extended the Declaration of Disaster through March 31, 2021 and
approved an Eleventh Order of Council through March 31, 2021 by Ordinance No. 20-2467.
PRIOR ACTION/REVIEW (Council, Boards, Commissions)
Dec. 17 – Council extended the Declaration of Disaster and Approved an Eleventh Order (Ordinance #20-
2467)
Sept. 22 - Council extended the Declaration of Disaster and Approved a Tenth Order (Ordinance #20-
1845)
August 25 – Council approved a New Ninth Order (Ordinance #20-1597)
July 28 – Council approved a New Eighth Order (Ordinance #20-1423)
June 30 – On June 26, Council approved a New Seventh Order (Ordinance #20-1255)
June 23 – Council extended the Declaration of Disaster (Ordinance #20-1199)
May 29 – Council extended the Declaration of Disaster and Approved a New Order
May 5 – Council approved a New Order
April 30 – Council extended the Declaration of Disaster and Approved a New Order
April 6 – Council approved a new Declaration of Disaster and Order
March 31 – Council postponed item for consideration on Second Mayoral Declaration of Disaster and
Order
March 24 – Second Mayoral Declaration of Disaster and Order
March 20 – Adoption of Ordinance 20-740 Amending Council Declaration of Local Disaster and Order
March 17 – Adoption of Ordinance 20-720 Extending and Modifying Mayoral Declaration
City Hall
215 E. McKinney Street
Denton, Texas
www.cityofdenton.com
8
March 13 – Mayoral Declaration of Local Disaster and Order
EXHIBITS
Exhibit 1 – Agenda Information Sheet
Exhibit 2 – Presentation
Respectfully submitted:
Sarah Kuechler
Chief of Staff
9
Work SessionUpdate on COVID-19 ResponseJan. 26, 20211ID#20‐2117, Jan. 26, 202110
Background2•Staff provided updates on the City’s response to COVID-19 during 21 prior work sessions •March 17, March 20, March 31, April 6, April 21, April 30, May 5, May 12, May 19, May 29, June 9, June 16, June 23, June 26, June 30, July 21, August 4, August 18, August 25, Sept. 15, Oct. 13, and Dec. 1•Local Disaster Declaration and Order for Public Health Emergency in effect through March 31, 2021•Council extended the disaster declaration and approved an 11thOrder on Dec. 17, 2020 (Ordinance #20-2467)ID#20‐2117, Jan. 26, 202111
Overview of Updates1. Intergovernmental Updates•Denton County Public Health2. Business Assistance Overview3. Eviction Prevention Assistance3ID#20‐2117, Jan. 26, 202112
1. Intergovernmental Updates4ID#20‐2117, Jan. 26, 202113
Denton County Public Health•Dr. Matt Richardson with DCPH plans to join at 2 p.m. to provide a brief situational update•Resources:•For info on DCPH’s COVID-19 vaccination clinics and Vaccine Interest Portal, visit DentonCounty.gov/COVID19vaccine•For local COVID info, visit DentonCounty.gov/COVID19•For interactive maps, charts, and data, visit DentonCounty.gov/COVIDstats•For DCPH COVID-19 drive-thru testing centers, visit DentonCounty.gov/COVID19testing•For info on the COVID-19 vaccine and weekly allocations from DSHS, visit https://dshs.texas.gov/coronavirus/immunize/vaccine.aspx5ID#20‐2117, Jan. 26, 202114
2. Business Assistance Overview6ID#20‐2117, Jan. 26, 202115
Overview of New Stimulus Bill •Updated Paycheck Protection Program (PPP)•Modified eligibility for initial PPP loans •Created second draw for small businesses that have exhausted first PPP loan•Streamlined loan forgiveness process•Clarified tax treatment of PPP loans•Continued Economic Injury Disaster Loan (EIDL) Program (grant)•Expanded the Employee Retention Tax Credit•Added Shuttered Venue Operator Grants•Continued SBA Loan Debt Forgiveness7ID#20‐2117, Jan. 26, 202116
Key PPP Updates•Expanded list of qualifying expenses (what funds can be used for).•No more than 40% of loan can be used on non-payroll expenses (stayed the same).•Loan forgiveness period is now chosen by borrower (8 to 24 weeks after initiation).•Simplified application for loan forgiveness for loans under $150,000.•Created first draw and second draw paths.•First draw can now include 501(c)6 organizations.•Second draw possible if you exhausted your first PPP loan and meet other eligibility criteria.•This is not a comprehensive list of the changes. Visit sba.gov/coronavirus to learn more.8ID#20‐2117, Jan. 26, 202117
Shuttered Venue Operator Grants•$15 billion allocated for eligible live venue operators or promoters, theatrical producers, live performing arts organization operators, museum operators, motion picture theater operators, or talent representatives that experienced at least a 25% drop in revenue.•Grants are equal to $10 million or 45% of gross earned revenue in 2019.•Grants must be used for specified expenses such as payroll costs, rent, utilities, and personal protective equipment.•Must have been in operation as of Feb. 29, 2020•Venue or promoter must not have received a PPP loan on or after Dec. 27, 2020.•SBA is currently setting up the grant program and is not yet accepting applications. •Applications will be processed under a priority schedule posted on the SBA’s website. 9ID#20‐2117, Jan. 26, 202118
Pandemic Unemployment Assistance•Continued change in unemployment assistance eligibility.•Individuals who do not regularly qualify for unemployment insurance may qualify for PUA. •Changed additional weekly benefit to Federal Pandemic Unemployment Compensation.•Reduced to $300/week.•All unemployment benefits are administered by the Texas Workforce Commission. 10ID#20‐2117, Jan. 26, 202119
3. Eviction Prevention Assistance11ID#20‐2117, Jan. 26, 202120
12Program Expected StartTotal for General Eviction Prevention (Denton County)*Program ParametersUWDC CRF Program (expired)3/23/2020 ‐ 12/31/2020 $6,559,030•Any income, but must show loss of income due to COVID•3 months max. assistance•Rent/Utilities/Mortgage•Cannot receive assistance from another source for same month“Bridge” Extension of UWDC CRF Program 12/29/2020 ‐ 1/22/2021 $771,536 •Same program parameters continuedESG‐CV112/17/2020 (current) $398,900•50% Area Median Income or below•3 months max. assistance•Rent/Utilities•Cannot receive assistance from another source for same monthUWDC Program from the Consolidated Appropriations Act, 202102/01/2021 $20.3 Million•80% Area Median Income or below•Limit to the number of months will be reset for households receiving previous assistance through CRF program•6 months max. assistance•Rent/Utilities•Cannot receive assistance from another source for same monthTERAP(cities of Denton and Lewisville)February 2021$271,421 ($149,955 for Denton)•80% Area Median Income or below•6 months max. assistance•Rent only •Cannot receive assistance from another source for same monthESG‐CV2(UWDC)March 2021 $2,549,174•50% Area Median Income or below•3 months max. assistance•Rent/Utilities•Cannot receive assistance from another source for same monthEviction Prevention Assistance*Figures shown represent the total amount of rent/utility assistance available. Additional funding for staffing and administration of programs is not shown.21
13•City staff will continue to share and promote assistance available•Will share information from UWDC when available22
Questions?14ID#20‐2117, Jan. 26, 202123
City of Denton
Legislation Text
City Hall
215 E. McKinney St.
Denton, Texas 76201
www.cityofdenton.com
File #:ID 20-1668,Version:1
AGENDA CAPTION
Receive a report,hold a discussion,and give staff direction on the City’s Extraterritorial Jurisdiction (ETJ)and
possible updates to the Interlocal Agreement with Denton County.
City of Denton Printed on 1/22/2021Page 1 of 1
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City of Denton
_____________________________________________________________________________________
AGENDA INFORMATION SHEET
DEPARTMENT: Department of Development Services
DCM: Sara Hensley
DATE: January 26, 2021
SUBJECT
Receive a report, hold a discussion, and give staff direction on the City’s Extraterritorial Jurisdiction (ETJ)
and possible updates to the Interlocal Agreement with Denton County.
BACKGROUND
The Texas Legislature in 1963 created the concept of the ETJ “to promote and protect the general health,
safety, and welfare of persons residing in and adjacent to a municipality” by encouraging planning for
growth in the area outside the corporate boundaries. The establishment of an ETJ also prohibits another
municipality annexing land into another municipality’s ETJ and allows a municipality to enforce their
subdivision/platting regulations and related infrastructure standards within their ETJ. The intent was to
ensure that a municipality would not assume responsibility for substandard infrastructure upon annexation.
Under Chapter 212 of the Texas Local Government Code, the City is authorized to adopt regulations
governing plats/subdivisions not only within the municipal boundaries, but also within its ETJ. Under
Chapter 242 of the Texas Local Government Code, cities and counties must enter into an Interlocal
Agreement (ILA) granting review and approval authority of subdivisions in the ETJ to allow for clarity of
process to the individual applicant/developer. The City of Denton and Denton County established an ILA
for this purpose in 2003; approximately 18 years ago.
Statutorily, the City of Denton’s ETJ extends 5 miles from the municipal boundary, however the ILA creates
two division within our ETJ:
• Division 1 which is generally 3.5 miles from the municipal
boundary and includes the area that the also known as the CCN
or Certificate of Convenience and Necessity. The CCN,
through the Public Utility Commission of Texas gives the City
the exclusive right to provide retail water and sewer utility
service to an identified geographic area. Within Division 1 the
City has authority to regulate subdivision/platting as well as
other limited provisions of the Denton Development Code,
including floodplain standards and some provisions of the
Municipal Airport Overlay District.
• Division 2 extends approximately 3.5 to 5 miles corporate limits
of the City and is split into two divisions, referred to as Division
1 and Division 2, for regulatory purposes. Within Division 2,
Denton County maintains platting and permitting authority.
City Hall
215 E. McKinney Street
Denton, Texas
www.cityofdenton.com
25
CONSIDERATIONS
Recent legislative changes have eroded the City’s authority to manage growth in our ETJ due to continued
changes to the annexation laws. These statutory changes combined with the ILA from 2003 have created
challenges for both city and county staff in enforcing the city’s platting/subdivision regulations in the ETJ.
As further detailed in the presentation provided as Exhibit 2, Staff is seeking policy direction from City
Council on the following:
1. Regulating plats in the ETJ
2. Establishing platting and roadway standards in the ILA
3. Lake Ray Roberts Planning Area
4. Permitting culverts in the ETJ
5. Enforcing tree preservation/mitigation in the ETJ
6. Establishing a Council policy for requests to exchange ETJ areas with adjacent municipalities
7. Direction on the City of Pilot Point’s request for a portion of ETJ Division 2
8. Expansion of ETJ Division1 to the northeast, near Lake Ray Roberts
PRIOR ACTION
Date Council, Board, Commission Request Action
1993 City Council Ordinance 1993–
033 DDC
Amendment
Amended DDC to establish a
Div. 1 and Div. 2 consistent
with the City’s CCN for water
and sewer and establish
procedure to extend area when
the CCN extends.
1994 City Council Ordinance 1994–
039 DDC
Amendment
Extended Div. 1 to include
extended area of CCN.
1994 City Council Ordinance 1994-
122 DDC
Amendment
Extended Div. 1 to include
extended area of CCN.
2003 City Council Ordinance 2003-
388 Interlocal
Agreement
Interlocal Agreement
established City and the
County’s regulatory
jurisdictions within the ETJ
2017 City Council Ordinance 2017-
071 DDC
Amendment
Created Periphery
Development Annexation
section in the DDC.
EXHIBITS
1. Agenda Information Sheet
2. Presentation
3. Existing Interlocal Agreement
Respectfully submitted:
Richard D. Cannone, AICP
Deputy Director/Planning Director
26
Da
City of Denton
Extra-Territorial
Jurisdiction (ETJ)
1
City Council Work Session
January 26, 2021
1
27
Overview –Extraterritorial Jurisdiction ETJ
Regulatory Framework
Regulatory Documents (City)
Development Application Types
Purpose of ETJ
Authority regulate development in the ETJ
Legislative History (City)
Interlocal Agreement (ILA) with Denton County
Legislative Changes (State)
Current Challenges –ILA and Non-ILA
Policy Direction
Next Steps
01/26/2021 Agenda ID 20-1668 2
28
Regulatory Framework
State of Texas
Texas Local Government Code (TXLGC)
•CH 42 -Extraterritorial Jurisdiction of Municipalities
•CH 43 -Municipal Annexation
•CH 211 -Municipal Zoning Authority
•CH 212 -Municipal Regulation of Subdivisions and
Property Development
•CH 213 -Municipal Comprehensive Plans
•CH 242 -Authority of Municipality and County to
Regulate Subdivisions in and Outside Municipality's
Extraterritorial Jurisdiction
Texas Agricultural Code
•CH 251 -Effect of Nuisance Actions and Governmental
Requirements on Preexisting Agricultural Operations
City of Denton
•Comprehensive Plan (Denton 2030) –
Establishes broad goals and policies
•Denton Development Code –Implements
those policies through development
Denton County
Lake Ray Roberts Zoning
City of Denton & Denton County
•Interlocal Agreement
01/26/2021 Agenda ID 20-1668 3
29
Regulatory Documents (City)
Agenda ID 20-166801/26/2021 4
Building
Codes
Platting (Subdivision)
Regulations
[DDC & Manuals]
Zoning & Development
Standards [DDC]
Comprehensive Plan
Comprehensive Plan
•Establishes goals and policies -physical design and
inter-relationship of land use, infrastructure, housing,
and community facilities.
Zoning & Development Standards
•Regulates use, lot size, setbacks, heights, design, and
landscaping.
Platting (Subdivision) Regulations and Manuals
•Regulates street and lot layout, infrastructure, etc.
Building Codes
•Regulates minimum construction standards; structural,
electrical, mechanical, and plumbing.
30
Major Development Application Types
Approving
Body
City Council
PZC Review/Recommendation
[HLC Review/Recommendation]
Planning &
Zoning
Commission
Zoning
Board of
Adjustment
Staff
Jurisdictional
Limits
Comp Plan
Map
Zoning Map Specific Use
Permit
AESA Platting Variance Site Plan
City
ETJ
Agenda ID 20-166801/26/2021 5
31
Platting (Residential Subdivision) Review
1.Preliminary Plat
•Phasing and lot configuration
•General layout of streets, lots, public utilities, easements
•Preliminary drainage calculations
2.Engineering Plans (Public Improvements)
•Full Drainage study
•Traffic Impact Analysis (TIA)
•Infrastructure engineering (streets, water, wastewater,
etc.)
3.Final Plat
4.Construction Agreements (3-Way Agreement)
•Performance Bond
•Maintenance Bond
5.Construction and Inspection of Public Improvements
6.Acceptance of dedications and Public Improvements
Agenda ID 20-166801/26/2021 6
Annexation Future
Land Use Zoning/Use
Platting Building
Permits
Platting
“Typical” Non-ETJ Process
ETJ Process
32
Purpose of Extraterritorial Jurisdiction (ETJ)
Purpose TXLGC Sec. 42.001.
The legislature declares it the policy of the state to designate certain areas as the extraterritorial
jurisdiction of municipalities to promote and protect the general health, safety, and welfare of
persons residing in and adjacent to the municipalities.
Extraterritorial Jurisdiction (ETJ) -42.021 TLGC
•3.5 miles if a municipality has 50,000 to 99,999 inhabitants; or
•5 miles if a municipality has 100,000 or more inhabitants.
Limits the geographic area in which a city may annex
Does the City’s ETJ ever expand? Yes
When a municipality annexes an area, the extraterritorial jurisdiction of the municipality
expands with the annexation to comprise, consistent with the municipalities population.
Can the ETJ be reduced? Yes
TXLGC Sec. 42.023. The extraterritorial jurisdiction of a municipality may not be reduced unless
the governing body of the municipality gives its written consent by ordinance or resolution,
exceptions.
01/26/2021 Agenda ID 20-1668 7
33
Authority to regulate in the ETJ
Platting (Subdivision) review TXLGC §212.003(a)
State law prohibits a city from regulating the following in the ETJ:
1.the use of a building or property for business, industrial, residential, or other purposes;
2.the bulk, height, or number of buildings constructed on a tract of land;
3.the size of a building that can be constructed on a tract of land;
4.the number of residential units that can be built per acre of land; and
5.the size, type, or method of construction of a water or wastewater facility that can be constructed to served
a developed tract in certain circumstances. [County with 2.8 million population]
Development Agreements TXLGC §212.172 (Non-Annexation Agreements)
•guarantee the continuation of the ETJ immunity from annexation;
•extend the municipality's planning authority over the land;
•authorize enforcement of certain municipal land use and development regulations in the same manner the
regulations are enforced within the municipality's boundaries; and
•authorize enforcement of land use and development regulations other than those that apply within the
municipality's boundaries, as may be agreed to by the landowner and the municipality;
01/26/2021 Agenda ID 20-1668 8
34
Legislative History (City)
Ordinance 1993-033
Amended DDC to establish a Div. 1 and Div. 2 consistent with the City’s CCN for
water and sewer and establish procedure to extend area when the CCN extends.
Ordinance 1994-039
Extended Div. 1 to include extended area of CCN.
Ordinance 1994-122
Extended Div. 1 to include extended area of CCN.
Ordinance 2003-388 [changes to TXLGC 242.001]
Interlocal Agreement -City and the County’s regulatory jurisdictions within the
ETJ.
Ordinance 2017-071
Periphery Development Annexation section in the DDC.
Agenda ID 20-166801/26/2021 9
Certificate of
Convenience and
Necessity (CCN)
Service Areas
35
Denton County Interlocal Cooperation Agreement -242.001 TLGC
•Established almost 18 years ago
•Two ETJ Divisions:▪Div. 1 –3.5 miles (City Platting Authority)▪Div. 2 –3.5 to 5 miles (County Platting Authority)
•Population around 94,000
•City’s subdivision standards/permitting govern in ETJ Div. 1
•Except if county standard is more stringent
•County to maintain roads
•County contends this does not apply to new roads (i.e. curb
and gutter)
•City to issue floodplain and culvert permits in ETJ Div. 1
Interlocal Cooperation Agreement
Agenda ID 20-166801/26/2021 10
36
Legislative Game Changers
Agenda ID 20-166801/26/2021 11
Topic Action Effect Issue(s)
Annexation
(HB 347) 2019
•Requires landowner or voter
approval of most annexations
by any city in Texas.
•Limits ability to annex.
•Cannot require annexation for
connection/extension of
water and sewer.
•Invalidated the city’s
peripheral development
ordinance.
•Repealed as part of 2019
DDC
•Proliferation of MUDs.
•Subdivision development in ETJ.
•Impact to roadway network and inability
to collect impact fees.
•Potential increase in calls for Police,
Fire/EMS.
37
Legislative Game Changers
Agenda ID 20-166801/26/2021 12
Topic Action Effect Issue(s)
Platting/Subdivision
“30-Day Shot Clock”
(HB 3167) 2019
•City MUST within 30 days after the
date the plat application is
submitted:
o Approve;
o Approve with conditions; or
o Disapprove
•To disapprove, City MUST:
o be directly related to the
requirements under this
TXLGC 212; and
o include a citation to the law,
including a statute or
municipal ordinance, that is
the basis for the conditional
approval or disapproval, if
applicable; and
o may not be arbitrary
•No waiver of 30-day requirement
•Origin of HB 3167
related to the actions of
a single city or a group
of cities…now state law.
•Increased PZC agenda
items taking denials of
plats.
•Inability for concurrent
review of applications,
extending the overall
process.
•Limits flexibility of staff
to work with applicant
to correct deficiencies.
•Can only deny a plat or Construction
engineering plans on specific
adopted standards.
•Not clear cut what applies in ETJ; a 5
lot subdivision and 150 lot
subdivision have the same roadway
standards.
38
Legislative Game Changers
Agenda ID 20-166801/26/2021 13
Topic Action Effect Issue(s)
Tree Preservation
(HB 7) 2017 Special Session
•Prohibited from requiring
that homeowners pay
mitigation fees for
removing trees that are
under 10” in diameter
(Over 10” they can apply
for a 100% offset).
•If mitigation fee is imposed,
“credit” to offset fee
provided for.
•50% Residential
•40% Nonresidential
•Codified in TXLGC 212 –
Subdivision.
•City rewrote Tree
Preservation, Landscape,
and ESA standards to be
consistent with State Law.
•Whether or not the city can
enforce tree preservation
in the ETJ.
•Bill did not add language to
212 limiting what the city
can enforce under the
subdivision regulations.
•San Antonio Court Case.
•Many properties within the
ETJ meet the definition of
“Agriculture Operation”
included in Chapter 251 of
the Ag. Code
39
Current Challenges –ILA (Stuart Ridge)
01/26/2021 Agenda ID 20-1668 14
❖City can no longer require annexation as a condition to
water and sewer service.
❖Development of residential subdivisions has posed issues
for County and City staff.
❖Cannot collect roadway impact fees.
❖2019 DDC permits Preliminary Plat in the ETJ (to be
discussed as part of DDC update).
40
Current Challenges –ILA
1.Roadway standards (difference in what is the stricter
standard)
•Bar ditch vs. curb and gutter
2.Issuing culvert permits within ETJ Div. 1
•should not be the city’s responsibility.
3.Maintenance of new roads
•County not equipped maintain curb and gutter
•Contends it only applies to existing county roads, not
new roads
4.Dedication of new roads
•There is no requirement that Commissioners Court
must accept the new roads
•Concern of future voluntary annexation when roads
need repaired/replaced
6.Transfer of maintenance bonds for new roads
•No mechanism in place
7.Location of water and sewer
•County does not permit water/sewer lines
within the right of way
8.Lake Ray Roberts County Planning Area
•Lot size requirements –City cannot enforce
9.Non-Annexation Agreements
•City’s development standards
•Issuance of Building Permits
•Only in NAAs
❖City can no longer require annexation as a condition to water and sewer service.
❖Development of residential subdivisions has posed an issue for County and City staff
01/26/2021 Agenda ID 20-1668 15
41
Current Challenges –Non-ILA
10.Split Parcels (City/ETJ) resulting from strip
annexation
•Annexation statutes allow uses to continue;
issue when redevelop or improvements
proposed
•Involuntary to now only voluntary
annexation
•Issue with platting city portion, use not
consistent with residential zoning and land
use
•Issue permitting signage, outdoor display,
etc.
Staff is not seeking policy direction at this time and
recommends revisiting this upon completion of the
update to the Comprehensive Plan; early Fall 2021.
Many cities in Texas annexed narrow strips of
territory to protect perceived growth areas
from neighboring Municipalities, extend their
ETJ, or to preclude the incorporation of
adjacent areas.
01/26/2021 Agenda ID 20-1668 16
42
Current Challenges –Non-ILA
11.Exchanging ETJ areas with adjacent
municipalities
•No formal policy
•Past practice has been an “acre for
acre” exchange
•Request from Pilot Point
•Ray Roberts Lake State Park -
Jordan Unit
•Within Pilot Point CCN
•Pilot Point taking over
concessions
•Marina/Hotel
01/26/2021 Agenda ID 20-1668 17
43
Request by Pilot Point
Agenda ID 20-166801/26/2021 18
➢Asking city to release portion
of ETJ Div. 2 that contains Ray
Roberts Lake State Park -
Jordan Unit
➢Isle du Bois & Trail
Corridor would remain
within City’s ETJ Div. 2
➢Instead of land swap, sales tax
revenue share.
44
Policy Direction –Regulating Plats in the ETJ
Agenda ID 20-166801/26/2021 19
Policy Question Considerations Staff Recommendation
Should the City continue to regulate
plats/subdivisions in Div. 1 of the ETJ?
OR
Should the City regulate
plats/subdivisions in all of the ETJ (Div. 1
and 2)?
•Div. 1 includes CCN areas
where we would permit.
•If no, would increase workload
on county staff.
•If yes to entire ETJ, would
increase workload on city
staff.
•May force annexation unless
county adopts a
“suburban/urban” street
standard.
Continue to regulate plats within
Division 1 and ensure it include
all areas within the CCN.
45
Policy Direction –Platting Standards
Agenda ID 20-166801/26/2021 20
Policy Question Considerations Staff Recommendation
Should the City and County adopt specific
roadway standards as part of the interlocal
agreement?
AND
Should the city adopt the county’s roadway
standard in ETJ Div. 1?
•Bar ditch vs. curb and gutter
•While dedicated by plat, requires
Commissioner's Court action to
accept roads.
•If County will “own and maintain”
should it be their roadway
standard?
•County maintenance concern with
curb and gutter and acceptance of
new roads could be addressed.
•TXLGC 242.001.d.4.B authorizes the
city and county to establish a single
set of consolidated and consistent
regulations related to plats,
subdivision construction plans as
part of the interlocal agreement.
Include as part of the Interlocal
platting regulations/standards specific
to ETJ Div. 1 that includes the County
roadway standard.
46
Policy Direction –Lake Ray Roberts PA
Agenda ID 20-166801/26/2021 21
Policy Question Considerations Staff Recommendation
Should Denton County handle platting in
the Lake Ray Roberts Planning Area ?
OR
Should those standards be referenced as
part of the ILA?
•Could be confusing for
applicants within ETJ Div. 1.
Include standards within the ILA.
47
Policy Direction –Permitting in the ETJ
Agenda ID 20-166801/26/2021 22
Policy Question Considerations Staff Recommendation
Should the city permit culverts in ETJ
Div. 1?
•Denton County has a
permitting process in place
•It doesn’t appear that this
had been done by the city
since enacting the ILA
Eliminate from ILA and, if the
“rural” roadway standard is
established, then the
permitting should only be
done in conjunction with new
plats/subdivisions
48
Policy Direction –Tree Preservation in the ETJ
Agenda ID 20-166801/26/2021 23
Policy Question Considerations Staff Recommendation
Should the City enforce Tree
Preservation/Mitigation in
ETJ?
•Codified in Section 212.905, of the
TXLGC -City’s “Tree Code” consistent
with new law.
•San Antonio Case
•Not expressly prohibited in TXLGC Sec.
212.003.
•Mitigation/development would result in
greater canopy coverage.
•Most lands in ETJ are large
ranches/farms with few established
forested areas; “Agricultural Operation”
•Forested areas are primarily in flood
plain/FEMA.
•Enforcement in District Court -Greater
potential for challenge to City’s “Tree
Code”.
Not to enforce Tree
Preservation/Mitigation in the
ETJ.
49
Policy Direction –Exchange of ETJ Policy
Agenda ID 20-166801/26/2021 24
Policy Question Considerations Staff Recommendation
Should the staff prepare a draft policy
for City Council consideration on
requests for modifying ETJ boundaries
between adjacent municipalities?
•Past practice has involved an
“acre for acre” exchange.
•No formal policy established.
•In some instances revenue
share (sales or property tax) or
outright payment to city could
be considered.
Bring back a formal policy for City
Council adoption that includes land
area exchange, revenue share, direct
payment, or other options.
50
Policy Direction –Pilot Point ETJ Request
Agenda ID 20-166801/26/2021 25
Policy Question Considerations Staff Recommendation
Should staff prepare an agenda
item releasing a portion of ETJ Div.
2 within Denton and Cooke County
to Pilot Point in exchange to
revenue?
•Area currently served by Pilot
Point.
•Likelihood of city expanding into
Cooke County or along eastern
shore of Lake Ray Roberts.
•Area is primarily exempt from
property taxes.
Prepare agenda item releasing
area to Pilot Point in exchange
for sales tax revenue.
51
Policy Direction –Expand ETJ Div. 1 to the NE
Agenda ID 20-166801/26/2021 26
Policy Question Considerations Staff Recommendation
Should the ILA be amended to
include Ray Roberts Lake State
Park Isle du Bois & Trail Corridor
Units within ETJ Div. 1 ?
•Area is primarily exempt from
property taxes.
•Could allow for future annexation of
State Park within City.
Include Ray Roberts Lake State
Park Isle du Bois & Trail Corridor
within ETJ Div. 1.
52
Next Steps
Interlocal Agreement
Agenda ID 20-166801/26/2021 27
30 Days
•Finalize
with
Denton
County
Staff
30-45 Days
•Revise
Interlocal
Agreement
60-75 Days
•Present
Draft
Interlocal
at Work
Session
30 Days
•Prepare
Draft
Agreement
30-45 Days
•Prepare
Draft
Policy
60-75 Days
•Present
Draft
Policy and
Agreement
at Work
Session
Pilot Point ETJ Exchange
& ETJ Exchange Policy
53
54
55
56
57
58
59
60
61
62
63
City of Denton
Legislation Text
City Hall
215 E. McKinney St.
Denton, Texas 76201
www.cityofdenton.com
File #:ID 20-2399,Version:1
AGENDA CAPTION
Receive a report, hold a discussion, and give staff direction regarding the May 1, 2021 General Election, and
any runoff election if applicable, including locations, dates, and times.
City of Denton Printed on 1/22/2021Page 1 of 1
powered by Legistar™64
City of Denton
_____________________________________________________________________________________
AGENDA INFORMATION SHEET DEPARTMENT: City Manager’s Office
ACM: Sara Hensley DATE: January 26, 2021
SUBJECT
Receive a report, hold a discussion, and give staff direction regarding the May 1, 2021 General Election, and any runoff election if applicable, including locations, dates, and times.
BACKGROUND
On Tuesday, February 9, 2021, the City Council will consider an ordinance ordering a municipal election to be held on Saturday, May 1, 2021 for the purpose of electing members to City Council Districts 1, 2, 3, and 4, including a runoff election to be held Saturday, June 5, 2021 if needed.
City Council previously requested staff provide polling location information in advance of ordering any election. In reviewing the historical use of polling locations from 2017 to 2020, the following are proposed options
for City Council in selecting desired polling locations for the May 1, 2021 General Election and June 5,
2021 Runoff Election if applicable. ELECTION DAY
EARLY VOTING
City Hall 215 E. McKinney Street Denton, Texas www.cityofdenton.com
65
OPTIONS The following options exist:
• Identify those preferred locations to be used for early voting/election day for the General Election to be held on Saturday, May 1, 2021, including the runoff election to be held Saturday, June 5, 2021 if applicable (per Denton County)
• Identify other desired alternate locations for staff to research for potential use
EXHIBITS Exhibit 1 – Agenda Information Sheet Exhibit 2 – Presentation
Respectfully submitted: Rosa Rios
City Secretary
66
DENTON CITY COUNCIL MEETING
JANUARY 26, 2021
Polling Locations, Dates
& Times for May/June
2021 Elections
ID 20-2399
67
Background
City Council has asked for polling (voting) location information to be provided in advance of any upcoming election
Uniform Election Dates (Only 2 per State Law)
May (1st Saturday): For City of Denton General Election and Special Elections as neededoJune (1st or 2nd Saturday): Runoff Elections (if applicable)
November (1st Tuesday): For City of Denton Special Elections as needed
2ID 19-2399 JANUARY 26, 2021 68
Election Dates
General Election -May 1, 2021
Purpose: Elect Council Members to Districts 1, 2, 3, and 4
Order of Election set for February 9, 2021 City Council Meeting
Last day to order election is Friday, February 12, 2021
Canvass of election set for May 11, 2021 City Council Meeting (and order a Runoff Election if any)
Runoff Election –June 5, 2021 (Tentative)
Purpose: Elect Council Members to any District where a candidate did not receive a majority of the votes cast for that seat at the May 1, 2021 General Election
Canvass of Runoff Election set for June 15, 2021 City Council Meeting
3ID 19-2399 JANUARY 26, 2021 69
Process for Selecting Polling Locations
Polling Locations
Polling locations desired by City Council are provided to the County to incorporate into final polling locations
Ordinance ordering the election states as follows:
o The polling places shall be designated by the Denton County Elections Administrator (the "Elections Administrator") in accordance with the provisions of a joint election agreement and contract for election services (the "Agreement") with the Elections Administrator. The locations of such polling places are set forth in Exhibit A, attached hereto. Exhibit A shall be modified to include additional or different election day polling places designated by the Elections Administrator and to conform to the Agreement.
4ID 19-2399 JANUARY 26, 2021 70
Criteria for Polling Locations
May Uniform Election Date
Participants select locations desired within their jurisdictions
o Must meet Accessibility requirementsoEarly Voting: As many locations in any precinct (not precinct-based as voters can go anywhere)o Election Day: Only one location per precinct (precinct-based as whole precincts assigned to each)
Denton County assigns precincts to location on a geographic proximity; make even as possible
Some districts may use the same locations based on geographic location of final locations from “all” participating jurisdictions.
5ID 19-2399 JANUARY 26, 2021 71
Voting Schedules
6ID 19-2399 JANUARY 26, 2021 72
Options
Identify locations to be used for May 2021 General & June 2021 Runoff Election (if any)
Early Voting
Election Day
Identify other desired alternate locations for staff to research for potential use
City Council is scheduled to order General Election on Tuesday, February 9, 2021 (includes locations with final determination by Denton County; will include those submitted by the City of Denton and other participating jurisdictions)
o Last day to order the election is Friday, February 12, 2021
7ID 19-2399 JANUARY 26, 2021
QUESTIONS? [Potential locations on next slide]
73
Potential Locations for 2021
8ID 19-2399 JANUARY 26, 2021
Election Day Early Voting
74
City of Denton
Legislation Text
City Hall
215 E. McKinney St.
Denton, Texas 76201
www.cityofdenton.com
File #:ID 21-122,Version:1
AGENDA CAPTION
Receive a report, hold a discussion, and give staff direction regarding a proposed plan for the annual City
Council retreat.
City of Denton Printed on 1/22/2021Page 1 of 1
powered by Legistar™75
City of Denton
_____________________________________________________________________________________
AGENDA INFORMATION SHEET
DEPARTMENT: City Manager’s Office
DCM: Sara Hensley
DATE: January 26, 2021
SUBJECT
Receive a report, hold a discussion, and give staff direction regarding a proposed plan for the annual City
Council retreat.
BACKGROUND
The Denton City Council’s annual retreat provides an opportunity for the collective body to discuss and
provide direction to staff regarding major goals and high-level priorities for the upcoming year. Typically,
this retreat is held in August of each year following the previous May/June election cycle, however the
elections for Place 5, Place 6 and Place 7 (Mayor), and the special elections for District 1 and District 2,
that were scheduled for May 2, 2020 were delayed until November 3, 2020. Additionally, runoffs for Place
6, Place 7 (Mayor), and District 2 were required and held on December 8, 2020.
Because of the delay in election results, a retreat was not able to be held in August 2020, as it traditionally
has been, due to the new Council not yet being seated. Staff scheduled the annual Council retreat for
February 12, 2021 to follow the approximate timeline that is used when a normal election cycle occurs.
The goal of the annual retreat is for Elected Officials and staff to discuss priorities and goals for the
upcoming year. These goals will help guide the policy, operational, and budget goals for the upcoming year.
In previous years, the retreat is conducted off-site and in-person, and often utilizes an outside consultant to
facilitate the conversation. The result of the retreat is generally five to seven major goals that are provided
to staff by a consensus of City Council and formally adopted by resolution at a future Council meeting.
The most recent Council retreat was held on August 17, 2019 at the Texas Woman’s University Board of
Regents Conference Room. The session was facilitated by Accenture and included a discussion on City
Council dynamics, a priority setting exercise, a discussion around City Council meeting structure, as well
as provided an opportunity to discuss key policy topics and other strategic initiatives to set the tone and
direction for the upcoming fiscal year.
During the priority setting exercise, City Council Members and staff from the City Manager’s Office were
given 15 sticky notes to indicate which broad topics were a priority to them. Those sticky notes were
discussed and written down on poster paper. Then, each elected official was given eight dots to express
support for specific priorities to adopt for Fiscal Year 2019-2020. The outcome of this exercise was the
formal adoption of the following priorities:
• Begin development of an Affordable Housing Assessment and Strategy
• Develop project and funding options for City Hall West
• Complete and adopt Denton Mobility Plan Update
• Complete and adopt Sustainable Denton Plan Update
City Hall
215 E. McKinney Street
Denton, Texas
www.cityofdenton.com
76
• Continue implementing and strengthening the Countywide Homelessness Strategic Plan
• Analyze and consider development of Hunter Cole Ranch
• Explore public-private partnership opportunities
Since that time, staff made progress on these priorities and the City Manager provided updates to City
Council during the mid-year and annual review process. Updated information about the progress on these
priorities are included in Exhibit 2.
Currently, staff is planning, implementing, and executing numerous large, medium, and small projects in
addition to the daily operations of their departments. The attached list in Exhibit 3 shows a sample of the
major projects and focus areas planned for the next year, but is not intended to be a full, all-inclusive list.
The 2021 City Council retreat is scheduled to be held virtually on Friday, February 12 from 12 p.m. to 5
p.m. This retreat will primarily focus on setting the City Council priorities for the upcoming year. The
meeting will be streamed live on DTV and online.
Staff adapted the brainstorming/ideation methods that were used during the August 2019 City Council
retreat to fit within a virtual environment. A general outline of the proposed format is below.
• Prior to Council Retreat: Prior to February 12 have Elected Officials fill out an online form,
through Survey Monkey, asking for priorities for the upcoming year.
o The survey will be accompanied with a memo with further instructions and prompting
questions to help guide Council Members.
o The priorities will be submitted using a three-tiered system (A, B, C) arranged from highest
priority. There will be space for 1 to 4 items in each tier.
o These items may be major policies, programs, processes, projects, etc. that the Council
Member would like to see the City focus on, address, accomplish, partner with, etc. This
may include items that are on the 2021 Major Project list (Exhibit 3).
o Staff will take those items and organize them by similar topics for discussion purposes only.
• During Part 1 of the Retreat (2 hours): During the first 2-hour session, Council Members will
have time to introduce their items and then there will be time for Council discussion.
o Each Council Member will be given five minutes to introduce their topic.
o Following the 5-minute introduction of items, there will be an opportunity for Council
Members to discuss their colleagues’ ideas and refine or clarify (if needed)
• Break / Prior to Part 2 of the Retreat (1 hour): Following this first session, staff will email the
list of refined items to Council Members and, through Survey Monkey, have them place 8 “dots” to
express their support for specific priorities. This exercise is intended to help further focus the
conversation on collective items of interest.
• During Part 2 of the Retreat (2 hours): During the second 2-hour session, reveal the results of the
support ranking and facilitate discussion about the topics. Council will provide direction on their
top 5-7 priorities.
• Following the Retreat: A resolution will be prepared for the Feb. 23 Council meeting for Council
to adopt their Council priorities for the year and provide direction to staff.
Once adopted, the Fiscal Year 2020-2021 priorities will serve as the foundation for budget development
and the primary staff focus for the upcoming fiscal year. Staff plans to develop an online dashboard to track
and report progress.
EXHIBITS
Exhibit 1 – Agenda Information Sheet
Exhibit 2 – 2019-20 City Council Priorities Update
77
Exhibit 3 – 2021 Major Projects List
Exhibit 4 – Presentation
Respectfully Submitted:
Stuart Birdseye
Assistant to the City Manager
78
FY 19-20 Council Priorities
Status Update as of Jan. 22, 2021
Begin the Development of an Affordable Housing Assessment and Strategy
• Staff issued an RFP in February 2020 and contracted with the consultant Reinvestment Fund to
develop the Affordable Housing Assessment.
• The City of Denton hosted a virtual meeting with community stakeholders, including
representatives from non-profit agencies, the development community, social services, UNT,
TWU, and Denton ISD on April 22, 2020 to present the initial data findings and receive their
feedback.
• After refining the data and incorporating stakeholder feedback, the City hosted another virtual
meeting with stakeholders on August 5, 2020.
• Staff has currently scheduled a City Council work session for February 2, 2021 to review the
information with Council.
Develop project and funding options for City Hall West
• Staff presented a work session to City Council on October 7, 2019 and were directed to return in
the future to further discuss the 2017 Committee recommendations, steps to achieve full
restoration of the project, establish proposed uses, determine what non-profit agencies will be
housed, and identify funding options available.
• Staff returned with a work session presented on January 7, 2020 to discuss possible funding
options and received direction to proceed with pursuing the estimated all-in cost of $7.5 million
be funded by Certificates of Obligation.
• On April 7, 2020, City Council approved an ordinance authorizing the execution of a contract
with The Wilson Group, Inc. for the replacement of the windows at City Hall West. Work
proceeded with the contractor under the supervision of City staff and the Architect and, to date,
the windows have been replaced, and the exterior of the building has been cleaned.
• Staff is currently strategizing and developing potential next steps, and will present this
information to the City Council in a future work session.
Complete and adopt Denton Mobility Plan Update
• Staff held the first-round of Public Input Meetings on March 20, 24, 26, 30, 31, and April 2, 2019.
• The Mobility Plan was presented to City Council during work sessions on:
o December 17, 2019: Mobility Plan Project Overview
o January 14, 2020: Mobility Plan, Downtown Area
o January 28, 2020: Mobility Plan, Northern Area
o February 18, 2020: Mobility Plan, Western Area
o February 25, 2020: Mobility Plan, Eastern Area
o March 3, 2020: Mobility Plan, Southern Area
• To continue the public input process, staff held the following virtual Public Input Meetings:
o September 9, 2020: Downtown Area
o September 10, 2020: Northern Area
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o September 14, 2020: Western Area
o September 17, 2020: Eastern Area
o September 24, 2020: Southern Area
• Staff continues to collect data and public input, and anticipates presenting the information to
the City Council in Summer 2021.
Complete and adopt Sustainable Denton Plan Update
• A draft Simply Sustainable Plan was presented to Committee on the Environment on September
9, 2019, November 4, 2019, and January 9, 2020.
• An internal stakeholder meeting to discuss the Simply Sustainable Plan was held on November
18, 2019.
• The Simply Sustainable Plan was scheduled to be presented to full City Council on June 6, 2020,
however staff was directed to take back for review by Committee on the Environment.
• The Committee on the Environment made final recommendations to plan on June 25, 2020.
• A City Council work session was held on August 11, 2020 to review the plan.
• “Simply Sustainable, A Strategic Framework for Denton’s Future” was adopted on September 1,
2020. It updates Sustainability goals and creates the “Sustainability Advisory Council”.
• The City Council will appoint citizens to the Sustainability Advisory Council in January/February
2021, and staff will begin meeting with the board following those appointments.
Continue implementing and strengthening the Countywide Homelessness Strategic Plan
• In September 2019, City Council awarded ongoing funding and supplemental funding for
homelessness initiatives including funds to MKOC to expand and enhance overnight shelter
program and to UWDC for the Denton County Homelessness Barriers Fund to help divert people
from homelessness, among others.
• In November 2019, the Police Department hired two (2) Homeless Outreach Officers to
formalize the Homeless Outreach Team.
• The City collaborated with the Denton County Homelessness Coalition to facilitate the 2020
Point-in-Time Count.
• Through the City of Denton disaster declaration as response to the COVID-19 pandemic, City
Council authorized relief funding to prevent Denton residents from losing housing and the City
partnered with UWDC and established the COVID-19 Relief Fund (CRF) to implement a process
for coordinated access to eviction prevention funding at various agency entry points in and
outside of Denton.
• City staff volunteered to assist local nonprofits who were struggling to meet volunteer demands
due to COVID-19 by helping prepare meals, assist in childcare, and provide translation services.
From March 18 to June 21, 169 City employees filled 565 shifts and worked a total of 2,094
hours at Our Daily Bread, Grace Like Rain, Monsignor King Outreach Center, and the Denton
Community Food Center.
• City Council approved funding to temporarily house individuals and families experiencing
homelessness in local hotels to allow for compliance with COVID-19 safety protocols. To make
this possible, City staff worked quickly with local nonprofits to set up agreements with them to
operate the hotels as temporary shelters. City staff has continued oversight and management of
hotels since March.
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• The purchase of the property at 909 N. Loop 288 for community services purposes was
approved by City Council and the sale closed in August 2020. City staff continue to facilitate
discussions among the newly-formed nonprofit “The Junction”, formerly MKOC and ODB, to
develop an agreement to operate the facility and provide services onsite.
• City staff proceeded with the implementation of the approved Consolidated Plan and Action
Plan to the Department of Housing and Urban Development for CDBG and HOME funds. These
funds will be disbursed according to Council approved Committee recommendations for
program initiation in FY21.
Analyze and consider development of Hunter Cole Ranch
• City Council work sessions were held on December 3, 2019, December 11, 2019, December 17,
2019, and February 18, 2020.
• Public hearings for both Hunter and Cole Ranch developments were held on March 17, 2020.
• Both Hunter and Cole Ranch developments were approved on April 7, 2020.
• Studies were completed to ensure the adequate provision of public facilities are met. These
include:
o Transportation Study
▪ On-Site Roadway Infrastructure - Fully funded by the Development
▪ Off-Site Roadway Infrastructure – Developer funds their proportionate share
through impact fees & contract tax
o Water & Wastewater Study
▪ Developer Improvement Projects – 20 water and wastewater projects completely
funded and constructed by the developer. The City’s proposed Capital
Improvement Plan (CIP) and Developer’s plans are consistent.
▪ Offsite City Projects – 14 water and wastewater projects to be designed and
constructed by the City, with proportional financial contributions from the
Developers.
• Water – 2 Treatment plant expansions, 1 booster pump station
improvement, 4 new transmission lines, and 1 new booster pump station.
• Wastewater – New treatment plant and phased expansions, 1 new lift
station, and 1 new interceptor
o Facilities Study
▪ Land Conveyance – 145 acres
• Hunter Fire Station – 3 acres
• Hunter Fire Station – 3 acres
• DME Substation – 10 acres
• Water Storage Tank – 5 acres
• City Parks – 124 acres
▪ Capital Contributions - $11.4 million
• Emergency Services - $10 million
• Water Treatment Plant Design - $500,000
• Service Center Annex – $525,000
• Solid Waste Transfer Station – $225,000
• Water Booster Pump Station - $75,000
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• WW Lift Station - $45,000
Explore public-private partnership opportunities
• Processed and developed expansion grant incentive packages for two technology companies:
TeamOfDefenders and From the Future
• Discussions are taking place with Hickory and Rail Ventures (HRV) regarding operation of Stoke
Co-Working Space
• City Council adopted an ordinance on September 15, 2020 authorizing a new Partnership
Agreement between the City and the Chamber aligning the work plan with the proposed
strategic plan.
• Community Services staff continues to work with non-profit partners to provide services and
assistance to the community and took rapid action when the COVID-19 pandemic hit in March
to assist non-profit partners in adapting services and developing programs to assist individuals in
need in the community.
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Overview of Planned 2021 Major Projects / Focus Areas
Jan. 22, 2021
The following is intended to provide a brief overview of some of the major projects and focus areas
planned for City staff. Although not all-inclusive, it is intended to show some of the areas where time
and resources are currently planned based upon prior policy direction and adopted budget by City
Council.
Organizational Excellence
• COVID-19 Response – Staff continues to respond and address the ongoing challenges and changes
due to COVID-19 on a daily/weekly basis. The response to COVID-19 is anticipated to continue to be
a major area where time will be spent across all departments, including, but not limited to,
addressing changes and continuing to adapt City facilities/programs/services, managing a remote
workforce, managing safety standards and modified shifts/operations, continuing virtual public
meeting production, managing COVID-19 employee procedures and contact tracing across the
organization, coordinating information from federal/state/county sources, communicating news and
resources to the community, tracking COVID-19 related expenditures, implementing the disaster
declaration and local order.
• Begin Implementation of 311 System – A 311/CRM system will handle the intake, routing and
tracking of operational tasks across the City, and is anticipated to improve communication across
departments and with residents and businesses regarding service requests and maintenance
activities. Staff across the City will be involved with this project as it will integrate work order
systems across many operations and allow customers to experience consistent, positive customer
service. Staff are currently evaluating proposals for the software, and staff expected to purchase and
begin implementation during Spring/Summer 2021. Implementation is expected to take between
12-18 months.
• FY21/22 Budget Formation – Over the next few months, City staff will work with Council and City
leadership to set priorities for the development of the budget. Staff will also be seeking feedback to
develop a budget calendar that fulfills both new legal requirements and the priorities of the Council.
The FY 21-22 budget will focus on providing excellent service to the citizens of Denton while being
mindful of the financial burden many are carrying during a global pandemic. Staff is taking a
collaborative and comprehensive approach to the development of the capital budget in particular.
The capital budget will be itemized on a project specific level which will allow for greater
transparency and accountability for all stakeholders. Staff will present a proposed budget this
summer and schedule several work sessions to continuously seek and implement Council feedback
before budget adoption this fall.
• Grant Management Office – In September 2020, the Grants Management Office (GMO) began to
operate with Laura Behrens as the new Grant Administrator and Daniel Jones as the Grant Analyst.
GMO has drafted a policy and standard operation procedures (SOP) document with input from the
Internal Auditor, Legal, Finance, Purchasing and several working groups. The policy and SOP outline
a process for grant management that includes the centralization of information, an internal approval
process for new grants, and ongoing support for the administration of grants.
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GMO has begun to work with individual departments on the review of new grant proposals and the
management of existing grants. A database and dashboard of current grants is being developed to
track a grant’s status and progress for reporting. Training will be offered to staff on the new process
and resources available for grant management. GMO is also working to identify a long-term record
management solution for grants as well as creating webpages on both the City’s internal and
external websites to share and highlight grant information.
• 87th Session of the Texas Legislature – Since late 2020, staff have been preparing for Jan. 12 start of
the 87th Session of the Texas Legislature. Occurring every two years and lasting 140 days, the Texas
Senate and House of Representatives meet to file, debate, and pass bills that affect Texas generally,
and cities in particular. Over 1,000 city-related bills are expected to be filed this session and a team
of staff are mobilized to analyze, prioritize, and engage the members of the legislature on bills that
will impact the City of Denton, particularly those that might restrict revenues or local authority. Staff
will be providing regular updates to the Council throughout the duration of the Session.
• New Leadership with Water & Wastewater and Environmental Services - The City is in the process
of conducting a search for Director of Water/Wastewater and a Director of Environmental Services
& Sustainability. Candidate interviews for the Director of Water/Wastewater are scheduled for
January 22 and we would anticipate that the selected candidate will likely begin work on or about
March 1. The search for the Director of Environmental Services & Sustainability is in the application
review phase with 119 applications received. We anticipate candidate interviews will be conducted
in early February and the selected candidate to begin work on or about the end of March. Both
Directors will report directly to Tony Puente, Executive Manager of Utilities.
Utilities, Infrastructure, and Mobility
• City Facility Construction Projects – There are a number of facility construction projects underway
or starting in 2021 requiring substantial coordination:
o Development Services Building – Staff is currently moving into the new Development
Services Building, located at the corner of Parkway and Elm, and the project is expected to
be complete in January 2021. The parking lot for the building is also being renovated, and is
scheduled to be completed in March/April 2021 (pending weather).
o American Legion Hall Senior Center - Reconstruction of the south structure at the American
Legion Hall Senior Center.
o North Lakes Tennis Center – The new Tennis Center Project will be completed in two phases.
In Phase I, the Pro Shop is substantially complete. The new Pro Shop includes new showers
and restroom amenities, lounge area, office space, retail, meeting rooms, and storage.
Phase II will include multiple new tennis courts and improvements to the grounds.
o Remodel of Police Department Headquarters - Renovation of the existing Police
Headquarters at City Hall East to add and reconfigure workspaces for police operations,
public safety dispatch operations, add dedicated locker rooms, restrooms, and parking.
Construction on this remodel began recently.
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o New Police Substation and Firing Range - Construction of New Police Substation adjacent to
the existing Fire Station 7 on Vintage Boulevard to house patrol, neighborhood services,
traffic enforcement, criminal investigation and other operations, staff, and administrative
support. This same location will house an indoor firing range with 15-lanes for the use of
police training and include indoor classroom space. The new facility would replace the
current outdoor range located on Airport Road. Construction is expected to begin in mid- to
late-February on these projects.
• Capital Project Planning and Communications – Under new leadership and direction, Capital
Projects will continue to work on improvements by implementing project management software
and alternative delivery methods to ensure that the City is receiving best pricing, consistent quality,
and that the projects are completed on schedule. An interdepartmental team (Public Works, Tech
Services, and Public Affairs) is also working diligently to implement a comprehensive, interactive CIP
map to provide residents with additional details on the location and timing of both upcoming and
projects that are currently under construction.
• Bond Program Capital Projects – Staff continues to move forward on the implementation of
projects funded by the 2019 Bond Program, with $154,000,000 approved for street improvements.
The first two bid packages for Street Reconstruction will be advertised in January 2021, with
construction planned to begin spring 2021. Staff will continue to keep the community updated on
the status of the bond program and projects through the City’s website, Resident Update, bi-annual
Construction Update mailer, and social media.
• Finalize Mobility Plan Update – The Mobility Plan is a study and strategy to address citywide
transportation, including vehicles, transit, bicycles, and pedestrians, for years to come. Multiple
departments are contributing to this plan update with data collection and analysis, coordination of
multiple public meetings, and development of the plan. Staff continues to collect data and public
input, and anticipates presenting the information to the City Council in Summer 2021.
• Park Planning – Parks staff will continue work on a number of Parks initiatives to plan for future
anticipated growth. In 2021, Parks plans to finalize and adopt the Parks, Recreation & Trails System
Master Plan as well as plans for Southwest Park, Bowling Green Park, Village of Carmel property and
the ADA Transition Plan. The department has also implemented a playground replacement plan, and
will be replacing the playgrounds at Joe Skiles Park, Mack Park, Quakertown Park (Phase 2) and hope
to begin planning for an inclusive playground.
• DME Lighting Project – DME is completing the first year of this major CIP project. The project scope
is to replace all existing lights with LED luminaires. The City has approximately 8,800 street lights and
1,700 security lights. Approximately 3,700 lights have been upgraded to date. DME anticipates
completing the upgrade of all lights by Mid-Spring 2022.
Development
• Update to the City’s Comprehensive Plan – The City’s Comp Plan is the long-range plan for the City’s
growth, development, and redevelopment. Because it is based on local conditions and trends, it is
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intended to be updated periodically to coordinate the efforts of many different aspects of a
community, such as land use, transportation, community facilities, and natural resources. The City
will be undergoing an update to the Comp Plan in 2021 and has hired a consultant to assist in this
effort.
• Historic Preservation Plan – The creation of the Historic Preservation Plan included significant
stakeholder input, including public meetings and online surveys, to create a shared vision related to
the City’s historic resources. There are numerous short-, medium-, and long-term recommendations
that staff will be working to implement. The City has recently hired a new Historic Preservation
Officer whose primary focus will be to implement these recommendations. Periodic updates on the
progress of these goals will be provided to City Council.
• DDC Amendments – Staff will continue to review and bring forward any necessary amendments to
the 2019 DDC, making minor improvements following the first full year of implementation. The
Development Code Review Committee (DCRC) has been reinstated, which is made up of members of
the City Council and Planning and Zoning Commission, will be reviewing and providing initial
direction on areas to be improved in the DDC. Staff will be working through priority amendments
where direction is needed and will continue meeting with DCRC to address ongoing improvements
in the DDC.
• Economic Development Strategic Plan – Staff will be working to complete and bring forward
adoption of the Economic Development Strategic Plan to be a roadmap for the next five years of
economic development activities and building a sustainable economic future for Denton. This item is
scheduled for a work session and consideration for adoption in early February and then staff will
work to implement activities and strategies identified in the plan.
Community and Neighborhood Services
• 909 N Loop 288 Building – In 2020, the City purchased a facility to provide a co-located center for
day and overnight services for people experiencing or at-risk of homelessness. An architect was
hired in fall 2020 and a final conceptual design with proposed next steps and timeline for
construction is anticipated to be presented to Council in February. Staff has also been negotiating an
agreement with The Junction, a non-profit agency, to provide services at the facility and expects to
bring forward an overview of the terms to Council in February as well. This project will be a major
focus in 2021 and will require substantial staff resources for implementation and coordination.
• COVID-19 Federal and State Assistance Funds and Program Coordination – The City has been able
to apply and leverage additional federal and state funding sources to help residents with eviction
prevention and support housing stability in the community, provide for continued alternative
emergency shelter arrangement, and assist non-profit agencies providing critical services. This will
be a major focus area for staff in 2021 as there are numerous requirements for the implementation
and reporting of these federal and state grants and requires close coordination with the awarded
agencies.
• Affordable Housing Assessment – On Feb. 2, City staff and consultants will present a summary of
the Affordable Housing Assessment and seek next steps. Depending upon the direction received,
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this may include some smaller projects that could be worked on with partners, could be developed
into budget supplementals, and/or the potential to continue to a next step with developing a more
comprehensive plan to set goals and priorities and a toolbox to meet those.
Public Safety
• Police Department – The Police Department is undertaking major initiatives over the next 12-18
months including the continued development of the Mental Health Unit, The Denton Police
Department Chief of Police Advisory Board, and updating department policy and trainings. The
department is proud of the programs and relationships that have been built with citizens
throughout the community, and these initiatives are designed to further enhance those
relationships. Chief Dixon will provide additional detail on these programs, and additional
information about the department, during a discussion with Council in the Work Session that is
currently scheduled for February 1, 2021.
• Fire Department Accreditation – A strategic initiative and goal for the Denton Fire Department is
obtaining accreditation status through the Center for Public Safety Excellence (CPSE). Accreditation
is a comprehensive self-assessment and evaluation model that enables organizations to examine
past, current, and future service levels and internal performance and compare them to industry best
practices. Currently only 284 fire agencies have been awarded the CPSE accreditation which equates
to only 11% of the U.S. population protected by an accredited agency.
The CPSE program will provide an excellent review process for the Denton Fire Department,
allowing citizens and city council transparency during ongoing budget decisions.
Most importantly, being an accredited fire agency enhances our quality improvement processes and
provides the highest level of fire and rescue services to the City of Denton and the community.
Benefits of accreditation and self-assessment include:
• Creating a mechanism for developing concurrent documents to include strategic and program
action plans
• Creating methods or systems for addressing deficiencies while building organizational success
• Encouraging professional growth in addition to its personnel involved in the self-assessment
process
• Encouraging quality improvement through a continuous self-assessment process
• Fostering national recognition for the Denton Fire Department by its colleagues and the public
• Identifying areas of strength and weakness within the department
• Improve the quality of life in our community
• Promoting excellence within the Fire Department and improving our abilities to recognize and
better understand potential risks and hazards
• Providing a detailed evaluation of the department, detailing the services it provides to the
community
• Providing a forum for the communication of organizational priorities
Sustainability and Environment
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• Solid Waste Comprehensive Management Strategy – In October 2020, the City entered into a
contract with Burns and McDonnell to complete a Comprehensive Solid Waste Management
Strategy (CSWMS) for the City of Denton. The purpose of a CSWMS is to consider the external
factors that impact recycling and diversion in North Texas, and evaluate opportunities to
manage residential, multifamily, and commercial waste in a more environmentally and fiscally
efficient manner.
The City of Denton is undertaking the development of a comprehensive solid waste management
strategy that will provide the vision and framework to guide future activities related to:
• Landfill disposal reduction and/or elimination, zero waste philosophies, and waste material
diversion
• The promotion of ingenuity in reuse and recycling opportunities
• The alignment of federal and state regulations with local solid waste reduction goals and
practices
• The composition of residential and commercial waste streams
• The creation of a robust construction, building, and operational environments/markets that
support solid waste reduction goals (innovation)
• Other waste management activities assigned to local government
The development of the CSWMS will be completed in several phases. The first step of the process
will be a community waste characterization, which will help us to fully understand what we are
throwing away and what we are separating for recycling and/or diversion
In the next phase of the process, we will be asking Denton residents, business owners and
managers, and other local, interested persons for their opinions on garbage, recycling, diversion,
composting, and other solid waste management processes. To help provide project focus, a
community “Focus Group/Think Tank” will be established in March to discuss the results of the
survey and consider the findings of our previous waste characterization activities. Those who
completed the initial online survey will have the opportunity to apply for participation in the
community Think Tank.
Finally, the Think Tank results will be discussed among City leaders to help lay the groundwork for
our solid waste program going forward. We anticipate that the CSWMS will be completed by late
spring, which will help the City plan for implementation in Fall 2021.
• 2020 Simply Sustainable Framework – Sustainability will continue to work on implementation of the
recently adopted Sustainability Framework. The City Council-appointed Sustainability Advisory
Committee is anticipated to kick off in March 2021 and advise council on implementation priorities
and strategies. Staff continue annual reporting requirements for and identify opportunities to
establish virtual community engagement to promote sustainability, conservation and resiliency.
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Date
Overview of Upcoming
2021 Council Retreat
City Council Meeting
January 26, 2021
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Objective
•Goals of the annual City Council Retreat
•Review of 2019 Council Retreat and City Council Priorities
•Planned Format for Upcoming 2021 Retreat
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Background: Prior Council Retreat
•Each year, the Denton City Council conducts a retreat where priorities are established collaboratively as a body for the upcoming year
•These City Council priorities set the major operational, policy, and budget priorities for the organization
•The City Council held their most recent annual retreat on Saturday, August 17, 2019 at Texas Woman’s University
•The City Council discussed several potential priorities during their retreat
•The potential priorities discussed were written down on poster paper and each elected official was given eight dots to express support for specific priorities to better facilitate and focus the discussion on top priorities
•From this exercise, Council discussed and developed 7 priorities to adopt for FY 2019-2020
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Background: FY19/20 Council Priorities
•Following the retreat, the City Council adopted the following priorities for FY 2019-20:
•Begin development of an Affordable Housing Assessment and Strategy
•Develop project and funding options for City Hall West
•Complete and adopt Denton Mobility Plan Update
•Complete and adopt Sustainable Denton Plan Update
•Continue implementing and strengthening the Countywide Homelessness Strategic Plan
•Analyze and consider development of Hunter Cole Ranch
•Explore public-private partnership opportunities
•Progress on the FY19/20 Council Priorities is included as Exhibit 2
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Background: Planned for 2021
•Staff continues to make progress on a number of major projects and
initiatives
•A brief overview of planned major projects and focus areas for 2021 is
included as Exhibit 3
•Although not all-inclusive, it is intended to show some of the areas where
time and resources are currently planned based upon prior policy direction and adopted budget by City Council
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Proposed Format for 2021 Council Retreat
•The retreat will be held during the afternoon on Friday, February 12 in a
virtual format
•Intended to be two 2-hour sessions with an hour break time
•City Manager Hileman and City staff will facilitate
•Retreat will be streamed live on DTV and online as other public meetings
continue to be produced in this format for COVID-19 precautions
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Proposed Format for 2021 Council Retreat
•Prior to Council Retreat: Staff will send an electronic form to Council to enter priority
items or “headlines”
•A memo will be sent with the form with further instructions and prompting questions to help guide responses
•These items will be submitted using a three-tiered system (A, B, C) arranged from highest priority. There will be space for 1 to 4 items in each tier
•During Part 1 of the Retreat: Council Members will each have five minutes to
introduce their submitted items
•Following introduction of their items, there will be an opportunity for Council
Members to discuss their colleagues’ ideas and refine or clarify (if needed)
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Proposed Format for 2021 Council Retreat
•Break/Prior to Part 2 of the Retreat: Staff will e-mail a survey and a list of items to
Council Members and provide 8 “dots” to express their support for specific priorities
•During Part 2 of Retreat: Reveal the results of the support ranking and facilitate
discussion on the items until a consensus of Elected Officials agree on a set of Council
Priorities
•Following the Retreat: Staff will present a resolution for Council to consider adopting
the priorities at the Feb. 23 Council meeting
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Next Steps
•On Monday, February 1, staff will email a memo and a link to the form that Council Members can use to enter their priority items
•Staff is available to assist any Council Member if needed
•Council Members enter their priority headlines by Monday, February 8
•Staff will compile the list of priorities, by tier, and distribute at the Council retreat on
February 12
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Questions?
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City of Denton
Legislation Text
City Hall
215 E. McKinney St.
Denton, Texas 76201
www.cityofdenton.com
File #:ID 21-006,Version:1
AGENDA CAPTION
Deliberations regarding Real Property -Under Texas Government Code,Section 551.072;and Consultation
with Attorneys Under Texas Government Code, Section 551.071.
Receive information from staff, discuss, deliberate, and provide staff with direction pertaining to the potential
disposal, exchange, sale, or acquisition of certain real property interests located in the David Hough Survey,
Abstract Number 646, generally located in the 2100 block of South Mayhill Road, in the City of Denton,
Denton County, Texas. Consultation with the City's attorneys regarding legal issues associated with the
potential disposal, exchange, sale, or acquisition involving the real property described above where a public
discussion of these legal matters would conflict with the duty of the City's attorneys to the City of Denton and
the Denton City Council under the Texas Disciplinary Rules of Professional Conduct of the State Bar of Texas,
or would jeopardize the City’s legal position in any negotiation, administrative proceeding, or potential
litigation.
City of Denton Printed on 1/21/2021Page 1 of 1
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City of Denton
Legislation Text
City Hall
215 E. McKinney St.
Denton, Texas 76201
www.cityofdenton.com
File #:ID 21-108,Version:1
AGENDA CAPTION
Deliberations regarding Personnel Matters - Under Texas Government Code Section 551.074.
Deliberate and discuss the evaluation, duties, discipline, dismissal, compensation, and/or contract of the
Municipal Judge.
City of Denton Printed on 1/21/2021Page 1 of 1
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City of Denton
Legislation Text
City Hall
215 E. McKinney St.
Denton, Texas 76201
www.cityofdenton.com
File #:ID 21-101,Version:1
AGENDA CAPTION
Consider approval of the minutes of January 4, January 5, and January 12, 2021.
City of Denton Printed on 1/22/2021Page 1 of 1
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CITY OF DENTON CITY COUNCIL MINUTES
January 4, 2021
After determining that a quorum was present, the City Council of the City of Denton, Texas
convened in a Work Session on Monday, January 4, 2021, at 12:02 p.m. in the Council Work
Session Room at City Hall, 215 E. McKinney Street, Denton, Texas.
PRESENT: Mayor Gerard Hudspeth, Mayor Pro Tem Jesse Davis and Council Members Birdia
Johnson, Connie Baker, John Ryan, Deb Armintor, and Paul Meltzer
ABSENT: None
Also present were City Manager Todd Hileman and City Attorney Aaron Leal.
Note: Mayor Gerard Hudspeth, Mayor Pro Tem Jesse Davis and Council Members Birdia
Johnson, Connie Baker, John Ryan, Deb Armintor, and Paul Meltzer participated in the
work session, and special meeting via video/teleconference under the provisions allowed by
the Texas Government Code Section 551.127.
WORK SESSION
1. Work Session Reports
A. ID 20-2147 Receive a report, hold a discussion, and give staff direction regarding the 2020
Boards & Commissions Nominee Screening and Appointment Process.
The item was presented and no discussion followed.
B. ID 20-2148 Receive a report, hold a discussion, and give staff direction regarding the role of
City Council Committees, membership to subcommittees and other groups, and the
associated Committee nomination process.
The item was presented and discussion followed.
Following discussion, City Council consensus was for staff to make adjustments as
discussed, with formal adoption of Committee assignments, outside of those requiring other
appointment processes, to continue as scheduled at the January 5, 2021 Council Meeting.
The work session ended at 12:31 p.m.
____________________________________ ____________________________________
GERARD HUDSPETH CATHY WELBORN
MAYOR ASSISTANT CITY SECRETARY
CITY OF DENTON, TEXAS CITY OF DENTON, TEXAS
MINUTES APPROVED ON: ____________________________________
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CITY OF DENTON CITY COUNCIL MINUTES
January 5, 2021
After determining that a quorum was present, the City Council of the City of Denton, Texas
convened in a Work Session on Tuesday, January 5, 2021, at 3:03 p.m. in the Council Work
Session Room at City Hall, 215 E. McKinney Street, Denton, Texas.
PRESENT: Mayor Gerard Hudspeth, Mayor Pro Tem Jesse Davis and Council Members Birdia
Johnson, Connie Baker, John Ryan, Deb Armintor, and Paul Meltzer
ABSENT: None
Also present were City Manager Todd Hileman and City Attorney Aaron Leal.
Note: Mayor Gerard Hudspeth, Mayor Pro Tem Jesse Davis and Council Members Birdia
Johnson, Connie Baker, John Ryan, Deb Armintor, and Paul Meltzer participated in the
work session, and special meeting via video/teleconference under the provisions allowed by
the Texas Government Code Section 551.127.
The posted agenda noted the registration process for public participation at this virtual
meeting. While citizen commentary received via the online registration process was not read,
each member of the City Council received each registration as it was submitted.
WORK SESSION
1. Citizen Comments on Consent Agenda Items
Citizen comments received are noted in Exhibit A.
2. Requests for clarification of agenda items listed on this agenda.
Clarification was requested on the following items:
o Mayor Pro Tem Davis: Item 3.K (20-2558)
o Council Member Meltzer: Item 3.K (20-2558) and 3.I (20-2547)
o Council Member Armintor: Item 3.J (20-2555), 3.P (20-2577) and 3.Q (20-2578)
The following item(s) were pulled for Individual Consideration:
o Mayor Pro Tem Davis: Item 3.A (20-2576), 3.T (20-2494), and 3.W (20-2542)
o Council Member Armintor: Item 3.K (20-2558)
3. Work Session Reports
A. ID 20-2505 Receive a report, hold a discussion, and give staff direction regarding the
potential sale of Texas Municipal Power Agency’s ("Agency") Gibbons Creek Steam
Electric Station and related assets in Grimes County, Texas including a review of the
economics of the sale, the key provisions of the proposed Asset Purchase Agreement (APA)
and the risks associated therewith.
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The item was presented and discussion followed.
Following discussion, City Council consensus was for staff to follow up with buyer on their
economic interest and the proposed land use which could be provided in the Friday Report.
Staff confirmed the request.
B. ID 20-2252 Receive a report, hold a discussion, and give staff direction regarding a
legislative update and program for the 87th Session of the Texas Legislature.
The item was presented and discussion followed.
Following discussion, there was no direction provided as the presentation was for reporting
purposes only.
C. ID 21-002 Receive a report, hold a discussion, and give staff direction on pending City
Council requests for information for:
(1) Discussion on the electronic "blue card" agenda item comment form to be revised to
request people’s email addresses.
The item was presented and discussion followed.
Following discussion, results were as follows:
Item 21-002. Discussion on the electronic "blue card" agenda item comment form to
be revised to request people’s email addresses.
o Consensus to schedule a work session to provide further discussion.
The work session ended at 4:38 p.m.
CLOSED MEETING
1. The City Council convened into a Closed Meeting at 4:38 p.m. consistent with Chapter 551
of the Texas Government Code, as amended, or as otherwise allowed by law, as follows.
A. ID 20-2544 Consultation with Attorneys - Under Texas Government Code Section 551.071.
Consult with the City’s attorneys and discuss status, strategy, and potential resolution of
litigation in Cause No. 19-10653-442, styled "Stonetown Country View, LLC v. City of
Denton, Texas and Board of Adjustment for City of Denton, Texas" pending in the 442nd
Judicial District Court, Denton County, Texas; where discussion of these legal matters in an
open meeting would conflict with the duty of the City’s attorneys to the City of Denton and
the Denton City Council under the Texas Disciplinary Rules of Professional Conduct of the
State Bar of Texas, or otherwise compromise the City’s legal position in pending litigation.
DELIBERATED
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The closed meeting started at 4:58 p.m. and ended at 5:26 p.m. No votes or actions were taken
during the closed meeting.
REGULAR MEETING
After determining that a quorum was present, the City Council of the City of Denton, Texas
convened in a Regular Meeting on Tuesday, January 5, 2021, at 6:30 p.m. in the Council Work
Session Room at City Hall, 215 E. McKinney Street, Denton, Texas.
PRESENT: Mayor Gerard Hudspeth, Mayor Pro Tem Jesse Davis and Council Members Birdia
Johnson, Connie Baker, John Ryan, Deb Armintor, and Paul Meltzer
ABSENT: None
Also present were City Manager Todd Hileman and City Attorney Aaron Leal.
Note: Mayor Gerard Hudspeth, Mayor Pro Tem Jesse Davis and Council Members Birdia
Johnson, Connie Baker, John Ryan, Deb Armintor, and Paul Meltzer participated in the
work session, and special meeting via video/teleconference under the provisions allowed by
the Texas Government Code Section 551.127
The posted agenda noted the registration process for public participation at this virtual
meeting. While citizen commentary received via the online registration process was not read,
each member of the City Council received each registration as it was submitted.
1. PLEDGE OF ALLEGIANCE
A. U.S. Flag and B. Texas Flag
2. PRESENTATION FROM MEMBERS OF THE PUBLIC
A. Review of procedures for addressing the City Council.
B. Reports from members of the public
1) Receive Scheduled Citizen Reports from Members of the Public
a. Jonathan King, 2916 Frontier Drive, regarding upcoming ADU minimum square
footage requirements.
PRESENTED
b. Brandi Price, 2424 West Oak Street, regarding Recycling issues.
PRESENTED
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c. Stanton Brasher, 315 N Crawford Street, regarding ways to decriminalize small
amounts cannabis for personal use in the City of Denton.
PRESENTED
2) Additional Citizen Reports (Open Microphone)
None
3. CONSENT AGENDA
The Consent Agenda consisted of Items 3.A - 3.X. During the Work Session held earlier in the
day, Item 3.A (20-2576), 3.T ((20-2494) and 3.W (20-2542) were pulled for Individual
Consideration by Mayor Pro Tem Davis and Item 3.K (20-2558) was pulled for Individual
Consideration by Council Member Armintor.
Council Member Ryan moved to adopt the Consent Agenda, now consisting of Items 3.B-3.J, 3.L-
3.S, 3.U, 3.V, and 3.X. Motion seconded by Mayor Pro Tem Davis. Motion carried.
AYES (7): Mayor Hudspeth, Mayor Pro Tem Davis and Council Members Johnson, Baker, Ryan,
Armintor, and Meltzer
NAYS (0): None
B. ID 20-2363 Consider adoption of an ordinance of the City of Denton authorizing the City
Manager, or his designee, to execute and deliver an Agreement for the Furnishing and
Installing of Traffic Signal Equipment by a Municipality, between the City of Denton and
the Texas Department of Transportation, regarding Denton’s reimbursement total of
$57,031.00 for furnishing traffic signal equipment for the intersections of IH 35E at Teasley
Lane, E. McKinney Street at Woodrow Lane, and E. McKinney Street at Mockingbird Lane;
authorizing the reimbursement of funds thereof; and providing an effective date.
ASSIGNED ORDINANCE NO. 20-2363
C. ID 20-2571 Consider adoption of an ordinance of the City of Denton authorizing the City
Manager, or his designee, to execute a service agreement with Giving HOPE, Inc., providing
for Street Outreach program services in furtherance of the coordinated system of homeless
assistance programs; authorizing the expenditure of funds therefor in an amount not to
exceed $64,600.00; and providing an effective date.
ASSIGNED ORDINANCE NO. 20-2571
All members of the City Council received the comments as submitted and had the
opportunity to review all submissions prior to the start of the meeting and consider such
comments when voting on the item. The summary of public commentary/registration(s) is
noted in Exhibit A.
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D. ID 20-2430 Consider approval of a resolution revising Administrative Policy 403.07 "Debt
Service Management" and providing for an effective date.
ASSIGNED ORDINANCE NO. 20-2430
E. ID 20-2431 Consider approval of a resolution of the City Council of the City of Denton
authorizing and designating representatives of the City to act as custodian of the investment
of public funds in the Texas Local Government Investment Pool ("TexPool"); delegating
authority to invest funds and act as custodian of investments purchased with local investment
funds to TexPool; authorizing the Mayor to execute a resolution authorizing participant in
the TexPool investment pools and designating authorized representatives; providing for a
repealer; and providing for an effective date.
ASSIGNED RESOLUTION NO. 20-2431
F. ID 20-2417 Consider approval of a resolution by the City of Denton authorizing the city
manager to apply for and accept the 2020 UASI - City of Denton - Specialized Regional
Response Teams Sustainment (Grant no. 3421003) in the amount of $144,137.31 from the
State of Texas, Office of the Governor, through a grant from the US Department of Homeland
Security for the period of November 1, 2020 through October 31, 2021; and providing an
effective date.
ASSIGNED RESOLUTION NO. 20-2417
G. ID 20-2418 Consider approval of a resolution by the City of Denton authorizing the city
manager to apply for and accept the 2020 SHSP - City of Denton - EOD X-RAY
EQUIPMENT ENHANCEMENT GRANT (grant no. 4001601) in the amount of $46,500
from the State of Texas, Office of the Governor, through a grant from the US Department of
Homeland Security for the period of November 1, 2020 through October 31, 2021; and
providing an effective date.
ASSIGNED RESOLUTION NO. 20-2418
H. ID 21-010 Consider adoption of an ordinance of the City of Denton, Nunc Pro Tunc,
correcting an inadvertent mistake in Ordinance No. 20-2235, providing for a savings clause
and an effective date.
ASSIGNED ORDINANCE NO. 21-010
I. ID 20-2547 Consider adoption of an ordinance of the City of Denton authorizing the City
Manager, or his designee, to accept the Denton Benefit League Grant in the amount of
$7,307.71, for the period of December 1, 2020 through July 1, 2021; authorizing the City
Manager to carry out all duties of the City pursuant to the grant; providing for the expenditure
of funds; providing a savings clause; and providing an effective date.
ASSIGNED ORDINANCE NO. 20-2547
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J. ID 20-2555 Consider adoption of an ordinance of the City of Denton, a Texas home-rule
municipal corporation, authorizing the City Manager, or his designee, to execute a contract
with Sunbelt Pools, Inc., through the Buy Board Cooperative Purchasing Network Contract
# 613-20, for the supplies, equipment, and chemicals for all aquatic facilities - Water Works
Park, the Natatorium, the Civic Center Pools, and the Carl Young Jr. Splash Pad for the Parks
and Recreation Department to be stocked in the Warehouse; providing for the expenditure of
funds therefor; and providing an effective date (File 7290 - awarded to Sunbelt Pools, Inc.,
for one (1) year, with the option for two (2) additional one (1) year extensions, in the total
three (3) year not-to-exceed amount of $480,000.00).
ASSIGNED ORDINANCE NO. 20-2555
L. ID 20-2559 Consider adoption of an ordinance of the City of Denton, a Texas home-rule
municipal corporation, authorizing the City Manager, or his designee, to execute a
Professional Services Agreement with Gallagher Bassett Services, Inc., for third party
administration services to manage workers’ compensation claims for the employee injuries
under the City’s self-funded workers’ compensation program as set forth in the contract;
providing for the expenditure of funds therefor; and providing an effective date (File 7553 -
Professional Services Agreement for third party administration services awarded to
Gallagher Bassett Services, Inc., in the five (5) year not-to-exceed amount of $770,000.00).
ASSIGNED ORDINANCE NO. 20-2559
M. ID 20-2560 Consider adoption of an ordinance of the City of Denton, a Texas home-rule
municipal corporation, authorizing the City Manager, or his designee, to utilize a contract
with Angel Armor, LLC, through the City of Grand Prairie Contract Number #19112, for the
purchase of ballistic vests for the Denton Police Department; providing for the expenditure
of funds therefor; and providing an effective date (File 7570 - awarded to Angel Armor, LLC,
in the not-to-exceed amount of $254,800.00).
ASSIGNED ORDINANCE NO. 20-2560
N. ID 20-2561 Consider adoption of an ordinance ratifying the expenditure of funds by the City
Manager and the Purchasing Agent for the purchase of excess workers’ compensation
insurance coverage for the City of Denton, and authorizing the expenditure of additional
funds for such purpose, through the City’s sole broker of record, Lockton Companies, LLC,;
and providing an effective date (File 7594 - awarded to Midwest Employers Casualty
Company for a three (3) year not-to-exceed amount of $830,170.00).
ASSIGNED ORDINANCE NO. 20-2561
O. ID 20-2562 Consider adoption of an ordinance ratifying the expenditure of funds by the City
Manager and the Purchasing Agent for the purchase of excess liability insurance coverage
for the City of Denton, and authorizing the expenditure of additional funds for such purpose,
through the City’s sole broker of record, Lockton Companies, LLC,; and providing an
effective date (File 7595 - awarded to Argo Group International Holdings Ltd. for a three (3)
year not-to-exceed amount of $906,981.00).
ASSIGNED ORDINANCE NO. 20-2562
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P. ID 20-2577 Consider adoption of an ordinance of the City of Denton, a Texas home-rule
municipal corporation, authorizing the approval of a first amendment to a Professional
Services Agreement between the City of Denton and Kimley-Horn and Associates, Inc.,
amending the contract approved by City Council on September 18, 2018, in the not-to-exceed
amount of $239,850.00; said first amendment to continue to provide an Americans with
Disabilities (ADA) Act Compliance Review and Transition Plan; providing for the
expenditure of funds therefor; and providing an effective date (RFQ 6590-033 - providing
for an additional first amendment expenditure amount not-to-exceed $338,000.00, with the
total contract amount not-to-exceed $577,850.00).
ASSIGNED ORDINANCE NO. 20-2577
Q. ID 20-2578 Consider adoption of an ordinance of the City of Denton, a Texas home-rule
municipal corporation, authorizing the City Manager, or his designee, to execute a contract
with Matrix Design Group, Inc., to provide professional services for the preparation of a
Comprehensive Plan Evaluation Report and to update the Comprehensive Plan for the
Development Services Department; providing for the expenditure of funds therefor; and
providing an effective date (RFP 7416 - awarded to Matrix Design Group, Inc., in the not-
to-exceed amount of $91,920.00).
ASSIGNED ORDINANCE NO. 20-2578
All members of the City Council received the comments as submitted and had the
opportunity to review all submissions prior to the start of the meeting and consider such
comments when voting on the item. The summary of public commentary/registration(s) is
noted in Exhibit A.
R. ID 21-013 Consider adoption of an ordinance of the City of Denton, a Texas home-rule
municipal corporation, authorizing the City Manager, or his designee, to execute a
Professional Services Agreement with Focused Advocacy LLC, to assist the City of Denton
in advancing its state legislative program for Line 2 - Fee for Denton Municipal Electric
Consulting; providing for the expenditure of funds therefor; and providing an effective date
(RFP 7422 - awarded to Focused Advocacy LLC, for two (2) years in the amount of
$152,334.00, with the option for two (2) additional two (2) year extensions, for a total of six
(6) years in a total not-to-exceed amount of $457,000.00).
ASSIGNED ORDINANCE NO. 21-013
S. ID 21-014 Consider adoption of an ordinance of the City of Denton, a Texas home-rule
municipal corporation, authorizing the City Manager, or his designee, to execute a
Professional Services Agreement with Jackson Walker, LLP, to assist the City of Denton in
advancing its state legislative program, assist Council and Staff in addressing proposed
legislation, and make the City aware of any legislative or administrative initiatives believed
to be detrimental to the interests of the City for Line 1 - Fee for General Consulting; providing
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for the expenditure of funds therefor; and providing an effective date (RFP 7422 - awarded
to Jackson Walker, LLP, for two (2) years in the amount of $176,334.00, with the option for
two (2) additional two (2) year extensions, for a total of six (6) years in a total not-to-exceed
amount of $529,000.00).
ASSIGNED ORDINANCE NO. 21-014
U. ID 20-2499 Consider adoption of an ordinance of the City of Denton, a Texas home-rule
municipal corporation, renaming Lynbrook Drive to Basham Lane between its intersection
with Briarbrook Drive and its northern terminus approximately 110 feet north of Chevy
Chase Drive within Phase 1 of the Stark Farms Addition; providing for severability and an
effective date.
ASSIGNED ORDINANCE NO. 20-2499
V. ID 20-2307 Consider adoption of an ordinance authorizing the City Manager to execute a
Joint Funding Agreement for Water Resource Investigations with the United States
Geological Survey (USGS) related to continued support of the Hickory Creek Streamflow
Station in the amount of $4,700.00 (Agreement Number: 21SJJFATX161000); authorizing
the expenditure of funds therefor; and providing an effective date. The Public Utilities Board
recommends approval (6-0).
ASSIGNED ORDINANCE NO. 20-2307
X. ID 20-2563 Consider appointments to City Council Committees.
APPROVED
ITEMS PULLED FOR INDIVIDUAL CONSIDERATION
A. ID 20-2576 Consider adoption of an ordinance of the City of Denton repealing Ordinance
No. 2008-129 relating to self-fueling of aircraft at the Denton Enterprise Airport; and
providing an effective date. Council Airport Committee recommends approval (2-0).
ASSIGNED ORDINANCE NO. 20-2576
Pulled for Individual Consideration by Mayor Pro Tem Davis
All members of the City Council received the comments as submitted and had the
opportunity to review all submissions prior to the start of the meeting and consider such
comments when voting on the item. The summary of public commentary/registrations.
Citizen comments received are noted in Exhibit A.
The item was presented and discussion followed.
Following discussion, Mayor Pro Tem Davis moved to adopt the item as presented. Motion
seconded by Council Member Meltzer. Motion carried.
AYES (7): Mayor Hudspeth, Mayor Pro Tem Davis and Council Members Johnson, Baker,
Ryan, Armintor, and Meltzer
NAYS (0): None
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K. ID 20-2558 Consider adoption of an ordinance of the City of Denton, a Texas home-rule
municipal corporation, authorizing the City Manager, or his designee, to execute a contract
with Obra Ramos Construction, LLC, for the construction of the McKenna Park
Improvements for the Parks and Recreation Department; providing for the expenditure of
funds therefor; and providing an effective date (IFB 7493 - awarded to Obra Ramos
Construction, LLC, in the not-to-exceed amount of $987,833.38).
ASSIGNED ORDINANCE NO. 20-2558
Pulled for Individual Consideration by Council Member Armintor.
There were no online registrations or call-ins on the item.
The item was not presented.
Council Member Ryan moved to adopt the item as presented. Motion seconded by Mayor
Pro Tem Davis.
Discussion followed.
Following the discussion, Mayor Hudspeth called the vote on the item. Motion carried.
AYES (5): Mayor Hudspeth, Mayor Pro Tem Davis and Council Members Johnson, Baker,
and Ryan.
NAYS (2): Council Member Armintor and Meltzer
T. ID 20-2494 Consider adoption of an ordinance of the City of Denton, a Texas Home-Rule
Municipal Corporation, renaming Karina Street between its intersections with Loop 288 and
Kimberly Drive to Courthouse Drive; providing for severability and an effective date.
ASSIGNED ORDINANCE NO. 20-2494
Pulled for Individual Consideration by Mayor Pro Tem Davis.
There were no online registrations or call-ins on the item.
Mayor Pro Tem Davis had a conflict of interest on the item and was removed from the video
conference for this item, thereby not participating on its deliberation.
The item was not presented and no discussion followed.
Council Member Ryan moved to adopt the item as presented. Motion seconded by Mayor
Hudspeth. Motion carried.
AYES (6): Mayor Hudspeth and Council Members Johnson, Baker, Ryan, Armintor, and
Meltzer
NAYS (0): None
ABSTAIN (1): Mayor Pro Tem Davis
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W. ID 20-2542 Consider adoption of an ordinance of the City of Denton, Texas, authorizing the
City Manager to execute a Wastewater Main Cost Participation Agreement with Denton
Independent School District ("DISD") for the City’s participation in the oversizing of
wastewater main in accordance with the terms and conditions of this ordinance; authorizing
the expenditure of funds therefore; and, providing an effective date (in the not-to-exceed
amount of $162,660.00). The Public Utilities Board recommends approval (6-0).
ASSIGNED ORDINANCE NO. 20-2542
Pulled for Individual Consideration by Mayor Pro Tem Davis.
There were no online registrations. There were no online registrations or call-ins on the item.
The item was not presented and no discussion followed.
Mayor Pro Tem Davis had a conflict of interest on the item and was removed from the video
conference for this item, thereby not participating on its deliberation.
Council Member Ryan moved to adopt the item as presented. Motion seconded by Council
Member Meltzer. Motion carried.
AYES (6): Mayor Hudspeth, and Council Members Johnson, Baker, Ryan, Armintor, and
Meltzer
NAYS (0): None
ABSTAIN (1): Mayor Pro Tem Davis
4. ITEMS FOR INDIVIDUAL CONSIDERATION
A. ID 21-001 Consider adoption of an ordinance of the City of Denton, a Texas home-rule
municipal corporation, suspending the January 23, 2021 effective date of CoServ Gas, Ltd.’s
requested rate increase to permit the City time to study the request and to establish reasonable
rates; approving cooperation with other cities in the CoServ Gas, Ltd. service area; approving
the hiring of legal counsel and consultants to represent City in all matters associated with
CoServ Gas, Ltd.’s application to increase rates and appeals thereof; authorizing intervention
in docket OS-20-00005136 at the Railroad Commission; authorizing reimbursement of
City’s rate case costs and expenses; finding that the meeting at which this Ordinance was
passed was open to the public and that public notice was given as required; authorizing and
requiring issuance of a copy of this Ordinance to CoServ Gas, Ltd. and legal counsel; and
providing an effective date.
ASSIGNED ORDINANCE NO. 21-001
There were no online registrations or call-ins on the item.
The item was presented and discussion followed.
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Following discussion, Mayor Pro Tem Davis moved to adopt the item as presented. Motion
seconded by Council Member Ryan. Motion carried.
AYES (7): Mayor Hudspeth, Mayor Pro Tem Davis and Council Members Johnson, Baker,
Ryan, Armintor, and Meltzer
NAYS (0): None
B. ID 21-040 Consider approval of a resolution of the City of Denton adopting the City of
Denton’s 2021 State Legislative Program for the 87th Texas Legislature; and providing an
effective date.
ASSIGNED RESOLUTION NO. 21-040
There were no online registrations or call-ins on the item.
The item was not presented or discussed.
Council Member Meltzer moved to adopt the item as presented. Motion seconded by Council
Member Ryan. Motion carried.
AYES (7): Mayor Hudspeth, Mayor Pro Tem Davis and Council Members Johnson, Baker,
Ryan, Armintor, and Meltzer
NAYS (0): None
C. ID 20-2557 Consider adoption of an ordinance of the City of Denton, a Texas home-rule
municipal corporation, authorizing the City Manager, or his designee, to execute a contract
with Eurovia Atlantic Coast LLC, dba Sunmount Paving Company as the primary vendor
and Jagoe-Public Company as the secondary vendor for the supply and installation of Hot
Mix Asphalt Concrete for the Streets Department; providing for the expenditure of funds
therefor; and providing an effective date (RFP 7486 - awarded to Eurovia Atlantic Coast
LLC, dba Sunmount Paving Company and Jagoe-Public Company, for one (1) year, with the
option for three (3) additional one (1) year extensions, in the total four (4) year not-to-exceed
amount of $12,000,000.00).
ASSIGNED ORDINANCE NO. 20-2557
There were no online registrations or call-ins on the item.
The item was presented and discussion followed.
Following discussion, Council Member Ryan moved to adopt the item as presented. Motion
seconded by Council Member Johnson. Motion carried.
AYES (7): Mayor Hudspeth, Mayor Pro Tem Davis and Council Members Johnson, Baker,
Ryan, Armintor, and Meltzer
NAYS (0): None
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D. ID 20-2362 Consider adoption of an ordinance of the City of Denton authorizing the City
Manager to execute a park development agreement between the City of Denton and Forestar
(USA) Real Estate Group Inc. for the dedication of park land at the Country Club Terrace
phase 1 and phase 2 development; authorizing acceptance of land; and providing an effective
date.
ASSIGNED ORDINANCE NO. 20-2362
There were no online registrations or call-ins on the item.
The item was presented and discussion followed.
Following discussion, Council Member Ryan moved to adopt the item as presented. Motion
seconded by Council Member Baker. Motion carried.
AYES (7): Mayor Hudspeth, Mayor Pro Tem Davis and Council Members Johnson, Baker,
Ryan, Armintor, and Meltzer
NAYS (0): None
E. ID 20-2575 Consider approval of a resolution of the City of Denton, Texas creating a
Sustainability Framework Advisory Committee; establishing a charge for the committee;
and, providing an effective date.
ASSIGNED RESOLUTION NO. 20-2575
There were no online registrations or call-ins on the item.
The item was presented and discussion followed.
Following discussion, Council Member Armintor moved to adopt the item as presented.
Motion seconded by Mayor Pro Tem Davis. Motion carried.
AYES (7): Mayor Hudspeth, Mayor Pro Tem Davis and Council Members Johnson, Baker,
Ryan, Armintor, and Meltzer
NAYS (0): None
F. S20-0011 Consider adoption of an ordinance of the City of Denton extending the approval
period for a Specific Use Permit for a manufactured housing park originally approved via
Ordinance S17-0008d for an approximately 126.1-acre property generally located north of
East McKinney Street and west of South Trinity Road in the City of Denton, Denton County,
Texas; adopting an amendment to the City’s official zoning map; providing for a penalty in
the maximum amount of $2,000 for violations thereof; providing for severability; and
establishing an effective date. (S20-0011, Woodlands of McKinney Street, Hayley Zagurski)
ASSIGNED ORDINANCE NO. S20-0011
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There were no online registrations or call-ins on the item.
The item was presented and discussion followed.
Following discussion, Council Member Armintor moved to adopt the item as presented.
Motion seconded by Mayor Pro Tem Davis. Motion carried.
AYES (7): Mayor Hudspeth, Mayor Pro Tem Davis and Council Members Johnson, Baker,
Ryan, Armintor, and Meltzer
NAYS (0): None
The meeting was recessed for a short break at 7:59 p.m. and reconvened at 8:11 p.m.
5. PUBLIC HEARINGS
Note: Mayor Hudspeth stated Public Hearing Item 5.B (Z20-0009a) would be heard before Item
5.A. (AESA20-0006b).
B. Z20-0009a Hold a public hearing and consider adoption of an ordinance of the City of
Denton, Texas, regarding a change in the zoning district and use classification from Highway
Corridor (HC) District to Light Industrial (LI) District on approximately 10.47 acres of land
and a change in zoning district and use classification from Heavy Industrial (HI) District to
LI District on approximately 13.09 acres of land generally located on the south side of the
I-35 East Service Road, approximately 672 feet west of Sam Bass Boulevard, in the City of
Denton, Denton County, Texas; adopting an amendment to the City’s official zoning map;
providing for a penalty in the maximum amount of $2,000.00 for violations thereof;
providing a severability clause and an effective date. The Planning and Zoning Commission
voted [7-0] to approve the request. (Z20-0009a, Urban Logistics 35, Hayley Zagurski)
ASSIGNED ORDINANCE NO. Z20-0009a
There were no online registrations on the item.
Items 5.B (Z20-009a) and 5.A (Z20-0009a) were collectively read into the record, presented,
and discussed, but voted on individually.
The public hearing was opened and citizen comments received are noted in Exhibit A. With
no other callers on queue, the public hearing was closed.
Discussion continued.
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Following discussion, Mayor Pro Tem Davis moved to adopt the item as presented. Motion
seconded by Council Member Meltzer. Motion carried.
AYES (7): Mayor Hudspeth, Mayor Pro Tem Davis and Council Members Johnson, Baker,
Ryan, Armintor, and Meltzer
NAYS (0): None
A. AESA20-0006b Hold a public hearing and consider adoption of an ordinance of the City of
Denton, Texas approving an Alternative Environmentally Sensitive Area Plan for a site
generally located on the south side of the I-35 East Service Road, approximately 672 feet
west of Sam Bass Boulevard, in the City of Denton, Denton County, Texas; adopting an
amendment to the city’s official Environmentally Sensitive Areas map; authorizing the
acceptance and execution of a conservation easement from Acme Brick Company; providing
for a penalty in the maximum amount of $2,000.00 for violations thereof; providing a
severability clause and an effective date. (AESA20-0006, Urban Logistics 35, Christi Upton)
POSTPONED TO FEBRUARY 16, 2021
All members of the City Council received the comments as submitted and had the
opportunity to review all submissions prior to the start of the meeting and consider such
comments when voting on the item. The summary of public commentary/registration(s) is
noted in Exhibit A.
Items 5.B (Z20-009a) and 5.A (Z20-0009a) were collectively read into the record, presented,
and discussed, but voted on individually.
The public hearing was opened and citizen comments received are noted in Exhibit A. With
no other callers on queue, the public hearing was closed.
Discussion continued.
Council Member Meltzer moved to adopt the item with staff conditions, and that an
acceptable plan be produced to mitigate the removal of trees which adding to the tree buffer
adjacent to the protected population. Motion seconded by Council Member Armintor.
Discussion continued.
Following discussion, Mayor Pro Tem Davis moved to postpone the item to February 16,
2021. Motion seconded by Council Member Armintor. Motion carried.
AYES (7): Mayor Hudspeth, Mayor Pro Tem Davis and Council Members Johnson, Baker,
Ryan, Armintor, and Meltzer
NAYS (0): None
NOTE: Per Roberts Rules of Order, the motion by Mayor Pro Tem Davis, seconded by Council
Member Armintor to postpone took precedence over Council Member Meltzer’s original motion to
adopt the item with staff conditions, and that an acceptable plan be produced to mitigate the removal
of trees which adding to the tree buffer adjacent to the protected population, seconded by Council
Member Armintor.
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C. Z20-0011b Hold a public hearing and consider adoption of an ordinance of the City of
Denton, Texas, regarding a change in the zoning district and use classification from Planned
Development (PD) District to Residential 1 (R1) District on approximately 4.23 acres of land
generally located on the east side of State School Road, approximately 150 feet southeast of
Winston Drive, in the City of Denton, Denton County, Texas; adopting an amendment to the
city’s official zoning map; providing for a penalty in the maximum amount of $2,000.00 for
violations thereof; providing a severability clause and an effective date. (Z20-0011, State
School Road Estate, Karina Maldonado) THE REQUEST WAS RE-NOTICED FOR THE
JANUARY 12, 2021 CITY COUNCIL MEETING.
POSTPONED TO JANUARY 12, 2021
The item was postponed as noted above.
6. CONCLUDING ITEMS
None
With no further business, the meeting was adjourned at 10:04 p.m.
____________________________________ ____________________________________
GERARD HUDSPETH CATHY WELBORN
MAYOR ASSISTANT CITY SECRETARY
CITY OF DENTON, TEXAS CITY OF DENTON, TEXAS
MINUTES APPROVED ON: ____________________________________
117
Name Last Address City Agenda Item Position Method CommentsDavid Laney 2501 Laney Circle Denton S20-0011 Support Online This proposed development is owned by the Holigan family whom I have known for years and they buildexemplary residential communities. Their request for extension of this SUP should certainly be granted byDenton City Council. Delays due to the Covid pandemic are unavoidable. Brian Beck 124 Mill Pond Road Denton AESA20-0006b Opposed Online The development associated with AEA20-0006b and Z20-0009a is a reasonable product and I support it.HOWEVER the AESA as proposed artificially pits the Riparian ESA against the Upland Habitat ESA.INSTEAD, I recommend you approve expanding the existing pond as well as the proposed new western-most pond and leave the grove to provide much need green/wildlife corridors to Roselawn, as well as visualscreening and dust/air/water filtration, up to the limits of the well-head and as needed northward.Brian Beck 124 Mill Pond Road Denton AESA20-0006b N/A Telephone Stated the plan is a good plan, but that you shouldn't rob Peter to pay Paul. Provided input on ways to savethe trees on the property.Aimee Bissett (Applicant) 100 West Oak Street Denton AESA20-0006b N/A Telephone Provided a joint presentation for agenda items Z20-0009a and AESA20-0006b and an overview of theproject.Aimee Bissett(Applicant) 100 West Oak Street Denton Z20-0009a N/A Telephone Provided a joint presentation for agenda items Z20-0009a and AESA20-0006b and an overview of theproject.Jenifer Carpenter 3006 Manor N Court Denton AESA20-0006b N/A Telephone Those trees provide a good absorption of pollutants from the brick plant and help with the air quality fornearby residents. Tony Featherstone 512 West Hickory Street Ste 114 Denton 20-2576 N/A Telephone Stated the amendment was in good direction, but feels that there was not enough time for airport user input. Dan Gallagher (Applicant) 13455 Noel Road Dallas AESA20-0006b N/A Telephone The Engineer for the project provided clarification on the project. Dan Gallagher (Applicant) 13455 Noel Road Dallas Z20-0009a N/A Telephone The Engineer for the project provided clarification on the project. Jonathan King 2916 Frontier Drive Denton 20-2576 Opposed Telephone I am commenting on 20-2538 for Jonathan King minimum square footage ADU requirement. I want toreject the proposed amendment of 400 sf minimum for ADUs because many land owners want to be able tobuild “tiny homes” or in my case “container homes” which are pre-finished modern pods that look amazing,but are only 320 square feet. We pay taxes to the city to be able to live peaceably on our own land and Iwant to say it adversely affects the tax-paying citizens to make a min ADU sf requirement.Tony Metraux 2019 Mercedes Road Denton 20-2571 Support Online No Comment. Jason Nunley 612 Summerset Drive Flower Mound AESA20-0006b N/A Telephone Provided insight of future plans of the site.Jason Nunley 612 Summerset Drive Flower Mound Z20-0009a N/A Telephone Provided insight of future plans of the site.Eric Pruett 2111 Westwood Drive Denton 20-2578 Support Online I’m excited to see Matrix is suggesting concrete metrics to track our2030 plan implementation, andstrengths in public outreach and greenway preservation for public use. With comments made by managementthat P&Z and Council has not followed the existing plan, I’m hopeful this will be an opportunity to gainalignment on the important aspects so we are unified on future implementation.I am willing and eager toparticipate in any way helpful and appropriate during this process.Clay Thurmond 1524 Snyder Street Denton AESA20-0006b N/A Telephone Opposed as the project as purposed due to the loss of continuous canopy. Provided ways to save the canopy.Pollution issues. January 5, 2021 City Council Regular Meeting - EXHIBIT ASpeaker Commentaries/RegistrationsOnline, Email, PhoneNOTE: Comments for those citizens addressing the City Council are an abbreviated summary. Information contained within this exhibit includes only commentary for Open Microphone, Consent, Individual Consideration and Public Hearing Items.118
CITY OF DENTON CITY COUNCIL MINUTES January 12, 2021
After determining that a quorum was present, the City Council of the City of Denton, Texas convened in a Work Session on Tuesday, January 12, 2021, at 3:01 p.m. in the Council Work Session Room at City Hall, 215 E. McKinney Street, Denton, Texas.
PRESENT: Mayor Gerard Hudspeth, Mayor Pro Tem Jesse Davis and Council Members Birdia
Johnson, Connie Baker, John Ryan, Deb Armintor, and Paul Meltzer ABSENT: None
Also present were City Manager Todd Hileman and City Attorney Aaron Leal.
Note: Mayor Gerard Hudspeth, Mayor Pro Tem Jesse Davis and Council Members Birdia Johnson, Connie Baker, John Ryan, Deb Armintor, and Paul Meltzer participated in the work session, and special meeting via video/teleconference under the provisions allowed by
the Texas Government Code Section 551.127. The posted agenda noted the registration process for public participation at this virtual meeting. While citizen commentary received via the online registration process was not read, each member of the City Council received each registration as it was submitted.
WORK SESSION
1. Citizen Comments on Consent Agenda Items
None
2. Requests for clarification of agenda items listed on this agenda.
• Council Member Meltzer: Item 1.P (20-2579)
• The following item(s) was/were pulled for Individual Consideration: o Council Members Armintor and Meltzer: Item 1.B (20-2564)
3. Work Session Reports
A. ID 20-1978 Receive a report, hold a discussion, and give staff direction regarding an internal audit of Meter Reading & Billing: Electric & Water Utilities.
The item was presented and discussion followed. Following discussion, there was no direction provided as the presentation was for reporting purposes only.
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B. ID 20-2094 Receive a report, hold a discussion, and give staff direction on pending City
Council requests for: (1) Have the City to audio record and archive as confidential all closed Council and board/committee meetings
The item was presented and discussion followed. Following discussion, results were as follows:
• Item 20-2094 (1): Have the City to audio record and archive as confidential all closed Council and board/committee meetings o Consensus was to move forward with a work session.
The work session ended at 3:30 p.m. SPECIAL CALLED MEETING
After determining that a quorum was present, the City Council of the City of Denton, Texas
convened in a Special Called Meeting on Tuesday, January 12, 2020, at 3:30 p.m. in the Council Work Session Room at City Hall, 215 E. McKinney Street, Denton, Texas. PRESENT: Mayor Gerard Hudspeth, Mayor Pro Tem Jesse Davis and Council Members Birdia
Johnson, Connie Baker, John Ryan, Deb Armintor, and Paul Meltzer
ABSENT: None Also present were City Manager Todd Hileman and City Attorney Aaron Leal.
Note: Mayor Gerard Hudspeth, Mayor Pro Tem Jesse Davis and Council Members Birdia Johnson, Connie Baker, John Ryan, Deb Armintor, and Paul Meltzer participated in the work session, and special meeting via video/teleconference under the provisions allowed by the Texas Government Code Section 551.127
The posted agenda noted the registration process for public participation at this virtual meeting. While citizen commentary received via the online registration process was not read, each member of the City Council received each registration as it was submitted.
1. CONSENT AGENDA
The Consent Agenda consisted of Items 1.A - P. During the Work Session held earlier in the day, Item 1.B (20-2564) was pulled for Individual Consideration by Council Members Armintor and Meltzer.
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Council Member Meltzer moved to adopt the Consent Agenda, now consisting of Items 1.A and 1.C - P. Motion seconded by Council Member Ryan. Motion carried.
AYES (7): Mayor Hudspeth, Mayor Pro Tem Davis and Council Members Johnson, Baker, Ryan,
Armintor, and Meltzer NAYS (0): None
A. ID 20-2162 Consider approval of the minutes of December 1, December 7, and December 17, 2020.
APPROVED
C. ID 20-2565 Consider adoption of an ordinance of the City of Denton, a Texas home-rule municipal corporation ("City"), authorizing the City Manager, or his designee, to execute a memorandum of understanding regarding electrical distribution switching procedures with Texas Woman’s University, a Texas higher education institution ("TWU"), to ensure electric system reliability and safety for parties by establishing electric distribution system switching
procedures; and, providing an effective date.
ASSIGNED ORDINANCE NO. 20-2565
D. ID 20-2450 Consider adoption of an ordinance of the City of Denton, a Texas home-rule municipal corporation, authorizing the City Manager, or his designee, to execute a contract
with Zimmerer Kubota & Equipment, Inc., through the Buy Board Cooperative Purchasing Network Contract # 597-19, for the purchase of one (1) Model KX080 and one (1) Model KX040 Kubota excavator for the Streets and Water Distribution Departments; providing for the expenditure of funds therefor; and providing an effective date (File 7539 - awarded to Zimmerer Kubota & Equipment, Inc., in the not-to-exceed amount of $145,633.83). The
Public Utilities Board recommends approval (6-0).
ASSIGNED ORDINANCE NO. 20-2450
E. ID 21-015 Consider adoption of an ordinance of the City of Denton, a Texas home-rule municipal corporation, authorizing the approval of a fourth amendment to a Professional
Services Agreement between the City of Denton and Hazen and Sawyer, P.C., amending the contract approved by City Council on July 21, 2015, in the not-to-exceed amount of $427,368.00; amended by Amendments 1, 2, and 3 approved by City Council; said fourth amendment to provide additional engineering services and permitting support for the Hickory Creek Detention Facility and the Hickory Creek Lift Station project; providing for
the expenditure of funds therefor; and providing an effective date (File 5768 - providing for an additional fourth amendment expenditure amount not-to-exceed $144,150.00, with the total contract amount not-to-exceed $1,346,964.00).
ASSIGNED ORDINANCE NO. 21-015
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F. ID 21-017 Consider adoption of an ordinance of the City of Denton, a Texas home-rule
municipal corporation, authorizing the approval of a third amendment to the Professional Services Agreement between the City of Denton and Halff Associates, Inc., amending the contract approved by City Council on November 6, 2018, in the not-to-exceed amount of $837,900.00; Amendments 1 and 2 were approved by Purchasing staff; said third amendment to provide additional surveying and engineering services is necessary for the design of the
water mains, sanitary sewers, storm sewers, and culverts in Elm Street and Locust Street, and a drainage study of North Pecan Creek and Pecan Creek; providing for the expenditure of funds therefor; and providing an effective date (File 6590-041 - providing for an additional third amendment expenditure amount not-to-exceed $177,840.00, with the total contract amount not-to-exceed $1,056,040.00).
ASSIGNED ORDINANCE NO. 21-017
G. ID 21-018 Consider adoption of an ordinance of the City of Denton, a Texas home-rule
municipal corporation, authorizing the approval of a first amendment to a Professional
Services Agreement between the City of Denton and Kimley-Horn and Associates, Inc., amending the contract approved by City Council on January 14, 2020, in the not-to-exceed amount of $1,398,600.00; said first amendment to provide additional design engineer services, permitting services, and construction administration services in support of the
Northwest Booster Pump Station and Water Transmission Main project; providing for the
expenditure of funds therefor; and providing an effective date (RFQ 6590-081 - providing for an additional first amendment expenditure amount not-to-exceed $126,300.00, with the total contract amount not-to-exceed $1,524,900.00).
ASSIGNED ORDINANCE NO. 21-018
H. ID 21-019 Consider adoption of an ordinance of the City of Denton, a Texas home-rule municipal corporation, authorizing the approval of a first amendment to a Professional
Services Agreement between the City of Denton and Kimley-Horn and Associates, Inc.,
amending the contract approved by City Council on January 14, 2020, in the not-to-exceed amount of $922,800.00; said first amendment to provide additional utility conflict analysis, surveying, easement acquisition, design, bidding, and construction administration services in support of the State reimbursable relocation of water and wastewater utilities within the
Interstate Highway 35E Right-of-Way; providing for the expenditure of funds therefor; and
providing an effective date (RFQ 6590-084 - providing for an additional first amendment expenditure amount not-to-exceed $165,000.00, with the total contract amount not-to-exceed $1,087,800.00).
ASSIGNED ORDINANCE NO. 21-019
I. ID 21-020 Consider adoption of an ordinance of the City of Denton, a Texas home-rule municipal corporation, authorizing the approval of a third amendment to a contract between
the City of Denton and USIC Locating Services, LLC, amending the contract approved by
City Council on June 19, 2018, in the not-to-exceed amount of $1,200,000.00; amended by
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Amendments 1-2 approved by Purchasing; said third amendment to continue to supply
underground utility locating services; providing for the expenditure of funds therefor; and providing an effective date (File 6736 - providing for an additional third amendment expenditure amount not-to-exceed $300,000.00, with the total contract amount not-to-exceed $1,500,000.00).
ASSIGNED ORDINANCE NO. 21-020
J. ID 21-021 Consider adoption of an ordinance of the City of Denton, a Texas home-rule municipal corporation, authorizing the City Manager, or his designee, to execute a contract with vendors for the rental of heavy trucks for various City of Denton departments; providing for the expenditure of funds therefor; and providing an effective date (IFB 7464 - awarded
to Big Truck Rental, LLC, Herc Rentals, Inc., Industrial Power, LLC, and Rush Truck Leasing, Inc., for three (3) years, with the option for two (2) additional one (1) year extensions, in the total five (5) year not-to-exceed amount of $450,000.00).
ASSIGNED ORDINANCE NO. 21-021
K. ID 21-022 Consider adoption of an ordinance of the City of Denton, a Texas home-rule municipal corporation, authorizing the City Manager, or his designee, to execute a contract with Roll-Offs USA, Inc., for the purchase of steel refuse and recycling containers for the
Solid Waste Department; providing for the expenditure of funds therefor; and providing an
effective date (RFP 7503 - awarded to Roll-Offs USA, Inc., for three (3) years, with the option for two (2) additional one (1) year extensions, in the total five (5) year not-to-exceed amount of $2,438,173.00).
ASSIGNED ORDINANCE NO. 21-022
L. ID 21-023 Consider adoption of an ordinance of the City of Denton, a Texas home-rule municipal corporation, authorizing the City Manager, or his designee, to execute a contract
with Houston Mac Haik Dodge Chrysler Jeep Ram LTD, Houston-Galveston Area Council
of Governments (H-GAC) Cooperative Purchasing Program Contract Number AM10-20, for one (1) new Frazer Medic and two (2) remounted Frazer medics for the Fire Department; providing for the expenditure of funds therefor; and providing an effective date (File 7557 - awarded to Houston Mac Haik Dodge Chrysler Jeep Ram LTD, in the not-to-exceed amount
of $632,824.00).
ASSIGNED ORDINANCE NO. 21-023
M. ID 21-024 Consider adoption of an ordinance of the City of Denton, a Texas home-rule
municipal corporation, authorizing the City Manager, or his designee, to execute a contract with Siddons-Martin Emergency Group, LLC, through the Buy Board Cooperative Purchasing Network Contract #571-18, for one (1) Pierce Custom Enforcer Pumper Engine for the Fire Department; providing for the expenditure of funds therefor; and providing an effective date (File 7558 - awarded to Siddons-Martin Emergency Group, LLC, in the not-
to-exceed amount of $764,947.00).
ASSIGNED ORDINANCE NO. 21-024
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N. ID 21-025 Consider adoption of an ordinance of the City of Denton, a Texas home-rule
municipal corporation, authorizing the City Manager, or his designee, to execute a contract with Caterpillar, Inc. dba Holt CAT, through the Sourcewell Purchasing Network Contract Number 032119, for the purchase of one (1) Caterpillar model D9 Dozer for the Solid Waste Department; providing for the expenditure of funds therefor; and providing an effective date (File 7585 - awarded to Caterpillar, Inc. dba Holt CAT, in the not-to-exceed amount of
$1,285,661.68).
ASSIGNED ORDINANCE NO. 21-025
O. ID 21-026 Consider adoption of an ordinance of the City of Denton, a Texas home-rule municipal corporation, authorizing the City Manager, or his designee, to execute a contract
with SHI Government Solutions, Inc., through the Department of Information Resources (DIR) Cooperative Purchasing Network Contract No. DIR-TSO-3984 for the procurement of the NEOGOV Full Suite for the Human Resources Department; providing for the expenditure of funds therefor; and providing an effective date (File 7596 - awarded to SHI Government Solutions, Inc., for one (1) year, with the option for four (4) additional one (1)
year extensions, in the total five (5) year not-to-exceed amount of $883,908.50).
ASSIGNED ORDINANCE NO. 21-026
P. ID 20-2579 Consider adoption of an ordinance of the City of Denton, a Texas home-rule municipal corporation, authorizing the City Manager, or his designee, to execute a
Professional Services Agreement with John Hoggard dba Utility Planning Network (UPN), for 311/CRM Consulting Services for Customer Service and Public Affairs as set forth in the contract; providing for the expenditure of funds therefor; and providing an effective date (RFQ 7485 - Professional Services Agreement for consultant services awarded to John Hoggard dba Utility Planning Network (UPN), for one (1) year, with the option for one (1)
additional one (1) year extension, in the total two (2) year not-to-exceed amount of $200,000.00).
ASSIGNED ORDINANCE NO. 20-2579 ITEM PULLED FOR INDIVIDUAL CONSIDERATION
B. ID 20-2564 Consider adoption of an ordinance of the City of Denton, a Texas home-rule municipal corporation ("City"), authorizing the City Manager, or his designee, to execute a memorandum of understanding regarding electrical distribution switching procedures with University of North Texas, a Texas higher education institution ("UNT"), to ensure electric
system reliability and safety for parties by establishing electric distribution system switching procedures; and, providing an effective date.
ASSIGNED ORDINANCE NO. 20-2564
Pulled for Individual Consideration by Council Members Armintor and Meltzer. Council Members Armintor and Meltzer had a conflict of interest on the item and were removed from the video conference for this item, thereby not participating on its deliberation.
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The item was not presented and no discussion followed. Council Member Ryan moved to adopt the item as presented. Motion seconded by Mayor
Pro Tem Davis. Motion carried.
AYES (5): Mayor Hudspeth, Mayor Pro Tem Davis and Council Members Johnson, Baker and Ryan NAYS (0): None
ABSTAIN (2): Council Members Armintor and Meltzer
2. ITEMS FOR INDIVIDUAL CONSIDERATION
A. ID 20-2276 Consider adoption of an ordinance establishing the City of Denton Utility system extendable commercial paper financing program and authorizing Utility system revenue extendable commercial paper notes, series B; and providing an effective date.
ASSIGNED ORDINANCE NO. 20-2276 There were no online registrations or call-ins on the item.
Items 2.A (20-2276) and 2.B (21-070) were collectively read into the record, presented, and discussed, but voted on individually. Following discussion, Council Member Meltzer moved to adopt the item as presented.
Motion seconded by Mayor Pro Tem Davis. Motion carried. AYES (7): Mayor Hudspeth, Mayor Pro Tem Davis and Council Members Johnson, Baker, Ryan, Armintor, and Meltzer NAYS (0): None
B. ID 21-070 Consider adoption of an ordinance considering all matters incident and related to the issuance, sale and delivery of up to $100,000,000 in principal amount of "City of Denton
Utility System Revenue Refunding Bonds, Series 2021"; authorizing the issuance of the bonds; delegating the authority to certain city officials to execute certain documents relating to the sale of the bonds; approving and authorizing instruments and procedures relating to said bonds; enacting other provisions relating to the subject; and providing an effective date.
ASSIGNED ORDINANCE NO. 21-070 There were no online registrations or call-ins on the item.
Items 2.A (20-2276) and 2.B (21-070) were collectively read into the record, presented, and discussed, but voted on individually.
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Following discussion, Council Member Meltzer moved to adopt the item as presented. Motion seconded by Mayor Pro Tem Davis. Motion carried.
AYES (7): Mayor Hudspeth, Mayor Pro Tem Davis and Council Members Johnson, Baker,
Ryan, Armintor, and Meltzer NAYS (0): None
C. ID 20-2424 Consider adoption of an ordinance of the City of Denton to declare the intent to reimburse capital program expenditures of the Electric Utility ($42,538,108), Solid Waste ($3,000,000), Water ($23,647,184), Wastewater ($26,144,574), and General Government ($72,608,678) with Tax- Preferred Obligations (Certificates of Obligation and General
Obligation Bonds) with an aggregate maximum principal amount not to exceed $167,938,544; and providing an effective date.
ASSIGNED ORDINANCE NO. 20-2424 There were no online registrations or call-ins on the item. The item was presented and discussion followed.
Following discussion, Mayor Pro Tem Davis moved to adopt the item as presented. Motion seconded by Council Member Baker. Motion carried. AYES (7): Mayor Hudspeth, Mayor Pro Tem Davis and Council Members Johnson, Baker,
Ryan, Armintor, and Meltzer NAYS (0): None
D. ID 21-049 Consider approval of a resolution by the City of Denton authorizing the City Manager or his designee to apply for funding under the Denton County Transportation Reinvestment Program (TRiP), providing financial assistance to member cities for transit-supportive projects, from the Denton County Transportation Authority (DCTA) in the amount of $2,517,997 for the funding period of October 1, 2020 through September 30, 2021;
and providing an effective date.
ASSIGNED RESOLUTION NO. 21-049
There were no online registrations or call-ins on the item. The item was presented and discussion followed.
Following discussion, Council Member Meltzer moved to adopt the item as presented.
Motion seconded by Mayor Pro Tem Davis. Motion carried. AYES (7): Mayor Hudspeth, Mayor Pro Tem Davis and Council Members Johnson, Baker, Ryan, Armintor, and Meltzer
NAYS (0): None
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E. ID 20-2549 Consider appointing a nominating committee to recommend appointees to serve
on the Economic Development Partnership Board.
There were no online registrations or call-ins on the item.
The item was presented and discussion followed. Following discussion, Mayor Hudspeth opened the nominations to select a committee to
recommend appointees.
Mayor Pro Tem Davis nominated Mayor Hudspeth to serve on the nominating committee. Council Member Ryan nominated Mayor Pro Tem Davis to serve on the nominating
committee.
Following discussion, Council Member Ryan moved to appoint Mayor Hudspeth and Mayor Pro Tem Davis to serve on the nominating committee to recommend appointees to serve on the Economic Development Partnership Board. Motion seconded by Council Member Baker.
Motion carried.
AYES (7): Mayor Hudspeth, Mayor Pro Tem Davis and Council Members Johnson, Baker, Ryan, Armintor, and Meltzer NAYS (0): None
The meeting was recessed at 4:19 p.m. and was reconvened at 6:30 p.m. to continue with the Public Hearings as posted.
3. PUBLIC HEARINGS
A. Z20-0011d Hold a public hearing and consider adoption of an ordinance of the City of Denton, Texas, regarding a change in the zoning district and use classification from Planned
Development (PD) District to Residential 1 (R1) District on approximately 4.23 acres of land generally located on the east side of State School Road, approximately 150 feet southeast of Winston Drive, in the City of Denton, Denton County, Texas; adopting an amendment to the city’s official zoning map; providing for a penalty in the maximum amount of $2,000.00 for violations thereof; providing a severability clause and an effective date. The Planning and
Zoning Commission voted [7-0] to approve the request. (Z20-0011, State School Road Estates, Karina Maldonado)
ASSIGNED ORDINANCE NO. Z20-0011d There were no online registrations/call-ins on the item. The item was presented and discussion followed.
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The public hearing was opened and with no callers on queue, the public hearing was closed. Following discussion, Mayor Pro Tem Davis moved to adopt the item as presented. Motion
seconded by Council Member Ryan. Motion carried.
AYES (7): Mayor Hudspeth, Mayor Pro Tem Davis and Council Members Johnson, Baker, Ryan, Armintor, and Meltzer NAYS (0): None
B. DCA20-0005a Hold a public hearing and consider adoption of an ordinance of the City of Denton amending the Denton Development Code Subchapter 3, "Zoning Districts," related
to the minimum side yard setback for the Residential 3 (R3) Zoning District; providing for a penalty in the maximum amount of $2,000.00 for violations thereof; providing a severability clause and an effective date. The Planning and Zoning Commission voted (6-1) to recommend approval. (DCA20-0005a, Side Yard Setbacks, Julie Wyatt)
ASSIGNED ORDINANCE NO. DCA20-0005a All members of the City Council received the comments as submitted and had the
opportunity to review all submissions prior to the start of the meeting and consider such comments when voting on the item. The summary of public commentary/registration(s) is noted in Exhibit A. The item was presented and discussion followed.
The public hearing was opened and citizen comments received are noted in Exhibit A. With no other callers on queue, the public hearing was closed.
Following discussion, Mayor Hudspeth moved to adopt the item as presented. Motion seconded by Council Member Ryan. Following further discussion, Council Member Meltzer offered a friendly amendment to set the minimum side yard setback to six (6) feet. The friendly amendment was not accepted by
Mayor Hudspeth. Mayor Hudspeth called the vote on his original motion, seconded by Council Member Ryan, to adopt the item as presented, . Motion carried.
AYES (6): Mayor Hudspeth, Mayor Pro Tem Davis and Council Members Johnson, Baker, Ryan, and Meltzer NAYS (1): Council Member Armintor
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4. CONCLUDING ITEMS
None
With no further business, the meeting was adjourned 7:42 p.m.
____________________________________ ____________________________________
GERARD HUDSPETH ZOLAINA R. PARKER
MAYOR DEPUTY CITY SECRETARY CITY OF DENTON, TEXAS CITY OF DENTON, TEXAS
MINUTES APPROVED ON: ____________________________________
129
Name Last Address City Agenda Item Position Method CommentsBridget Marshall 3539 Pine Trail Denton DCA20-0005a Opposition Online Please deny the proposed 5' setback. Currently variances can be applied forthrough the Zoning Board of Adjustment to allow for changes.The presentation doesn't address new developments, only older in-town homes. A smaller setback will mostly benefit subdivision/master-planned community developers since individual homeowners can apply for a variance. If property owners want to build “larger or distinctivestructures” they should buy a bigger lot. A R3 lot with a 5' setback is not low density. Eric Pruett 2111 Westwood Drive Denton DCA20-0005a Support Telephone R3 is the most diverse single family zoning district in Denton; neighbors don't want to change their neighbors; is in favor of the amendment;many of the most cherished neighborhoods have been in the R3 districts; there is no large developers asking for R3; people are afraid thatneighbors will build closer; do the fair thing by restoring property rights to where they were. Doug Shanahan 928 Pioneer Circle Argyle DCA20-0005a Support TelephoneIn favor of amendment; purchased a home in Denton; loves the idea of living in downtown. Tried to design a 2300 sq. foot home; and whenpresented floor plans was advised that the zoning had changed and the side yard setback was changed; big issue which cost them money.Ann Woodbridge 3596 Hartlee Field Road Denton DCA20-0005a Opposition Online Please deny this reduction in R3 setbacks per my letter sent separately, thank you. NOTE: Comments for those citizens addressing the City Council are an abbreviated summary. Information contained within this exhibit includes only commentary for Open Microphone, Consent, Individual Consideration and Public Hearing Items.January 12, 2021 City Council Special Called Meeting - EXHIBIT ASpeaker Commentaries/RegistrationsOnline, Email, Phone130
City of Denton
Legislation Text
City Hall
215 E. McKinney St.
Denton, Texas 76201
www.cityofdenton.com
File #:ID 21-009,Version:1
AGENDA CAPTION
Consider adoption of an ordinance of the City of Denton releasing,abandoning,and vacating a 715.20 square
foot Electric Utility Easement granted to the City of Denton by James H.Jones,H.M.Burgess,Billy R.Jones,
and J.Dan Harvey,recorded as Instrument No.1978-2348 in the Deed Records of Denton County,Texas;
providing for severability and an effective date. (Park 7 Addition, electric easement abandonment - Mark Laird)
City of Denton Printed on 1/21/2021Page 1 of 1
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City of Denton
_____________________________________________________________________________________
AGENDA INFORMATION SHEET
DEPARTMENT: Development Services
DCM: Sara Hensley
DATE: January 26, 2021
SUBJECT
Consider adoption of an ordinance of the City of Denton releasing, abandoning, and vacating a 715.20
square foot electric utility easement granted to the City of Denton by James H. Jones, H.M. Burgess, Billy
R. Jones, and J. Dan Harvey, recorded as Instrument No. 1978-2348 in the Deed Records, Denton County,
Texas; providing for severability and an effective date. (Park 7 Addition, electric easement abandonment –
Mark Laird)
BACKGROUND
CD/Park7 Denton Owner LP., a Delaware limited partnership “Owner”, has made a formal request for the
City of Denton to abandon an electric utility easement as it encumbers the owner’s property located within
the development known as the Park 7 Development, being on the south Line of Scripture Street between
Bryan Street and Normal Street. The Owners property is platted and is known as Lot 1, Block A, of the E.
Puchalski Survey Addition, filed for public record on February 2, 2019 with the Denton County Clerk under
Instrument No. 2019-86, Plat Records, Denton County, Texas.
The electric utility easement that is being requested for abandonment was dedicated to the City of Denton
in 1978 for the benefit of electrical utilities only and to correct an error on the previous filed 1976 filed
easement for the same intended area. The 1978 Electric Easement corrected an error of a survey reference
call distance from its point of commencement to beginning point call, a difference of 6 foot between the
two easements. The 1978 Easement replaced the 1976 easement to correct the error and to cover the required
electrical facilities.
The City of Denton received the formal abandonment request on February 5, 2019 from the previous Owner
for the 1976 Easement, as the easement encroached into the developments proposed structure. The request
was approved by City Council on July 16, 2019 by Ordinance 2019-1542. At the time of the request the
previous Owner was not aware of the 1978 Easement until a review by the New Owner of the property’s
Title Policy Schedule B. The subject request is being requested to clear the encumbrance of the original
abandonment request intent of abandoning the Easement from the property.
Since there are no future or current needs of the subject easement, the property owner is requesting the
abandonment to remove the encumbrance from the property.
Staff recommends the abandonment of the subject easements.
Staff performs an analysis on the request for abandonments as follows:
▪Is the easement tract requested for abandonment considered “excess easement”?
City Hall
215 E. McKinney Street
Denton, Texas
www.cityofdenton.com
132
▪Does the easement tract requested for abandonment have a continued public use?
▪Is it the best interests of the general public to abandon the government’s rights in the subject
abandonment tract?
▪Would the granting of this request establish a precedent for future abandonment requests?
Staff findings on this analysis are as follows:
1. The requested electric utility easement known as the abandonment tract, does fit the criteria of “excess
easement.” Excess easement is defined as: Property rights acquired or used by the City for easement
subsequently declared excess (not needed for any electric facility project, the continuation of operation
and maintenance of electric facilities, and/or no foreseeable electric improvement applications in the
future).
2. No, the electric utility easement is not slated for utilization for any future pubic facilities.
3. The electric utility easement abandonment tract, is in the public’s best interests, because the area for the
subject abandonment is no longer needed for electric facilities and the area encumbered can be freed up
for other uses.
4. This abandonment will not set a precedent, because the above three standards have been met.
OPTIONS
1. Approve the proposed ordinance.
2. Decline to approve the proposed ordinance.
3. Table for future consideration.
RECOMMENDATION
Staff recommends approval of the ordinance.
ESTIMATED SCHEDULE OF PROJECT
Spring of 2021.
PRIOR ACTION/REVIEW (Council, Boards, Commissions)
E. Puchalski Survey, Final Plat approval by Planning & Zoning on August 9, 2017.
FISCAL INFORMATION
All costs associated with the processing of the abandonment request are being borne by the Owner.
EXHIBITS
1. Agenda information sheet
2. Location map
3. Site map
4. Project narrative
5. Subject easement requested for abandonment
6. Property owners deed
7. LLC., member list
8. Ordinance
Respectfully submitted:
Richard Cannone
133
Deputy Director of Development Services
Prepared by:
Mark A. Laird
Associate Planner
134
CITY OF DENTON
W OAK ST N ELM STCARROLL BLVDEGAN ST
W EAGLE DRAVE DFULTON STBOLIVAR STCOIT STALICE STS AVE CN LOCUST STW HIGHLAND ST
PANHANDLE STMALONE STMAPLE ST DENTON STANNA STCRESCENT ST
S ELM STW HICKORY ST
S LOCUST STCORDELL ST
S BELL AVES WELCH STN AUSTIN STOAKLAND STW MULBERRY ST
W UNIVERSITY DR
PONDER AVEWESTWAY ST
FRY STBROADWAY ST
W CONGRESS ST
SUNSET ST
SCRIPTURE ST
W SYCAMORE ST
LINDEN DR
GOBER STIOOF STAVE AGREGG STAMARILLO STSENA ST
E OAK ST
W PARKWAY ST
E PRAIRIE ST
S AVE BEMERY ST
BERNARD STW Y E S TPIERCE STJAGOE STBRYAN STMILL STAILEEN STMOUNTS AVEE SYCAMORE ST
E HICKORY STNORMAL STFIRST ST
STROUD ST
W MCKINNEY ST
MYRTLE STN BELL AVEE MCKINNEY ST
CARLTON ST
MARIETTA STWAINWRIGHT STE MULBERRY ST
HANN ST
SECOND ST
CENTRAL AVEE CONGRESS ST
W PRAIRIE ST
CHESTNUT ST
TEXAS ST
WESTCHESTER DR
LIBRARYUNION CIR
WILSHIRE ST
W COLLEGE ST
N CEDAR STN AVE BN AVE CE PECAN ST
E WALNUT ST
PACIFIC STE THIRD ST
LOWRY WOODS LN
PAULINE STPRIMROSE LNN WELCH STMARSHALL ST
W SYCAMORE ST
CRESCENT ST
AILEEN STMAPLE ST
W MULBERRY ST BRYAN STCHESTNUT ST
LINDEN DR
CORDELL ST
AVE AW CONGRESS ST ANNA STW HICKORY ST
EMERY ST
µ0 550 1,100275Feet
Location Map
Site - Abandonment tract
DowntownDenton
Site
135
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4401 N. I-35, Suite 102
Denton, TX 76207
Office: 940.380.9453
Fax: 940.380.9431
www.ae-grp.com
TBPE Firm #: 7898
P:\Projects\EVP1601 - Park 7 Denton\City Submittals\Easement Abandonment Request\Project Narrative
Signed.doc
Page 1 of 2
September 12, 2016
City of Denton Planning Department
City Hall West
221 N. Elm St.
Denton, TX 76201
Re: Easement Abandonment Request
1519 Scripture, Denton, TX
R #’s 35015
AEG #: EVP1601
Project Narrative
The easement in question is situated on the property located on the south side of Scripture street
between Bryan and Normal. The property currently houses an abandoned medical center. The owner of
the property is proposing a mixed-use development for the property in question and those identified in
the Final Replat (FR17-0014).
The Site Plan for the development is being designed by Allison Engineering Group and is currently under
review by the City of Denton (SP18-0031). The Final Replat document has been approved by the City of
Denton, but is pending filing (FR17-0014). The Final Replat contains a total of four properties, identified
in DCAD as R35011, R35015, R34991, and R34989. The property in question is R35015.
The easement is currently used for the connection of DME lines to the transformer that serviced the
medical center when it was in use. The existing medical center on site is to be demolished and replaced
with the proposed mixed-use development.
Checklist Questions and Answers:
1. What are the reasons for the proposed abandonment?
The electric easement in question is servicing the existing medical center on site. The
medical center is no longer in use and is to be demolished with the approval of the Site Plan.
The proposed mixed-use development layout cannot make use of the existing easement on
site.
2. Is the subject easement abonnement tract currently occupied with public utilities,
facilities or franchise utilities? If so, what are the plans for relocation, rearrangement,
adjustment or abandonment of those facilities? If applicable explain how alternative
easement are to be provided.
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Page 2 of 2
The subject easement tract is currently occupied with electric service from DME to the
existing abandoned medical center on site. The electric services for the proposed
development are to be located on the southeast and southwest corners of the site (see
SP18-0031 for proposed easement).
3. What are the future development plans for the subject easement area proposed for
abandonment?
The proposed development is a mixed-use structure containing retail and multi-family units.
4. Are there alternatives other than abandonment of the subject easement tract and if so,
what are they?
The proposed development cannot make use of the electric easement in question.
5. If there is a proposed project, what is the anticipated start date?
The grading and clearing permits should be issued in the next couple months with clearing
and grading occurring later this year.
6. Are there related pending development actions such as platting, zoning or permitting with
City departments and if so, what are they?
The Final Replat has been approved by the City of Denton, but is pending filing (FR17-0014).
The Site Plan is under review by the City of Denton (SP18-0031).
7. How does the subject land rights abandonment initiative affect the public’s interests in
the context of promoting the health, safety and welfare of the citizens of Denton?
The abandonment does not affect the public’s interests in the context of promoting the
health, safety and welfare of the citizens of Denton.
Respectfully Submitted,
Allison Engineering Group
Anthony Milbitz
138
*ACS/TRC* DENTON Doc: 000002348 Date: 01/31/1978 Vol: 0000873 Page: 00509 Page: 1 Of 2
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*ACS/TRC* DENTON Doc: 000002348 Date: 01/31/1978 Vol: 0000873 Page: 00509 Page: 2 Of 2
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ORDINANCE NO. ______________
AN ORDINANCE OF THE CITY OF DENTON RELEASING, ABANDONING, AND
VACATING A 715.20 SQUARE FOOT ELECTRIC UTILITY EASEMENT GRANTED TO
THE CITY OF DENTON BY JAMES H. JONES, H.M. BURGESS, BILLY R. JONES, AND J.
DAN HARVEY, RECORDED AS INSTRUMENT NO. 1978-2348 IN THE DEED RECORDS
OF DENTON COUNTY, TEXAS; PROVIDING FOR SEVERABILITY AND AN EFFECTIVE
DATE.
WHEREAS, the City of Denton (“City”) is the holder of an Electric Utility Easement
granted by James H. Jones, H.M. Burgess, Billy R. Jones, and J. Dan Harvey, recorded as
Instrument No. 1978-2348, in Volume 873, Page 509 of the Deed Records of Denton County,
Texas (the “Subject Easement”); and
WHEREAS, D and H Denton, LLC, a Texas limited liability company (“Owner”), has
represented to the City that it is the owner of the property subject to the Subject Easement; and
WHEREAS, the Owner has requested the City to release, abandon, and vacate the Subject
Easement in its entirety as the Subject Easement is no longer unnecessary because the
infrastructure that was in the Subject Easement has been removed, alternative easements have been
received from the Owner as described and depicted on the Replat of Lot 1, Block A, E. Puchalski
Survey, Abstract 996, filed in the Official Records of Denton County, Texas as Document Number
2019-86, and future electrical infrastructure will be constructed therein soon; and
WHEREAS, City staff reviewed the request of the Owner, determined that, with the
alternative easements and soon-to-be constructed infrastructure, the Subject Easement is no longer
necessary, and recommends the Subject Easement be released, abandoned, and vacated as
specified herein; and
WHEREAS, the City Council of the City of Denton finds it is in the public interest to
release, abandon, and vacate the Subject Easement; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The recitations and finding set forth above are incorporated herein by
reference.
SECTION 2. The following Electric Utility Easement held by the City of Denton is
released, abandoned, and vacated in its entirety:
That certain easement granted by James H. Jones, H.M. Burgess, Billy R. Jones and
J. Dan Harvey, recorded as Instrument No. 1978-2348 in the Deed Records, Denton
County, Texas.
SECTION 3. The City Manager, or his designee, is authorized to execute a release
document evidencing the abandonment of the Subject Easement, suitable for recordation in the
Real Property Records of Denton County, Texas.
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Page 2
SECTION 4. Notwithstanding anything to the contrary contained in this Ordinance, the
City of Denton retains and reserves any and all easements, rights of way, and any other rights or
interests, other than the Subject Easement released, abandoned, and vacated in Section 2 above,
whether acquired, obtained, owned, or claimed by the City of Denton or public, by, through, or
under conveyance, dedication by plat, or other express dedication, implied dedication,
prescription, or by any other manner or means, in or to lands in which the Subject Easement may
cover, encumber, include, cross, or overlap.
SECTION 5. The provisions of this Ordinance are severable, and the invalidity of any
phrase, clause, or part of this Ordinance shall not affect the validity or effectiveness of the
remainder of the Ordinance.
SECTION 6. This Ordinance shall become effective immediately upon its passage and
approval.
The motion to approve this ordinance was made by __________________________ and
seconded by _________________________________, the ordinance was passed and approved by
the following vote [___ - ___]:
Aye Nay Abstain Absent
Gerard Hudspeth, Mayor: ______ ______ ______ ______
Birdia Johnson, District 1: ______ ______ ______ ______
Connie Baker, District 2: ______ ______ ______ ______
Jesse Davis, District 3: ______ ______ ______ ______
John Ryan, District 4: ______ ______ ______ ______
Deb Armintor, At Large Place 5: ______ ______ ______ ______
Paul Meltzer, At Large Place 6: ______ ______ ______ ______
PASSED AND APPROVED this the ______ day of __________________, 2021
_____________________________
GERARD HUDSPETH, MAYOR
151
Page 3
ATTEST:
ROSA RIOS, CITY SECRETARY
BY: _________________________________
APPROVED AS TO LEGAL FORM:
AARON LEAL, CITY ATTORNEY
BY: __________________________________
152
City of Denton
Legislation Text
City Hall
215 E. McKinney St.
Denton, Texas 76201
www.cityofdenton.com
File #:ID 21-011,Version:1
AGENDA CAPTION
Consider adoption of an ordinance approving an encroachment on easement agreement between the City of Denton
and the Oncor Electric Delivery Company,LLC,relating to the construction,operation,and maintenance of public
facilities (“Taylor Park Boulevard”crossing including a ten (10)foot wide sidewalk crossing,four (4)by two (2)
foot RCB crossing,twenty-one (21)inch RCP crossing,eighteen (18)inch RCP crossing,eight (8)inch waterline
crossing,eight (8)inch sanitary sewer crossing,and a Denton Municipal Electric line bore crossing)within Oncor’s
Easement;authorizing the City Manager to execute the agreement;authorizing the expenditure of funds;and
providing an effective date. “Cambridge Brook Oncor Encroachment Agreement - Mark Laird”
City of Denton Printed on 1/22/2021Page 1 of 1
powered by Legistar™153
City of Denton
_____________________________________________________________________________________
AGENDA INFORMATION SHEET
DEPARTMENT: Development Services
DCM: Sara Hensley
DATE: January 26, 2021
SUBJECT
Consider adoption of an ordinance approving an encroachment on easement agreement between the City of
Denton and the Oncor Electric Delivery Company, LLC, relating to the construction, operation, and maintenance
of public facilities (“Taylor Park Boulevard” crossing including a ten (10) foot wide sidewalk crossing, four (4)
by two (2) foot RCB crossing, twenty-one (21) inch RCP crossing, eighteen (18) inch RCP crossing, eight (8)
inch waterline crossing, eight (8) inch sanitary sewer crossing, and a Denton Municipal Electric line bore
crossing) within Oncor’s Easement; authorizing the City Manager to execute the agreement; authorizing the
expenditure of funds; and providing an effective date. “Cambridge Brook Oncor Encroachment Agreement -
Mark Laird”
BACKGROUND
The Final Plat of Cambridge Brook Phase 1 Addition was approved by the Planning and Zoning Commission on
October 7, 2020 and the developments Construction plans were approved by Staff on November 16, 2020. The
required public improvements associated with the subject Development, includes encroaching into an Oncor
Easement with public improvements. The public improvements slated for construction within the Oncor
Easement is for the location of a City street “Taylor Park Boulevard” crossing, ten (10) foot wide sidewalk
crossing, four (4) by two (2) foot RCB crossing, twenty-one (21) inch RCP crossing, eighteen (18) inch RCP
crossing, eight (8) inch waterline crossing, eight (8) inch sanitary sewer crossing, and a Denton Municipal
Electric line bore crossing. The affected Oncor Electric Company (“ONCOR”) easement is recorded in Volume
559, Page 570, Denton County, Texas.
Staff endorses the encroachment request as Oncor has been included with the planning of the public facilities
within the subject Oncor Easement. The Encroachment Agreement is the formal instrument to memorialize the
permitted encroachments within the Oncor Easement.
OPTIONS
1. Recommend Approval of the Ordinance
2. Recommend Denial of the Ordinance
3. Table for future consideration.
RECOMMENDATION
Staff recommends approval of the Ordinance.
ESTIMATED SCHEDULE OF PROJECT
Late January of 2021.
City Hall
215 E. McKinney Street
Denton, Texas
www.cityofdenton.com
154
PRIOR ACTION/REVIEW (Council, Boards, Commissions)
Public Utility Board, January 11, 2021 – Recommends Approval.
FISCAL INFORMATION
All costs associated with the processing of the Pipeline crossing contract are being borne by the
Developer.
EXHIBITS
1. Agenda Information Sheet
2. Location Map
3. Site Map
4. Final Plat
5. Oncor Encroachment Agreement
6. Vesting Deed
7. Ordinance
Respectfully submitted:
Richard Cannone
Deputy Director of Development Services
Prepared by:
Mark A. Laird
Associate Planner
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NW Carrollton – Gainesville 138kV
E-145345
2020-0515RT
ENCROACHMENT ON EASEMENT
WHEREAS, Oncor Electric Delivery Company LLC (“Oncor”), is the owner of an easement in
Denton County, Texas, which is recorded in Volume 559, Page 570, of the Deed Records of Denton
County, Texas (“Easement”); and
WHEREAS, City of Denton, (“User”), desires permission to construct, operate and maintain a
street (Taylor Park Blvd) crossing, ten (10) foot wide sidewalk crossing, four (4) by two (2) foot RCB
crossing, twenty-one (21) inch RCP crossing, eighteen (18) inch RCP crossing, eight (8) inch water
line crossing, eight (8) inch sanitary sewer crossing, and a Denton Municipal Electric line bore
crossing (“Encroaching Facility”) within the area or boundaries of the Easement (“Easement
Area”).
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good
and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Oncor
and User do hereby agree as follows:
1.Location of Encroaching Facility. User may locate the Encroaching Facility in the
Easement Area, but only as described and shown on the attached drawing marked Exhibit "A",
incorporated herein. User may not relocate the Encroaching Facility within the Easement Area
without the consent and approval of Oncor, which consent and approval shall be at Oncor’s sole
discretion. User acknowledges and agrees that Oncor holds easement rights on the Easement
Area; therefore, User shall obtain whatever rights and permission, other than Oncor’s, that are
necessary.
2.Restrictions on Use of Easement Area. User shall use only so much of the Easement
Area as may be necessary to construct, maintain, operate and repair the Encroaching Facility.
User shall, at its own cost and expense, comply with all applicable laws, including but not limited to
existing zoning ordinances, governmental rules and regulations enacted or promulgated by any
governmental authority and shall promptly execute and fulfill all orders and requirements imposed
by such governmental authorities for the correction, prevention and abatement of nuisances in or
upon or connected with said Encroaching Facility. At the conclusion of any construction, User shall
remove all debris and other materials from the Easement Area and restore the Easement Area to
the same condition it was in prior to the commencement of User’s construction thereon or in
proximity thereto.
User shall not place trash dumpsters, toxic substances or flammable material in the Easement
Area. Further, if the Easement Area has transmission or distribution facilities located thereon, User
shall not place upon the Easement Area any improvements, including but not limited to, buildings,
light standards, fences (excluding barriers installed around transmission towers), shrubs, trees or
signs unless approved in advance in writing by Oncor. Additional general construction limitations on
encroachments are described and listed in Exhibit "B", attached hereto and by reference made a
part hereof.
Encroachment on Easement Page 1 of 16Encroachment on Easement Page 1 of 16 160
3.Maintenance of Encroaching Facility. User, at User’s sole expense, shall maintain and
operate the Encroaching Facility. Oncor will not be responsible for any costs of construction,
reconstruction, operation, maintenance or removal of User's Encroaching Facility.
4.Risk and Liability. User assumes all risks and liability resulting or arising from or relating to
User’s use, the existing condition or location, or existing state of maintenance, repair or operation of
the Easement Area. It is further agreed that Oncor shall not be liable for any damage to the
Encroaching Facility as a result of Oncor’s use or enjoyment of its Easement. Any Oncor property
damaged or destroyed by User or its agents, employees, invitees, contractors or subcontractors
shall be repaired or replaced by Oncor at User's expense and payment is due upon User's receipt
of an invoice from Oncor.
5.Indemnification. User, to the extent allowable by law, agrees to defend, indemnify and
hold harmless Oncor, its officers, agents and employees, from and against any and all claims,
demands, causes of action, loss, damage, liabilities, costs and expenses (including attorney’s fees
and court costs) of any and every kind or character, known or unknown, fixed or contingent, for
personal injury (including death), property damage or other harm for which recovery of damages is
sought or suffered by any person or persons that may arise out of, or be occasioned by, the
negligence, misconduct or omission of User, its officers, agents, associates, employees,
contractors, subcontractors, subconsultants, or any other person entering onto the Easement Area
or may arise out of or be occasioned by the use of the Encroaching Facility, except that the
indemnity provided for in this paragraph shall not apply to any liability resulting from the sole
negligence of Oncor, its officers, agents, or employees or separate contractors, and in the event of
joint and concurrent negligence of both Oncor and User, responsibility and indemnity, if any, shall
be apportioned comparatively. Nothing contained herein shall ever be construed so as to require
User to assess, levy and collect any tax to fund its obligations under this paragraph. Article XI
Section 5 of the Texas Constitution provides that a city is prohibited from creating a debt unless the
city levies and collects a sufficient tax to pay the interest on the debt and provides a sinking fund.
The City of Denton has not and will not create a sinking fund or collect any tax to pay any
obligation created under this section.
6.High Voltage Restrictions. Use of draglines or other boom-type equipment in connection
with any work to be performed on the Easement Area by User, its employees, agents, invitees,
contractors or subcontractors must comply with Chapter 752, Texas Health and Safety Code, the
National Electric Safety Code and any other applicable safety or clearance requirements.
Notwithstanding anything to the contrary herein, in no event shall any equipment be within fifteen
(15) feet of the Oncor 138,000 volt or less power lines or within twenty (20) feet of the Oncor
345,000 volt power lines situated on the aforesaid property. User must obtain Oncor’s approval and
notify the Region Transmission Department at (817)496-2746 48 hours prior to the use of any
boom-type equipment on the Easement Area.
7.Relocation of Facilities. User shall not place its facility within 25 feet of any pole or tower
leg. User agrees that in the event that Oncor determines that User’s Facility interferes with Oncor’s
facilities, User will relocate User’s Facility at User’s expense. User will be entitled to relocate User’s
Facility on the encroachment area granted hereunder if reasonably possible without further
interference with Oncor’s facilities. If User’s Facility cannot be relocated on the encroachment area,
then, if reasonably possible, Oncor agrees to grant User an encroachment near the encroachment
granted hereunder so that User’s facility can continue to operate as originally intended.
Encroachment on Easement Page 2 of 16Encroachment on Easement Page 2 of 16 161
8.Default and Termination. It is understood and agreed that, in case of default by User or its
agents in any of the terms and conditions herein stated and such default continues for a period of
thirty (30) days after Oncor notifies User of such default in writing, Oncor may at its election
forthwith terminate this agreement and upon such termination all of User's rights hereunder shall
cease and come to an end. This agreement shall also terminate upon the abandonment of the
Encroaching Facility.
This agreement shall extend to and be binding upon User and its successors and assigns, and is
not to be interpreted as a waiver of any rights held by Oncor under its Easement.
Executed this ___ day of _______________, 2020.
APPROVAL:
Oncor Electric Delivery Company LLC
By: ____
Jill L. Alvarez, P.E.
Attorney-In-Fact
ACCEPTANCE:
City of Denton
By: ___________________________________
Name: ________________________________
Title: __________________________________
Encroachment on Easement Page 3 of 16Encroachment on Easement Page 3 of 16 162
STATE OF TEXAS §
§
COUNTY OF TARRANT §
BEFORE ME, the undersigned authority, on this day personally appeared Jill L. Alvarez,
P.E., as Attorney-In-Fact of Oncor Electric Delivery Company LLC, known to me to be the person
whose name is subscribed to the foregoing instrument and acknowledged to me that he executed
the same for the purposes and consideration therein expressed, in the capacity therein stated and
he is authorized to do so.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this ______________ day of
_________________________, A. D. 2020.
_____________________________________________
Notary Public in and for the State of Texas
STATE OF TEXAS §
§
COUNTY OF DENTON §
BEFORE ME, the undersigned authority, on this day personally appeared ____________,
as the __________________ of the City of Denton, known to me to be the person whose name is
subscribed to the foregoing instrument and acknowledged to me that he/she executed the same for
the purposes and consideration therein expressed, in the capacity therein stated and he/she is
authorized to do so.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this ______________ day of
_________________________, A. D. 2020.
_____________________________________________
Notary Public in and for the State of Texas
Encroachment on Easement Page 4 of 16Encroachment on Easement Page 4 of 16 163
Exhibit A (Page 1 of 9)Encroachment on Easement Page 5 of 16 164
Exhibit A (Page 2 of 9)Encroachment on Easement Page 6 of 16 165
Exhibit A (Page 3 of 9)Encroachment on Easement Page 7 of 16 166
Exhibit A (Page 4 of 9)Encroachment on Easement Page 8 of 16 167
Exhibit A (Page 5 of 9)Encroachment on Easement Page 9 of 16 168
Exhibit A (Page 6 of 9)Encroachment on Easement Page 10 of 16 169
Exhibit A (Page 7 of 9)Encroachment on Easement Page 11 of 16 170
4/5Exhibit A (Page 8 of 9)Encroachment on Easement Page 12 of 16 171
Exhibit A (Page 9 of 9)Encroachment on Easement Page 13 of 16 172
CONSTRUCTION LIMITATIONS ON
Oncor ELECTRIC DELIVERY COMPANY RIGHT OF WAY
EXHIBIT “B”
1. You are notified, and should advise your employees, representatives, agents, and contractors,
who enter the property that they will be working in the vicinity of high voltage electrical facilities
and should take proper precautions, included but not limited to the following stipulations and in
compliance, at all times, with Chapter 752, V.T.C.A., Health & Safety Code.
2. Blasting is not to be permitted on Oncor right-of-way or under Oncor lines.
3. Construction on electric transmission line easements acquired by Oncor after January 1, 2003
shall comply with the requirements of Public Utility Commission Substantive Rules §25.101, as
amended from time to time.
4. No crossing less than 45 degrees to the centerline of the right-of-way.
5. Grading will be done in order to leave the right-of-way as near as possible to present condition.
Spoil dirt will be removed from the right-of-way and no trash is to be left on right-of-way. Slopes
shall be graded so that trucks can go down the right-of-way when required and such that the
slopes can be mechanically maintained.
6. Equipment and materials will not be stored on the right-of-way during construction without
written approval of the Supervisor of Regional Transmission.
7. Street or road crossings are to be based on drawings submitted. Any change in alignment or
elevation will be resubmitted for approval.
8. No signs, lights or guard lights will be permitted on the right-of-way.
9. Power line safety equipment operations: hazard assessment and precautions inside the work
zone area must be performed and in compliance with OSHA Standard §1926.1408 at all times.
Equipment shall not be placed within fifteen (15) feet of the Oncor 138,000 volt or less power
lines or within twenty (20) feet of the Oncor 345,000 volt power lines.
Encroachment on Easement Page 14 of 16Encroachment on Easement Page 14 of 16 173
10. Any pre-approved fencing will not exceed eight (8) feet in height, and if metal in nature, will be
grounded, at ten (10) feet intervals, with an appropriate driven ground. Gates should be at least
sixteen (16) feet in width to allow Oncor access to the right-of-way.
11. No dumpsters will be allowed on Oncor right-of-way or fee owned property.
12. Draglines will not be used under the line or on Oncor right-of-way.
13. The existing grade shall not be disturbed, excavated or filled within 25 feet of the nearest edge
of any Oncor transmission structure (tower, pole, guy wire, etc…).
14. Right-of-way will be protected from washing and erosion by Oncor approved method before any
permits are granted. No discharging of water will be allowed within any portion of the right of
way. Drainage facilitation will not be allowed to discharge into/onto Oncor right-of-way.
15. No obstruction shall be installed on the right-of-way that would interfere with access to Oncor
structures or prevent mechanical maintenance.
16. Before any work is done under Oncor lines or by Oncor structures notify the Region
Transmission Department, (817)496-2746.
17. No hazardous materials will be stored on the right of way.
18. For purposes of this document, "Hazardous Materials" means and includes those substances,
including, without limitation, asbestos-containing material containing more than one percent
(1%) asbestos by weight, or the group of organic compounds known as polychlorinated
biphenyls, flammable explosives, radioactive materials, chemicals known to cause cancer or
reproductive toxicity and includes any items included in the definition of hazardous or toxic
waste, materials or substances under any Hazardous Material Law. “Hazardous Material Laws”
collectively means and includes any present and future local, state and federal law relating to
the environment and environmental conditions including, without limitation, the Resource
Conservation and Recovery Act of 1976 (“RCRA”), 42 U.S.C. §6901 et seq., the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
(“CERCLA”), 42 U.S.C. §§9601-9657, as amended by the Superfund Amendments and
Encroachment on Easement Page 15 of 16Encroachment on Easement Page 15 of 16 174
Reauthorization Act of 1986 (“SARA”), the Hazardous Material Transportation Act, 49 U.S.C.
§6901 et seq., the Federal Water Pollution Control Act, 33 U.S.C. §1251, et seq., the Clean Air
Act, 42 U.S.C. §741 et seq., the Clean Water Act, 33 U.S.C. §7401 et seq., the Toxic
Substances Control Act, 15 U.S.C. §§2601-2629, the Safe Drinking Water Act, 42 U.S.C.
§§300f-330j, and all the regulations, orders, and decrees now or hereafter promulgated
thereunder.
19. Brush and cut timber is not to be piled or stacked on Oncor right-of-way nor is it allowed to be
burned upon or in close proximity to the conductors or towers.
20. No structures or obstructions, such as buildings, garages, barns, sheds, swimming pools,
playground equipment, guard houses, etc., will be permitted on the right-of-way.
21. Landscaping on Oncor right-of-way is permitted when Oncor approves landscaping plans in
writing. No lighting or sprinkler systems are allowed on the right-of-way.
22.No park or park designation will be permitted on the right-of-way.
23. Gas Pipeline Protective Barrier; Grantee, at Grantee’s sole expense, shall provide one of the
following protective barriers; 1) a concrete protective barrier between the surface and the pipe
that is a minimum of one (1) foot thick by one (1) foot wide, if pipe is wider than one (1) foot,
then width of pipe, with the top of the concrete barrier to be at least one (1) foot below the
surface or final grade, 2) construct the gas pipeline inside of a proper protective steel casing, 3)
where electric facilities are located above ground, install the pipeline a minimum of ten (10) feet
below the ground surface, or 4) where electric facilities are located below ground, install the
pipeline at a depth that provides for a minimum of a ten (10) foot clearance between the pipeline
and the underground electric facilities.
24.No fire hydrants or manholes will be permitted within the right-of-way.
25. Any drainage feature that allows water to pond, causes erosion, directs stormwater toward the
right-of-way or limits access to or around Oncor’s facilities is prohibited. Drainage facilitation
will not be allowed to discharge into/onto Oncor right-of-way.
26.No boring pits or other type of pits will be permitted within the right-of-way.
Encroachment on Easement Page 16 of 16Encroachment on Easement Page 16 of 16 175
176
177
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ORDINANCE NO. --------
AN ORDINANCE APPROVING AN ENCROACHMENT ON EASEMENT AGREEMENT
BETWEEN THE CITY OF DENTON AND ONCOR ELECTRIC DELIVERY COMPANY,
LLC, RELATING TO THE CONSTRUCTION, OPERATION, AND MAINTENANCE OF
PUBLIC FACILITIES ("TAYLOR PARK BOULEY ARD" CROSSING INCLUDING A TEN
(10) FOOT WIDE SIDEWALK CROSSING, FOUR (4) BY TWO (2) FOOT RCB CROSSING,
TWENTY-ONE (21) INCH RCP CROSSING, EIGHTEEN (I8) INCH RCP CROSSING,
EIGHT (8) INCH WATERLINE CROSSING, EIGHT (8) INCH SANITARY SEWER
CROSSING, AND A DENTON MUNICIPAL ELECTRIC LINE BORE CROSSING) WITHIN
ONCOR'S EASEMENT; AUTHORIZING THE CITY MANAGER TO EXECUTE THE
AGREEMENT; AUTHORIZING THE EXPENDITURE OF FUNDS; AND, PROVIDING AN
EFFECTIVE DATE.
WHEREAS, the Cambridge Brook Phase I Addition final plat was approved by the
City's Planning and Zoning Commission on October 7, 2020 and the related construction plans
for the Cambridge Brook Addition development ("Cambridge Brook") were approved by City
staff on November 16, 2020; and
WHEREAS, the required public facilities associated with Cambridge Brook include the
location of a public street ("Taylor Park Boulevard") crossing and a ten (1 0) foot wide sidewalk
crossing, a four (4) by two (2) foot reinforced concrete box ("RCB") crossing, twenty-one (21)
inch reinforced concrete pipe ("RCP") crossing, eighteen (I8) inch RCP crossing, eight (8) inch
waterline crossing, eight (8) inch sanitary sewer crossing, and a Denton Municipal Electric line
bore crossing within and across an Oncor Electric Company ("Oncor") easement, recorded in
Volume 559, Page 570, Denton County, Texas; and
WHEREAS, Oncor requires an encroachment agreement for public infrastructure placed
within its easement ("Encroachment on Easement" agreement; attached as Exhibit "A"); and
WHEREAS, the City will own the public facilities and right-of-way; and
WHEREAS, the City Council finds that entering into the Encroachment on Easement
agreement with Oncor serves a public interest; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION I. The recitals contained in the preamble of this ordinance are incorporated
into the body of this Ordinance are true and correct.
SECTION 2. The City Manager, or his designee, is authorized to execute the
Encroachment on Easement agreement between the City of Denton and Oncor Electric
Company, LLC, in substantially the form of the same which is attached to as Exhibit "A" and
made a part of this Ordinance for all purposes, for the purpose of constructing, operating, and
maintaining public facilities within On cor's easement.
179
SECTION 3. The City Manager is authorized to carry out all obligations as set forth in
the attached Encroachment on Easement agreement, including but limited to the expenditure of
funds.
SECTION 4. Tllis ordinance shall become effective immediately upon its passage and
approval.
The motion to approve this Ordinance was made by and
seconded by ; the Ordinance was passed and approved by the
following vote [ _-_]:
Aye Nay Abstain Absent
Ge~·ard Hudspeth, Mayor:
Birdia Johnson, District I :
Connie Baker, District 2:
Jesse Davis, District 3:
John Ryan, District 4:
Deb Armin tor, At Large Place 5:
Paul Meltzer, At Large Place 6:
PASSED AND APPROVED this the day of 2021.
GERARD HUDSPETH, MAYOR
ATTEST:
ROSA RIOS, CITY SECRETARY
By: ----------------------------
APPROVED AS TO LEGAL FORM:
AARON LEAL, CITY ATTORNEY
180
City of Denton
Legislation Text
City Hall
215 E. McKinney St.
Denton, Texas 76201
www.cityofdenton.com
File #:ID 21-091,Version:1
AGENDA CAPTION
Consider adoption of an ordinance of the City of Denton,a Texas home-rule municipal corporation,authorizing
the City Manager,or his designee,to execute an Interlocal Cooperative Purchasing Agreement with the City of
Midlothian,under the Texas Government Code,Section 791.001,to authorize City of Denton contracts for the
purchase of various goods and services;authorizing the expenditure of funds therefor;and declaring an
effective date (File 7590 - award an Interlocal Cooperative Purchasing Agreement with the City of Midlothian).
City of Denton Printed on 1/22/2021Page 1 of 1
powered by Legistar™181
City of Denton
_____________________________________________________________________________________
AGENDA INFORMATION SHEET
DEPARTMENT: Procurement & Compliance
ACM: David Gaines
DATE: January 26, 2021
SUBJECT
Consider adoption of an ordinance of the City of Denton, a Texas home-rule municipal corporation,
authorizing the City Manager, or his designee, to execute an Interlocal Cooperative Purchasing Agreement
with the City of Midlothian, under the Texas Government Code, Section 791.001, to authorize City of
Denton contracts for the purchase of various goods and services; authorizing the expenditure of funds
therefor; and declaring an effective date (File 7590 – award an Interlocal Cooperative Purchasing
Agreement with the City of Midlothian).
INFORMATION/BACKGROUND
Chapter 791 of the Texas Government Code authorizes respective participating governments to enter into
agreements for the purchase of goods and services. The attached agreement is an authorization for the City
of Denton to participate in contracts awarded by the City of Midlothian and for the City of Midlothian to
participate in contracts awarded by the City of Denton. The contract will remain in effect until terminated
by either party.
This Agreement will allow both entities to utilize contracts for goods and services competitively solicited
by the other party to the contract. The solicitation process followed by both entities meets all statutory
procurement requirements per Local Government Code 271.102. Upon approval of the Agreement, the City
of Denton intends to utilize the City of Midlothian’s RFP 2020-28 EMS Fire Department Medical Supplies.
Section 791 of the Government Code requires that all Cooperative Agreements must be authorized by the
governing body, regardless of the dollar amount.
RECOMMENDATION
Award an Interlocal Cooperative Purchasing Agreement with the City of Midlothian for various goods and
services.
PRINCIPAL PLACE OF BUSINESS
City of Midlothian
Midlothian, TX
City Hall
215 E. McKinney Street
Denton, Texas
www.cityofdenton.com
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ESTIMATED SCHEDULE OF PROJECT
This Agreement is effective upon approval by the City of Denton and will remain in effect until terminated
by either party.
FISCAL INFORMATION
Each future acquisition, based on the Agreement, will follow the City of Denton fiscal verification policy
and be charged to the appropriate budget account.
EXHIBITS
Exhibit 1: Agenda Information Sheet
Exhibit 2: Ordinance and Interlocal Agreement
Respectfully submitted:
Lori Hewell, 940-349-7100
Purchasing Manager
For information concerning this acquisition, contact: Lori Hewell, 940-349-7100.
Legal point of contact: Marcella Lunn at 940-349-8333.
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ORDINANCE NO. ___________
AN ORDINANCE OF THE CITY OF DENTON, A TEXAS HOME-RULE MUNICIPAL
CORPORATION, AUTHORIZING THE CITY MANAGER, OR HIS DESIGNEE, TO
EXECUTE AN INTERLOCAL COOPERATIVE PURCHASING AGREEMENT WITH THE
CITY OF MIDLOTHIAN, UNDER THE TEXAS GOVERNMENT CODE, SECTION 791.001,
TO AUTHORIZE CITY OF DENTON CONTRACTS FOR THE PURCHASE OF VARIOUS
GOODS AND SERVICES; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR;
AND DECLARING AN EFFECTIVE DATE (FILE 7590 AWARD AN INTERLOCAL
COOPERATIVE PURCHASING AGREEMENT WITH THE CITY OF MIDLOTHIAN).
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The City Manager, or his designee, is hereby authorized to execute the
Interlocal Cooperative Purchasing Agreement with the City of Midlothian under Section 791.001
of the Texas Government Code, a copy of which is attached hereto and incorporated by reference
SECTION 2. The City Manager, or his designee, is authorized to expend funds pursuant
to the Agreement for the purchase of various goods and services.
SECTION 3. The City Council of the City of Denton hereby expressly delegates the
authority to take any actions that may be required or permitted to be performed by the City of
Denton under this ordinance to the City Manager of the City of Denton, or his designee.
SECTION 4. This ordinance shall become effective immediately upon its passage and
approval.
The motion to approve this ordinance was made by __________________________ and
seconded by , the ordinance was passed and approved by the
following vote [___ - ___]:
Aye Nay Abstain Absent
Mayor Gerard Hudspeth: ______ ______ ______ ______
Birdia Johnson, District 1: ______ ______ ______ ______
Connie Baker, District 2: ______ ______ ______ ______
Jesse Davis, District 3: ______ ______ ______ ______
John Ryan, District 4: ______ ______ ______ ______
Deb Armintor, At Large Place 5: ______ ______ ______ ______
Paul Meltzer, At Large Place 6: ______ ______ ______ ______
184
PASSED AND APPROVED this the _______ day of ___________________________, 2021.
__________________________________
GERARD HUDSPETH, MAYOR
ATTEST:
ROSA RIOS, CITY SECRETARY
BY: _
APPROVED AS TO LEGAL FORM:
AARON LEAL, CITY ATTORNEY
BY: _________________________________
185
Docusign City Council Transmittal Coversheet
File Name
Purchasing Contact
City Council Target Date
Piggy Back Option
Contract Expiration
Ordinance
186
INTERLOCAL COOPERATIVE PURCHASING AGREEMENT
BETWEEN CITY OF MIDLOTHIAN, TEXAS AND CITY OF DENTON, TEXAS
STATE OF TEXAS
COUNTY OF DENTON
THIS INTERLOCAL COOPERATIVE PURCHASING AGREEMENT is
made on the _______ day of _________, [2020], between the City of Denton, and City of
Midlothian; .
WHEREAS, each party is authorized by Chapter 791 of the Texas Government Code (the
, to enter into joint contracts and agreements for the performance of
governmental functions and services including administrative functions normally associated with
the operation of government such as purchasing necessary materials and supplies;
WHEREAS, Section 271.102 of the Texas Local Government Code authorizes a local government
to participate in a cooperative purchasing program with another local government or a local
cooperative organization;
WHEREAS, the parties recognize that participation in this cooperative purchasing program will
be highly beneficial to the taxpayers of the parties through anticipated savings to be realized;
WHEREAS, the parties cannot normally obtain the best possible purchase price for materials and
supplies acting individually and without cooperation;
WHEREAS, it is deemed in the best interest of all parties that said governments enter into a
mutually satisfactory agreement for the purchase of certain materials and supplies; and
WHEREAS, the parties, in performing governmental functions or in paying for the performance
of governmental functions hereunder, shall make that performance or those payments from current
revenues legally available to that party;
NOW, THEREFORE, the parties hereto, in consideration of the mutual covenants and conditions
contained herein and pursuant to the authority permitted under the Interlocal Cooperation Act,
promise and agree as follows:
I.
Purpose
A. The purpose of this Agreement is to establish a cooperative purchasing program between the
competitively bid contracts pursuant to Subchapter F, Chapter 271 of the Texas Local
Government Code.
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II.
Duration of Agreement
A. This Agreement shall be in full force and effect from the date it is duly executed by all parties
until terminated by either party to this Agreement. Any party may modify and/or terminate
this Agreement in accordance with the following terms and conditions:
The terms and conditions of this Agreement may be modified upon the mutual
consent of all parties. Mutual consent will be demonstrated by approval of the
governing body of each party hereto. No modification to this Agreement shall be
effective and binding unless and until it is reduced to writing and signed by duly
authorized representatives of all parties.
This Agreement may be terminated at any time by either party, with or without
cause, upon thirty days written notice to the other party. Unless otherwise
specified, written notice shall be deemed to have been duly served if delivered in
person, sent (i) as an attachment to an email, (ii) by fax with a successful send
confirmation, or (iii) by certified mail to the address as listed herein:
City of Denton: Procurement Division
Attn: Purchasing Manager
City of Denton
901 B Texas Street
Denton, TX 76209
Phone: 940-349-7100
Fax: 940-293-1837
purchasing@cityofdenton.com
City of Midlothian: Purchasing Department
Attn: Cheryl Allison
City of Midlothian
104 West Avenue E
Midlothian, TX 76065
Phone: 972-775-7106
Fax: 972-775-7107
cheryl.allison@midlothian.tx.us
III.
Relationship of Parties
A. It is agreed that the parties, in receiving products and/or services specified in this Agreement,
shall each act as an independent purchaser and shall have control of its needs and the way any
such products and/or services are acquired. Neither party is an agent, employee or joint
enterprise of the other, and each party is responsible for its own actions, forbearance,
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3
negligence and deeds, and for those of its agents or employees, in conjunction with the
utilization and/or cooperative solicitation of any supplier agreement obtained in accordance
with Texas law.
B. The parties shall notify, using the notice procedures set forth in Section II.A, all participating
entities of available contracts to include terms of contract, commodity cost, contact names and
addresses, and shall keep participating parties informed of all changes to the list of contracts
available for cooperative purchasing.
C. Each party shall ensure that all applicable laws and ordinances have been satisfied with respect
to any action taken by such party pursuant to this Agreement.
D. Nothing in this Agreement shall prevent any participating party from accepting and awarding
bids for commodities subject to this Agreement individually and on its own behalf.
E. Purchasing Agent or their designee, is the official representative to act for the City of Denton
in all matters relating to this Agreement.
F. Purchasing Agent or their designee, is the official representative to act for City of Midlothian
in all matters relating to this Agreement.
IV.
Purchase of Goods and Services
A. All products and services shall be procured in accordance with all appropriate procedures
governing competitive bids and competitive proposals, as required by the laws of the State of
Texas.
B. The parties will be able to purchase from those contracts established by the other party where
notice has been given in the bid specifications and the successful bidder has accepted terms
for cooperative purchasing agreements for local governments.
C. The parties hereto agree that the ordering of products and services through this Agreement
shall be their individual responsibility and that the successful bidder or bidders shall bill each
party directly or, if deemed advantageous by the parties, to both parties.
D. The parties agree to pay successful bidders directly for all products or services received from
current revenues available for such purchase. Each party shall be liable to the successful bidder
only for products and services ordered by and received by such party and shall not, by the
execution of this Agreement, assume any additional liability.
E. The parties do not warrant and are not responsible for the quality or delivery of products or
services from the successful bidder. The participating parties shall receive all warranties
provided by the successful bidder for the products or services purchased.
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4
F. If any dispute arises between individual parties and a successful bidder, such dispute shall be
handled by
V.
Liability and Immunity Provisions
A. It is understood and agreed between the parties that each party hereto shall be responsible for
n connection with this Agreement. Neither
party shall be responsible for any negligent act or omission of the other party or its employees
in connection with this Agreement. It is specifically agreed that, as between the parties, each
party to this Agreement shall be individually and respectively responsible for responding to,
dealing with, insuring against, defending, and otherwise handling and managing liability and
potential liability of itself and its employees pursuant to this Agreement.
B. Notwithstanding the foregoing, each party hereto reserves and expressly does not waive any
immunity or defense available at law or in equity, including governmental immunity, for any
claim or cause of action whatsoever that may arise or result from the services provided and/or
any circumstances arising under this Agreement. These provisions are solely for the benefit
of the parties hereto and are not for the benefit of any person or entity not a party hereto; this
Agreement shall not be interpreted nor construed to give any claim or cause of action to any
third party. Neither party shall be held legally liable for any claim or cause of action arising
pursuant to or out of the services provided under this Agreement, except as specifically
provided by law. Where injury or property damages results from the joint or concurrent
negligence of both parties, liability, if any, shall be shared by each party based on comparative
responsibility in accordance with the applicable laws of the State of Texas, subject to all
defenses available to them, including governmental immunity.
C.
Texas Civil Practice and Remedies Code and all applicable federal, state, and local laws, rules,
regulations, ordinances, and policies. Nothing in this Agreement shall be deemed to waive,
modify, or amend any legal defense available at law or in equity to either party or to create
any legal rights or claim on behalf of any third party. Neither party waive, modify, or alter,
to any extent whatsoever, the availability of the defense of governmental immunity under the
laws of the State of Texas.
VI.
Miscellaneous
A. Each party has the full power and authority to enter into and perform this Agreement and the
person signing this Agreement on behalf of each party has been properly authorized and
empowered to enter into this Agreement. The persons executing this Agreement hereby
represent that they have authorization to sign on behalf of their respective party.
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5
B. In the event any one or more of the provisions contained in this Agreement shall be held, for
any reason, to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality,
or unenforceability shall not affect the other provisions and the Agreement shall be construed
as if such invalid, illegal, or unenforceable provision had never been contained in this
Agreement.
C. This Agreement shall be binding upon the parties hereto, their successors, heirs, personal
representatives, and assigns. Neither party will assign or transfer an interest in this Agreement
without the prior written consent of the other party.
D. By entering into this Agreement, the parties do not create any obligations, express or implied,
other than those set forth herein, and this Agreement shall not create any rights in, or claims
by, third parties who are not signatories to this Agreement.
E. This Agreement shall be interpreted in accordance with the laws of the State of Texas and
venue of any cause of action concerning this Agreement shall be in a court of competent
jurisdiction sitting in Denton County, Texas.
F. This Agreement, together with any 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, has no legal force or effect whatsoever, unless properly executed in writing
in accordance with Section II.A, and if appropriate, recorded as an amendment of this
Agreement.
G. Failure of any party, at any time, to enforce a provision of this Agreement, shall in no way
constitute a waiver of that provision nor in any way affect the validity of this Agreement or the
right of either party thereafter to enforce each provision hereof. No term of this Agreement
shall be deemed waived or any breach excused unless the waiver shall be in writing and signed
by the party claimed to have waived. Furthermore, any consent to or waiver of a breach will
not constitute consent to or waiver or excuse of any other different or subsequent breach.
H. This Agreement may be executed in any number of counterparts, each of which shall be
deemed an original and constitute one and the same instrument.
I. Each party agrees that this Agreement and any other documents to be delivered in connection
herewith may be electronically signed, and that any electronic signatures appearing on this
Agreement or such other documents are the same as handwritten signatures for the purposes
of validity, enforceability, and admissibility.
[Signature Page to Follow]
191
Signature Page to Interlocal Cooperative Purchasing Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their
authorized officers thereon the day and the year first above written.
CITY OF MIDLOTHIAN, TEXAS CITY OF DENTON, TEXAS
____________________________ ____________________________
RICHARD RENO, MAYOR TODD HILEMAN, CITY MANAGER
ATTEST: ATTEST:
TAMMY VARNER, CITY SECRETARY ROSA RIOS, CITY SECRETARY
BY: ________________________ BY: _________________________
APPROVED AS TO LEGAL FORM: APPROVED AS TO LEGAL FORM:
JOSEPH J. GORFIDA, JR, CITY AARON LEAL, CITY ATTORNEY
ATTORNEY
BY: _________________________ BY: _________________________
192
Envelope Id: 113A87584F3947158C1E36DCAF5A9156 Status: Sent
Subject: Please DocuSign: City Council Contract 7590 Midlothian ILA
Source Envelope:
Document Pages: 7 Signatures: 1 Envelope Originator:
Certificate Pages: 6 Initials: 1 Cori Power
AutoNav: Enabled
EnvelopeId Stamping: Enabled
Time Zone: (UTC-06:00) Central Time (US & Canada)
901B Texas Street
Denton, TX 76209
cori.power@cityofdenton.com
IP Address: 198.49.140.104
Status: Original
12/29/2020 9:05:37 AM
Holder: Cori Power
cori.power@cityofdenton.com
Location: DocuSign
Cori Power
cori.power@cityofdenton.com
Buyer
City of Denton
Security Level: Email, Account Authentication
(None)
Using IP Address: 198.49.140.104
Sent: 12/29/2020 9:09:42 AM
Viewed: 12/29/2020 12:50:36 PM
Signed: 12/29/2020 12:51:22 PM
Not Offered via DocuSign
Lori Hewell
lori.hewell@cityofdenton.com
Purchasing Manager
City of Denton
Security Level: Email, Account Authentication
(None)
Signature Adoption: Pre-selected Style
Using IP Address: 198.49.140.104
Sent: 12/29/2020 12:51:23 PM
Viewed: 12/30/2020 11:22:15 AM
Signed: 12/30/2020 11:22:40 AM
Not Offered via DocuSign
Marcella Lunn
marcella.lunn@cityofdenton.com
Deputy City Attorney
City of Denton
Security Level: Email, Account Authentication
(None)
Signature Adoption: Pre-selected Style
Using IP Address: 198.49.140.104
Sent: 12/30/2020 11:22:42 AM
Viewed: 12/30/2020 2:42:41 PM
Signed: 12/30/2020 2:44:12 PM
Not Offered via DocuSign
Cheyenne Defee
cheyenne.defee@cityofdenton.com
Contract Administrator
City of Denton
Security Level: Email, Account Authentication
(None)
Sent: 12/30/2020 2:44:14 PM
Not Offered via DocuSign
Todd Hileman
Todd.Hileman@cityofdenton.com
Security Level: Email, Account Authentication
(None)
193
Accepted: 7/25/2017 11:02:14 AM
ID: 57619fbf-2aec-4b1f-805d-6bd7d9966f21
Rosa Rios
rosa.rios@cityofdenton.com
Security Level: Email, Account Authentication
(None)
Not Offered via DocuSign
Cheyenne Defee
cheyenne.defee@cityofdenton.com
Contract Administrator
City of Denton
Security Level: Email, Account Authentication
(None)
Sent: 12/29/2020 12:51:23 PM
Not Offered via DocuSign
Sherri Thurman
sherri.thurman@cityofdenton.com
City of Denton
Security Level: Email, Account Authentication
(None)
Sent: 12/30/2020 2:44:14 PM
Not Offered via DocuSign
Gretna Jones
gretna.jones@cityofdenton.com
Legal Secretary
City of Denton
Security Level: Email, Account Authentication
(None)
Sent: 12/30/2020 2:44:15 PM
Viewed: 12/30/2020 3:02:33 PM
Not Offered via DocuSign
Zolina Parker
zolina.parker@cityofdenton.com
Security Level: Email, Account Authentication
(None)
Not Offered via DocuSign
Cheyenne Defee
cheyenne.defee@cityofdenton.com
Security Level: Email, Account Authentication
(None)
Not Offered via DocuSign
194
Envelope Sent Hashed/Encrypted 12/29/2020 9:09:42 AM
195
196
197
198
City of Denton
Legislation Text
City Hall
215 E. McKinney St.
Denton, Texas 76201
www.cityofdenton.com
File #:ID 21-092,Version:1
AGENDA CAPTION
Consider adoption of an ordinance of the City of Denton authorizing the City Manager, or his designee, to
accept the TSLAC CARES Grant Program-Cycle 2 (Grant CAR2-21007) for State Fiscal Year 2021 (Federal
Award Identification #LS-246561-OLS-20) from the Texas State Library and Archives Commission through the
Institute of Museum and Library Services, in the amount of $20,929.00, for the period of April 1, 2020, through
August 31, 2021; authorizing the City Manager to carry out all duties of the City pursuant to the grant;
providing a savings clause; and providing an effective date.
City of Denton Printed on 1/22/2021Page 1 of 1
powered by Legistar™199
AGENDA INFORMATION SHEET
AGENDA DATE: January 26, 2021
DEPARTMENT: Library
ACM: David Gaines
SUBJECT:
Consider adoption of an ordinance of the City of Denton authorizing the City Manager, or his
designee, to accept the TSLAC CARES Grant Program-Cycle 2 (Grant CAR2-21007) for State
Fiscal Year 2021 (Federal Award Identification #LS-246561-OLS-20) from the Texas State Library
and Archives Commission through the Institute of Museum and Library Services, in the amount of
$20,929.00 for the period of April 1, 2020, through August 31, 2021; authorizing the City Manager
to carry out all duties of the City pursuant to the grant; providing a savings clause; and providing an
effective date.
BACKGROUND:
The Texas State Library and Archives (TSLAC) CARES Grant Program-Cycle 2 is a competitive
grant funding community needs identified by Texas libraries in the areas of digital inclusion to
increase community access to vital digital technologies and services and library initiatives that
support prevention, preparation, and response to the COVID-19 emergency. Denton Public Library
has been awarded $20,929 to expand wi-fi access outside library buildings, add additional wi-fi
hotspots for circulation, and expand its eBook and digital audiobook collection.
The TSLAC CARES Grant will allow Denton Public Library to provide wi-fi access throughout the
public parking lots at all three library locations as well as the entire Nook Park area outside the
Emily Fowler Central Library. The grant will fund additional wi-fi hotspots for patron checkout,
allowing patrons to access the Internet from anywhere. Each hotspot provides service for 4 or 5
devices, enabling one hotspot to serve an entire household or small work group. Additionally, the
grant provides $7,500 for eBooks and digital audiobooks. Demand for downloadable materials has
increased from 11.8% of library circulation to 36.4% of circulation during the COVID-19 crisis.
The funding for digital services and resources will allow the library to provide Internet access and
expanded online resources 24/7, even when library facilities may be closed, or walk-in access is
limited. The additional services and materials will continue to be available when library services
and facility access are fully restored.
TSLAC awards competitive grants as funding allows. Funding for the CARES Grant Program is
provided by the Federal Institute of Museum and Library Services (IMLS) under the CARES Act
(P.L. 116-136).
PRIOR ACTION/VIEW (COUNCIL, BOARDS, COMMISSIONS):
Library Board members were notified at the January 14, 2021 Library Board meeting.
200
EXHIBITS:
Exhibit 1—Agenda Information Sheet
Exhibit 2—CARES Grant Ordinance and Agreement
Respectfully submitted:
Jennifer Bekker
Director of Libraries
jennifer.bekker@cityofdenton.com (940)
349-8753
201
ORDINANCE NO. __ _
AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING THE CITY MANAGER, OR
HIS DESIGNEE, TO ACCEPT THE TSLAC CARES GRANT PROGRAM-CYCLE 2 (GRANT
CAR2-21007) FOR STATE FISCAL YEAR 2021 (FEDERAL AWARD IDENTIFICATION
#LS-246561-0LS-20) FROM THE TEXAS STATE LIBRARY AND ARCHIVES
COMMISSION THROUGH THE INSTITUTE OF MUSEUM AND LIBRARY SERVICES, IN
THE AMOUNT OF $20,929.00, FOR THE PERIOD OF APRIL 1, 2020, THROUGH AUGUST
31, 2021 ; AUTHORIZING THE CITY MANAGER TO CARRY OUT ALL DUTIES OF THE
CITY PURSUANT TO THE GRANT; PROVIDING A SAVINGS CLAUSE; AND PROVIDING
AN EFFECTIVE DATE.
WHEREAS, the Texas State Library & Archives Commission ("TSLAC") Cares Grant
Program-Cycle 2, Grant Number CAR2-21007, for State Fiscal Year ("SFY") 2021 will provide
financial assistance toward expenditures related to the grant program, including 24/7 outdoor wi-
fi access at library facilities, additional mobile wi-fi hotspots for checkout, eBooks and digital
audio books, and other miscellaneous expenses related to the grant program's goals and objectives;
and
WHEREAS, the City desires to expand outdoor wi-fi access at library facilities to provide
24/7 Internet access in the three library public parking lots and the Nook Park at Emily Fowler
Central Library, add additional wi-fi hotspots for checkout, and expand the library's digital
collection with more eBooks and digital audiobooks; and
WHEREAS, the funding of the Project will result in expanded remote access to technology
and library materials to support students, employment seekers, small business owners, and all
community members who rely on the public library for access to Internet, information, and
resources; and
WHEREAS, the City Council finds it in the best interest of the citizens of the City of
Denton to authorize the City Manager, or his designee, to accept the TSLAC Cares Grant Program-
Cycle 2, Grant Number CAR2-21007, for SFY 2021 in the amount of $20,929.00 from TSLAC
through the Institute of Museum and Library Services for the period of April 1, 2020 through
August 31, 2021; and
WHEREAS, TSLAC has provided the City with its Grant Agreement, attached hereto as
Exhibit A, and the City Council fmds that the Grant Agreement is acceptable and 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 this Ordinance
are incorporated herein by reference.
Page 1 of3 202
SECTION 2. The City Council authorizes the City Manager, or his designee, to accept
the TSLAC Cares Grant Program-Cycle 2, Grant Number CAR2-21007, for SFY 2021 (Federal
Award Identification No. LS-246561-0LS-20) and execute the Grant Agreement attached as
Exhibit A on behalf of the City.
SECTION 3. The City Manager, or his designee, is further authorized to carry out all duties
and obligations of the City under the Grant Agreement and to take such additional actions
necessary and appropriate to effectuate the purpose of the grant.
SECTION 4. If any section, subsection, paragraph, sentence, clause, phrase, or word in
this Ordinance, or the application thereof to any person or under any circumstances is held
invalid by any court of competent jurisdiction, such holding shall not affect the validity of the
remaining portions ofthis Ordinance, and the City Council ofthe City ofDentonhereby declares
it would have enacted such remaining portions despite any such invalidity.
SECTION 5. This Ordinance shall become effective immediately upon its passage and
approval.
The motion to approve this Ordinance was made by and
seconded by ; this Ordinance was passed and approved by
the following vote L_ -_]:
Aye Nay Abstain Absent
Mayor Gerard Hudspeth:
Birdia Johnson, District 1:
Connie Baker, District 2:
Jesse Davis, District 3:
John Ryan, District 4:
Deb Armintor, At Large Place 5:
Paul Meltzer, At Large Place 6:
PASSED AND APPROVED this the ____ day of ________ , 2021.
GERARD HUDSPETH, MAYOR
Page 2 of3 203
ATTEST:
ROSA RIOS, CITY SECRETARY
BY:
----------~------------
APPROVED AS TO LEGAL FORM:
AARON LEAL, CITY ATTORNEY
BY: L 41.7SJAI1
Page 3 of3 204
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TEXAS STATE LffiRARY & ARCHIVES COMMISSION
TSLAC CARES-CYCLE 2 GRANT PROGRAM
Grant Number: CAR2-21007
I. CONTRACTING PARTIES
Grantor:
Subrecipient:
Texas State Library and Archives Commission (TSLAC)
City of Denton, Denton Public Library
502 Oakland St
Denton, TX 76201-3102
DUNS No.: 071380190
II. TERM OF GRANT
April 21, 2020, through August 31, 2021
ill. STATEMENT OF SERVICES TO BE PERFORMED
Subrecipient shall provide services as outlined in the approved grant application (TSLAC CARES Grant Program-Cycle 2) as approved
by TSLAC. Grant funds must be used to meet TSLAC and Federal goals. The Subrecipient must report information relating to best
practices and performance outcomes during the period of this contract. The approved grant application submitted by Subrecipient is
incorporated into this contract as if fully set forth herein. In the event of any conflict between the grant application and this contract,
this contract shall prevail.
IV. GRANT AMOUNTS AND DISBURSEMENT REQUIREMENTS
A. The total amount of the grant shall not exceed: $20,929.00. Indirect costs, as included in the total amount awarded, shall not
exceed 0.000 or $0.00 as indicated in the budget below.
B. Source of funds:
Institute of Museum and Library Services (IMLS)
CFDA Name: Grants to States CFDA #: 45.310
Federal Award Identification#: LS-246561-0LS-20; Federal Award Date: April21 , 2020
C. The Subrecipient is restricted to one of two methods for requesting funds from TSLAC. The Subrecipient may request reimbursement
of actual and allowable expenditures for the Subrecipient's normal billing cycle, or advance pavrnent for estimated and allowable
expenditures to be incurred in the 30-day period following the request. Only Subrecipients providing documentation to demonstrate a
lack of sufficient working capital and the ability to minimize the time elapsing between transfer of funds from TSLAC and
disbursement of grant funds will be allowed to request advance payments.
D. The Subrecipient must request payments from TSLAC using TSLAC's Request for Funds form (RFF) via TSLAC's online Grant
Management System (GMS), located at https://grants.tsl.texas.gov. Requests may be submitted to TSLAC no more often than once
every 30 days, and no less often than once per quarter. Funds will be processed and paid to the Subrecipient provided TSLAC has
received a fully executed contract, and Subrecipient has fulfilled all reporting and training requirements for current and preceding
contracts and submitted supporting documentation with the RFF.
E. When submitting an RFF for reimbursement, the Subrecipient must provide TSLAC with supporting documentation, such as
receipts, paid invoices, time sheets, and/or pay stubs to support the amount requested before payment will be processed.
F. The Subrecipient may not obligate or encumber grant funds after July 31, 2021. Subrecipient must submit the fmal request for
reimbursement no later than August 1, 2021. All supporting documentation must be submitted no later than August 31, 2021.
G. If the Subrecipient does not expend funds on a regular basis and/or provide notice relating to unexpended funds by May 31,
2021, TSLAC reserves the right to act as necessary to reduce any unexpended balances, including reducing the grant amount
specified in Section IV. A. above.
H. Interest earned in excess of$500 on advanced funds must be returned to TSLAC per requirements in the State of Texas Uniform
Grant Management Standards (UGMS). All unexpended grant funds must be returned to TSLAC per requirements in UGMS.
I. Per the approved grant application, funds are authorized according to the following budget:
Travel $ 0.00
Equipment $ 0.00
Supplies/Materials $11.422.00
Services $9,507.00
Consultant Fees $ 0.00
Indirect Costs $ 0.00
Total $20,929.00
TSLAC CARES Grant-Cycle2 -CAR2-21007 1 of6 TSLAC
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V. REQUEST FOR FISCAL AND PROGRAMMA TIC CHANGES
If the Subrecipient anticipates a need for a budget or program revision, Subrecipient must notifY TSLAC and, if approved by TSLAC,
request a budget and/or program revision for fiscal and/or programmatic changes as outlined in this Section. Subrecipient must submit a
change request for budget and/or program revisions electronically on TSLAC's GMS. Under no condition may a Subrecipient request to
exceed the total grant amount. TSLAC must receive all change requests on or before June 15, 2021. Requests received after this date will
generally be declined but may be considered on a case-by-case basis if extenuating circumstances exist. Subrecipient must submit a
budget and/or program change request to TSLAC ~obligating or expending grant funds as follows:
A. Fiscal changes require an approved Budget Revision under any of the following conditions:
1. Making cumulative transfers among budget cost categories or projects that are expected to exceed ten (10) percent of the
total grant;
2. Transferring any funds into a budget cost category that currently equals zero ($0);
3. Expending any program income earned through the utilization of resources funded by this grant; or,
4. Changing the items listed in the approved budget categories if an item's cost or features are substantially different from
what the approved grant application specifies, or from a previously approved fiscal or program revision.
B. Programmatic changes to the approved grant application require an approved Program Revision under any of the following
conditions:
I. Obtaining the services of a third party to perform activities that are central to the purposes of the grant; or,
2. Changing the scope or objectives of the approved program, regardless of whether there is an associated budget revision. A
change in scope is a substantive difference in the approach or method used to reach program objectives.
VI. EQUIPMENT AND PROPERTY REQUIREMENTS
A. If conditions described in Section V.A.l. are met, any .fiscal change to items listed in the Equipment budget category specified in
Section IV. I. of this contract will require an approved Budget Revision before making the change. A fiscal change includes a change
in the cost of the equipment and/or property, and any cost necessary to put the item into service, including, but not limited to, the
cost of any modifications, attachments, accessories, or auxiliary apparatus necessary to make the item usable for the purpose for
which it is acquired. Ancillary charges such as taxes, duty, protective in-transit insurance, freight, and installation should be included
in or excluded from the expenditure cost in accordance with the Subrecipient's regular accounting practices and Generally Accepted
Accounting Practices (GAAP). TSLAC will not advise Subrecipient on ancillary charges.
B. The Subrecipient will comply with UGMS Part III, Subpart C, Sec. 32 (d)(3) requiring certain items of equipment to be
maintained on inventory if the item's cost is between $500 and $1000.
C. Equipment costing $5,000 or more per unit requires approval before purchase. In those instances, TSLAC will secure approval
from IMLS on behalf of the Subrecipient and infonn Subrecipient of approval once received.
D. Subrecipient agrees to maintain records on all equipment/property as defmed in 2 C.F.R. §200.33.
E. Subject to the obligations and conditions set forth in UGMS, title to equipment acquired under a grant will vest in the Subrecipient
upon acquisition. Subrecipient must include any equipment/property acquired with grant funds in the required biennial property
inventory and follow the UGMS requirement that the Subrecipient reconcile the equipment/property records with a physical
inventory of the equipment/property every two years. This biennial inventory does not need to be submitted to TSLAC but must be
maintained by the Subrecipient and will be subject to review and/or audit by TSLAC. When property is vested in the Subrecipient,
Subrecipient will dispose of equipment/property in accordance with UGMS. When the Subrecipient has been given federally or
state-owned equipment/property, Subrecipient will follow the guidance as set forth in UGMS.
VD. REPORTING REQUIREMENTS
The State Legislature has charged TSLAC with submitting performance measurement reports that specify the level of services provided by
its programs and services. In accepting these grant funds, the Subrecipient acknowledges responsibility for performing certain services on
behalf of TSLAC, as outlined in the approved grant application. Therefore, the Subrecipient is responsible for submitting periodic reports
that reflect the Subrecipient's level of performance on these services to TSLAC. To comply with these requirements, the Subrecipient agrees
to submit reports that are timely, accurate, auditable, and consistent with defmitions.
A. The Subrecipient agrees to develop or revise, as necessary, any specific written documentation of its current procedures for (1)
collecting and reporting performance measures; (2) conducting a fixed asset inventory; and/or, (3) any other issues identified in the
Subrecipient's grant activities or internal audit. Drafts of this procedural documentation will be submitted to TSLAC by dates
established mutually between TSLAC and Subrecipient. TSLAC will provide review and guidance to enable .final versions to be
approved on or before established deadlines.
B. The Subrecipient agrees to submit quarterly performance reports detailing grant-funded activities via TSLAC'S GMS on or
before due dates listed in the following schedule. In the event that a due date falls on a weekend or state holiday, the respective
report will be due on the next business day. Subrecipient agrees to submit Legislative Budget Board (LBB) measures, as defined
by TSLAC, in the reports, and to work with agency staff in the development and reporting of Project outcomes. LBB measures
may include the numbers of: a) books and other materials purchased with grant funds; b) persons provided grant-sponsored
services; and/or c) library staff trained or assisted in order to carry out the grant-funded activities.
TSLAC CARES Grant-Cycle 2 -CAR2-21 007 2 of6 TSLAC
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Reporting Period
P1 (September 1, 2021}-February 28, 2021)
P2 (March 1, 2021-August31, 2021)
Due Date
March 7, 2021
September 7, 2021
C. The Subrecipient will ensure that all fiscal reports or vouchers requesting payment under this agreement will include a
certification, signed by an official who is authorized to legally bind the Subrecipient, that the reports are true, complete, and
accurate, and the expenditures, disbursements, and cash receipts are for the purposes and objectives set forth in the terms and
conditions of the award. The Subrecipient acknowledges that any false, fictitious, or fraudulent information, or the omission of
any material fact, may subject the signing official to criminal, civil or administrative penalties for fraud, false statements, false
claims, or otherwise. (2 CFR §200.415(a)), to the extent authorized by the Texas constitution and the laws of the State of Texas.
D. The Subrecipientagrees to submit an audit certification form for each auditable period ending August 31,2020, and August 31,
2021, to TSLAC no later than December 31 of each year, respectively, or other deadlines as specified by TSLAC.
E. If a single audit is required, the Subrecipientwill comply with the Supercircular (2 CFR §200.512 Report Submission). The audit
shall be completed and the required data collection form submitted to the Federal Audit Clearinghouse (FA C) within the earlier
of30 days after receipt of the auditor's report(s), or nine months after the end ofthe audit period, unless a longer period is agreed
to in advance by the state agency that provided the funding or a different period is specified in a program-specific audit guide.
F. TSLAC reserves the right to withhold final payment on this Grant until all required reports and forms are received.
VDI. GENERAL TERMS AND CONDITIONS
A. The Subrecipient will comply with the TSLAC CARES Grant Program Guidelines-Cycle 2.
B. The Subrecipient will comply with the Title 13, Part 1, Chapter 2, Subchapter C, Division 1, Rules 2.11 D-2.119 regarding General
Grant Guidelines.
C. The Subrecipient will comply with all applicable federal and state laws and any other requirements relevant to the performance of
Subrecipient under this contract, including the following rules and guidance as applicable:
l. Texas Uniform Grants Management Standards (UGMS) (https://comptroller. texas.govlpurchasing!docslugms.pd/); and
2. Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (2 CFR §200 and §3187
(Supercircular)) (https://foderalregister.gov/a/20 1 3-30465).
D. The Subrecipient may copyright any work that is subject to copyright and was developed, or for which ownership was acquired,
under a Federal award. Subrecipient understands that IMLS and TSLAC reserve a royalty-free, nonexclusive and irrevocable right to
reproduce, publish or otherwise use the work for Federal or state government purposes, and to authorize others to do so. (2 CFR
§200.315)
E. All publicity relating to the grant award must include acknowledgment of the Institute of Museum and Library Services
(www.imls.gov/recipientslimls_acknowledgement.aspx) and the Texas State Library and Archives Commission. Publicity
includes, but is not limited to press releases, media events, public events, displays in the benefiting library, announcements on the
Subrecipient's website, and materials distributed through the grant project. The Subrecipient will provide TSLAC with one set of all
public relations materials produced under this grant with the final quarterly performance report.
F. The Subrecipient will comply with all Federal statutes relating to nondiscrimination. These include but are not limited to: (a) Title
VI of the Civil Rights Act of 1%4 (P.L. 88-352) that prohibits discrimination on the basis of race, color, or national origin; (b) Title
IX of the Education Amendments of 1972, as amended (20 U.S.C. §§1681-1683, and §§1685-1686), that prohibits discrimination
on the basis of sex; (c) Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. §794), that prohibits discrimination on
the basis of disability and the Americans With Disabilities Act of 1990; (d) the Age Discrimination Act of 1974, as amended (42
U.S.C. §§6101-6107), that prohibits discrimination on the basis of age; (e) the Drug Abuse Office and Treatment Act of 1972 (P.L.
92-255), as amended, relating to nondiscrimination on the basis of drug abuse; (f) the Comprehensive Alcohol Abuse and Alcoholism
Prevention, Treatment and Rehabilitation Act of 1970 (P.L. 91-616), as amended, relating to the nondiscrimination on the basis of
alcohol abuse or alcoholism; (g) §523 and §527 of the Public Health Service Act of 1912 (42 U.S.C. §290 dd-3 and §290 ee-3), as
amended, relating to confidentiality of alcohol and drug abuse patient records; (h) Title VIII of the Civil Rights Act of 1968 ( 42
U.S.C. §3601 et seq.), as amended, relating to nondiscrimination in the sale, rental or fmancing of housing; (i) any other
nondiscrimination provisions in the specific statute(s) under which application for Federal assistance is being made; and 0) the
requirements of any other nondiscrimination statute(s) that may apply to the application.
G. The Subrecipient understands that acceptance of funds under this contract acts as acceptance of the authority of duly authorized
representatives of TSLAC, IMLS, the Comptrol1er General of the United States, and the Texas State Auditor's Office, or any
successor agencies, to conduct an audit or investigation in connection with those funds. Subrecipient further agrees to cooperate
fuJly with said representatives in the conduct of the audit or investigation and agrees to provide access to all books, documents,
papers, examinations, excerpts, transcripts, copies, and any other records necessary to conduct the audit and/or investigation.
Subrecipient will ensure that this clause concerning the authority to audit funds received indirectly by subcontractors through
Subrecipient, and the requirement to cooperate, is included in the contract for any sub-grant awarded.
TSLAC CARES Grant-Cycle 2-CAR2-21007 3 of6 TSLAC
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H. The Subrecipient, if a private entity, will comply with Federal law pertaining to trafficking in persons. Subrecipient and its
employees may not:
1. Engage in severe forms of trafficking in persons during the period of time that the award is in effect;
2. Procure a commercial sex act during the period of time that the award is in effect; or
3. Use forced labor in the performance of the award or subawards under the award.
I. The Subrecipient agrees to maintain all fmancial and programmatic records, supporting documents, statistical records, and other
records relating to this grant award for three years after the last State Program Report for the Texas LSTA 5-Year Plan 2018-2022
is submitted (anticipated date of submission is December 31, 2023). This means the Subrecipient must maintain all grant-related
records through December 31, 2026-In addition, Subrecipients that operate as state agencies must comply with Texas
Government Code,§ 441.1855, relating to state agency contracting and the retention of all contract-related documents.
In the eveotthe Subrecipient or receiving entity ceases to exist, the Sub recipient will notify TSLAC in writing providing the
name of the legal entity that will maintain the records and the location of the records.
J. This grant may be terminated by written notice and mutual agreement of both parties. The termination notice must be given no
less than 30 days prior to the termination date. Where notice of termination is given, the Subrecipient shall:
1. Take immediate steps to bring the work or grant activities to a close in a prompt and orderly manner. Subrecipient will complete
reporting requirements outlined in Section VII of this document and in a marmer mutually agreed upon by both parties as part
of the closeout process.
2. Reduce expenses to a minimum and not undertake any forward commitment All contracted fimds that are not spent,
encumbered or obligated at the time of notice of termination shall revert back to TSLAC according to processes established in
Section IV. H. of this document and according to a timeline mutually agreed upon by both parties.
K. Loss of all of Subrecipient's staff prior to the end of the grant period or the termination date, whichever is earlier, does not relieve
the Subrecipient of its obligations to fulfill all terms and conditions of the grant with regard to reporting requirements, retention of
records and requirements for disposition of equipment and supplies.
L. The parties agree that no provision of this contract is in any way intended to constitute a waiver by TSLAC or the State of Texas of
any immunities from suit or from liability that TSLAC or the State of Texas may have by operation of law.
M. This grant contract is subject to the availability of funds. TSLAC may reduce or terminate this grant contract when the availability
of funding is reduced or eliminated.
IX. ENFORCEMENT
A. Remedies for noncompliance. If a Subrecipient materially fails to comply with any term of the contract, whether stated in a state
or federal statute or regulation, an assurance in a state plan or application, a notice of award, or elsewhere, TSLAC may take one
or more of the following actions or impose other sanctions as appropriate in the circumstances:
1. Temporarily withhold cash payments pending correction of the deficiency by the Subrecipient, or more severe enforcement
action by TSLAC;
2. Disallow (that is, deny both use of funds and matching credit for) all or part of the cost of the activity or action not in
compliance;
3. Wholly or partly suspend or terminate the current contract for the Subrecipient's program;
4. Withhold further awards for the program; or
5. Take other remedies that may be legally available.
B. Hearings. appeals. In taking an enforcement action, TSLAC will provide the Subrecipient an opportunity for such hearing, appeal,
or other administrative proceeding to which the Subrecipient is entitled under any statute or regulation applicable to the action
involved. Appeal/protest procedures are outlined in the Texas Administrative Code (TAC), Title 13, Part 1, Chapter 2, Subchapter
A, Rule 2.55.
C. Effects of suspension and termination. Costs to Subrecipient resulting from obligations incurred by the Subrecipient during a
suspension or after termination of an award are not allowable unless TSLAC expressly authorizes them in writing. Other
Subrecipient costs incurred during suspension or after termination that are necessary and not reasonably avoidable are allowable
if:
1. The costs relate to obligations that were properly incurred by the Subrecipient before the effective date of suspension or
termination and were not incurred in anticipation of suspension or termination, and, in the case of a termination, the costs
are noncancelable; and,
2 . The costs would be allowable if the award were not suspended or expired normally at the end of the funding period in which
the termination takes effect.
D. Relationship to Debarment and Suspension -The enforcement remedies identified in this section, including suspension and
termination, do not preclude Subrecipient from being subject to "Debarment and Suspension" under Executive Order 12549
(UGMS, Part Til, Subpart C, Sec. 35) and state law.
TSLAC CARES Grant-Cycle 2-CAR2-21 007 4 of6 TSLAC
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X. CONTACTS AT TSLAC
Questions or concerns about programmatic issues. budget and/or program revisions. performance reports. and equipment/property
should be directed to:
Bethany Wilson, Grants Administrator
Phone: 512-463-5527/Fax: 512-936-2306
E-mail: bwilson@tsl.texas.gov
Questions or documentation relating to requests for funds, payments, and financial status should be directed to:
Arturo Villarreal, Grants Accountant
Phone: 512-463-5472 I Fax: 512-475-0185
E-mail: grants.accounting@tsl. texas.gov
Questions or concerns about advance payments and other fmancial issues should be directed to:
Rebecca Cannon, Manager, Accounting and Grants
Phone: 512-463-6626/ Fax: 512-475-0185
E-mail: rcannon@tsl.texas.gov
Payments from Subrecipient to TSLAC, such as refunds and those for excess advanced funds or interest earned on advanced funds,
should be mailed to the following address with an explanation of the purpose of the payment and the grant number:
Grants Accountant
Accounting and Grants Department
Texas State Library and Archives Commission
POBox 12516
Austin, TX 78711-2516
XL APPLICABLE AND GOVERNING LAW
A. The laws ofthe State of Texas shall govern this grant.
B. All duties of either party shall be legally performable in Texas. The applicable law for any legal disputes arising out of this
contract shall be the law of (and all actions hereunder shall be brought in) the State of Texas, and the forum and venue for such
disputes shall be Travis County, District Court.
Xll. GRANT CERTIFICATIONS
A. TSLAC certifies that: (1) the services specified in the approved grant application and this contract are necessary and essential for
activities that are properly within the statutory functions and programs of the affected organizations; (2) the services, supplies or
materials contracted for are not required by Section 21 of Article 16 of the Constitution of Texas to be supplied under contract given
to the lowest bidder; and, (3) the grant is in compliance with Texas Government Code §441.006, Texas Government Code §441.135;
Texas Administrative Code, Title 13, Part 1, Chapter 2, Subchapter C, Division 1, Rules 2.11Q-2.119 regarding General Grant
Guidelines; the Library Services and Technology Act (LSTA); the State Plan for the LSTA in Texas; and UGMS.
B. The Subrecipient certifies that all costs included in this grant award are properly allocable to federal awards on the basis of a
beneficial or causal relationship between the expenses incurred and the agreements to which they are allocated in accordance with
applicable requirements.
C. The Subrecipient certifies that the same costs that have been treated as indirect costs have not been claimed as direct costs. Similar
types of costs have been accounted for consistently, and the negotiating agency will be notified of any accounting changes that would
affect the predetermined rate.
D. The Subrecipient certifies by this contract that no Federal appropriated funds have been paid or will be paid, by or on behalf of the
Subrecipient, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress,
an officer or employee of Congress, or an employee of a Member of Congress in connection with the making of any Federal grant,
the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal
grant or cooperative agreement. If any funds other than Federal appropriated funds have been paid or will be paid for such purpose,
the Subrecipient shall complete and submit OMB form SF-LLL, Disclosure of Lobbying Activities, in accordance with its
instructions. The Subrecipient shall require that the language of this certification be included in the award documents for all
subawards at all tiers (including subgrants, contracts under grants and cooperative agreements, and subcontracts) and that all
subrecipients shall certify and disclose accordingly, as specified in 31 U.S. C. §1352.
E. Subrecipient has provided to TSLAC the mandatory Internet Safety Certification (Certification) that it is in compliance with
requirements of the Children's Internet Protection Act (CIPA) for any Federal funds under this grant that will be used to purchase
computers used to access the Internet or pay for the direct costs of accessing the Internet. Subrecipient agrees to collect, as required
and appropriate, Certification forms from all libraries receiving benefits ofFederal funds expended under this contract.
F. Subrecipient certifies that neither subrecipient nor any of its principals (a) are presently excluded or disqualified; (b) have been
convicted within the preceding three years of any of the offenses listed in 2 CFR § l80.800(a) or had a civil judgment rendered
against it or them for one of those offenses within that time period; (c) are presently indicted for or otherwise criminally or civilly
charged by a governmental entity (Federal, State, or local) with commission of any of the offenses listed in 2 CFR §l80.800(a);
or (d) have had one or more public transactions (Federal, State, or local) terminated within the preceding three years for cause or
TSLAC CARES Grant-Cycle 2 -CAR2-21007 5 of6 TSLAC
209
DocuSign Envelope 10: 7A35A521-DB67-4904-A16E-B54A52343053
default. Where the Subrecipient is unable to certify to any of the statements in this certification, the Subrecipient shall attach an
explanation to these Certifications.
G. The Subrecipient certifies all applicable activities related to this grant will be in compliance with the Copyright Law of the United
States (Title 17, U.S. Code).
H. In addition to Federal requirements, state law requires a number of assurances from applicants for Federal pass-through or other
state-appropriated funds. (UGMS Part III, Subpart B, Sec. 14 -State Assurances)
XOI. SIGNATURES
The undersigned hereby execute this contract.
GRANTOR
Texas State Library and Archives Commission
Mark Smith, Director and Librarian
Date
Donna Osborne, Chief Financial Officer
12/ll/2020
Date
Jennifer Peters, Library Development and Networking Director
12/l l/2020
Date
Bethany Wilson, Grants Administrator
12/11/2020
Date
ATIEST:
CITY SECRETARY
CITY OF DENTON, TEXAS
BY: ------------------
TSLAC CARES Grant-Cycle 2-CAR2-21 007 6 of 6
SUBRECIPIENT
City of Denton, Denton Public Library
Signature (official empowered to enter into contracts)
Typewritten or Printed Name
Title
Date
THIS AGREEMENT HAS BEEN BOTH REVIEWED AND
APPROVED
as to financial and operational obligations and
business terms.
1/5/2021
Date
APPROVED AS TO LEGAL FORM:
AARON LEAL, CITY ATIORNEY
BY:
o l/o5'/~v J.I
Date I I
TSLAC
210
City of Denton
Legislation Text
City Hall
215 E. McKinney St.
Denton, Texas 76201
www.cityofdenton.com
File #:ID 21-119,Version:1
AGENDA CAPTION
Consider approval of a resolution of the City Council of the City of Denton revising the City’s Cash
Disbursements policy; and providing an effective date.
City of Denton Printed on 1/21/2021Page 1 of 1
powered by Legistar™211
City of Denton
_____________________________________________________________________________________
AGENDA INFORMATION SHEET
DEPARTMENT: Finance
CFO/ACM: David Gaines
DATE: January 26, 2021
SUBJECT
Consider approval of a resolution of the City Council of the City of Denton revising the City’s Cash
Disbursements policy; and providing an effective date.
BACKGROUND
The City of Denton recently developed a Cash Disbursement Policy to guide departments when processing
invoices or reimbursements for payment. The attached Policy was put together based on feedback received
from Internal Audit, Procurement (Purchasing) and the Finance Department. If approved, this document
will be used by departments to process payments for goods and or services.
The attached Policy and City procedures prioritizes the following objectives.
1. Formalize and create an accounts payable policy and procedure manual
2. Ensure that Accounts Payable and Procurement staff do not have incompatible system access
3. Develop a procedure to verify that certain invoices have not already been paid
4. Establish a process to ensure the City is not paying any taxes for which it is exempt
5. Require employees to supply adequate backup for payment
6. Require check requisitions under $5,000 to be approved by a supervisor.
7. Restrict physical collection of checks
8. Encourage the use of electronic payments instead of paper checks where possible
RECOMMENDATION
Staff recommends approval of the resolution.
EXHIBITS
1. Agenda Information Sheet
2. Cash Disbursements Policy
3. Accounts Payable Audit Management Response Matrix
4. Resolution
Respectfully submitted:
Cassey Ogden 349-7195
Finance Director
Prepared by:
Nick Vincent 349-8063
Assistant Finance Director
City Hall
215 E. McKinney Street
Denton, Texas
www.cityofdenton.com
212
CITY OF DENTON
POLICY/ADMINISTRATIVE PROCEDURE/ADMINISTRATIVE DIRECTIVE
SECTION: FINANCE REFERENCE NUMBER:
400.01
SUBJECT: ACCOUNTS PAYABLE INITIAL EFECTIVE DATE:
Pending Council Approval
TITLE: CASH DISBURSEMENTS LAST REVISION DATE:
I. POLICY STATEMENT
In meeting its goals and objectives, the City of Denton incurs a wide variety of
expenses. Accounts Payable endeavors to serve these goals and objectives by
processing payments in an efficient manner. It pays all of the City’s financial
obligations, with the exception of payroll salaries and credit card payments. This
policy is designed to provide guidance for non-compensated expenses.
Guidelines and policies cannot anticipate every possible expense or circumstance
surrounding those expenses. The basic test for the allowability of purchase is that
the primary purpose for the expenditure is to further the achievement of the City of
Denton’s goals and objectives.
All purchases must be conducted in compliance with applicable Texas Local
Government Code Statutes governing competitive bids and in compliance with the
City’s Material Management and Payment Procedures Manual.
All payment request must have a supporting “invoice”, request without the proper
documentation will not be processed. Appropriate documentation to support
expenditures is the detailed, itemized original “invoice” or receipt listing the items
purchased (not the summary receipt which is just a promise to pay). City employees
and their supervisors are responsible for ensuring that there are no ineligible
expenses incurred.
The City of Denton is tax-exempt and the employees should ensure that purchases
do not include sales tax. A tax exempt certificate should be provided to serve as
proof to the vendor of the City’s tax exempt status when the vendor is created in
the system.
Once invoices are received, Accounts Payable will scan and send to departments
requesting they be notified when the receiver has been entered.
II. ROLES AND RESPONSIBLITIES
Accounts Payable
Accounts Payable will review purchases for departmental approval and supporting
213
POLICY/ADMINISTRATIVE PROCEDURE/ADMINISTRATIVE DIRECTIVE
TITLE: ACCOUNTS PAYABLE REFERENCE NUMBER:
401.01
documentation, perform data entry, preparation of checks, enter ACH payment
transactions into the financial software, and maintain administrative record keeping
in accordance with approved retention schedules.
Accounts Payable will work with departments and vendors to resolve disputes and
produce timely payments. All invoices with outstanding issue(s) will be logged into
Smartsheet daily. This log, will promote two-way communication with departments
and include, supporting documentation and the reason the invoice is outstanding.
Upon entry, the spreadsheet will automatically send departments an email
notification. Follow-up emails will be sent weekly until the issue(s) are resolved
and the invoice is paid.
Accounts Payable will notify Procurement when payment names or addresses are
set up improperly so that the vendor files will be corrected.
Accounts Payable will produce and maintain files on 1099 information returns for
a period consistent with IRS guidelines.
Purchase Orders
The City utilizes the three-way match for payments using a Purchase Order. In
order for an invoice to be processed for payment it must match the receiver. If the
invoice does not match, the A/P Representative will review the Purchase Order and
then work with the department and/or Vendor to get the issues resolved to get the
invoice paid. Invoices with outstanding issues will be logged into a smart sheet file
for tracking and reporting purposes.
Check Requisitions, Refund Request, Expense Reports
Check requisitions, refund request and expense reports will be submitted to
accounts payable via Smartsheet. Each request will need to be submitted separately
with supporting documentation.
Department Heads and Supervisors
Department heads and/or supervisors will designate the employees who are
authorized to make purchases.
Department heads and supervisors will review, monitor, and approve purchases
made on behalf of the City by their employees.
Department heads may perform the approval of their departmental purchases or
may designate an Approver to perform this role.
214
POLICY/ADMINISTRATIVE PROCEDURE/ADMINISTRATIVE DIRECTIVE
TITLE: ACCOUNTS PAYABLE REFERENCE NUMBER:
401.01
Department heads are ultimately responsible for approval of all purchases within
their department(s).
Department heads are responsible for monitoring their budgets and not exceeding
budgets.
The department head and/or supervisor will be required to comply with the
purchasing, contract management, and accounts payable policies and procedures.
Approver
The department head may perform the role of Approver or can designate an
Approver(s) for department-wide administration of purchases. Approvers should
be limited to a select group of employees.
Approver will review, approve, and monitor the department personnel’s purchasing
transactions. This includes reconciliation of departmental purchasing transactions
to documentation, proper general ledger account coding, and evidence review and
approval of purchase by signature or other electronic means.
For check requisitions, refund request and expense reports the following approvals
will be required.
Supervisor approval <$5,000
Director approval >$5,000
Employees Making Purchases
The employee(s) can make purchases of goods and services necessary to perform
work activities. Non-City purchases or personal expenditures, as well as use by
any other person, is strictly prohibited.
Employees will obtain detailed, itemized transaction documentation for all
purchases, review and verify the validity of all transactions, reconcile transactions
to documentation, indicate proper general ledger account coding for transactions,
and submit required records to the Approver. The employees will comply with
purchasing, contract management, and accounts payable policies and procedures.
Procurement Department
The Procurement Department is responsible for the purchase of goods and services
prior to ordering or securing such goods and services in accordance with purchasing
policies and procedures. This includes anything requiring a purchase order,
agreement, or contract.
215
POLICY/ADMINISTRATIVE PROCEDURE/ADMINISTRATIVE DIRECTIVE
TITLE: ACCOUNTS PAYABLE REFERENCE NUMBER:
401.01
The Budget Department maintains the authorized approvers in the JD Edwards
Enterprise One (E-1) financial system for purchase orders based on director
approval (workflow).
Accounts Payable will evidence review by both a signature and printed name on
check requests signifying that this is a legitimate use of City of Denton funds, and
that there are two signatures (preparer and approver). Accounts Payable will fill in
the appropriate vendor number on the check request.
The Procurement Department will maintain the vendor address book in the E-1
financial system, including assigning vendor numbers.
The Procurement Department will obtain vendor tax identification on the IRS form
W-9, maintain the W-9 files, and maintain the tax identification numbers in the E-
1 financial system. The Procurement Department will put vendors on hold if they
do not comply with W-9 requirements.
Accounts Payable will follow up on problems in independent contractor reporting
on IRS B-9 notices.
Treasury Department
Treasury receives check and ACH totals to (1) ensure cash is available for
purchases and (2) the City is maximizing investment opportunities. The Treasury
Manager reviews and processes wire requests via the bank software.
Accounting Department
Wire and ACH Transfer Payments
The Finance Department will utilize Smartsheet and Laserfiche to track wire and
ACH payments. Departments are required to send all wire and ACH forms to
Treasury once complete. Afterwards, Treasury will review the form(s) for accuracy
and obtain the necessary approval from the Finance Director, Assistant Director(s),
Comptroller or Assistant Comptroller. Once approved, wire and ACH payment
forms and supporting documentation are distributed to the assigned accountants
VIA Smartsheet for review. When the review is complete, the wire payment forms
are sent to Accounts Payable. Accounts Payable Staff will enter the payments (with
check number) into JD Edwards. As the payments are entered, the date is recorded
on the log next to each payment to ensure all wire and ACH payments for the month
have been entered into JD Edwards.
Weekly Check Processing
216
POLICY/ADMINISTRATIVE PROCEDURE/ADMINISTRATIVE DIRECTIVE
TITLE: ACCOUNTS PAYABLE REFERENCE NUMBER:
401.01
Each Thursday (except for City recognized holidays), the Accounts Payable group
will process checks for invoices, check requests, refunds, and expense reports.
There is a separate administrative directive for printing checks – please see Appendix
A – Administrative Procedures – Check Printing. In this document, Step 5 of Section
II, Procedures, instructs Accounts Payable to give all payments greater than $5,000 to
the assigned accountants for review.
Over $5,000 Payment Review
After the checks are printed, the Accounts Payable group prepares two logs for all
payments over $5,000. One log for checks and the other for ACH payments.
Each accountant will review the checks assigned to them for the following:
Vendor Name – remittance name on check must match invoice
Verify Amount – check amount must match the invoice(s)
Verify Purchase Order number – must match number in JD Edwards (if
applicable).
Verify Received Amount – amount received against purchase order in JD
Edwards must matches invoice total(s)
Verify sales tax was NOT charged/paid on the invoice
Review General Ledger Account – look for unusual accounts such as
transfers, balance sheet accounts, revenue accounts, or fixed asset accounts.
Initial the log for each check/ACH payment once the review is complete.
Return check copies and logs to Accounts Payable
III. DISTRIBUTION
Accounts Payable will deliver the checks to the mail room. With very limited
exceptions, all checks are to be mailed – there are no vendor pickups. Exceptions,
which can be picked up by City employees only, include legal settlements
(Legal), property purchases (Real Estate), or special requests (City Manager’s
Office).
IV. WIRE OR ACH ADJUSTMENT APPROVALS
If the total value of a wire or ACH transaction is equal to or less than $10.00, an
adjustment may be approved by the City Manager or his/her designee. For wire
and ACH transactions, the designee will be the Chief Financial Officer or Finance
Director unless otherwise approved by the City Manager.
217
Appendix A: Management Response Matrix
The following summarizes the recommendations issued throughout this report. The auditors found that
staff were receptive and willing to make improvements to controls where needed. Management’s
responses to each recommendation is summarized below:
1 Update and formalize an accounts payable policies and
procedures manual. Concur
Expected
Completion:
December of
2019
Comments: The process to update policies and procedures is under way. Staff has
received examples from multiple cities utilizing the same financial software. These
examples will assist in drafting changes to the policies and procedures manual. We want
to ensure comprehensive policies are appropriately formal and cover all aspects of
Accounts Payable practices and procedures.
Responsibility:
Melanie Beard,
Brian Hogan, and
Harvey Jarvis
2
Finance and Procurement need to ensure that Accounts
Payable and Procurement staff do not have incompatible
system access.
Concur
Expected
Completion:
Completed
Comments: Tech Services has now restricted the Accounts Payable Staff’s ability to add
purchase order requisitions and enter receipts.
Responsibility:
Jim Barnes,
Harvey Jarvis
3 Include a standard invoice numbering guideline within the
policies and procedures manual. Concur
Expected
Completion:
December of
2019
Comments: The standard invoice numbering practice will be incorporated into the
updated Policy Manual.
Responsibility:
Melanie Beard,
Brian Hogan and
Harvey Jarvis
4 Consider developing a procedure to verify that certain invoices
have not already been paid on a procurement card.0 Concur
Expected
Completion:
Unknown
Comments: Staff has been exploring ways to compare invoices paid by p‐cards to
invoices processed thru the Accounts Payable system. The only common data between
the two systems is the date of the transaction and the amount. The P‐card system does
not use the Vendor Master numbering system and the transaction number on the receipt
is not in the JDE system. We are currently installing a new travel and p‐card t software
which should enhance shared between the two systems to find data points that we can
be used to search for duplicate transactions. Ultimately, the payments are from separate
systems and staff will implement all procedures policy to mitigate the risk.
Responsibility:
Brian Hogan and
Harvey Jarvis
218
The City of Denton Internal Audit Report Audit of the Utility Street Cut Patching
April 2019
5 Establish a process to ensure the City is not paying any taxes
for which it is exempt. Concur
Expected
Completion:
December of
2019
Comments: Accounting staff is consistently being reminded to check for sales taxes
being billed on vendor invoices while reviewing the Accounts Payable check run. Also,
Accounts Payable staff has the responsibility to reduce any sales tax charges and file the
proper paper work with the vendor to exempt any future sales tax charges. These
practices will be incorporated into the updated Policy and Procedures Manual.
Responsibility:
Melanie Beard,
Brian Hogan and
Harvey Jarvis
6 Require employees to enter adequate receiving documentation
for all goods and services. Concur
Expected
Completion:
September of
2019
Comments: As part of the update to the Accounts Payable Policy and Procedures manual,
we will require the department personnel to upload an image of the receiving or shipping
document with the invoice as a reference for City staff when processing payments to the
vendor.
Responsibility:
Department
personnel and
the Accounts
Payable staff
7
Consider requiring the employee who physically receives goods
or services to enter the receiving document in JD Edwards via
policy.
Concur
Expected
Completion:
September of
2019
Comments: Agree. As part of the update to the Accounts Payable Policy and Procedures
manual, we will require the department personnel to upload an image of the receiving
or shipping document with the invoice as a reference for City staff when processing
payments to the vendor.
Responsibility:
Department
personnel and
the Accounts
Payable staff
8 Require check requisitions under $5,000 to be approved by a
supervisor. Concur
Expected
Completion:
September 30,
2019
Comments: We will distribute new forms requiring the Supervisor or Manager of the
person submitting the check requisition to approve the under $5,000 purchase. Directors
already are required to approve any check Requisition over $5,000.
Responsibility:
Melanie Beard
and Brian Hogan.
9 Restrict physical collection of checks. Concur
Expected
Completion:
September 30,
2019
Comments: All Vendor checks will be mailed in the future. We will inform our vendors
and City staff that we will no longer release check payments. We will encourage our
vendors to choose ACH payments as an alternative. Exceptions to this policy will be
allowed on a case by case basis.
Responsibility:
Melanie Beard
and Harvey Jarvis
219
The City of Denton Internal Audit Report Audit of the Utility Street Cut Patching
April 2019
10 Encourage the use of electronic payments instead of paper
checks where possible. Concur
Expected
Completion:
Already being
done.
Comments: Agree. The Procurement Office is responsible for setting up the Vendor
Masters, including the method of payment the Vendor chooses. We also follow up with
reviews of vendor payment registers to look for and request vendors to setup ACH
Payments to eliminate the need for paper checks.
Responsibility:
Melanie Beard
and Harvey Jarvis
11 Develop a process to ensure Staples Advantage purchases are
properly approved and received. Concur Expected
Completion:
Comments: All Staples invoices should include a PO number so that the purchases are
authorized by department management and we can process the payment using the
Accounts Payable system to match the PO and receiver match against the invoice
amount. We are anticipating adding software that will automate the processing of
invoices received from our vendors. Using PO number on the Staples purchases will
leverage the automation and speed the process of paying all of our vendor invoices
including Staples.
Responsibility:
Melanie Beard,
Brian Hogan and
Harvey Jarvis
12 Annually review Staples Advantage users to verify that access
is still appropriate. Concur
Expected
Completion:
December of
2019
Comments: The control of access to the Staples Advantage is with the Procurement
Office. The Purchasing Office will request a user list from Staples annually or however
frequently, as needed. Purchasing will send the list out to the departments to verify the
users and then ask Staples to make the requested changes.
We agree that an annual review of city staff access to order from Staples should be
performed to maintain the proper access of personnel and will be incorporated into the
updated Policy and Procedures Manual.
Responsibility:
Purchasing,
Melanie Beard
and Brian Hogan
13 Consider changing current Staples Advantage billing practices
to improve efficiency in the Accounts Payable Division. Partially Concur
Expected
Completion:
June of 2020
Comments: We are anticipating adding software that will automate the processing of
invoices received from our vendors. This will speed the process of paying all of our
vendor invoices including Staples. Having a PO number on the invoice is key to the
automation process. We will change our procedures to effectively leverage the ability of
the software to scan and voucher a vendor’s invoice to make to payment process more
efficient.
We do not have the ability to change Staples’ billing practices or procedures. We can limit
the number of City staff that have access to order from Staples and agree that this should
be reviewed annually to ensure the proper employees have access.
Responsibility:
Melanie Beard,
Brian Hogan and
Harvey Jarvis
220
RESOLUTION NO. ______________
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DENTON REVISING THE
CITY’S CASH DISBURSEMENTS POLICY; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, revisions to the City of Denton’s Cash Disbursements Policy (No. 400.01)
are proposed; and
WHEREAS, the City of Denton deems it in the public’s best interest to adopt the proposed
revisions to the City’s Cash Disbursements policy (No. 400.01); NOW THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY RESOLVES:
SECTION 1. The revised City of Denton Cash Disbursements policy (No. 400.01), which
is attached hereto and made a part hereof, is hereby adopted as an official policy of the City of
Denton and supersedes any previous version of this policy.
SECTION 2. The attached policy shall be filed in the official record with the City
Secretary.
SECTION 3. This Resolution shall become effective immediately upon its passage and
approval.
The motion to approve this Resolution was made by __________________________ and
seconded by _________________________________, the Resolution was passed and approved by
the following vote [___ - ___]:
Aye Nay Abstain Absent
Mayor Gerard Hudspeth: ______ ______ ______ ______
Birdia Johnson, District 1: ______ ______ ______ ______
Connie Baker, District 2: ______ ______ ______ ______
Jesse Davis, District 3: ______ ______ ______ ______
John Ryan, District 4: ______ ______ ______ ______
Deb Armintor, At Large Place 5: ______ ______ ______ ______
Paul Meltzer, At Large Place 6: ______ ______ ______ ______
PASSED AND APPROVED this the _________ day of ___________________, 2021.
__________________________________
GERARD HUDSPETH, MAYOR
221
222
City of Denton
Legislation Text
City Hall
215 E. McKinney St.
Denton, Texas 76201
www.cityofdenton.com
File #:ID 21-141,Version:1
AGENDA CAPTION
Consider adoption of an ordinance approving a Settlement Agreement and Release implementing the terms of
the settlement in litigation styled “Stonetown Country View,LLC v.City of Denton,Texas and Board of
Adjustment for City of Denton,Texas,”Cause No.19-10653-442,pending in the 442nd Judicial District Court,
Denton County,Texas,as discussed in closed session;and directing the City Manager,or his designee,and the
City’s attorneys to effectuate as necessary and appropriate the terms of a Settlement Agreement and Release to
effectuate this approval; and declaring an effective date.
City of Denton Printed on 1/22/2021Page 1 of 1
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City of Denton
_____________________________________________________________________________________
AGENDA INFORMATION SHEET
DEPARTMENT: LEGAL
CM/ DCM/ ACM: Aaron Leal, City Attorney
AGENDA DATE: January 26, 2021
SUBJECT Consider adoption of an ordinance approving a Settlement Agreement and Release
implementing the terms of the settlement in litigation styled “Stonetown Country
View, LLC v. City of Denton, Texas and Board of Adjustment for City of Denton,
Texas,” Cause No. 19-10653-442, pending in the 442nd Judicial District Court,
Denton County, Texas, as discussed in closed session; and directing the City
Manager, or his designee, and the City’s attorneys to effectuate as necessary and
appropriate the terms of the Settlement Agreement and Release; and declaring an
effective date.
BACKGROUND This is an appeal of the Board of Adjustment’s ruling, sustaining the Staff denial of
the vested rights asserted by a mobile home community (“Park”) located on Fort Worth Drive (US 377) @
Country Club/James. The western portion of the Park was never leased out, primarily because it lay in a
flood plain. The Park is working on a map revision for flood improvements, but this portion also lies within
the reverse setback of a nearby gas well, and construction permits were rejected.
The Park, which was first created in the 1970s, granted an SUP in 1981, and platted as a single lot
mobile home park in 1985, claimed that their vested rights of development predated (and therefore
preempted) application of the City’s reverse gas well setbacks to their claimed development project.
Plaintiffs are not claiming vested rights against the flood map. Following the process set forth in the DDC,
the Park filed an appeal from the staff determination that reverse setbacks are among the zoning regulations
statutorily exempted from the vested rights law, and that no vested rights remain, because the “project”
defined by the plat was completed. In accordance with the DDC procedure, the staff analysis was briefed
to the City Manager and affirmed. From there, the matter went to the Board of Adjustment, which conducted
a hearing on the evidence, and the Park was represented by legal counsel.
OPTIONS As settlement of the matter was already authorized in accordance with Council direction,
within previously delegated settlement authority, the option is to formally ratify and approve the settlement.
RECOMMENDATION Proceed with formal approval.
EXHIBITS
Exhibit 1 – AIS
Exhibit 2 – Ordinance
Exhibit 3 – Settlement Agreement and Release
City Hall
215 E. McKinney Street
Denton, Texas
www.cityofdenton.com
224
Respectfully submitted:
/s/ Caleb Garcia
Deputy City Attorney
Prepared by:
Amy Hoffee
Paralegal
Legal Staff Contact:
Caleb Garcia
Deputy City Attorney
225
ORDINANCE NO. ___________
AN ORDINANCE APPROVING A SETTLEMENT AGREEMENT AND RELEASE
IMPLEMENTING THE TERMS OF THE SETTLEMENT IN LITIGATION STYLED
“STONETOWN COUNTRY VIEW, LLC V. CITY OF DENTON, TEXAS AND BOARD OF
ADJUSTMENTS FOR CITY OF DENTON, TEXAS” CAUSE NO. 19-10653-442, PENDING IN
THE 442ND JUDICIAL DISTRICT COURT, DENTON COUNTY, TEXAS, AS DISCUSSED IN
CLOSED SESSION; AND DIRECTING THE CITY MANAGER, OR HIS DESIGNEE, AND
THE CITY’S ATTORNEYS TO EFFECTUATE AS NECESSARY AND APPROPRIATE THE
TERMS OF A SETTLEMENT AGREEMENT AND RELEASE TO EFFECTUATE THIS
APPROVAL; AND DECLARE AN EFFECTIVE DATE.
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The City Council hereby ratifies and approves the proposed settlement of
litigation styled “Stonetown Country View, LLC v. City of Denton, Texas, and Board of
Adjustments for City of Denton, Texas,” Cause No. 19-10653-442, pending in the 442nd Judicial
District Court, Denton County, Texas, under terms set forth in the attached Settlement Agreement
and Release.
SECTION 2. The City Manager, or his designee, and the City’s Attorneys are hereby
authorized to act on the City’s behalf in approving and executing any and all documents necessary
or appropriate to effectuate the terms of the settlement, and to take other actions necessary to
finalize the settlement.
SECTION 3. This Ordinance shall become effective immediately upon its passage and
approval.
The motion to approve this ordinance was made by __________________________ and
seconded by _________________________________. This Ordinance was passed and approved
by the following vote [___ - ___]:
Aye Nay Abstain Absent
Mayor Gerard Hudspeth, ______ ______ ______ ______
Birdia Johnson, District 1: ______ ______ ______ ______
Connie Baker, District 2: ______ ______ ______ ______
Jesse Davis, District 3: ______ ______ ______ ______
John Ryan, District 4: ______ ______ ______ ______
Deb Armintor, At Large Place 5: ______ ______ ______ ______
Paul Meltzer, At Large Place 6: ______ ______ ______ ______
226
PASSED AND APPROVED this the 26th day of January 2021.
_______________________________
GERARD HUDSPETH, MAYOR
ATTEST:
ROSA RIOS, CITY SECRETARY
BY: __________________________________
APPROVED AS TO LEGAL FORM:
AARON LEAL, CITY ATTORNEY
BY: __________________________________
227
EXHIBIT “A”
Settlement Agreement and Release
228
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230
231
232
233
Stouetown Country View, LLC
DATED: 1 / rl ! jol 1 By: Stonetown 4 Investors, LLC
Its: Manager
Name: Adam Minnick
Its: Managu
DATED: IIZ\ la\
Zoning Board of Adjustment for the City of
Denton, Texas
DATED:By:
Name:
Its:
SETtLEMENT AGREEMENT AND RELEASE - Page 6
234
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238
City of Denton
Legislation Text
City Hall
215 E. McKinney St.
Denton, Texas 76201
www.cityofdenton.com
File #:ID 20-2507,Version:1
AGENDA CAPTION
Consider adoption of an ordinance adopted concurrently with the cities of Garland,Greenville,Bryan and
Denton,approving the execution by the Texas Municipal Power Agency (“Agency”)of an asset purchase
agreement for the sale of the Agency’s Gibbons Creek Steam Electric Station and related assets in Grimes
County, Texas; approving an associated generation budget amendment; and providing an effective date.
City of Denton Printed on 1/22/2021Page 1 of 1
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City of Denton
_____________________________________________________________________________________
AGENDA INFORMATION SHEET
DEPARTMENT: Denton Municipal Electric
Executive Manager - Utilities: Antonio Puente, Jr.
DATE: January 26, 2021
SUBJECT
Consider adoption of an ordinance adopted concurrently with the cities of Garland, Greenville, Bryan and
Denton, approving the execution by the Texas Municipal Power Agency (“Agency”) of an asset purchase
agreement for the sale of the Agency’s Gibbons Creek Steam Electric Station and related assets in Grimes
County, Texas; approving an associated decommissioning budget amendment; and providing an effective
date.
INFORMATION/BACKGROUND
The city of Denton is a 21.45% owner of TMPA along with the cities of Garland (47%), Greenville (10%)
and Bryan (21.55%). Along with the transmission system, TMPA owns the Gibbons Creek Steam Electric
Generating Station, a 470 MW coal-fired power plant located in Grimes County Texas. The site is
approximately 25 miles east of Bryan, Texas. The Gibbons Creek complex consists of the plant site
compromising 6200 acres, including the 2200-acre Gibbons Creek Reservoir, and the adjacent 10,200-acre
Gibbons Creek mine complex. Gibbons Creek began operation in 1983 and was retired in 2018 due to its
uneconomic operating costs as compared to market based alternative supplies of wholesale electric. Since
the shutdown of the Gibbon Creek the staff and the Board of TMPA have been focused on the sale of the
plant site and the remediation/closure of the Coal Combustion Residuals units (CCR Units). The mine
properties continue to be monitored as reclamation activities have been completed and the TMPA board
anticipates placing the mine properties on the market in 2021.
Two prior attempts to sell the plant site, which consists of the power plant, fuel handling facilities,
administration buildings, warehouses, the reservoir, coal ash disposal landfills and several other regulated
impoundments ( the CCR Units) did not result in a final sale agreement. In June 2019 TMPA issued a new
Request for Proposal to sell the plant site. Unlike prior RFPs, included in the specification was an analysis
of the estimated costs to decommission the site and remediate the CCR Units. The specifications in the RFP
required potential buyers to remediate the CCR units consistent with EPA regulations and to indemnify
TMPA against all future claims. Unlike prior attempts to sell the plant, this time the remediation and
decommissioning study provided bidders with definitive costs and closure requirements which were not
previously available due to the proposed status of CCR rules, which have now been finalized by the US
Environmental Protection Agency. Five proposals were submitted to TMPA in August 2019 and the TMPA
staff, with approval of the TMPA Board of Directors, began negotiating with Chara/Melt Solutions, LLC
in September 2019. A fully negotiated agreement that is acceptable to the TMPA Board of Directors and
the buyer was approved on December 10, 2020. That Asset Purchase Agreement (APA) must be approved
by each of the TMPA member cities as required by the TMPA Joint Operating Agreement. The member
cities of Bryan, Garland, Greenville and Denton will be seeking approval from their respective governing
bodies over the next 2 months. The form of approval is a Concurrent Ordinance that must be approved by
each city.
City Hall
215 E. McKinney Street
Denton, Texas
www.cityofdenton.com
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The Buyer - GCERG is a Texas limited liability corporation formed to purchase the site, remediate the
Coal Combustion Residual units consistent with the requirements mandated by the Texas Commission for
Environmental Quality (TCEQ), decommission and demolish the power plant and associated structures,
and to redevelop the site for new land uses. GCERG is a subsidiary of Chara Solutions
(https://charah.com/), a leading provider of mission-critical environmental services and byproduct sales to
the power generation industry. Chara Solutions is a publicly traded company listed on the NYSE.
(CHRA) The company has its roots in the management and marketing of coal combustion residuals for
beneficial reuse. Coal combustion byproducts include fly ash, which can be used beneficially in the
production of concrete, bottom ash, which is used beneficially as road base, grit for roofing shingles and
structural fill applications, and sulfur dioxide scrubber sludges which also can be beneficially used to in
structural fill applications. In addition to the beneficial reuse of coal combustion byproducts, Chara is a
leading provider of remediation and compliance service to the electric utility industry, a provider of
maintenance and operating services to the nuclear power industry and provides on-site management of
coal ash at power plants. A link to the Chara Solutions 2019 annual report is provided below.
(https://s22.q4cdn.com/897826995/files/doc_financials/2019/ar/Charah-Solutions-2019-Annual-
Report.pdf)
Decommissioning and Remediation – The APA requires the buyer to decommission the existing power
plant structures by removing them from the site. The buyer will remove all oils and chemicals from the
plant site, properly dispose of them, and demolish the power plant structures and associated equipment. All
equipment will be either be sold or recycled. The power plant structures contain a large amount of steel,
copper, and other valuable scrap materials. This demolition activity is straight forward and poses very little
risk to TMPA and its member cities.
Remediation of the CCR units, include Site A landfill, Site F landfill, the ash pond and the scrubber sludge
ponds must be accomplished to achieve “regulatory closure” of each CCR unit as required by USEPA and
TCEQ regulations. CCR units pose long-term environmental risks if not properly remediated. Coal ash
contains many potential pollutants including heavy metals, sulfate compounds and some hydrocarbons
which can leach into groundwater or run off to surface waters if not properly stored and monitored. Figure
1 provides a bird’s eye view of the Gibbons Creek plant site and identifies the CCR units.
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Figure 1 – Gibbons Creek Coal Combustion Residual Units
Remediation activities will include:
•Excavation of all coal combustion byproducts from the ash pond and scrubber sludge ponds and
achieving “clean closure” of both CCR units
•Disposal of excavated materials in a new synthetic lined landfill cell
•Design and installation of an impermeable cap for Landfill Site F
•Design and installation of leachate collection and treatment systems for the landfill CCR units
Upon completion of the remediation activities, GCERG will be required to sample, analyze, and report the
groundwater quality around the landfill sites monthly to demonstrate that no regulated pollutants are
entering the groundwater. GCERG will report its results to TCEQ and such reports will be published on a
publicly available website. The post closure compliance period is 30 years. Additionally, GCERG will be
required to operate and maintain any leachate collection and treatment system for the same compliance
period. TCEQ will require performance bonds to securitize this ongoing monitoring and O&M. The amount
of the performance bond will be determined by TCEQ once closure is achieved. Under the terms of the
APA, GCERG is required to provide all such bonding to TECQ.
Decommissioning, demolition, and remediation activities are anticipated to take up to three (3) years to
complete.
Asset Purchase Agreement Major Terms and Conditions – The APA contains the following major
provisions:
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Obligations of the Buyer:
•Decommissioning – decommission and demolish the power plant and associated structures
•Remediation – remediate all CCR units and any other environmental contamination discovered to
levels and specifications deemed compliant with applicable TCEQ regulations.
•Indemnify TMPA and the member cities against all environmental claims for past, present and
future site activities
o Buyer must provide and maintain a $25 million pollution liability environmental insurance
naming TMPA and the member cites as additional insured
o Assume all environmental liabilities (past/present/future)
•Provision of Performance Bond – Buyer must provide a performance bond in the amount of $36.5
million to securitize performance of all remediation requirements. The amount of the bond will be
reduced as remediation activities are completed.
•Post Closure – Buyer must meet the post closure bonding requirements imposed by TCEQ and
must operate and maintain any post closure treatment and monitoring equipment.
•Provide perpetual deed restrictions on land use for CCR containing real estate parcels.
Obligations of TMPA as Seller
•Convey to Buyer ~6200 acres of real estate including all improvements and equipment present at
closing
o Ten separate deeds detailing the real estate conveyed to Buyer include three deeds that will
restrict future land use for the parcels containing CCR units
•Pay Buyer and initial amount of $6.34 million
•Deposit into an Environmental Escrow $28.564 million which shall be used by Buyer to remediate
the CCR units and will be drawn down as remediation milestones are achieved.
o The balance in the escrow shall not drop below $2.84 million until the post-closure
performance bond is issued, to ensure performance of the Buyer.
•Pay Buyer 50% of the initial $36.5 million performance bond premium at the time of closing
Under the terms of the APA, TMPA will hire an Environmental Designee who will monitor and audit the
remediation activities and the post closure regulatory requirements of the Buyer and will make all
determinations regarding the Buyer’s ability to draw down the Environmental Escrow.
Transaction Economics – The sale of Gibbons Creek under the terms of the APA achieves significant
savings for TMPA and the member cities as compared to TMPA self-performing the decommissioning
and remediation activities. Table 1 provides the side by side comparison of the three potential paths.
Scenario 1 depicts the cash flows to TMPA associated with execution of the APA. Cost to TMPA is $36.4
million. Scenario 2 depicts a risk scenario in which GCERG defaults on performance and the
performance bonds are used to complete the remediation activities. Additional costs to TMPA are
associated with TMPA taking over responsibilities for post-closure activities and additional demolition
costs that GCERG does not plan to incur. This scenario has TMPA costs at $78.7 million. Scenario 3 is
the self-performance approach and is the baseline to compare the other scenarios to in determining the
savings associated with the APA.
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Table 1 -
Gibbons Creek Asset Puchase Agreement - Savings ($ millions)
Scenario 1
(Plant sells -
no issues)
Scenario 2
(Plant sells -
Charah default)
Scenario 3 (2)
(TMPA
decommissions)
Cash Outflow
Direct payment/Escrow(1)29.80$ 29.80$ -$
Remediation/Decommissioning -$ 60.03$ 60.03$
Site F Landfill cost(3)6.60$ 14.90$ 14.90$
Concrete removal/Plant cleanup -$ 13.10$ 13.10$
O&M during decommissioning -$ 5.60$ 5.63$
Post-closure OM&M -$ 15.00$ 15.00$
Pollution liability insurance 0.23$ 0.23$
TOTAL CASH OUTFLOW 36.63$ 138.66$ 108.65$
Cash Inflow
Sale of plant land/reservoir (6,170 acres)-$ -$ 24.00$
Check from Surety for performance bond -$ 36.50$ -$
Use of the escrow -$ 23.20$ -$
TOTAL CASH INFLOW -$ 59.70$ 24.00$
Net Cash Flow (36.63)$ (78.96)$ (84.65)$
Net Value Compared to Scenario 3 48.02$ 5.70$
(2) Scenario 3 is TMPA's Decommissioning Project estimate based on the AMEC study.
(3) Scenarios 1 & 2 assume that TMPA will pay $6.6M of the Site F Landfill costs.
(1) This amount includes $23.1M for the escrow, $5.2M for the direct payment, and $1.5M for the
surety bond. TMPA is obligated to pay half of the surety bond. It is currently estimated the total
will be $2.2M (TMPA's half would be $1.1M). However, this amount is still uncertain, so we are
conservatively assuming the total to be $3M (TMPA's half would be $1.5M).
For Denton, our 21.45% ownership of TMPA translates into an APA savings of $10.28 million as
compared to Scenario 3. From a budget forecast perspective, the five-year budget forecast provided to
City Council for fiscal year 2021 included Denton’s share of remediation cost at $21.3 million. Under
Scenario 1, Denton’s one-time share of the remediation cost is $7.75 million. This represents a forecasted
five-year savings of $13.57 million versus forecast. The five-year forecast was based upon the projected
decommissioning and remediation costs effective March 2020.
Future Land Use - Redevelopment of the Gibbons Creek plant site is the responsibility of the GCERG.
Future land use for at least three (3) of the ten (10) parcels that have been individually deeded will be
restricted so as to not disturb the CCR units. Those parcels, which will encompass Landfill Site A,
Landfill Site F and the Ash/Scrubber Sludge Ponds will be governed by deeds that ensure that restrictions
and indemnifications provided to TMPA by GCERG remain in place in perpetuity. TMPA must consent
to future sales of these Warrantee Deed restricted properties. The other seven (7) deeds will not have
future use restrictions if GCERG achieves a clean deed within one-year of the sale. If a clean deed can’t
be verified, each parcel not deemed clean will become a warrantee deed and the same provisions
associated with the three CCR unit containing parcels will apply.
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Risk Mitigation – the proposed APA not only achieves significant cost savings to DME’s
customer/owners but also drastically reduces the future risk that Denton shares with the other TMPA
member cities. Under federal the Comprehensive Environmental Response Liability Act (CERCLA) of
1980, liability for environmental cleanup rests with the original generator of such wastes. CERCLA
mandates “cradle to grave” liability and such liability is joint and several meaning that any one potentially
responsible party may be held liable for the entire clean-up of the site. A critical concern in approving the
APA, is the ability of the Buyer to perform the work and the financial strength of the Buyer. If the Buyer
were to default during any phase of the remediation work, the liability falls back to TMPA and the
member cities. Significant effort has been put into assessing the ability of Chara Solutions to compete the
work for the costs projected. Chara Solutions is currently performing similar remediation work at other
retired coal fired generation plants throughout North America and has a proven track record. Performance
bonding and pollution liability insurance along with the requirement for the Buyer to provide requisite
post-closure bonding in the amounts mandated by the TCEQ coupled with the reputational risk to Chara
Solutions, as the premier provider of coal combustion residual management, for its failure to perform
have been deemed adequate by the TMPA board of directors and TMPA’s legal and environmental
counsel.
While remediation of the CCR units to a level that meets regulatory requirements is mandated by the
APA, the future land use of the parcels containing these CCR units has the potential to disturb the closed
CCR units. To address this risk, those parcels will have warrantee deeds that limit the future use of the
parcel to ensure the wastes are not disturbed. While no longer the owner of the parcels, TMPA will have
qualified approval rights for future ownership and use of these parcels.
Disbursement of the environmental escrow money deposited by TMPA, through assessments to the
member cites, poses a risk to TMPA and member cities if the achievement of remediation activities does
warrant the release of escrowed funds. The APA requires the appointment of an Environmental Designee
who will be the sole arbiter of remediation progress and will authorize releases to the Buyer from the
escrow. The Environmental Designee is a former TMPA environmental professional who is well known
to TMPA and will act with integrity to protect the interest of TMPA and member cities.
Completed Approval Actions – The TMPA board of directors met on January 7th to approve the
amendment to the APA to include the incremental purchase of Pollution Liability Insurance, which will
supplement the 4-years of coverage that was approved by the TMPA Board on December 10th. This
incremental Pollution Liability Insurance adds 6 years of additional coverage for a cost of $230,000. The
TMPA Planning and Operating Committee, consisting of the General Managers of the participating cities,
recommended this additional coverage be included in the APA, after the TMPA approved the APA and
associated agreements.
The cities of Bryan, Garland and Greenville approved the Concurrent Ordinance on January 12, 2021.
The Denton Public Utilities Board will consider recommending approval of the Concurrent Ordinance on
January 25th and City Council will asked to approve the transaction on January 26th.
Exhibit 1: Agenda Information Sheet
Exhibit 2: Ordinance
Exhibit 3: Presentation
Respectfully submitted:
Terrance P. Naulty
DME Assistant General Manager &
Interim Director of Water/Wastewater
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For information concerning this ordinance, contact:
DME point of contact: Terry Naulty at 940-349-7565.
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EXHIBIT “A”
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TMPA Draft 12/28/20
ASSET PURCHASE AGREEMENT
by and between
TEXAS MUNICIPAL POWER AGENCY,
as Seller,
and
GIBBONS CREEK ENVIRONMENTAL REDEVELOPMENT GROUP, LLC,
as Purchaser
dated as of [●], 2021
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TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS AND CONSTRUCTION ................................................................. 1
Section 1.01 Definitions........................................................................................................... 1
Section 1.02 Construction ...................................................................................................... 11
ARTICLE II. PURCHASE AND SALE; CLOSING ................................................................... 12
Section 2.01 Purchase and Sale ............................................................................................. 12
Section 2.02 Acquisition Consideration ................................................................................ 12
Section 2.03 Closing .............................................................................................................. 12
Section 2.04 Deliveries by Seller ........................................................................................... 12
Section 2.05 Deliveries by Purchaser .................................................................................... 13
Section 2.06 Prorations .......................................................................................................... 13
Section 2.07 Assumed Liabilities .......................................................................................... 13
Section 2.08 Excluded Liabilities .......................................................................................... 13
ARTICLE III. REPRESENTATIONS AND WARRANTIES OF SELLER ............................... 14
Section 3.01 Organization and Qualification ......................................................................... 14
Section 3.02 Authority ........................................................................................................... 14
Section 3.03 No Conflicts; Consents and Approvals ............................................................. 14
Section 3.04 Litigation ........................................................................................................... 14
Section 3.05 Compliance with Laws; Permits ....................................................................... 15
Section 3.06 Real Property .................................................................................................... 15
Section 3.07 Insurance ........................................................................................................... 16
Section 3.08 Taxes ................................................................................................................. 16
Section 3.09 Brokers .............................................................................................................. 16
Section 3.10 Title to Purchased Assets .................................................................................. 16
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF PURCHASER ...................... 17
Section 4.01 Organization and Qualification ......................................................................... 17
Section 4.02 Authority ........................................................................................................... 17
Section 4.03 No Conflicts; Consents and Approvals ............................................................. 17
Section 4.04 Litigation ........................................................................................................... 17
Section 4.05 Compliance with Laws ..................................................................................... 18
Section 4.06 Brokers .............................................................................................................. 18
Section 4.07 Anti-Boycott Verification ................................................................................. 18
Section 4.08 Prohibition on Contracts with Certain Companies ........................................... 18
Section 4.09 Contracting Information .................................................................................... 18
Section 4.10 Purchaser’s Due Diligence Procedures ............................................................. 18
ARTICLE V. COVENANTS ........................................................................................................ 19
Section 5.01 Access of Purchaser .......................................................................................... 19
Section 5.02 Conduct of Business Pending the Closing ........................................................ 19
Section 5.03 Press Releases ................................................................................................... 20
Section 5.04 Expenses and Fees ............................................................................................ 20
Section 5.05 Agreement to Cooperate; Governmental Approvals ......................................... 20
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Section 5.06 Further Assurances............................................................................................ 20
Section 5.07 Regulatory Filings ............................................................................................. 21
Section 5.08 Insurance ........................................................................................................... 21
Section 5.09 Escrow Agreement ............................................................................................ 21
Section 5.10 Environmental Compliance .............................................................................. 21
Section 5.11 Closing Cash Payment ...................................................................................... 22
ARTICLE VI. CONDITIONS TO PERFORMANCE ................................................................. 22
Section 6.01 Conditions to the Obligation of Purchaser to Closing ...................................... 22
Section 6.02 Conditions to the Obligation of Seller to Closing ............................................. 22
ARTICLE VII. TERMINATION ................................................................................................. 23
Section 7.01 Termination ....................................................................................................... 23
Section 7.02 Effect of Termination ........................................................................................ 24
ARTICLE VIII. INDEMNIFICATION; LIABILITY .................................................................. 24
Section 8.01 Survival ............................................................................................................. 24
Section 8.02 Indemnification ................................................................................................. 24
Section 8.03 Right to Specific Performance; Certain Limitations ......................................... 25
Section 8.04 No Other Representations ................................................................................. 25
ARTICLE IX. ENVIRONMENTAL ............................................................................................ 26
Section 9.01 No Environmental Representations or Warranties; Disclaimer ........................ 26
Section 9.02 Assumption and Covenant; Release; Indemnity ............................................... 27
Section 9.03 Purchaser Environmental Covenant .................................................................. 29
Section 9.04 Warranty Deed .................................................................................................. 29
Section 9.05 Transferee Obligations ...................................................................................... 29
Section 9.06 Performance Bond ............................................................................................ 30
Section 9.07 Permits .............................................................................................................. 33
Section 9.08 Reimbursement of Site F Landfill Costs ........................................................... 34
Section 9.09 Survival ............................................................................................................. 34
ARTICLE X. MISCELLANEOUS .............................................................................................. 34
Section 10.01 Confidential Information .................................................................................. 34
Section 10.02 Notices .............................................................................................................. 34
Section 10.03 Headings ........................................................................................................... 35
Section 10.04 Assignment ....................................................................................................... 35
Section 10.05 Disputes............................................................................................................. 35
Section 10.06 Governing Law; Jurisdiction ............................................................................. 35
Section 10.07 WAIVER OF RIGHT TO TRIAL BY JURY................................................... 36
Section 10.08 Counterparts ...................................................................................................... 36
Section 10.09 Amendments ..................................................................................................... 36
Section 10.10 Entire Agreement .............................................................................................. 36
Section 10.11 Severability ....................................................................................................... 36
Section 10.12 Third Party Beneficiaries .................................................................................. 37
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EXHIBITS
Exhibit A Form of Bill of Sale
Exhibit B Form of Assignment and Assumption Agreement - Purchaser
Exhibit C-1 Form of Warranty Deed for Parcels with Recognized Environmental Conditions
Exhibit C-2 Form of Warranty Deed for Parcels with no Recognized Environmental
Conditions
Exhibit D Form of Escrow Agreement
Exhibit E Project Schedule
Exhibit F Regulatory Closure Bond
Exhibit G Form of Assignment and Assumption Agreement - Transferees
SCHEDULES
Schedule 1.01(a) Purchased Personal Property
Schedule 1.01(b) Excluded Assets
Schedule 1.01(c) Closing Permitted Encumbrances
Schedule 1.01(d) Seller’s Knowledge
Schedule 1.01(e) Real Property
Schedule 2.07 Assumed Liabilities
Schedule 3.02 Seller Internal Approvals
Schedule 3.03(b) Seller Approvals
Schedule 3.04 Litigation
Schedule 3.05(a) Compliance with Laws
Schedule 3.05(b) Permits
Schedule 3.07(a) Insurance
Schedule 3.07(b) Insurance Claims
Schedule 4.03(c) Purchaser Approvals
Schedule 5.02(a) Conduct of Business Pending Closing
Schedule 9.06(a) Estimated Remediation Costs per Project
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ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (this “Agreement”) dated as of [●], 2021, is made and
entered into by and between TEXAS MUNICIPAL POWER AGENCY, a municipal corporation
and municipal power agency created under the laws of the State of Texas (“Seller”), and
GIBBONS CREEK ENVIRONMENTAL REDEVELOPMENT GROUP, LLC, a limited liability
company organized under the laws of the State of Texas (“Purchaser”).
RECITALS
WHEREAS, Seller is the owner of 6,170 acres of land located in Grimes County, State of
Texas, which includes the Gibbons Creek Reservoir and associated water rights and the Gibbons
Creek Steam Electric Station, and a coal-fired electric generating facility (as hereinafter more
particularly defined, the “Purchased Assets”); and
WHEREAS, Purchaser and Seller desire to enter into this Agreement under which Seller
has agreed to sell to Purchaser, and Purchaser has agreed to purchase from Seller, the Purchased
Assets (as defined herein).
NOW, THEREFORE, in consideration of the foregoing and the mutual promises made in
this Agreement and of the mutual benefits to be derived from such promises, and for other good
and valuable consideration, the receipt and sufficiency of which is acknowledged, the Parties to
this Agreement, intending to be legally bound, agree as follows:
ARTICLE I.
DEFINITIONS AND CONSTRUCTION
Section 1.01 Definitions. For purposes of this Agreement, the following terms shall have
the respective meanings set forth below:
“Affiliate” means any Person that directly or indirectly, through one or more
intermediaries, controls, is controlled by or is under common control with the Person specified.
For purposes of this definition, control of a Person means the power, direct or indirect, to direct or
cause the direction of the management and policies of such Person whether through ownership of
voting securities or ownership interests, by contract or otherwise, and specifically with respect to
a corporation, partnership, trust or limited liability company, means direct or indirect ownership
of more than fifty percent (50%) of the voting securities in such corporation or of the voting interest
in a partnership or limited liability company or of the beneficial interests in a trust.
“Agency Action” means any notice of violation, complaint, order, consent order, consent
agreement, assessment of a fine or penalty or other similar demand for action brought by a
Governmental Authority having the requisite authority and jurisdiction to bring such action.
“Agreement” has the meaning set forth in the introductory paragraph to this Agreement,
including all Exhibits and Schedules attached hereto and any amendments or supplements
executed and delivered in accordance with the terms hereof.
“Annual Estimate” has the meaning set forth in Section 9.06(d).
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2
“Assigned Permits” means any Permits that Purchaser desires to assume at Closing (i) that
are freely assignable by Seller to Purchaser at Closing or (ii) with respect to which Purchaser has
made all applications or filings, paid all fees or other amounts, and obtained all consents or
approvals necessary for Purchaser to assume such Permits at Closing.
“Assignment Agreement” has the meaning set forth in Section 2.04(b).
“Assumed Liabilities” has the meaning set forth in Section 2.07.
“Bill of Sale” has the meaning set forth in Section 2.04(a).
“Books and Records” means all files, documents, instruments, papers, books, reports,
records, tapes, microfilms, photographs, letters, budgets, ledgers, journals, title policies, supplier
lists, regulatory filings, data and plans, technical documentation (as-built drawings, design
specifications or diagrams, functional requirements, operating instructions, logic manuals, flow
charts, etc.), user documentation (installation guides, original equipment manufacturer
maintenance documents and technical information letters, user manuals, training materials, release
notes, working papers, etc.), operating records and reports, internal and external correspondence
and other documents relating to the Purchased Assets, and other similar materials.
“Business Day” means a day other than Saturday, Sunday or any day that is declared to be
an official holiday in the State of Texas.
“CERCLA” means the federal Comprehensive Environmental Response, Compensation
and Liability Act.
“Claim” means any demand, claim, action, legal proceeding (whether at law or in equity)
or arbitration.
“Closing” has the meaning set forth in Section 2.03.
“Closing Date” means the date on which the Closing occurs.
“Closing Permitted Encumbrances” means any Existing Encumbrances other than Liens
relating to any Indebtedness or which otherwise secure any Liability under any Contract on the
Purchased Assets.
“Code” means the Internal Revenue Code of 1986, as amended.
“Confidentiality Agreement” means (i) that certain Confidentiality Agreement dated April
10, 2019, between Melt Solutions, LLC (an Affiliate of Purchaser) and Seller, and (ii) any
confidentiality agreement between Seller and Purchaser (or any of Purchaser’s Affiliates), or their
respective successors or assigns.
“Contract” means any enforceable written or oral agreement, understanding, lease, license,
option, guaranty, warranty, evidence of indebtedness, mortgage, indenture, security agreement,
purchase order, binding bid, letter of credit, loan agreement or other enforceable contract,
commitment or undertaking of any kind.
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3
“Dispute” has the meaning set forth in Section 10.05(a).
“Dispute Notice” has the meaning set forth in Section 10.05(a).
“Environment” means soil, land, surface and subsurface strata, surface waters (including
navigable and non-navigable inland and ocean waters), groundwaters, drinking water supply,
stream sediments, indoor or outdoor air, plant and animal life, and any other environmental
medium or natural resource.
“Environmental Compliance” means any permitting, registering, closure, remediation,
mitigation, investigation, monitoring, posting of financial assurance, reporting, filing, maintaining,
inspecting, recording or other actions, obligations or requirements under Environmental Laws in
connection with the Purchased Assets, irrespective of whether the Liability, Release, acts,
omissions, Claims or violations giving rise to such requirements are alleged to have occurred, or
the facts and conditions giving rise or related to such Liability, obligations or requirements existed
prior to or subsequent to Closing or were known or unknown as of Closing.
“Environmental Conditions” means the presence of Hazardous Substances which have
been Released into the Environment or the presence of Hazardous Substances that would
reasonably be expected to pose a threat of Release of Hazardous Substances into the Environment
in violation of Environmental Laws.
“Environmental Designee” means an individual or consulting firm selected by Seller to
perform the environmental review and audit activities set forth in Section 9.01(b).
“Environmental Insurance Policy” means a pollution legal liability insurance policy
covering the Real Property, in form and substance acceptable to Seller, for the benefit of the Seller
Indemnitees and issued by an insurer rated no less than A- or equivalent by Moody’s, S&P or A.M.
Best, with: (i) a 100% earned premium on the Closing Date, (ii) $25,000,000 coverage limits for
all on-site and off-site Response Actions, third-party bodily injury and property claims, unknown
environmental conditions at, on, under or migrating from the Real Property, diminution in value,
off-site disposal and transportation, and Purchaser's Indemnification Obligations, and (iii) a
minimum 10-year primary term commencing on the Closing Date.
“Environmental Laws” means any and all Laws or permits relating to pollution or
occupational health or safety or protection of human health or the Environment, including those
relating to emissions, Release or threatened Release into or impacting the Environment, or
otherwise relating to the management, generation, manufacture, processing, distribution, use,
treatment, storage, disposal, emission, discharge, transport or handling of Hazardous Substances.
“Environmental Laws” includes, without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act, as amended, the Emergency Planning and Community Right-to-
Know Act, as amended, the Resource Conservation and Recovery Act, as amended, the
Occupational Safety and Health Act, as amended, the Clean Air Act, as amended, the Clean Water
Act, as amended, the Oil Pollution Act, as amended, the Safe Drinking Water Act, as amended,
the Toxic Substances Control Act, as amended, and any other federal, state and local Laws related
to same, and their implementing regulations, policies and agency guidance, whether any of the
foregoing are in effect or otherwise applicable prior to, as of, or subsequent to Closing.
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“Environmental Liabilities” mean any and all Losses, Liabilities, costs (including
investigative, monitoring, containment, disposal and remediation costs and court costs and other
costs of administrative or judicial proceedings), asset retirement obligations, fines and penalties,
judgments, awards or damages (including personal injury and property damages based on or
arising out of exposure to Hazardous Substances), natural resource damage and assessments, third
party Claims, injunctive relief and fees (including reasonable attorney, expert, engineering and
consultant fees) related to, caused by, or resulting from (i) the presence, creation, storage,
impoundment, handling, or Release of any Hazardous Substances on the Real Property or arising
under or with respect to any Environmental Laws, irrespective of whether the Release, act,
omissions, Claims or violations are alleged to have occurred or the facts and conditions giving rise
or related to the Losses, Liabilities or costs existed prior to or subsequent to Closing or were known
or unknown as of Closing, (ii) Plant Shutdown and Decommissioning and Regulatory Closure of
the Purchased Assets, including any Environmental Compliance and Response Actions, and
(iii) Environmental Post-Closure Requirements.
“Environmental Post-Closure Requirements” means any monitoring, investigation,
maintenance, inspection, corrective action or other Response Actions required to be performed as
a condition of Regulatory Closure by the EPA, the TCEQ, and each other environmental regulatory
agency having jurisdiction over the Real Property, including all obligations to obtain, maintain,
renew and reissue any Post-Closure Bond and other Performance Bonds through Regulatory
Closure of the Purchased Assets as required by this Agreement.
“EPA” means the United States Environmental Protection Agency.
“ERCOT” means The Electric Reliability Council of Texas and any successor.
“Escrow Agent” means any independent, commercial escrow agent acceptable to both of
the Parties.
“Escrow Agreement” has the meaning set forth in Section 2.04(d).
“Escrowed Amount” means Twenty-Eight Million Five Hundred Forty-Six Thousand
($28,546,000).
“Excluded Assets” means, notwithstanding any other provision of this Agreement, all
assets of Seller other than the Purchased Assets, including the following:
(a) cash, certificates of deposit and other bank deposits, treasury bills and other
cash equivalents or other investments, on hand or in bank accounts, and all of Seller’s bank
accounts, intercompany accounts, accounts receivable, and notes receivable;
(b) all refunds or credits, if any, of Taxes due to or from Seller and (i) accrued
prior to the Closing or that are otherwise applicable to a Pre-Closing Tax Period or (ii) which
otherwise cannot be assigned by Law;
(c) all Books and Records and other corporate, financial and Tax records of
Seller;
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(d) Seller’s insurance policies; and
(e) the assets identified as “Excluded Assets” in Schedule 1.01(b).
“Excluded Liabilities” has the meaning set forth in Section 2.08.
“Execution Date” means the date of this Agreement.
“Existing Encumbrances” means (a) mechanic’s, materialmen’s, workmen’s, repairmen’s
and similar Liens arising in the Ordinary Course with respect to any amounts not yet due and
payable or which (i) are being contested in good faith through appropriate proceedings or (ii) have
been bonded; provided, that in either case, none of the Purchased Assets are reasonably likely to
become subject to forfeiture or sale during the pendency of any such proceeding; (b) Liens for
Taxes not yet due and payable or which are being contested in good faith through appropriate
proceedings; provided, that no portion of the Purchased Assets is reasonably likely to result in sale
or forfeiture during the pendency of such proceedings; (c) in the case of Real Property, all such
items and matters as are disclosed on the Existing Survey; (d) Liens, encumbrances, easements,
retained rights and other matters disclosed on Schedule 1.01(b) or Schedule 1.01(c) hereto;
(e) zoning, entitlement, conservation restriction and other land use and environmental regulations
by any Governmental Authority; (f) Liens caused by, created by, or existing as a result of, or
pursuant to, this Agreement, or otherwise approved or consented to by Purchaser in writing; (g)
Liens relating to any Indebtedness; and (h) any other Lien or encumbrance of record.
“Existing Survey” means the Survey Plat of Texas Municipal Power Agency (TMPA
Power Plant & Gibbons Creek Reservoir) dated November 21, 2016, last revised August 8, 2018,
prepared by S.M. Kling, R.P.L.S. No. 2003, of Civil Engineering Consultants, a copy of which has
been delivered to Purchaser.
“Fixtures and Improvements” means the improvements located on the Real Property and
the fixtures attached to such improvements, including the coal-fired boiler, steam turbine, air
handling equipment, circulating water pumps, transformers, storage tanks, generator
interconnection facilities, air conditioning, ventilation and heating equipment, control stations, and
cranes owned by Seller.
“GAAP” means generally accepted accounting principles in the United States of America.
“Governmental Authority” means any court, tribunal, arbitrator, authority, agency,
commission, official or other instrumentality of the United States or any state, county, city or other
political subdivision or similar governing entity, and including any governmental, quasi-
governmental or non-governmental body administering, regulating or having general oversight
over water, gas, electricity, power or other markets, including NERC, PUCT and ERCOT, but
excluding Seller and any of its Member Cities.
“Guaranteed Obligations” has the meaning set forth in Section 9.06(c)(ii).
“Hazardous Substance” means any chemical, element, substance, compound, mixture,
material or waste presently listed, defined or classified as a pollutant, toxic pollutant, contaminant,
hazardous substance, toxic substance, solid waste, hazardous waste, hazardous material, hazardous
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air pollutant, extremely hazardous waste, extremely hazardous substance, restricted hazardous
waste, toxic waste under any applicable Environmental Laws, including asbestos, presumed
asbestos-containing material, asbestos-containing material, petroleum, petroleum products, natural
gas or synthetic gas usable for fuel, polychlorinated biphenyls, lead and lead-based paint, radon,
radioactive materials, flammables and explosives.
“Indebtedness” means any of the following: (a) any indebtedness for borrowed money; (b)
any obligations evidenced by bonds, debentures, notes or other similar instruments; (c) any
obligations to pay the deferred purchase price of property or services, except trade accounts
payable and other liabilities arising in the Ordinary Course; (d) any obligations as lessee under
capitalized leases; (e) any obligations, contingent or otherwise, under acceptance, letters of credit
or similar facilities; and (f) any guaranty of any of the foregoing.
“Indemnification Obligations” means all of Purchaser’s indemnification obligations arising
under this Agreement, including those set forth in Sections 8.02 and 9.02.
“Insufficiency” means the amount, at any given time, by which (i) the estimate of the cost
required to complete the Guaranteed Obligations covered by a Performance Bond exceeds (ii) the
penal sum of such Performance Bond plus the portion, if any, of the Escrowed Amount that is
allocated specifically to the completion of such Guaranteed Obligations.
“Insufficiency Notice” has the meaning set forth in Section 9.06(d).
“Interim Period” means the period of time from the Execution Date until the earlier to occur
of (x) the Closing Date and (y) termination of this Agreement.
“Joint Operating Agreement” means the Joint Operating Agreement, dated September 1,
2016, among Seller and Member Cities, as amended to date.
“Knowledge” means, in the case of Seller, the actual, present recollection (as opposed to
any constructive or imputed knowledge) of the individuals listed on Schedule 1.01(d); provided
that lack of Knowledge by an individual listed in Schedule 1.01(d) shall only be claimed to the
extent such individual has reviewed the provisions contained in this Agreement to which Seller’s
Knowledge is applicable and the corresponding Schedules hereto.
“Laws” means all laws, statutes, rules, regulations, ordinances, Orders, and other
pronouncements having the effect of law of any Governmental Authority.
“Liabilities” or “Liability” means any and all direct or indirect liability, obligation,
commitment, expense, Claims, loss, damage, indebtedness, principal, interest, penalty, guaranty
or endorsement of any type, absolute or contingent, known or unknown, accrued or unaccrued,
due or to become due, liquidated or unliquidated.
“Lien” means any security interest, pledge, mortgage, lien, charge, encumbrance,
conditional sale agreement, title retention contract, right of first refusal, option to purchase, proxy,
voting trust or voting agreement or any similar interest.
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“Loss” or “Losses” means any and all judgments, Liabilities, amounts paid in settlement,
awards, damages, fines, penalties, deficiencies, losses, Claims, demands, assessments, costs, and
expenses (including interest, court costs, reasonable fees of attorneys, accountants and other
experts or other reasonable expenses of litigation or other proceedings or of any Claim, default,
assessment, Order, decree, action, cause of action, litigation, suit, investigation, notice of
violations, or other proceedings).
“Material Adverse Effect” means any results, occurrences, facts, changes, events or effects
occurring on or after the Execution Date and prior to Closing that, individually or in the aggregate,
could reasonably be expected to have, or has had a material adverse effect on (a) the Purchased
Assets or the Assumed Liabilities, or (b) the ability of Seller to consummate the transaction
hereunder or perform its obligations hereunder, each on a timely basis.
“Member Cities” means the City of Bryan, Texas, City of Denton, Texas, City of Garland,
Texas, and City of Greenville, Texas. “Member City” shall refer to any of the Member Cities
individually.
“Moody’s” means Moody’s Investor Services, Inc., and its successors.
“NERC” means North American Electric Reliability Corporation and any successor.
“Notifying Party” has the meaning set forth in Section 10.05(a).
“Order” means any final, non-appealable award, decree, decision, injunction, judgment,
order, ruling, subpoena, or verdict entered, issued, made, or rendered by any court, administrative
agency, or other Governmental Authority, or by any arbitrator.
“Ordinary Course” means the ordinary course of business, consistent with Seller’s prior
operations, except as may be affected by the performance of Seller’s obligations under this
Agreement.
“Parcel” or “Parcels” means one or more, as applicable, of the ten (10) parcels of the Real
Property described on Schedule 1.01(e).
“Parcels with Recognized Environmental Conditions” means all Parcels other than Parcels
with No Recognized Environmental Conditions.
“Parcels with No Recognized Environmental Conditions” means any Parcel or Parcels for
which Seller has received from Purchaser or any Transferee written evidence, acceptable to Seller
or the Environmental Designee, that any of the following conditions has been met with respect to
such Parcel or Parcels:
(i) An ASTM Phase I Environmental Site Assessment (ESA) and, if
necessary, an ASTM Phase 2 ESA, performed by a third party “Environmental
Professional” (as defined in 40 CFR § 312.10) determines such Parcel is free from
“Recognized Environmental Conditions” (as defined in ASTM International Standard
Practice for Environmental Site Assessments: Phase I Environmental Site Assessment
Process (ASTM Standard E 1527-05, as may be revised or updated from time to time)); or
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(ii) Purchaser obtains a Certificate under the Innocent Owner/Operator Program
(IOP) for any Recognized Environmental Condition on such Parcel which is contaminated
as a result of a release or migration of contaminants from a source or sources not located
on such Parcel and neither Purchaser nor Seller caused or contributed to the source or
sources of the contamination on such Parcel; or
(iii) Purchaser enrolls such Parcel in the TCEQ's Voluntary Cleanup Program
(VCP) and obtains a Certificate of Completion and Final Certificate from the TCEQ
meeting the requirements as established by the Texas Health and Safety Code, Title 5,
Subtitle B, Chapter 361, Subchapter S, Voluntary Cleanup Program §361.601.
“Party” or “Parties” means Purchaser, on the one hand, and Seller, on the other hand.
“Performance Bond” or “Performance Bonds” mean one or more, as applicable, of the
Regulatory Closure Bond, the Post-Closure Bond(s), and all other payment and performance bonds
or other forms of financial assurance issued for the benefit of Seller or TCEQ pursuant to this
Agreement.
“Permits” means all permits, licenses, franchises, concessions, consents, authorizations,
approvals, registrations, filings or similar acts of, with, or by any Governmental Authority that are
currently held by Seller in connection with the Purchased Assets.
“Person” means any natural person, corporation, general partnership, limited partnership,
limited liability company, proprietorship, other business organization, trust, union, association or
Governmental Authority, Seller, and the Member Cities.
“Plant Shutdown and Decommissioning” means, without limitation, removal of residual
coal and ash from handling systems, emptying chemical storage tanks and associated piping,
emptying oil and fuel-containing equipment and associated piping, removing excess chemical and
waste containers, venting and purging compressed gas tanks and lines, closing and draining water
intake and discharge structures and systems, removal of excess above grade coal, removal of
Hazardous Substances from buildings and structures.
“Post-Closing Tax Period” means any Tax period ending on or after the Closing Date.
“Post-Closure Bond” means one or more payment and performance bonds, or other forms
of financial assurance, to guarantee the performance of the Environmental Post-Closure
Requirements through Regulatory Closure of the Purchased Assets, either (i) in the penal sum and
form prescribed by TCEQ or (ii) in a penal sum sufficient to guarantee the Parties' mutually-
agreeable estimated costs of completing the guaranteed Environmental Post-Closure Requirements
and in a form reasonably acceptable to Seller.
“Pre-Closing Tax Period” means any Tax period ending before the Closing Date.
“Preliminary Regulatory Closure” means written confirmation from the EPA, the TCEQ,
and each other environmental regulatory agency having jurisdiction over the Real Property, as
applicable under Environmental Laws, that (i) all Required Remediation Actions have been
performed and completed in compliance with all applicable Environmental Laws or other
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applicable governmental regulations, including a closure plan or response action plan approved by
an applicable Governmental Authority, and no further action is required for the Required
Remediation Actions other than the performance of any Environmental Post-Closure
Requirements and (ii) Plant Shutdown and Decommissioning and all other Response Actions or
Environmental Compliance required pursuant to applicable Environmental Law have been
performed and completed in compliance with all applicable Environmental Laws or other
applicable governmental regulations and no further action is required for the Purchased Assets
other than the performance of any Environmental Post-Closure Requirements.
“Project Schedule” means the 34-month remediation project schedule attached hereto as
Exhibit E.
“PUCT” means Public Utility Commission of Texas and any successor.
“Purchased Assets” means the Real Property (excluding any mineral interests related
thereto), Fixtures and Improvements, Warranties, Assigned Permits, and the personal property
listed on Schedule 1.01(a), in each instance excluding the Excluded Assets.
“Purchaser” has the meaning set forth in the introductory paragraph to this Agreement.
“Purchaser Approvals” has the meaning set forth in Section 4.03(c).
“Purchaser’s Determination” has the meaning set forth in Section 2.06(c).
“Real Property” means all of the real property interests described on Schedule 1.01(e).
“Recipient Party” has the meaning set forth in Section 10.05(a).
“Regulatory Closure” means written confirmation from the EPA, the TCEQ, and each other
environmental regulatory agency having jurisdiction over the Real Property, as applicable under
Environmental Laws, that (i) all Required Remediation Actions have been performed and
completed in compliance with all applicable Environmental Laws or other applicable
governmental regulations and no further action is required for the Required Remediation Actions,
and (ii) Plant Shutdown and Decommissioning and all other Response Actions or Environmental
Compliance required pursuant to applicable Environmental Law have been performed and
completed in compliance with all applicable Environmental Laws or other applicable
governmental regulations and no further action is required for the Purchased Assets.
“Regulatory Closure Bond” means a payment and performance bond, or other form of
financial assurance, in the penal sum of Thirty Six Million Five Hundred Thousand Dollars
($36,500,000.00) to guarantee all Guaranteed Obligations with the exception of Environmental
Post-Closure Requirements, in the form attached hereto as Exhibit F.
“Reimbursement Agreement” means that certain Air Permit Cost Reimbursement
Agreement dated February 21, 2020, among Seller, Charah, LLC, and Melt Solutions, LLC.
“Release” or “Released” means any release, spill, emission, overflow, leaking, pumping,
pouring, dumping, emptying, discharge, disposing, deposit, injection, escaping, leaching, seepage,
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infiltration, introduction, or migration, whether intentional or accidental, authorized or
unauthorized, of any substance into the Environment, into or out of any property, into or out of
any building or other improvements, or the threat of any of the foregoing.
“Required Remediation Actions” means all actions necessary to (i) remove coal
combustion residuals from, and decontaminate or otherwise close, the scrubber sludge pond and
all ash ponds located on the Real Property in accordance with 40 CFR §257.102(c) of EPA’s rules,
as may be amended, and all associated TCEQ rules, as may be amended, (ii) close in place the
Site F landfill located on the Real Property in accordance with 40 CFR §257.102(d) of EPA’s
rules, as may be amended, and associated TCEQ rules, as may be amended, (iii) close the Site A
landfill and the plant collection pond located on the Real Property in accordance with the TCEQ’s
rules, as may be amended, and (iv) diligently pursue all of the foregoing actions to Regulatory
Closure in accordance with the Project Schedule.
“Response Actions” means any investigation, assessment, sampling, analysis, data or
information collection, document drafting, agency submittals and correspondence, monitoring,
abatement, removal, decontamination, remediation, cleanup, mitigation, management, treatment,
storage, transportation or disposal related to the presence or Release of Hazardous Substances
required under Environmental Laws relating to the Purchased Assets or any property contaminated
or impacted by such Release and required in order to obtain Regulatory Closure.
“Representatives” means the officers, directors, managers, employees, limited liability
company members, limited and general partners, counsel, accountants, financial advisers or
consultants and other agents of a Person and its Affiliates.
“S&P” means Standard & Poor’s Ratings Service, a division of The McGraw-Hill
Companies, Inc., and its successors.
“Schedule” or “Schedules” means one or more of the disclosure schedules attached hereto.
“Seller” has the meaning set forth in the introductory paragraph to this Agreement.
“Seller Approvals” has the meaning set forth in Section 3.03(b).
“Seller Indemnitees” has the meaning set forth in Section 8.02(a).
“Seller Internal Approvals” has the meaning set forth in Section 3.02.
“Tax” or “Taxes” means any foreign, United States federal, state or local net income,
alternative or add-on minimum tax, gross income, gross receipts, sales, use, ad valorem, personal
property (tangible and intangible), real property (including general and special assessments), value
added, transfer, franchise, profits, license, withholding, payroll, employment, excise, severance,
stamp, occupation, premium, environmental or windfall profit tax, custom, duty or other tax, or
other governmental fee, assessment or charge of any kind whatsoever, together with any interest,
penalty or addition thereto.
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“Tax Returns” means any return, report or similar statement required to be filed with
respect to any Taxes, including any information return, claim for refund, amended return and
declaration of estimated Tax.
“TCEQ” means the Texas Commission on Environmental Quality.
“Termination Date” has the meaning set forth in Section 7.01(b)(i).
“Transferee” means any transferee, grantee, assignee or owner of all or any portion of the
Real Property as a result of any transfer, sale, grant, assignment or other disposition of all or any
portion of the Real Property by Purchaser after, or contemporaneously with, Closing, including
the successors and assigns of each of such transferees, grantees, assignees or owners.
“Warranties” means all transferable rights of Seller under or pursuant to all third-party
warranties, representations and guarantees made by manufacturers and suppliers in connection
with the Purchased Assets or services furnished to Seller pertaining to the Purchased Assets.
“Warranty Deeds” has the meaning set forth in Section 2.04(c).
Section 1.02 Construction.
(a) All Article, Section, Subsection, Schedule and Exhibit references used in
this Agreement are to Articles, Sections, Subsections, Schedules and Exhibits to this Agreement
unless otherwise specified. The Exhibits and Schedules attached to this Agreement constitute a
part of this Agreement and are incorporated herein for all purposes.
(b) If a term is defined as one part of speech (such as a noun), it shall have a
corresponding meaning when used as another part of speech (such as a verb). Unless the context
of this Agreement clearly requires otherwise, words importing the masculine gender shall include
the feminine and neutral genders and vice versa. The words “includes” or “including” shall mean
“includes without limitation,” “including without limitation,” or “including, but not limited to”
and the words “hereof,” “hereby,” “herein,” “hereunder” and similar terms in this Agreement shall
refer to this Agreement as a whole and not any particular Section or Article in which such words
appear. The words “shall” and “will” shall have the same meaning and be of equal force and
effect. Any reference to a Law shall include any amendment thereof or any successor thereto and
any rules and regulations promulgated thereunder. Currency amounts referenced herein are in U.S.
Dollars.
(c) Whenever this Agreement refers to a number of days, such number shall
refer to calendar days unless Business Days are specified. Whenever any action must be taken
hereunder on or by a day that is not a Business Day, then such action may be validly taken on or
by the next day that is a Business Day.
(d) Each Party acknowledges that it and its attorneys have been given an equal
opportunity to negotiate the terms and conditions of this Agreement and that in the event an
ambiguity of intent or interpretation arises, this Agreement shall be construed as if drafted jointly
by the Parties and no presumption shall arise favoring either Party by virtue of the authorship of
any provisions of this Agreement.
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ARTICLE II.
PURCHASE AND SALE; CLOSING
Section 2.01 Purchase and Sale. On the terms and subject to the conditions set forth in
this Agreement, at Closing (i) Purchaser shall purchase from Seller, and Seller shall sell to
Purchaser, the Purchased Assets, (ii) Seller shall assign to Purchaser, and Purchaser shall assume,
the Assumed Liabilities, and (iii) Purchaser shall incur the Indemnification Obligations for the
benefit of the Seller Indemnitees, all pursuant to the terms of this Agreement. Notwithstanding
anything to the contrary, Purchaser will not acquire any of the Excluded Assets or assume any of
the Excluded Liabilities.
Section 2.02 Acquisition Consideration. The aggregate acquisition consideration for the
Purchased Assets is comprised of (i) Ten Dollars ($10.00); (ii) the assumption by Purchaser of the
Assumed Liabilities; (iii) the Performance Bonds; and (iv) Purchaser’s Environmental Insurance
Policy and Indemnification Obligations in favor of the Seller Indemnitees as set forth in this
Agreement.
Section 2.03 Closing. Unless this Agreement has been terminated pursuant to Article
VII, the closing of the transactions contemplated by this Agreement (the “Closing”) shall take
place through the electronic exchange of documents, immediately following the satisfaction or
waiver by the applicable Party of all of the conditions to the Closing set forth in Sections 6.01 and
6.02. At Closing, the Parties shall (i) record the Warranty Deeds, (ii) circulate to the Parties fully-
executed copies of all documents listed in Sections 2.04 and 2.05, (iii) deliver to Seller the issued
Regulatory Closure Bond and the issued Environmental Insurance Policy, and (iv) Seller shall
make the payments set forth in Section 2.04. Each Party shall notify the other Party in writing
promptly after all of the requirements set forth in Sections 6.01 and 6.02 within such Party’s control
have been satisfied or are susceptible of being satisfied upon the delivery of the certificates set
forth in such sections.
Section 2.04 Deliveries by Seller. On or before the Closing Date, Seller shall deliver, or
cause to be delivered, the following items to Purchaser:
(a) an executed original of a Bill of Sale substantially in the form attached
hereto as Exhibit A (the “Bill of Sale”);
(b) an executed original of an Assignment and Assumption Agreement
substantially in the form attached hereto as Exhibit B (the “Assignment Agreement”);
(c) executed originals of the Special Warranty Deeds for Parcels with
Recognized Environmental Conditions substantially in the form attached hereto as Exhibit C-1
and for Parcels with No Recognized Environmental Conditions substantially in the form attached
hereto as Exhibit C-2 (collectively, the “Warranty Deeds”);
(d) an executed original of the Escrow Agreement substantially in the form
attached hereto as Exhibit D (the “Escrow Agreement”);
(e) delivery of the Escrowed Amount to the Escrow Agent;
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(f) delivery of Six Million Three Hundred Fifty-Four Thousand Dollars
($6,354,000) to Purchaser;
(g) delivery of One Million Two Hundred Fifty-Five Thousand One Hundred
Fifty-One and 34/100 Dollars ($1,255,151.34) to the issuer of the Regulatory Closure Bond in
payment of fifty percent (50%) of the current estimated premiums for the Regulatory Closure
Bond;
(h) delivery of Two Hundred Thirty Thousand Dollars ($230,000) to the issuer
of the Environmental Insurance Policy in payment of a portion of the premium for the
Environmental Insurance Policy; and
(i) an affidavit dated as of the Closing Date, in the form required by Treasury
Regulations Section 1.1445-2(b)(2) and signed under penalties of perjury, stating that Seller (or,
in the case of a Seller that is a disregarded entity, its owner for federal income Tax purposes) is
not a foreign person (within the meaning of Section 1445 of the Code).
Section 2.05 Deliveries by Purchaser. On or before the Closing Date, Purchaser shall
deliver, or cause to be delivered, the following items to Seller:
(a) an executed original of the Assignment Agreement;
(b) an executed original of the Escrow Agreement;
(c) an issued original of the Regulatory Closure Bond;
(d) evidence that the Environmental Insurance Policy will be bound at Closing
as required by this Agreement; and
(e) executed originals of the Warranty Deeds.
Section 2.06 Prorations. No amounts receivable or payable under any Contracts will be
prorated between Seller and Purchaser as of the Closing Date. No Taxes will be prorated since
Seller is not subject to any sales, ad valorem, or income taxes.
Section 2.07 Assumed Liabilities. At the Closing, Purchaser shall assume the Liabilities
and obligations relating to the Purchased Assets set forth in Schedule 2.07 (collectively, the
“Assumed Liabilities”) and the pre-Closing Liabilities included in the Indemnification
Obligations.
Section 2.08 Excluded Liabilities. Except for the Assumed Liabilities and the pre-
Closing Liabilities included in the Indemnification Obligations, Purchaser shall not assume, and
shall not be deemed to have assumed, any Liabilities or obligations related to the Purchased Assets
for the period prior to the Closing (such pre-Closing Liabilities of Seller, other than the Assumed
Liabilities and the pre-Closing Liabilities included in the Indemnification Obligations,
collectively, the “Excluded Liabilities”). For the avoidance of doubt, “Excluded Liabilities”
specifically includes: (i) Seller’s labor, employment, benefits and ERISA liabilities; (ii) liabilities
and obligations (other than Environmental Liabilities) under Permits, Warranties or Contracts not
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assigned to Purchaser; (iii) liabilities (other than Environmental Liabilities) related to the Excluded
Assets; (iv) Seller’s Indebtedness; (v) Seller’s Tax liabilities, and (vi) Seller’s transaction
expenses.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Purchaser as of the Execution Date and as of the Closing
Date that:
Section 3.01 Organization and Qualification. Seller is a municipal corporation and
municipal power agency created under the laws of the State of Texas, and is duly formed, validly
existing and in good standing under the laws of the state of Texas. Seller is duly qualified or
licensed to do business in each other jurisdiction where the actions required to be performed by it
under this Agreement makes such qualification or licensing necessary.
Section 3.02 Authority. Seller has all corporate power and authority to execute and
deliver this Agreement, to perform its obligations hereunder, and to consummate the transactions
contemplated hereby. The execution and delivery by Seller of this Agreement, and the
performance by Seller of its obligations hereunder, have been duly and validly authorized by all
necessary corporate action on the part of Seller except as set forth on Schedule 3.02 (collectively,
“Seller Internal Approvals”). This Agreement has been duly and validly executed and delivered
by Seller and constitutes the legal, valid and binding obligation of Seller, enforceable against Seller
in accordance with its terms, except as the same may be limited by governmental immunity,
bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar Laws relating
to or affecting the rights of creditors generally, or by general equitable principles, regardless of
whether considered in a proceeding at law or in equity.
Section 3.03 No Conflicts; Consents and Approvals. The execution and delivery by
Seller of this Agreement does not, and the performance by Seller of its obligations under this
Agreement and the consummation of the transactions contemplated hereby will not:
(a) subject to obtaining Seller Internal Approvals, conflict with or result in a
violation or breach of any of the terms, conditions or provisions of the Joint Operating Agreement
or any other organizational, governing, formation, or charter documents of Seller;
(b) subject to obtaining all required filings, approvals, consents, authorizations
and notices set forth on Schedule 3.03(b) (collectively, with the Seller Internal Approvals, “Seller
Approvals”), result in the imposition of any Lien (other than a Closing Permitted Encumbrance)
upon any of the Purchased Assets; or
(c) subject to obtaining the Seller Approvals, (i) materially violate or materially
breach any Law or writ, judgment, Order or decree applicable to Seller, (ii) require any consent or
approval of any Governmental Authority under any Law applicable to Seller, or (iii) require the
consent or approval of any other third party.
Section 3.04 Litigation. Except as disclosed on Schedule 3.04, there are no material
Claims pending or, to the Knowledge of Seller, threatened in writing against Seller before any
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Governmental Authority or any arbitrator. Seller is not subject to any judgment, decree,
injunction, rule or Order of any Governmental Authority or any arbitrator that prohibits the
consummation of the transactions contemplated by this Agreement or that would, if determined
adversely to Seller, encumber the Purchased Assets or all or any portion thereof. Seller has not
filed, nor is subject to, any bankruptcy, receivership, or insolvency proceedings as a debtor.
Section 3.05 Compliance with Laws; Permits.
(a) Except (i) as disclosed on Schedule 3.05(a) and (ii) with respect to
Environmental Laws and laws relating to Taxes (as to which no representations or warranties are
made by Seller), the Purchased Assets materially comply with applicable Laws.
(b) Schedule 3.05(b) sets forth a list of the Permits. To the extent requested by
Purchaser, Seller has delivered to Purchaser true and complete copies of each requested Permit,
together with all amendments thereto.
Section 3.06 Real Property.
(a) Except for Existing Encumbrances set forth on Schedule 1.01(c), Seller has
good and indefeasible title to the Real Property and, subject to the Existing Encumbrances, to
Seller’s Knowledge there is no unrecorded Lien, easement, right-of-way agreement, license, lease
(including leases of minerals, geothermal resources, and/or oil and gas), sublease, occupancy
agreement, or like instrument burdening the Real Property. Seller has not received any written
condemnation notice from any Governmental Agency or entity with the private right of eminent
domain with respect to the Real Property that remains unresolved as to which Seller has not given
notice to Purchaser and there is no pending or, to the Knowledge of Seller, threatened
condemnation of any portion of the Real Property. Seller is in compliance in all material respects
with all applicable easements, covenants and similar restrictions affecting the Real Property.
(b) No offer has been made by Seller to any Person that is binding on Seller or
the Real Property to dedicate any of the Real Property.
(c) To Seller’s Knowledge, there are no tenants or other occupants in
possession of the Real Property except pursuant to the Closing Permitted Encumbrances.
(d) Since Seller’s acquisition of the Real Property, no Person has initiated any
lawsuit or filed any legal action challenging Seller’s ownership of, or right of possession to, the
Real Property.
(e) Except for this Agreement and the Closing Permitted Encumbrances, Seller
is not a party to any executory agreement to sell or lease the Real Property and has not granted any
options or rights with respect to the sale or lease of the Real Property in the future.
(f) To Seller’s Knowledge, no Person has filed or intends to file a mechanic’s,
materialmen’s, workmen’s, repairmen’s or similar lien on the Real Property.
(g) Seller has not been notified by any Person that money is past due and owing
for construction, alteration or repair work on the Real Property.
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(h) Except for this Agreement and the Closing Permitted Encumbrances, Seller
has not granted any enforceable legal rights that affect the ownership or use of the Real Property.
(i) Except for this Agreement and the Closing Permitted Encumbrances, to
Seller’s Knowledge, no Person has any enforceable legal rights to own or possess the Real
Property.
(j) Seller has no Knowledge of any unresolved boundary line disputes affecting
the Real Property.
Section 3.07 Insurance.
(a) Seller has delivered to Purchaser a true and complete list of the primary or
excess policies of insurance covering the Purchased Assets and their ownership, use and operations
as of the date hereof, all of which are set forth on Schedule 3.07(a).
(b) From March 9, 2020, through the date hereof, other than as set forth in
Schedule 3.07(b), no Claim under any of the insurance policies listed in Schedule 3.07(a) has been
made, nor have any Losses been suffered, including first-party property damage Claims or Claims
“incurred but not reported,” that have not been filed or settled under Seller’s property insurance
policies. Neither Seller, nor to Seller’s Knowledge, any Affiliate or agent of Seller, has failed to
give, in a timely manner, any notice required under any of the insurance policies listed in Schedule
3.07(a) to preserve its rights thereunder with respect to the Purchased Assets following any Claims
occurring on or following March 9, 2020.
Section 3.08 Taxes.
(a) Seller is a municipal corporation and, as such, is exempt from property
taxes, sales taxes, and income taxes. Seller has not received any notice from any Governmental
Authority of any outstanding Claims or assessments with respect to any Tax relating to the
Purchased Assets and no such Claim is pending or is presently being asserted in writing against
the Seller or with respect to any of the Purchased Assets. Seller knows of no Tax assessment
against the Purchased Assets.
(b) Seller has not received written notice of any Claim by any Governmental
Authority that it is or may be subject to any Tax.
Section 3.09 Brokers. None of Seller or any of its Affiliates has incurred any liability or
obligation to pay fees or commissions to any broker, finder or agent with respect to the transactions
contemplated by this Agreement for which Purchaser or any of its Affiliates could become liable
or obligated.
Section 3.10 Title to Purchased Assets. Seller has good title to the Purchased Assets, free
and clear of all Liens, except for Existing Encumbrances.
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ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Seller as of the Execution Date and as of the
Closing Date that:
Section 4.01 Organization and Qualification. Purchaser is a limited liability company,
and is duly formed, validly existing and in good standing under the laws of the state of Texas.
Purchaser is duly qualified or licensed to do business in Texas and in each other jurisdiction where
the actions required to be performed by it under this Agreement makes such qualification or
licensing necessary.
Section 4.02 Authority. Purchaser has all requisite limited liability company power and
authority to enter into this Agreement, to perform its obligations hereunder, and to consummate
the transactions contemplated hereby. The execution and delivery by Purchaser of this Agreement
and the performance by Purchaser of its obligations hereunder have been duly and validly
authorized by all necessary limited liability company action on the part of Purchaser. This
Agreement has been duly and validly executed and delivered by Purchaser and constitutes the
legal, valid and binding obligation of Purchaser, enforceable against Purchaser in accordance with
its terms, except as the same may be limited by bankruptcy, insolvency, reorganization,
arrangement, moratorium or other similar Laws relating to or affecting the rights of creditors
generally, or by general equitable principles, regardless of whether considered in a proceeding at
law or in equity.
Section 4.03 No Conflicts; Consents and Approvals. The execution and delivery by
Purchaser of this Agreement does not, and the performance by Purchaser of its obligations under
this Agreement and the consummation by Purchaser of the transactions contemplated hereby will
not:
(a) conflict with or result in a violation or breach of any of the terms, conditions
or provisions of any organizational, governing, formation, or charter documents of Purchaser;
(b) violate or result in a default (or give rise to any right of termination,
cancellation or acceleration) under any Contract to which Purchaser is a party, or require any notice
be given (which has not been given) under any Contract to which Purchaser is a party or by which
it is bound; or
(c) subject to obtaining the filings, approvals, consents, authorizations and
notices set forth on Schedule 4.03(c) (the “Purchaser Approvals”), will not (i) violate or breach
any Law or writ, judgment, Order or decree applicable to Purchaser, (ii) require the consent or
approval of any other Governmental Authority under any applicable Law, or (iii) require the
consent or approval of any third party.
Section 4.04 Litigation. There are no Claims pending or, to Purchaser’s knowledge,
threatened in writing against Purchaser. Purchaser is not subject to any judgment, decree,
injunction, rule or Order of any Governmental Authority or any arbitrator that prohibits the
consummation of the transactions contemplated by this Agreement or would, in the aggregate,
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reasonably be expected to have a material adverse effect on Purchaser’s ability to consummate the
transactions contemplated hereunder.
Section 4.05 Compliance with Laws. Purchaser is not in violation of any Law, except
for violations that would not, in the aggregate, have a material adverse effect on Purchaser’s ability
to consummate the transactions contemplated hereunder.
Section 4.06 Brokers. None of Purchaser or any of its Affiliates has incurred any liability
or obligation to pay fees or commissions to any broker, finder or agent with respect to the
transactions contemplated by this Agreement for which Seller or any of its Affiliates could become
liable or obligated.
Section 4.07 Anti-Boycott Verification. Pursuant to Section 2271.002, Texas
Government Code, to the extent this Agreement is a contract for goods or services, Purchaser
hereby represents that it and its parent company, wholly- or majority-owned subsidiaries, and other
affiliates, if any, do not Boycott Israel and, subject to or as otherwise required by applicable
Federal law, Purchaser agrees not to Boycott Israel during the term of this Agreement. For
purposes of this Section, "Boycott Israel" shall have the meaning given such term in Section
808.001, Texas Government Code. Purchaser understands "affiliate" for this Section 4.07 to mean
an entity that controls, is controlled by, or is under common control with Purchaser and exists to
make a profit.
Section 4.08 Prohibition on Contracts with Certain Companies. Purchaser and the person
or persons executing this Agreement on behalf of Purchaser, or representing themselves as
executing this Agreement on behalf of Purchaser (collectively, the “Signing Entities”), hereby
acknowledge that (a) the Signing Entities do not engage in business with Iran, Sudan or any foreign
terrorist organization and (b) the Signing Entities are not named on a list prepared and maintained
by the Texas Comptroller of Public Accounts under Section 2252.153 or Section 2270.0201, Texas
Government Code, and posted on any of the following pages of such officer’s internet website:
https://comptroller.texas.gov/purchasing/docs/sudan-list.pdf,
https://comptroller.texas.gov/purchasing/docs/iran-list.pdf or
https://comptroller.texas.gov/purchasing/docs/fto-list.pdf
Section 4.09 Contracting Information. If this Agreement is executed on or after
January 1, 2020, and the Agreement is a contract within the scope of Section 552.371, Government
Code, then the following shall apply: (a) the requirements of Subchapter J, Chapter 552,
Government Code, may apply to this Agreement and Purchaser agrees that this Agreement may
be terminated if Purchaser knowingly or intentionally fails to comply with a requirement of that
subchapter and (b) without limiting the foregoing, Purchaser agrees to comply with the
requirements of Section 552.372, Government Code, including Section 552.372(a)(3)(B),
Government Code.
Section 4.10 Purchaser’s Due Diligence Procedures. Purchaser acknowledges and
agrees that (i) Purchaser and its Representatives have had ample opportunity to conduct
Purchaser’s own due diligence with respect to the Purchased Assets, have been given adequate
access to the Real Property to inspect the Purchased Assets and their physical and operational
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condition, and have been given adequate opportunity to ask questions of, and have received
satisfactory responses from, Seller and its Representatives, (ii) Purchaser and its Representatives
have had adequate opportunity to, but Purchaser has voluntarily elected not to, obtain a title report
or examine title with respect to the Real Property or obtain an owner’s policy of title insurance
covering its ownership interest in the Real Property, (iii) Seller has not obtained a title report or
examined title to the Real Property with respect to any of Seller’s representations set forth in
Article III of this Agreement, and (iv) Purchaser and its Representatives have created Purchaser’s
own economic projections for the Purchased Assets and Purchaser has not relied on any financial
or economic projections, forecasts, conditions, assumptions or information received from Seller or
its Representatives.
ARTICLE V.
COVENANTS
Section 5.01 Access of Purchaser. During the Interim Period, Seller shall provide
Purchaser and its Representatives with reasonable access to the Purchased Assets and the officers
and management employees of Seller in such a manner so as not to unreasonably interfere with
the business or operations of Seller, provided that Seller shall have the right to (i) have a
Representative present for any communication with employees or officers or its contractors and
(ii) impose reasonable restrictions and requirements for safety or operational purposes.
Section 5.02 Conduct of Business Pending the Closing.
(a) During the Interim Period, Seller shall maintain the Purchased Assets in the
Ordinary Course. Without limiting the foregoing, except as otherwise contemplated by this
Agreement or set forth in Schedule 5.02(a) or as consented to by Purchaser (not to be unreasonably
withheld, conditioned or delayed), Seller will not, and will not permit any Person to, during the
Interim Period:
(i) sell, transfer, convey, encumber or otherwise dispose of any portion
of, or interest in, any of the Purchased Assets, or grant any easement, right-of-way
agreement, license, lease, sublease, occupancy agreement, or like instrument
burdening any portion of, or interest in, the Real Property that will survive the
Closing, other than Existing Encumbrances;
(ii) fail to maintain its existence;
(iii) liquidate, dissolve, reorganize or otherwise wind up its business;
(iv) enter into, modify or terminate (partially or completely), grant any
waiver under, or give any consent with respect to, any Assigned Permit, except in
the Ordinary Course, which action shall be promptly disclosed in writing to
Purchaser by Seller;
(v) enter into any agreement or settlement with any Governmental
Authority that would affect Purchaser after the Closing;
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(vi) terminate any material policy of insurance, unless such policy is
replaced with a policy of insurance from financially responsible insurers covering
substantially the same risks, including substantially the same coverage amounts,
and including substantially the same or lower deductibles; or
(vii) agree or commit to do any of the foregoing.
(b) Seller may take commercially reasonable actions with respect to emergency
situations or to comply with applicable Laws.
Section 5.03 Press Releases. For the period between the signing of this Agreement and
the Closing Date, Seller and Purchaser will consult with each other before issuing, and provide
each other a reasonable opportunity to review and make reasonable comment upon any press
release relating to this Agreement; provided, however, the Parties acknowledge that this
Agreement will become a public record on the earlier of the date when it is posted for consideration
of approval by Seller or by a Member City and that all correspondence with Seller and/or the
Member Cities may be subject to the Texas Public Information Act (Texas Government Code
Chapter 552).
Section 5.04 Expenses and Fees. Except as expressly provided otherwise in this
Agreement or in the Reimbursement Agreement, all costs and expenses incurred by a Party in
performing its express obligations under this Agreement shall be paid by the Party incurring such
costs and expenses; provided, however, that, to the extent that either Party requests the other Party
(pursuant to Section 5.05, Section 5.06, or otherwise) to take any action, do any thing, cooperate
in any manner, execute any documents, or provide any material or information, in each case that
is not an express obligation of the other Party under this Agreement and the resulting costs are
expected to be in excess of $1,000, then the Parties must mutually agree in advance in writing as
to which Party will bear the resulting costs and expenses prior to the other Party having any
obligation with respect to such request, which agreement will be in each Party's sole discretion.
Seller shall be responsible for all compensation to be paid to the Environmental Designee. Except
for the amounts payable by Seller at Closing pursuant to Section 2.04, all costs of the Regulatory
Closure Bond and the Environmental Insurance Policy shall be payable by Purchaser.
Section 5.05 Agreement to Cooperate; Governmental Approvals. Subject to the terms
and conditions of this Agreement and applicable Law, each Party shall use its commercially
reasonable efforts to take, or cause to be taken, all action and do, or cause to be done, all things
necessary, proper or advisable to obtain as promptly as reasonably practicable all necessary or
appropriate waivers, consents, approvals or authorizations of Governmental Authorities, and to
satisfy all other conditions required in order to consummate the transactions contemplated by this
Agreement (and, in such case, to proceed with the consummation of the transactions contemplated
by this Agreement as expeditiously as possible).
Section 5.06 Further Assurances. Subject to the terms and conditions of this Agreement,
at any time or from time to time after the Closing, at either Party’s request and without further
consideration, the other Party shall execute and deliver to such Party such other instruments of
sale, transfer, conveyance, assignment and confirmation, provide such materials and information
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and take such other actions and execute and deliver such other documents as such Party may
reasonably request in order to consummate the transactions contemplated by this Agreement.
Section 5.07 Regulatory Filings. Each Party agrees to make all filings or notices required
to be made by such Party pursuant to Section 2252.908, Texas Government Code, and Chapter 46
of the Texas Ethics Commission’s Rules.
Section 5.08 Insurance. Purchaser shall be solely responsible for providing insurance for
the Purchased Assets as of the Closing. Purchaser acknowledges that no insurance coverage or
policy maintained for Seller or the Purchased Assets will extend beyond the Closing for the benefit
of Purchaser.
Section 5.09 Escrow Agreement. Seller and Purchaser shall enter into the Escrow
Agreement with Escrow Agent at Closing to secure Purchaser's performance of all Guaranteed
Obligations with the exception of Environmental Post-Closure Requirements. Purchaser shall use
the Escrowed Amount solely for such Guaranteed Obligations. Monthly releases to Purchaser
under the Escrow Agreement are tied to Purchaser’s performance of such Guaranteed Obligations
in accordance with the Project Schedule, as set forth in the Escrow Agreement. If progress
completing such Guaranteed Obligations is slower or faster than the timing set forth in the Project
Schedule, then monthly payments from the Escrowed Amount may be suspended or accelerated
in accordance with the terms of the Escrow Agreement. Seller and Purchaser shall promptly on
request prior to Closing provide or deliver to Escrow Agent all documentation and other written
information required under applicable “know your customer” and anti-money laundering rules,
regulations and requirements.
Section 5.10 Environmental Closure and Compliance. After Closing, Purchaser
covenants that it will (i) immediately begin and diligently pursue, in a commercially-reasonable
manner and in accordance with the Project Schedule, until completion the preparation of closure
or response action plans for the Required Remediation Actions, the approval of such plans by the
TCEQ, and the implementation of such plans in compliance with all applicable Laws, regardless
of whether any of such actions or the Required Remediation Actions are then required to be
performed under any applicable laws, (ii) diligently pursue, in a commercially-reasonable manner
and in accordance with the Project Schedule, until completion all Required Remediation Actions
in accordance with such closure or response action plans regardless of whether any of the Required
Remediation Actions are then required to be performed under any applicable laws, (iii) begin and
diligently pursue in a commercially-reasonable manner until completion the Plant Shutdown and
Decommissioning of the Purchased Assets in compliance with all applicable Laws regardless of
whether any such Plant Shutdown and Decommissioning of the Purchased Assets is then required
to be performed under any applicable Laws, and (iv) conduct all operations and other activities on
the Real Property according to all Environmental Compliance requirements and the regulatory
compliance requirements of local, state and federal governments, including Environmental Post-
Closure Requirements and the maintenance of associated financial assurance requirements.
Purchaser will use standard industry practice in managing environmental risks and liabilities
associated with these environmental requirements, subject to review and audit by Seller per
Section 9.01(b) herein. “Standard industry practice” shall not be used as a defense to Purchaser’s
obligation to operate in compliance with Environmental Laws.
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Section 5.11 Closing Cash Payment. Purchaser shall use the cash paid to Purchaser
pursuant to Section 2.04(f) solely to fund Purchaser's obligations arising under this Agreement
with respect to the Required Remediation Actions, Plant Shutdown and Decommissioning, and
other actions necessary to achieve Regulatory Closure of the Purchased Assets, including any
Environmental Compliance and Response Actions.
ARTICLE VI.
CONDITIONS TO PERFORMANCE
Section 6.01 Conditions to the Obligation of Purchaser to Closing. The obligation of
Purchaser to proceed with the Closing is subject to the satisfaction upon the Closing Date of the
following conditions, any one or more of which may be waived in writing, in whole or in part by
Purchaser:
(a) the representations and warranties made by Seller in this Agreement and
qualified by materiality shall be true and correct as so qualified on and as of the Closing Date,
except to the extent such representations and warranties expressly relate to an earlier date (in which
case as of such earlier date). Each of the representations and warranties made by Seller in this
Agreement and not qualified by materiality shall be true and correct in all material respects on and
as of the Closing Date as though made on and as of such date, except to the extent such
representations and warranties expressly relate to an earlier date (in which case as of such earlier
date);
(b) no permanent judgment, injunction, order or decree of a court or other
Governmental Authority of competent jurisdiction shall be in effect which has the effect of making
the transactions contemplated by this Agreement illegal or otherwise restraining or prohibiting the
consummation of the transactions contemplated by this Agreement (each Party agreeing to use its
reasonable commercial efforts, including appeals to higher courts, to have any judgment,
injunction, order or decree lifted);
(c) Seller has delivered a certificate of an authorized representative of Seller
dated as of the Closing Date that each of the items in Section 6.01(a), (b), (d), and (e) are true and
correct;
(d) No Material Adverse Effect has occurred and is continuing; and
(e) The filings required to be made by Seller pursuant to Section 5.07 have been
completed.
Section 6.02 Conditions to the Obligation of Seller to Closing. The obligation of Seller
to proceed with the Closing is subject to the satisfaction upon the Closing Date of the following
conditions, any one or more of which may be waived in writing, in whole or in part by Seller:
(a) the representations and warranties made by Purchaser in this Agreement and
qualified by materiality shall be true and correct as so qualified on and as of the Closing Date,
except to the extent such representations and warranties expressly relate to an earlier date (in which
case as of such earlier date). Each of the representations and warranties made by Purchaser in this
Agreement and not qualified by materiality shall be true and correct in all material respects on and
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as of the Closing Date as though made on and as of such date, except to the extent such
representations and warranties expressly relate to an earlier date (in which case as of such earlier
date);
(b) no permanent judgment, injunction, order or decree of a court or other
Governmental Authority of competent jurisdiction shall be in effect which has the effect of making
the transactions contemplated by this Agreement illegal or otherwise restraining or prohibiting the
consummation of the transactions contemplated by this Agreement (each Party agreeing to use its
reasonable commercial efforts, including appeals to higher courts, to have any judgment,
injunction, order or decree lifted);
(c) receipt of Seller Internal Approvals;
(d) Purchaser has delivered a certificate of an authorized representative of
Purchaser dated as of the Closing Date that each of the items in Section 6.02(a), (b), (c), and (e)
are true and correct;
(e) All filings required to be made by Purchaser pursuant to Section 5.07 have
been completed; and
(f) Any Member City has defeased or refunded all Indebtedness assumed by
the Member City related to the Purchased Assets if determined by the Member City to be necessary
or advisable in connection with the sale of the Purchased Assets to Purchaser pursuant to this
Agreement.
Section 6.03 Removal of Excluded Personal Property. At any time or from time to time
after Closing, any and all of the personal property included in the Excluded Assets may be removed
from the Real Property by Seller (at no expense to Purchaser, but without charge by Purchaser for
temporary storage), provided that Seller shall do so (i) in a manner that does not unduly or
unnecessarily disrupt normal business and/or remediation activities at the Real Property, (ii) after
coordinating reasonably in advance the dates and times of removal with Purchaser, and (iii) after
providing an insurance certificate from the party removing the Excluded Assets naming Purchaser
as an additional insured under such policy.
ARTICLE VII.
TERMINATION
Section 7.01 Termination. This Agreement may be terminated and the consummation of
the transactions contemplated hereby may be abandoned at any time prior to the Closing:
(a) by mutual written consent of Purchaser and Seller;
(b) by either Purchaser or Seller,
(i) if the Closing has not occurred on or before March 1, 2021 (such
date, the “Termination Date”), provided that the right to terminate this Agreement
pursuant to this Section 7.01(b)(i) shall not be available to any Party whose breach
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of any provision of this Agreement has been the cause of, or resulted in, the failure
of the Closing to occur by the Termination Date; or
(ii) if any court of competent jurisdiction in the United States or other
Governmental Authority shall have issued an Order or taken any other final action
restraining, enjoining or otherwise prohibiting the consummation of the
transactions contemplated by this Agreement, and such Order or other action is or
shall have become final and nonappealable, provided that any Party seeking to
terminate this Agreement pursuant to this Section 7.01(b)(ii) shall have used all
reasonable commercial efforts to prevent the entry of and to remove such Order;
(c) by Purchaser if there has been a breach by Seller of any representation,
warranty, covenant or agreement contained in this Agreement which would result in a failure of,
or inability of Seller to satisfy, any condition set forth in Section 6.01 and such breach has not been
cured within thirty (30) days following written notification thereof; or
(d) by Seller if there has been a breach by Purchaser of any representation,
warranty, covenant or agreement contained in this Agreement which would result in a failure of,
or inability of Purchaser to satisfy, any condition set forth in Section 6.02 and such breach has not
been cured within thirty (30) days following written notification thereof.
Section 7.02 Effect of Termination. In the event of termination of this Agreement by
Seller or by Purchaser prior to a Closing pursuant to the provisions of Section 7.01, there shall be
no contractual liability or obligation on the part of Purchaser or Seller or their respective officers,
commissioners, members, managers or directors under this Agreement except as set forth in this
Section 7.02, Section 5.03 (Press Releases), 5.04 (Expenses and Fees), and Article X
(Miscellaneous), all of which shall survive the termination hereof, provided that nothing in this
Section 7.02 shall relieve either Party from any breach of this Agreement and the other Party shall
be entitled to pursue, to the fullest extent available at law or in equity, recovery of such other
Party’s Losses and other damages caused by or resulting from such Party’s breach of this
Agreement. If this Agreement is terminated pursuant to the provisions of Section 7.01 prior to
Closing, then Purchaser shall return to Seller all information delivered by or on behalf of Seller,
and the Escrow Agent shall be directed to return any deliverables provided under this Agreement
to the Party that provided such deliverables, as applicable.
ARTICLE VIII.
INDEMNIFICATION; LIABILITY
Section 8.01 Survival. All representations, warranties, covenants and other obligations
in this Agreement or in any other agreement, instrument or other document delivered in connection
herewith, and the right to commence any Claim with respect thereto (including with respect to all
Environmental Liabilities), shall survive the Closing Date.
Section 8.02 Indemnification.
(a) Purchaser, from and after the Closing Date, shall indemnify, defend and
hold harmless Seller, the Member Cities, and their respective council members, directors,
commissioners, officers, agents, employees, advisors, Representatives, successors, and assigns
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(collectively, the “Seller Indemnitees”) from and against any Losses that arise out of or result from
any and all (i) Environmental Liabilities, (ii) Assumed Liabilities, and (iii) Taxes (or the
nonpayment thereof) of Purchaser or for which Purchaser is responsible under this Agreement.
NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS
AGREEMENT, IT IS THE EXPLICIT INTENTION OF THE PARTIES TO THIS
AGREEMENT THAT (I) THE INDEMNIFICATION OBLIGATIONS OF PURCHASER SET
FORTH IN THIS AGREEMENT ARE INTENDED TO INDEMNIFY EACH SELLER
INDEMNITEE AGAINST HIS, HER, OR ITS OWN SOLE, CONCURRENT,
CONTRIBUTORY OR COMPARATIVE NEGLIGENCE OR TORTIOUS ACTS AND (II)
THE INDEMNIFICATION PROVISIONS SET FORTH IN THIS AGREEMENT WILL BE
ENFORCED TO THE FULLEST EXTENT PERMITTED BY LAW FOR THE BENEFIT OF
THE SELLER INDEMNITEES, REGARDLESS OF ANY EXTRAORDINARY SHIFTING OF
RISK, AND EVEN IF THE CLAIM IS CAUSED BY THE ACTIVE OR PASSIVE, SOLE,
JOINT, CONCURRENT, OR COMPARATIVE NEGLIGENCE OR TORT OF ANY SELLER
INDEMNITEE, OR LIABILITY WITHOUT FAULT OR STRICT LIABILITY IS IMPOSED
ON, OR ALLEGED AGAINST, ANY SELLER INDEMNITEE.
(b) For the avoidance of doubt, it is the express intention of the Parties that the
indemnification provided for in this Section 8.02 shall apply to direct Claims between the Parties
for a breach of this Agreement (whether or not involving a third party).
Section 8.03 Right to Specific Performance; Certain Limitations. Notwithstanding
anything in this Agreement to the contrary:
(a) Without limiting or waiving in any respect any rights or remedies of a Party
under this Agreement or now or hereafter existing at law in equity or by statute, each Party shall
be entitled to specific performance of the obligations to be performed by the other Party in
accordance with the provisions of this Agreement; and
(b) No Member City and no Representative, Affiliate of, or direct or indirect
equity owner in, Seller or any Member City shall have any personal liability to Purchaser or any
other Person relating to, or arising from this Agreement; and
(c) Other than with respect to (i) Environmental Liabilities and (ii) the
Indemnification Obligations with respect to any third party Claims, neither Party shall be liable
for special, punitive, exemplary, incidental, or indirect damages, or lost profits or losses calculated
by reference to any multiple of earnings before interest, tax, depreciation or amortization (or any
other valuation methodology) whether based on contract, tort, strict liability, other Law or
otherwise and whether or not arising from the other Party’s sole, joint or concurrent negligence,
strict liability or other fault for any matter relating to this Agreement and the transactions
contemplated hereby.
Section 8.04 No Other Representations. EXCEPT FOR THE REPRESENTATIONS
AND WARRANTIES EXPRESSLY SET FORTH IN ARTICLE III OR IN ANY CERTIFICATE
OR INSTRUMENT DELIVERED HEREUNDER, THE PURCHASED ASSETS ARE “AS IS,
WHERE IS,” AND SELLER EXPRESSLY DISCLAIMS ANY OTHER REPRESENTATIONS
OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED (INCLUDING
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WITHOUT LIMITATION REPRESENTATIONS OR WARRANTIES AS TO LIABILITIES,
OPERATIONS OF THE PURCHASED ASSETS, CONDITION, VALUE OR QUALITY OF
THE PURCHASED ASSETS OR THE PROSPECTS THEREOF), AND SELLER
SPECIFICALLY DISCLAIMS ANY IMPLIED REPRESENTATIONS OR WARRANTIES OF
MERCHANTABILITY, USAGE OF TRADE, OR FITNESS FOR ANY PARTICULAR
PURPOSE. NO MATERIALS OR INFORMATION PROVIDED BY, OR
COMMUNICATIONS MADE BY OR ON BEHALF OF SELLER, OR BY ANY
REPRESENTATIVE OF SELLER, INCLUDING BUT NOT LIMITED TO INFORMATION
MADE AVAILABLE TO PURCHASER, OR ANY ORAL, WRITTEN OR ELECTRONIC
RESPONSE TO ANY INFORMATION REQUEST PROVIDED BY SELLER TO
PURCHASER, WILL CAUSE OR CREATE ANY ADDITIONAL WARRANTIES, EXPRESS
OR IMPLIED, OTHER THAN THOSE EXPRESSLY SET FORTH HEREIN.
ARTICLE IX.
ENVIRONMENTAL
Section 9.01 No Environmental Representations or Warranties; Disclaimer.
(a) AS IS, WHERE IS. EXCEPT AS EXPRESSLY PROVIDED HEREIN,
PURCHASER IS EXPRESSLY PURCHASING THE PURCHASED ASSETS IN THEIR
EXISTING CONDITION “AS IS, WHERE IS, AND WITH ALL FAULTS” WITH RESPECT
TO ALL FACTS, CIRCUMSTANCES, CONDITIONS AND DEFECTS, AND SELLER HAS
NO OBLIGATION TO DETERMINE OR CORRECT ANY SUCH FACTS,
CIRCUMSTANCES, CONDITIONS OR DEFECTS OR TO COMPENSATE PURCHASER
FOR SAME. EXCEPT AS EXPRESSLY PROVIDED HEREIN, SELLER HAS
SPECIFICALLY BARGAINED FOR THE ASSUMPTION BY PURCHASER OF ALL
RESPONSIBILITY TO INVESTIGATE THE PURCHASED ASSETS, LAWS,
ENVIRONMENTAL LAWS, ENVIRONMENTAL LIABILITIES, ENVIRONMENTAL
COMPLIANCE, FACTS, CONDITIONS, VIOLATIONS, AND OF ANY AND ALL RISK OF
ADVERSE CONDITIONS, AND HAS STRUCTURED THE PURCHASE PRICE AND OTHER
TERMS OF THIS AGREEMENT IN CONSIDERATION THEREOF. PURCHASER HAS
UNDERTAKEN ALL SUCH INVESTIGATIONS OF THE PURCHASED ASSETS, LAWS,
ENVIRONMENTAL LAWS, ENVIRONMENTAL LIABILITIES, ENVIRONMENTAL
COMPLIANCE, FACTS, CONDITIONS AND VIOLATIONS AS PURCHASER DEEMS
NECESSARY OR APPROPRIATE UNDER THE CIRCUMSTANCES AS TO THE STATUS
OF THE PURCHASED ASSETS AND ANY FUTURE OBLIGATIONS ARISING IN
CONNECTION WITH THE PURCHASED ASSETS AND BASED UPON SAME,
PURCHASER IS AND WILL BE RELYING STRICTLY AND SOLELY UPON SUCH
INSPECTIONS AND EXAMINATIONS AND THE ADVICE AND COUNSEL OF ITS OWN
CONSULTANTS, AGENTS, LEGAL COUNSEL AND OFFICERS. PURCHASER IS AND
WILL BE FULLY SATISFIED THAT THE PURCHASE PRICE IS FAIR AND ADEQUATE
CONSIDERATION FOR THE REAL PROPERTY AND, BY REASON OF ALL THE
FOREGOING, PURCHASER ASSUMES, WITHOUT LIMITATION, THE FULL RISK OF
ANY AND ALL ENVIRONMENTAL LIABILITIES AND ENVIRONMENTAL
COMPLIANCE AS SET FORTH HEREIN. THE TERMS AND CONDITIONS OF THIS
PARAGRAPH SHALL EXPRESSLY SURVIVE THE CLOSING, NOT MERGE WITH THE
PROVISIONS OF ANY CLOSING DOCUMENTS AND SHALL BE INCORPORATED INTO
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THE WARRANTY DEEDS FOR PARCELS WITH RECOGNIZED ENVIRONMENTAL
CONDITIONS.
(b) Seller Environmental Review. Beginning at Closing and continuing until
Regulatory Closure is achieved and all applicable care periods for Environmental Post-Closure
Requirements have been completed or expired without additional action required, Seller shall have
the right, but not the obligation, to review and audit all environmental activities, conditions,
operations and records, waste management units, pollution control equipment and monitoring
devices at the Purchased Assets and directly related facilities, including all activities and
operations described in Sections 5.09 and 5.10. The Environmental Designee will be allowed to
review and audit the Purchased Assets and directly related facilities as set out above, including
documentation and correspondence with environmental regulatory agencies, at any reasonable
time. The Environmental Designee will simultaneously provide Purchaser with any written reports
that the Environmental Designee provides to Seller. To the extent that the Parties cannot reach
mutual agreement on the penal sum of any Performance Bond required by this Agreement within
thirty (30) days after the matter is first submitted to the other Party for approval, both Parties will
submit their proposal to the Environmental Designee, which will make a final, binding
determination with respect to the amount of such penal sum. All information received from, and/or
provided to, the Environmental Designee will be considered confidential by the Parties per the
Confidentiality Agreement, subject to the requirements of the Texas Public Information Act, to the
same extent as if such information had been received from, and/or provided to, Seller. If the
Environmental Designee’s report identifies any violation of Environmental Laws or any failure to
expeditiously accomplish any of the Required Remediation Actions in accordance with the Project
Schedule, Purchaser shall perform, at its cost, any corrective actions required by Law to address
such violation or failure. Purchaser shall conduct all corrective actions with due diligence and
complete such actions within a reasonable period of time. In the event that Seller is dissolved or
ceases to exist, then, prior to such event, Seller shall assign to an individual or other legal entity or
entities the obligations to perform Seller’s responsibilities and exercise Seller’s rights with regard
to this Section 9.01(b). Seller shall provide notice to Purchaser of such assignment.
Section 9.02 Assumption and Covenant; Release; Indemnity. Notwithstanding anything
contained herein, and without limiting the scope of any assumption of responsibility, or liability,
release or indemnity by Purchaser in favor of any Seller Indemnitee set forth herein:
(a) Assumption and Covenant. At Closing, Purchaser shall be liable for and
expressly fully assumes any and all Environmental Liabilities and Environmental Compliance, as
well as, without limitation, any remediation, investigation, management, mitigation, closure,
maintenance, reporting, removal, disposal of and any other actions with respect to any Hazardous
Substances at, on, in, under, or emanating from the Purchased Assets. Without limiting the
foregoing, Purchaser shall be liable for any costs and expenses in connection with developing,
redeveloping, repurposing or otherwise operating the Purchased Assets, notwithstanding that such
costs and expenses may arise from the presence or suspected presence of Hazardous Substances
at, on, in or under or emanating from the Purchased Assets, any Environmental Liability or any
Environmental Compliance. Purchaser covenants to comply with all Environmental Laws.
(b) Release. Except as expressly provided in this Agreement, Purchaser and
anyone claiming by, through or under Purchaser, hereby FULLY AND IRREVOCABLY
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RELEASE AND DISCHARGE the Seller Indemnitees from and waive any and all Claims that it
may now have or hereafter acquire against any Seller Indemnitee for any Losses, cost, response
costs, Liabilities, damage, expense, problem, condition, demand, Order, notice, action or cause of
action, foreseen or unforeseen, known or unknown, whether arising or accruing before, on or after
the Closing Date and whether attributable to events or circumstances which have occurred prior to
the Closing Date or may occur hereafter, including without limitation those arising from or related
to: (i) any structural, engineering or Environmental Condition at the Real Property, including
without limitation, the presence, suspected presence, absence, Release, threat of Release,
discovery, location or scope of any Hazardous Substances at, on, in, under, or emanating from the
Real Property (whether patent, latent or otherwise); (ii) Environmental Laws, including the
Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. §§
9601, et seq.), as amended, and the Texas Solid Waste Disposal Act (Texas Health and Safety
Code § 361.001, et seq.), as amended, including the right to seek contribution, indemnity or
recovery of costs for environmental cleanup of the Real Property, (iii) any and all statements
or opinions heretofore or hereafter made or information furnished by any Seller Indemnitee or any
representative or agent of any of them; (iv) any and all tort Claims made or brought with respect
to any of the Purchased Assets or the use or operation thereof; and (v) ANY IMPLIED OR
STATUTORY WARRANTIES OR GUARANTIES OF FITNESS, MERCHANTABILITY
or any other statutory or implied warranty or guaranty of any kind or nature regarding or relating
to any portion of any of the Purchased Assets. Purchaser further acknowledges and agrees that
this release shall be given full force and effect according to each of its expressed terms and
provisions, including but not limited to those relating to unknown and suspected Claims, damages
and causes of action. Purchaser expressly understands and acknowledges that it is possible that
unknown conditions may exist with respect to the Purchased Assets and that Purchaser explicitly
considered such possibility in determining and agreeing to the acquisition consideration for the
Purchased Assets set forth in this Agreement, and that a portion of such acquisition consideration,
having been bargained for between Parties with the knowledge of the possibility of such unknown
conditions, has been given in exchange for a full accord and satisfaction and discharge of all such
conditions. Purchaser further hereby assumes the risk of changes in applicable Laws and
regulations relating to past, present and future Environmental Conditions on the Real Property and
the risk that adverse physical characteristics and conditions, including, without limitation, the
presence of Hazardous Substances, may not have been revealed by its investigation. As a material
covenant and condition of this Agreement, Purchaser agrees that in the event of any Environmental
Liability or Liability arising from or related to Environmental Compliance, or any structural,
engineering or environmental defects, errors or omissions, including without limitation the
presence or absence, location or scope of any Hazardous Substances at, on, in, under, or emanating
from the Purchased Assets, or any other conditions affecting the Purchased Assets, whether known
or unknown or existing before or as of the Closing Date, Purchaser shall not look to any Seller
Indemnitee for any redress or relief. The Closing hereunder shall be deemed to constitute an
express waiver of Purchaser’s right to cause any Seller Indemnitee to be joined in any action
brought under any Environmental Laws. THE FOREGOING RELEASE SHALL APPLY
NOTWITHSTANDING THE NEGLIGENCE OR STRICT LIABILITY OF A SELLER
INDEMNITEE.
(c) ENVIRONMENTAL INDEMNIFICATION. PURCHASER SHALL
INDEMNIFY, DEFEND AND HOLD THE SELLER INDEMNITEES HARMLESS FROM
ANY LOSSES, CLAIMS, EXPENSES, DEMANDS, ORDERS, CAUSES OF ACTION OR
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LIABILITIES OF ANY NATURE, KNOWN OR UNKNOWN, INCLUDING WITHOUT
LIMITATION NATURAL RESOURCE DAMAGES OR RESPONSE COSTS (AS THOSE
TERMS ARE DEFINED UNDER ANY ENVIRONMENTAL LAWS) AND THIRD PARTY
CLAIMS FOR BODILY INJURY OR PROPERTY DAMAGE ARISING FROM, ALLEGEDLY
ARISING FROM OR RELATED TO ENVIRONMENTAL CONDITIONS,
ENVIRONMENTAL LIABILITIES, ENVIRONMENTAL COMPLIANCE, OR HAZARDOUS
SUBSTANCES ON, AT, IN, UNDER OR EMANATING FROM THE PURCHASED ASSETS,
IRRESPECTIVE OF WHETHER ARISING OR ACCRUING BEFORE, ON OR AFTER THE
CLOSING DATE OR WHETHER ATTRIBUTABLE TO EVENTS OR CIRCUMSTANCES
WHICH OCCURRED PRIOR TO THE CLOSING DATE OR MAY OCCUR HEREAFTER.
PURCHASER WAIVES ANY RIGHT TO SEEK DAMAGES OR RESPONSE COSTS FROM
THE SELLER INDEMNITEES RESULTING FROM EITHER THE PRESENCE OR
SUSPECTED PRESENCE OF HAZARDOUS SUBSTANCES IN, ON, AT OR UNDER OR
EMANATING FROM THE PURCHASED ASSETS, INCLUDING, WITHOUT LIMITATION,
FOR LOST PROFITS, SPECIAL DAMAGES, MEDICAL MONITORING, CONSEQUENTIAL
DAMAGES, RESPONSE COSTS, DIMINUTION OF VALUE OR STIGMA OR ANY LOSS
OR EXPENSE DUE TO INTERFERENCE WITH OPERATIONS AT, OR DEVELOPMENT
OF, THE PURCHASED ASSETS AND PURCHASER SHALL INDEMNIFY, DEFEND AND
HOLD THE SELLER INDEMNITEES HARMLESS AGAINST ALL SUCH LIABILITY. THE
FOREGOING INDEMNITY SHALL APPLY NOTWITHSTANDING THE
NEGLIGENCE OR STRICT LIABILITY OF A SELLER INDEMNITEE.
Section 9.03 Purchaser Environmental Covenant. Purchaser covenants and agrees to
Seller that it will conduct its operation of the Purchased Assets in compliance with all applicable
Environmental Laws and regulations using standard industry practice beginning immediately
following Closing. This covenant will survive indefinitely. “Standard industry practice” shall not
be used as a defense to Purchaser’s obligation to operate in compliance with Environmental Laws.
Section 9.04 Warranty Deeds. The assumption, release and indemnity and all other
representations, warranties, covenants or other obligations of Purchaser under this Article IX shall
be incorporated into the Warranty Deeds for Parcels with Recognized Environmental Conditions
as set forth on Exhibit C-1 and into the Warranty Deeds for Parcels with No Recognized
Environmental Conditions as set forth on Exhibit C-2 and shall expressly run with the land to bind
future owners and operators of the Purchased Assets. Purchaser shall not assert that the indemnity
or any other post-closing obligations under this Article IX do not run with the land to bind future
owners or operators of the Purchased Assets in any litigation or other proceeding of any nature.
Section 9.05 Transferee Obligations.
(a) Purchaser reserves the right to sell any portion of the Real Property,
provided that (i) no sale or transfer of all or any portion of the Real Property, or any assumption
of Purchaser's obligations under this Agreement, the Escrow Agreement, or the other documents
delivered by the Parties at Closing, will relieve or release Purchaser from its obligations under this
Agreement, the Escrow Agreement, or the other documents delivered by the Parties at Closing,
unless Seller expressly consents in writing to the release of such obligations, (ii) each portion of
the Real Property that is transferred by Purchaser shall be transferred subject to Purchaser's
obligations under this Agreement, the Warranty Deeds, and the other documents delivered by the
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Parties at Closing to the extent affecting such transferred Real Property, (iii) the Transferee of such
portion of the Real Property will expressly assume in writing, for the benefit of Seller Indemnitees
and substantially in the form attached hereto as Exhibit G or in another form reasonably acceptable
to Seller, all of Purchaser's obligations under this Agreement, the Warranty Deeds, and the other
documents delivered by the Parties at Closing with respect to that portion of the Real Property
transferred to such Transferee, including any obligations to obtain or maintain any pollution legal
liability insurance policy or Performance Bonds with respect to such portion of the Real Property,
and (iv) in connection with such sale or transfer, Purchaser and its Transferee of the Real Property
must fully comply with the provisions of this Section 9.05.
(b) Purchaser must include in any instrument conveying an interest in Parcels
with Recognized Environmental Conditions an agreement on the part of such Transferee to be
bound by Purchaser’s indemnities, representations, warranties, covenants, releases, and other
obligations under this Article IX with respect to such portion of the Real Property being conveyed
as if such indemnities, representations, warranties, covenants, releases, and other obligations were
given, made or agreed to by such future owner or operator directly for Seller Indemnitees’ benefit,
including the obligations of this Section 9.05 to so bind future Transferees of any interest in Parcels
with Recognized Environmental Conditions or any related Purchased Assets. Ten (10) days prior
to executing any agreement to convey an interest in Parcels with Recognized Environmental
Conditions, Purchaser shall provide Seller with a copy of such agreement. Purchaser shall not
execute any agreement to convey an interest in Parcels with Recognized Environmental Conditions
if Seller reasonably determines and provides written notice to Purchaser within ten (10) days after
delivery to Seller that such sale agreement does not comply with the terms of this Article IX.
Notwithstanding anything to the contrary in this Section 9.05(b), if any Parcel with Recognized
Environmental Conditions has satisfied the conditions set forth in the definition of “Parcels with
No Recognized Environmental Conditions” in Section 1.01, then (x) such Parcel shall be
reclassified as a Parcel with No Recognized Environmental Conditions and will no longer be
subject to this Section 9.05(b), (y) Purchaser and any Transferee may thereafter transfer all or any
part of such Parcel free of any obligation to provide Seller with any transfer documents for review,
and (z) Seller shall have no right to object to any such transfer. No such transfer or release in favor
of a Transferee shall release Purchaser from any of its obligations under this Agreement. For the
avoidance of doubt, Parcels with No Recognized Environmental Conditions are not subject to this
Section 9.05(b), and Purchaser may transfer all or part of Parcels with No Recognized
Environmental Conditions to any Transferee and have no obligation to provide Seller with any
agreement with the Transferee and Seller shall have no right to object to any such transfer.
Section 9.06 Performance Bonds.
(a) Regulatory Closure Bonds. Purchaser will obtain and deliver to Seller in
connection with the Closing the original of the Regulatory Closure Bond and will maintain the
Regulatory Closure Bond, as potentially modified or adjusted in accordance with this Section 9.06,
until released by Seller. If all of Purchaser’s obligations under this Agreement with respect to
Required Remediation Actions, Plant Shutdown and Decommissioning, and Preliminary
Regulatory Closure of the Purchased Assets, including all Environmental Compliance and
Response Actions, and all payment obligations related to the foregoing items or resulting from
Purchaser’s default in the performance of such items, including reimbursement of Seller’s costs,
if any, to cure Purchaser’s default or non-performance of any of the foregoing obligations, have
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been performed and completed in accordance with the terms of this Agreement and in compliance
with all applicable Environmental Laws or other applicable governmental regulations, and all costs
and expenses related thereto have been paid in full, and no further action is required for the
completion of all of the Guaranteed Obligations covered by the Regulatory Closure Bond, then
Seller shall consent to such Regulatory Closure Bond being released. The penal sum of the
Regulatory Closure Bond may be adjusted periodically as the remediation projects set forth on
Schedule 9.06(a) are completed (as determined in writing by the Environmental Designee),
provided that (i) an updated estimate of the costs to perform the remaining Guaranteed Obligations
covered by the Regulatory Closure Bond (using the same methodology as set forth in Section
9.06(d) with respect to an Annual Estimate) shall be provided to Seller and the Environmental
Designee, (ii) no such adjustment may be made that would reasonably be expected to result in an
Insufficiency, and (iii) the amount of any adjustment reducing the amount of the Regulatory
Closure Bond with respect to any completed remediation project may not exceed ninety percent
(90%) of the “Allocation to Bond Amount” set forth on Schedule 9.06(a) with respect to such
remediation project.
(b) Post-Closure Bonds. Purchaser or a Transferee, as applicable, will obtain
and deliver to Seller the original Post-Closure Bond, with respect to each portion of the Real
Property subject to Environmental Post-Closure Requirements prior to any release or partial
release of the Regulatory Closure Bond with respect to such portion of the Real Property and at
least thirty (30) days prior to the start of such Environmental Post-Closure Requirements, and will
maintain the Post-Closure Bond until all of such Environmental Post-Closure Requirements have
been completed and approved in writing by the TCEQ or the Environmental Designee, as
applicable, and Regulatory Closure of all applicable portions of the Purchased Assets has been
obtained. Seller, or its successors and assigns, may renew any Post-Closure Bond or obtain a
replacement thereof, at the sole expense of Purchaser or such Transferee, or make a claim under a
Post-Closure Bond in the event that (i) Seller does not receive confirmation, at least ten (10)
Business Days in advance of any expiration of such Post-Closure Bond, from the issuing insurance
company or corporate surety company that such Post-Closure Bond will be renewed, or
(ii) Purchaser or such Transferee fails to replace such Post-Closure Bond within ten (10) Business
Days of the issuing insurance company’s or corporate surety company’s credit rating being
lowered below the required rating. Purchaser or such Transferee shall not, and each Post-Closure
Bond shall provide that Purchaser or such Transferee may not, terminate, void, or cancel such
Post-Closure Bond or any obligation of Purchaser or such Transferee or the surety thereunder
without express written authorization from Seller, or its successors and assigns, and any attempt
by Purchaser or such Transferee to do so shall be of no force or effect unless and until Seller, or
its successors and assigns, issues express written approval for such attempt.
(c) All Performance Bonds.
(i) Notwithstanding anything in this Agreement to the contrary, to the
extent that any rule, regulation or requirement of the TCEQ or other applicable Law
governs the form, amount, renewal, replacement and other aspect of a Performance
Bond to be obtained by Purchaser or any Transferee pursuant to this Agreement,
then such rule, regulation, requirement or other Law shall govern and control over
any contradictory term of this Agreement and the terms of this Agreement shall
govern every other aspect of such Performance Bond.
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(ii) The Performance Bonds, together with the Escrowed Amount and
cash payment under Section 2.04(f), are intended to guarantee the performance of
Purchaser’s obligations under this Agreement with respect to Required
Remediation Actions, Plant Shutdown and Decommissioning, and Regulatory
Closure of the Purchased Assets, including all Environmental Compliance,
Response Actions and Environmental Post-Closure Requirements, and all payment
obligations related to the foregoing items or resulting from Purchaser’s default in
the performance of such items, including reimbursement of Seller’s costs, if any, to
cure Purchaser’s default or non-performance of any of the foregoing obligations
(collectively, the “Guaranteed Obligations”). All Performance Bonds shall name
Seller, and its successors and assigns, as obligee.
(iii) Seller, or its successors or assigns, may make a claim under any
Performance Bond in the event Purchaser or any Transferee (A) fails to faithfully
perform the Guaranteed Obligations covered by such Performance Bond, whenever
required to do so, in accordance with the requirements of this Agreement, (B) fails
to provide an alternative financial assurance mechanism, when required, or (C) fails
to provide continuous coverage by such Performance Bond.
(iv) Each Performance Bond will be issued in form and substance
reasonably acceptable to Seller and will be issued by a licensed insurance company
or corporate surety company authorized to issue payment and performance bonds
in the State of Texas with at least an “A” rating by Standard & Poor’s Ratings
Services, a division of The McGraw Hill Corporation, or at least an “A-III” rating
by Moody’s Investors Services, Inc.
(v) Each Transferee of any portion of the Real Property that is subject
to any unperformed Guaranteed Obligations shall (as a condition precedent to, and
prior to the effectiveness of, any such sale, assignment or transfer) obtain and
deliver to Purchaser and Seller and maintain through Regulatory Closure of such
Real Property, as determined in writing by the Environmental Designee, one or
more payment and performance bonds on substantially similar terms as the
Performance Bond(s) maintained by the transferor or grantor of such Real Property
prior to such sale, assignment or transfer, or other form of financial assurance, in a
penal sum sufficient to guarantee the Parties' mutually-agreeable estimated costs of
completing such unperformed Guaranteed Obligations applicable to any such Real
Property.
(vi) If a Transferee of any portion of the Real Property has obtained a
Performance Bond (in compliance with the requirements of this Agreement) to
cover a portion or portions of the Guaranteed Obligations covered by any
Performance Bond required to be maintained by Purchaser, then Seller shall
consent to a modification and an adjustment to the penal sum of Purchaser’s
Performance Bond to the extent that the Transferee’s Performance Bond covers the
same Guaranteed Obligations and provides the same financial assurances for the
benefit of Seller and the Member Cities as the Performance Bond to be modified;
provided, however, that, Seller shall not be obligated to consent to any modification
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of any Performance Bond if such modification would reasonably be expected to
result in an Insufficiency nor shall Seller’s consent to any modification relieve
Purchaser from its obligations to increase the penal sum of such modified
Performance Bond in the future if the such Transferee’s replacement Performance
Bond is not renewed and maintained as required by this Agreement.
(vii) The penal sum of a Performance Bond may not be decreased without
advance written authorization from Seller.
(d) Annual Estimates for Performance Bonds. Sixty (60) calendar days prior
to each anniversary of the original effective date of each Performance Bond (or at such other date
as required by the TCEQ), Purchaser shall provide Seller and the Environmental Designee an
updated estimate of the costs to perform the remaining Guaranteed Obligations covered by such
Performance Bond, including annual inflation adjustments to the cost estimates, together with
documentation providing justification for the estimate as may be reasonably required by Seller
(each, an “Annual Estimate”). The Environmental Designee shall review Purchaser’s Annual
Estimates and may conduct any and all other investigation(s) or review(s) to verify the accuracy
of each Annual Estimate. Purchaser and Seller will cooperate with the Environmental Designee in
any such other investigation(s) or review(s). If the Annual Estimate with respect to any
unperformed Environmental Post-Closure Requirements guaranteed by a Post-Closure Bond, as
verified or adjusted by the Environmental Designee, is less than 90.9% of the penal sum of such
Post-Closure Bond, then Seller shall consent to the issuance of a rider to such Post-Closure Bond
decreasing the penal sum of such Post-Closure Bond to equal 110% of the amount of such Annual
Estimate; it being understood by the Parties that the sole mechanism for reducing the Regulatory
Closure Bond is set forth in the final sentence of Section 9.06(a). If, as a result of any Annual
Estimate or at any other time, Purchaser, Seller, or the Environmental Designee becomes aware
that the penal sums of a Performance Bond could reasonably be expected to result in an
Insufficiency, Purchaser, Seller, or the Environmental Designee shall promptly, and in no event
later than thirty (30) days after it becomes aware of such Insufficiency, notify the other parties and
provide documentation demonstrating such Insufficiency as the parties may reasonably require
(each, an “Insufficiency Notice”). Upon receipt of each Annual Estimate and Insufficiency Notice,
Seller shall determine whether the penal sum of the applicable Performance Bond should be
adjusted and, within thirty (30) days of Purchaser’s receipt of written notice from Seller, Purchaser
shall revise the penal sum of any Performance Bond as requested by Seller; provided, however,
that the Seller shall not require the penal sum of a Performance Bond required by the TCEQ to be
increased above the penal sum approved by the TCEQ.
(e) Successors. In the event that Seller is dissolved or ceases to exist, then,
prior to such event, either (i) Seller shall assign to an individual or other legal entity or entities the
obligations to perform Seller’s responsibilities and exercise Seller’s rights with regard to this
Section 9.06 or (ii) the Member Cities shall appoint a designated representative to act as Seller’s
successor with respect to the exercise of any of Seller’s rights under this Section 9.06, including
making, prosecuting, or settling any claim under any Performance Bond. Seller or the Member
Cities shall provide notice to Purchaser of such assignment or appointment, as applicable.
Section 9.07 Permits. Without limiting the generality of the assumption, release and
indemnity and all other representations, warranties, covenants or other obligations of Purchaser
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under this Article IX, Purchaser acknowledges that it has conducted independent investigation and
diligence with respect to the Permits associated with the Purchased Assets and any Permits that
may be required in connection with Purchaser’s future ownership or operation of the Purchased
Assets, including, without limitation the assignability or transferability of any such Permits in
connection with the transaction contemplated herein, and that, except as set forth in Section 3.05(b)
of this Agreement, Seller hereby disclaims all representations and warranties of any kind or nature
whatsoever, whether expressed or implied, with respect to the Permits associated with the
Purchased Assets and any Permits that may be required in connection with Purchaser’s future
ownership or operation of the Purchased Assets. While Seller has an obligation to support
Purchaser’s efforts to transfer and/or obtain Assigned Permits, Purchaser assumes all risk
associated with obtaining, transferring, assigning or amending any Permit for Purchaser’s
ownership or operation of the Purchased Assets and shall be solely responsible for any and all
costs and expenses associated therewith. Under no circumstance shall Purchaser terminate this
Agreement because of Purchaser’s inability to obtain, transfer, assign or amend any Permit.
Section 9.08 Reimbursement of Site F Landfill Costs. Seller and Purchaser agree that
$13,600,000 is the mutually-agreed estimated cost to obtain Preliminary Regulatory Closure of the
Site F landfill. If, upon Preliminary Regulatory Closure of the Site F landfill, the aggregate costs
actually incurred by Purchaser to obtain Preliminary Regulatory Closure of the Site F landfill is
less than $13,600,000, Purchaser shall pay such difference to Seller within thirty (30) days of
Seller’s written request for such amount, which amount may, at Seller’s election, be paid in whole
or in part to Seller as a distribution from the Escrowed Amount in accordance with the terms of
the Escrow Agreement.
Section 9.09 Survival. The provisions of this Article IX shall survive the Closing and
shall not be deemed to have merged into any of the documents executed or delivered at the Closing.
ARTICLE X.
MISCELLANEOUS
Section 10.01 Confidential Information. Purchaser acknowledges that Seller, as a public
entity organized under the laws of the State of Texas, and this Agreement is subject to disclosure
as required by the Texas Public Information Act (Texas Government Code Chapter 552).
Section 10.02 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally to, or by nationally recognized overnight
courier service, or mailed by registered or certified mail (return receipt requested) if and when
received by, or sent via electronic mail if and when received by, the Parties at the following
addresses (or at such other address for a Party as shall be specified by like notice):
(a) If to Seller, to:
Texas Municipal Power Agency
2751 Nash Street, Suite 130
Bryan, Texas 77802
Attn: General Manager
E-Mail: BKahn@texasmpa.org
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(b) If to Purchaser, to:
Gibbons Creek Environmental Redevelopment Group, LLC
435 S. Tryon Street, Suite 180
Charlotte, NC 28202
Attention: Mr. Scott Reschly
E-Mail: sreschly@charah.com
Section 10.03 Headings. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
Section 10.04 Assignment. This Agreement shall not be assigned without the prior written
consent of all Parties, which consent may be withheld in the sole and absolute discretion of any
Party. No assignment of this Agreement by Purchaser (even with the consent of Seller) will relieve
or release Purchaser from its obligations under this Agreement, and Purchaser will continue to be
responsible to Seller for all of its obligations under this Agreement from and after any such
assignment.
Section 10.05 Disputes.
(a) In the event of any controversy or dispute between the Parties arising out of
or relating to or in connection with this Agreement (a “Dispute”), either Party (the “Notifying
Party”) may deliver to the other Party (the “Recipient Party”) notice of the Dispute with a detailed
description of the underlying circumstances of such Dispute (a “Dispute Notice”). The Dispute
Notice shall include a schedule of the availability of the Notifying Party’s senior officers duly
authorized to settle, or to recommend settlement of, the Dispute during the twenty (20) day period
following the delivery of the Dispute Notice.
(b) The Recipient Party shall within three (3) Business Days following receipt
of the Dispute Notice, provide to the Notifying Party a parallel schedule of availability of the
Recipient Party’s senior officers duly authorized to settle, or to recommend settlement of, the
Dispute. Following delivery of the respective senior officers’ schedules of availability, the senior
officers of the Parties shall meet and confer as often as they deem reasonably necessary during the
remainder of the twenty (20) day period in good faith negotiations to resolve the Dispute to the
satisfaction of each Party. If the Dispute is not resolved pursuant to the procedures set forth in this
Section 10.05 by the expiration of the twenty (20) day period set forth herein, then either Party
may pursue any legal remedy available to it in accordance with the provisions of Section 10.06 of
this Agreement.
Section 10.06 Governing Law; Jurisdiction. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas applicable to agreements made and to
be performed entirely within such State, without regard to the conflict of laws principles thereof.
Subject to Section 10.05, any Disputes or Claims arising out of or in connection with this
Agreement and the transactions contemplated or documents required hereby shall be filed in any
court of competent jurisdiction in Travis County, Texas, or the federal courts of the United States
of America located in the Western District of Texas, Austin Division. The Parties hereby
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irrevocably waive, to the fullest extent permitted by applicable Law, any objection which they may
now or hereafter have to the laying of venue of any Dispute arising out of or relating to this
Agreement or any of the transactions contemplated hereby brought in such court or any defense of
inconvenient forum for the maintenance of such Dispute. Each Party agrees that a judgment in
any such Dispute may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by Law. This consent to venue is being given solely for purposes of this
Agreement and the transactions contemplated hereunder, and is not intended to, and shall not,
confer consent to venue with respect to any other Dispute in which a Party to this Agreement may
become involved.
Section 10.07 WAIVER OF RIGHT TO TRIAL BY JURY. TO THE EXTENT
PERMITTED BY APPLICABLE LAW, EACH PARTY TO THIS AGREEMENT HEREBY
EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND,
ACTION OR CAUSE OF ACTION ARISING UNDER THIS AGREEMENT OR IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE
PARTIES OR EITHER OF THEM WITH RESPECT TO THE SUBJECT MATTER OF THIS
AGREEMENT, OR THE TRANSACTIONS RELATED HERETO, IN EACH CASE
WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN
CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND
CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION
SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY
TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS
SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
Section 10.08 Counterparts. This Agreement may be executed in counterparts and
delivered by facsimile or electronic (.pdf) format, each of which shall be deemed to be an original,
but all of which shall constitute one and the same agreement.
Section 10.09 Amendments. This Agreement may not be amended, waived or modified
except by an instrument in writing signed by Purchaser and Seller.
Section 10.10 Entire Agreement. This Agreement, the Confidentiality Agreement, and the
Reimbursement Agreement constitute the entire agreement between the Parties with respect to the
subject matter hereof and supersede all prior agreements, understandings and negotiations, both
written and oral, between the Parties with respect to the subject matter of this Agreement. No
representation, inducement, promise, understanding, condition or warranty not set forth herein has
been made or relied upon by either Party. Neither this Agreement nor any provision hereof is
intended to confer upon any Person other than the Parties any rights or remedies hereunder except
as expressly provided otherwise in this Agreement.
Section 10.11 Severability. If any term or other provision of this Agreement is invalid,
illegal, or incapable of being enforced by any rule of applicable Law, or public policy, then such
term or provision shall be severed from the remaining terms and provisions of this Agreement, and
such remaining terms and provisions shall nevertheless remain in full force and effect.
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Section 10.12 Third Party Beneficiaries. The Parties hereby agree that each Member City
is an intended and express third party beneficiary of all of Purchaser’s representations, warranties,
covenants, agreements, indemnities, insurance, bonds, and other obligations under this Agreement
and each of the rights or benefits granted to Seller or the Seller Indemnitees under this Agreement.
Purchaser shall have the same obligations to each Member City as if such Member City was a
“Party” under this Agreement. Each Member City shall have the individual right (on its own
behalf, in its own name, separate from Seller or any other Member City, and exercisable in its sole
discretion) as an express third-party beneficiary of this Agreement to directly (i) enforce the terms
and conditions of this Agreement against Purchaser and its successors and assigns, (ii) prevent any
breach thereof, or (iii) exercise any other right, or seek any remedy, that may be available to Seller
or any Seller Indemnitees pursuant to this Agreement or pursuant to any other agreement,
instrument or document executed in connection with the consummation of the transactions
contemplated by this Agreement or otherwise related to the subject matter of this Agreement, in
each instance to the same extent that such Member City would if it were a direct party to this
Agreement or such other agreement, instrument or document. No waiver, inaction, incapacity,
dissolution, winding down, termination, forfeiture, receivership, bankruptcy or other event or
prohibition affecting Seller or any Member City shall affect any other Member City’s rights as an
express third-party beneficiary of this Agreement. In addition, no Party may agree to any changes,
modifications or amendments to this Agreement without the prior written consent of each Member
City, which consent may be given, conditioned, delayed or withheld by any Member City in its
sole and absolute discretion. The Parties acknowledge and agree that each Member City is
expressly relying on the rights set forth in this section in favor of such Member City, that the
approval of each Member City is required for the sale of the Purchased Assets by Seller to
Purchaser, and that the Member Cities would not have approved of the sale of the Purchased Assets
to Purchaser pursuant to this Agreement without obtaining the express third party beneficiary
rights in favor of the Member Cities set forth in this section.
[Remainder of page intentionally left blank. Signature page to follow.]
290
Signature Page to Asset Purchase Agreement
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed by
their respective authorized officers as of the day and year first above written.
SELLER:
TEXAS MUNICIPAL POWER AGENCY
By:
Name:
Title:
PURCHASER:
GIBBONS CREEK ENVIRONMENTAL
REDEVELOPMENT GROUP, LLC
By: Charah, LLC, its Manager
By:
Name:
Title:
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EXHIBIT “E”
389
-Activity IDActivity NameOriginalDurationStartFinishGibbons Creek Project Schedule - Draft 9-22-2020Gibbons Creek Project Schedule - Draft 9-22-2020875910-08-19 A07-01-53MILESTONESMILESTONES99910-08-19 A09-08-23M01Memorandum of Understanding (October 8/2019)010-08-19*M02Asset Purchase Agreement (November 1/2019)16911-01-19 A10-01-20M04Close on Property011-01-20M30Contact Water Processing Equipment Operational003-25-21M20Start Ash Pond Excavation004-15-21M199Post Closure Monitoring & Approval Landfill 'F' (30 Years)007-13-23M97Substantial Completion008-10-23M99Project Complete009-08-23*CASHFLOW MILESTONESCASHFLOW MILESTONES0PRE PROJECTPRE PROJECT36111-11-19 A08-09-21PP100Establish Office Space2011-01-2012-01-20PP102Implement Site Security2011-01-2012-01-20PP104Acquire Insurance (General Site Coverage)2011-01-2012-01-20ENVIRONMENTAL and ENGINEERINGENVIRONMENTAL and ENGINEERING36103-12-2008-09-21EV100Phase I - Environmental Assessment7203-12-2006-19-20EV102Phase II - Environmental Assessment2011-01-2012-01-20EV104Engineering & TCEQ Permit Closure - Sludge Pond6011-01-2001-28-21EV106Engineering & TCEQ Permit Closure - Ash Ponds 'A/B/C'6011-20-2002-18-21EV112Update Fugitive Dust Plan1012-01-2012-15-20EV114Design Borrow Areas for Landfill 'A" & 'F'2012-01-2012-30-20EV108Engineering for Landfill 'A'4002-18-2104-15-21EV110Engineering & TCEQ Permit Closure - Landfill 'F'8004-15-2108-09-21PERMIT APPLICATIONSPERMIT APPLICATIONS8511-01-2003-04-21PA106Provide Notice to TCEQ Use of Outfall 0054511-01-2001-07-21PA108Submit ESC Permit for Construction of Outfall 0056011-01-2001-28-21PA110Permit to Demo Power Station1011-13-2012-01-20PA102Submit ESC Permit Application TCEQ - Borrow Areas4512-30-2003-04-21SITE REDEVELOPMENT - AVISION YOUNGSITE REDEVELOPMENT - AVISION YOUNG29611-11-19 A06-28-21SRD101Marketing of Property21011-11-19 A01-08-21SRD102Site Survey & Boundary Mapping511-01-2011-06-20SRD104Proposed Subdivision of Property12001-08-2106-28-21CONTRACT BID & AWARDCONTRACT BID & AWARD23011-01-2009-28-21IC114Temporary Office Facilities - Contract1011-01-2011-13-20IC106Issue Survey Contract1011-01-2011-13-20IC102Construction Quality Control Monitor & Testing1011-01-2011-13-20IC116Contact Water Processing Equipment - Contract1011-01-2011-13-20IC118Issue Contract for Erosion & Sediment Control1011-01-2011-13-20IC121Issue Chain Link Fence Contract1011-01-2011-13-20IC135Tree Clearing Contractor -1011-01-2011-13-20IC125Demo Contractor1011-01-2011-13-20IC112Issue Contract for Utilities1511-01-2011-20-20IC123Contract for Asbestos Abatement Survey2011-01-2012-01-20IC133Hydroseeding Contractor2007-19-2108-16-21JJASONDJFMAMJJASONDJFMAMJJASONDJFMAMJJASONDJFMAMJJASONDJFMAMJJASONDJFMAMJJASOND09-08-23, MILESTONESMemorandum of Understanding (October 8/2019), 10-08-19*11-01-19 A10-01-20Close on Property, Contact Water Processing Equipment Operational, Start Ash Pond Excavation, 04-15-21Post Closure Monitoring & Approval Landfill 'F' (30 Years), 07-13-23Substantial Completion, Project Complete, 08-09-21, PRE PROJECT11-01-2012-01-2011-01-2012-01-2011-01-2012-01-2008-09-21, ENVIRONMENTAL and ENGINEERING03-12-2006-19-2011-01-2012-01-2011-01-2001-28-2111-20-2002-18-2112-01-2012-15-2012-01-2012-30-2002-18-2104-15-2104-15-2108-09-2103-04-21, PERMIT APPLICATIONS11-01-2001-07-2111-01-2001-28-2111-13-2012-01-2012-30-2003-04-2106-28-21, SITE REDEVELOPMENT - AVISION YOUNG11-11-19 A01-08-2111-01-2011-06-2001-08-2106-28-2109-28-21, CONTRACT BID & AWARD11-01-2011-13-2011-01-2011-13-2011-01-2011-13-2011-01-2011-13-2011-01-2011-13-2011-01-2011-13-2011-01-2011-13-2011-01-2011-13-2011-01-2011-20-2011-01-2012-01-2007-19-2108-16-21Data Date: 10-08-19Run Date: 09-23-20All Activities Schedule - GibbonsActual Level of EffortActual WorkRemaining WorkCritical Remaining WorkMilestonesummaryProject ScheduleGibbons Creek Steam Electric StationTMPA - Asset Liability Transfer ProjectPage 1 of 4 GC0F390
-Activity IDActivity NameOriginalDurationStartFinishIC108Issue Liner Contract - Subcontractor1009-14-2109-28-21PROJECT PLANNINGPROJECT PLANNING26011-01-2011-09-21PL104Sludge Pond Execution Plan1001-14-2101-28-21PL112Develop Documentation for Monitoring & Testing - Federal/State/Local1001-28-2102-11-21PL114Demolition Execution Plan1002-11-2102-25-21PL106Ash Ponds 'A/B/C' Execution Plan1002-18-2103-04-21PL108Landfill 'A' Execution Plan2004-15-2105-13-21PL110Landfill 'F' Execution Plan2008-09-2109-07-21LIFE SAFETY - PROJECT REQUIREMENTSLIFE SAFETY - PROJECT REQUIREMENTS2711-01-2012-10-20PS06Develop Site Wide Safety Plan1511-01-2011-20-20PS10Develop Emergency Response Plan1511-01-2011-20-20PS04Review & Submit Site Wide Safety Plan1011-20-2012-08-20PS02Review & Submit Emergency Response Plan1011-20-2012-08-20PA04Site Wide Safety Plan - Review & Approved212-08-2012-10-20PS08Emergency Response Plan - Review & Approved212-08-2012-10-20TRAININGTRAINING2912-24-2002-05-21TR01CTraining for Site Safety Plan112-24-2012-28-20TR02CTraining for Emergency Response112-28-2012-29-20TR04CReview PEP with Site Personnel101-13-2101-14-21TR08CB.E.S.T Ash Pond Training102-04-2102-05-21PROCUREMENT & EQUIPMENTPROCUREMENT & EQUIPMENT25011-13-2011-09-21PE106Contact Water Processing Equipment6011-13-2002-11-21PE108Evaporators for Ash Pond Water6011-13-2002-11-21PE102Liner Material3009-28-2111-09-21CONSTRUCTIONCONSTRUCTION847511-13-2007-01-53PD1002Utility Locates501-28-2102-04-21PD1010Project Surveying58001-28-2105-09-23PD1004Protect Existing Utilities/Instrumentation502-04-2102-11-21PD1012Maintenance of Erosion Control61502-04-2107-06-23SITE DEVELOPMENTSITE DEVELOPMENT5512-01-2002-18-21SD118Change Locks on Monitoring Wells to Charah212-01-2012-03-20SD104Install Office Trailers512-01-2012-08-20SD102Layout Site Construction Facilities301-28-2102-02-21SD112Survey & Flag Boundaries LOD - General Site501-28-2102-04-21SD106Install Electrical Service/Web Access502-02-2102-09-21SD114Mobilization Grading Equipment202-04-2102-08-21SD108Develop Equipment Yard1002-04-2102-18-21SD116Install Silt Fence1002-04-2102-18-21PROJECT STARTUPPROJECT STARTUP0GIBBONS CREEK POWER STATION DEMOLITIONGIBBONS CREEK POWER STATION DEMOLITION30011-13-2001-21-22PSD102Utiility Disconnects - Power Station5011-13-2001-28-21PSD104Plant Wash Down - Power Station5012-08-2002-18-21PSD106Demolition of Power Station25501-21-2101-21-22CLEARING & DEMOLITIONCLEARING & DEMOLITION2002-25-2103-25-21JJASONDJFMAMJJASONDJFMAMJJASONDJFMAMJJASONDJFMAMJJASONDJFMAMJJASONDJFMAMJJASOND09-14-2109-28-2111-09-21, PROJECT PLANNING01-14-2101-28-2101-28-2102-11-2102-11-2102-25-2102-18-2103-04-2104-15-2105-13-2108-09-2109-07-2112-10-20, LIFE SAFETY - PROJECT REQUIREMENTS11-01-2011-20-2011-01-2011-20-2011-20-2012-08-2011-20-2012-08-2012-08-2012-10-2012-08-2012-10-2002-05-21, TRAINING12-24-2012-28-2012-28-2012-29-2001-13-2101-14-2102-04-2102-05-2111-09-21, PROCUREMENT & EQUIPMENT11-13-2002-11-2111-13-2002-11-2109-28-2111-09-2101-28-2102-04-2101-28-2105-09-2302-04-2102-11-2102-04-2107-06-2302-18-21, SITE DEVELOPMENT12-01-2012-03-2012-01-2012-08-2001-28-2102-02-2101-28-2102-04-2102-02-2102-09-2102-04-2102-08-2102-04-2102-18-2102-04-2102-18-2101-21-22, GIBBONS CREEK POWER STATION DEMOLITION11-13-2001-28-2112-08-2002-18-2101-21-2101-21-2203-25-21, CLEARING & DEMOLITIONData Date: 10-08-19Run Date: 09-23-20All Activities Schedule - GibbonsActual Level of EffortActual WorkRemaining WorkCritical Remaining WorkMilestonesummaryProject ScheduleGibbons Creek Steam Electric StationTMPA - Asset Liability Transfer ProjectPage 2 of 4 GC0F391
-Activity IDActivity NameOriginalDurationStartFinishCD104Clear & Remove Accessible Vegetation @ Sludge Pond1002-25-2103-11-21CD106Clear & Remove Accessible Vegetation @ Ash Ponds 'A/B/C'1003-04-2103-18-21CD108Clear & Regrade Spillway to Outfall 002503-11-2103-18-21CD110Remove Acid Tanks & Piping @ Ash Ponds503-18-2103-25-21OUTFALL 005OUTFALL 0059611-13-2004-02-21OF5102Survey & Layout - Outfall 005211-13-2011-17-20OF5104Install Silt Fence & LOD - Outfall 005511-17-2011-24-20OF5106Cut Trees & Clear Vegetation - Outfall 0051001-28-2102-11-21OF5108Strip Tree Roots & Topsoil - Outfall 0051002-11-2102-25-21OF5110Excavate 3 Acre Water Holding Basin - Outfall 0052002-18-2103-18-21OF5112Install Riser & Outfall Spillway - Outfall 0051003-18-2104-01-21OF5114Place RipRap - Outfall 005503-25-2104-01-21OF5116Permit Approved Open Outfall 005104-01-2104-02-21BORROW AREA DEVELOPMENTBORROW AREA DEVELOPMENT51504-01-2104-11-23AB102Survey & Layout Landfill 'A' Borrow504-01-2104-08-21AB104Install Silt Fence - Borrow 'A'504-08-2104-15-21AB106Clear & Grub - Borrow 'A'2004-15-2105-13-21AB108Excavate & Develop Stormwater Basin - Borrow 'A'504-19-2104-26-21AB110Strip Topsoil & Stockpile - Borrow 'A'2005-20-2106-18-21AB112Excavate & Haul Clay - Borrow 'A'15506-18-2101-28-22FB102Survey & Layout Landfill 'F' Borrow501-28-2202-04-22FB104Install Silt Fence - Borrow 'F'502-04-2202-11-22FB106Clear & Grub - Borrow 'F'2009-28-2210-26-22FB108Excavate & Develop Stormwater Basin - Borrow 'F'509-30-2210-07-22FB110Strip Topsoil & Stockpile - Borrow 'F'2011-02-2212-02-22FB112Excavate & Haul Clay - Borrow 'F'9012-02-2204-11-23SLUDGE POND CLOSURESLUDGE POND CLOSURE25012-01-2011-23-21SP1002Remove Free Water - Treat & Discharge4012-01-2001-28-21SP1004Excavate & Haul Sludge to Landfill F12002-18-2108-09-21SP1006Clean Close remove Bottom 6" (6,500cyd's)1008-09-2108-23-21SP1008Regrade & Vegatation Stablization2008-23-2109-21-21SP1010Submit Permit Application TCEQ Closure of Sludge Pond4509-21-2111-23-21LANDFILL SITE 'A'LANDFILL SITE 'A'48605-13-2104-12-23A102Strip Existing 6" Topsoil Cover - Landfill Site A7005-13-2108-23-21A104Regrade Existing Clay Cover - Landfill Site A14008-23-2103-11-22A106Place 18" Clay Cap - Landfill Site A19010-05-2107-05-22A114Place Perimeter Berm @ Top - Landfill A4007-05-2208-30-22A118Construct 2 Access Roads to Top - Landfill A1008-30-2209-14-22A116Install Down Drains with RipRap Inlets - Landfill A (4)2008-30-2209-28-22A112Survey Top of Clay Cap - Landfill A1509-28-2210-19-22A108Place 6" Topsoil - Landfill Site A8010-19-2202-14-23A110Seed & Straw Landfill Site A - Landfill Site A4002-14-2304-11-23A120Pipe Down Drains to Existing Storm Basins4002-14-2304-11-23A130EOR Prepare and Approve Landfill A Closure Package104-11-2304-12-23JJASONDJFMAMJJASONDJFMAMJJASONDJFMAMJJASONDJFMAMJJASONDJFMAMJJASONDJFMAMJJASOND02-25-2103-11-2103-04-2103-18-2103-11-2103-18-2103-18-2103-25-2104-02-21, OUTFALL 00511-13-2011-17-2011-17-2011-24-2001-28-2102-11-2102-11-2102-25-2102-18-2103-18-2103-18-2104-01-2103-25-2104-01-2104-01-2104-02-2104-11-23, BORROW AREA DEVELOPMENT04-01-2104-08-2104-08-2104-15-2104-15-2105-13-2104-19-2104-26-2105-20-2106-18-2106-18-2101-28-2201-28-2202-04-2202-04-2202-11-2209-28-2210-26-2209-30-2210-07-2211-02-2212-02-2212-02-2204-11-2311-23-21, SLUDGE POND CLOSURE12-01-2001-28-2102-18-2108-09-2108-09-2108-23-2108-23-2109-21-2109-21-2111-23-2104-12-23, LANDFILL SITE 'A'05-13-2108-23-2108-23-2103-11-2210-05-2107-05-2207-05-2208-30-2208-30-2209-14-2208-30-2209-28-2209-28-2210-19-2210-19-2202-14-2302-14-2304-11-2302-14-2304-11-2304-11-2304-12-23Data Date: 10-08-19Run Date: 09-23-20All Activities Schedule - GibbonsActual Level of EffortActual WorkRemaining WorkCritical Remaining WorkMilestonesummaryProject ScheduleGibbons Creek Steam Electric StationTMPA - Asset Liability Transfer ProjectPage 3 of 4 GC0F392
-Activity IDActivity NameOriginalDurationStartFinishASH PONDS A/B/C CLOSUREASH PONDS A/B/C CLOSURE40502-18-2109-21-22AP1014Install Temporary Pipe Line to Landfill 'F'2002-18-2103-18-21AP1012Isolate Plant Collection Pond Inlet (2)1003-04-2103-18-21AP1002Remove Free Water - Treat & Discharge13003-18-2109-21-21AP1004Bridging & Excavation of CCR Material Ash Pond C(180,000cyd's)10004-15-2109-07-21AP1016Bridging & Excavation of CCR Material Ash Pond B (90,000yds)8009-07-2112-30-21AP1018Bridging & Excavation of CCR Material Ash Pond A (90,000yds)8012-30-2104-22-22AP1006Remove Concrete Structures (2 - Center Berms)1004-22-2205-06-22AP1008Clean Close remove Bottom 6" (25,000cyd's)3004-22-2206-06-22AP1010Remove Divider Berms, Regrade, Vegetation & Stabilization3006-06-2207-19-22AP1022Submit Permit Application TCEQ Closure of Ash Ponds A/B/C4507-19-2209-21-22LANDFILL SITE 'F'LANDFILL SITE 'F'28006-06-2207-13-23AP2110Excavate/Haul & Dress Landfill 'F' Ash6006-06-2208-30-22AP2112Install Liner (Top of CCR Material)2008-30-2209-28-22AP2114Place 24" of Clay4012-02-2201-31-23AP2120Place Perimeter Berm @ Top - Landfill F3001-31-2303-14-23AP2122Install Down Drains with RipRap Inlets - Landfill F (4)2003-14-2304-11-23AP2116Place 6" Top Soil2004-11-2305-09-23AP2124Pipe Down Drains to Existing Storm Basins2004-25-2305-23-23AP2126Submit Permit Application TCEQ Closure Landfill 'F'4505-09-2307-13-23AP2118Seed & Straw Landfill Site F1005-16-2305-31-23LEACHATE & CONTACT WATER PROCESSINGLEACHATE & CONTACT WATER PROCESSING7012-15-2003-25-21CWP508Grade & Stone Pad for Evaporator Processing Equipment512-15-2012-22-20CWP502Contact Water Processing Equipment Installation2002-11-2103-11-21CWP506Install Contact Water Piping to Evaporator Pad Location2002-25-2103-25-21CWP504Contact Water Evaporator Equipment Start-up1003-11-2103-25-21CWP099Contact Water Operational003-25-21SITE RESTORATIONSITE RESTORATION5005-31-2308-10-23SR112Remove Office Trailer & Employee Facilities1005-31-2306-14-23SR108Remove Silt Fence1506-14-2307-06-23SR114Demob Excavation Equipment & Pumps1007-27-2308-10-23POST CLOSUREPOST CLOSURE826009-21-2107-01-53PS102Sludge Pond Post Closure Monitoring & Approval (12 months)26009-21-2109-28-22PS104Ash Pond Post Closure Monitoring & Approval (12 months)26007-19-2207-27-23PS106Landfill Site 'A' Post Closure Monitoring(2 years)52002-14-2303-03-25PS108Landfill Site 'F' Post Closure Monitoring & Approval (30 Years)780007-13-2307-01-53JJASONDJFMAMJJASONDJFMAMJJASONDJFMAMJJASONDJFMAMJJASONDJFMAMJJASONDJFMAMJJASOND09-21-22, ASH PONDS A/B/C CLOSURE02-18-2103-18-2103-04-2103-18-2103-18-2109-21-2104-15-2109-07-2109-07-2112-30-2112-30-2104-22-2204-22-2205-06-2204-22-2206-06-2206-06-2207-19-2207-19-2209-21-2207-13-23, LANDFILL SITE 'F'06-06-2208-30-2208-30-2209-28-2212-02-2201-31-2301-31-2303-14-2303-14-2304-11-2304-11-2305-09-2304-25-2305-23-2305-09-2307-13-2305-16-2305-31-2303-25-21, LEACHATE & CONTACT WATER PROCESSING12-15-2012-22-2002-11-2103-11-2102-25-2103-25-2103-11-2103-25-21Contact Water Operational, 08-10-23, SITE RESTORATION05-31-2306-14-2306-14-2307-06-2307-27-2308-10-2309-21-2109-28-2207-19-2207-27-2302-14-2303-03-2507-13-23Data Date: 10-08-19Run Date: 09-23-20All Activities Schedule - GibbonsActual Level of EffortActual WorkRemaining WorkCritical Remaining WorkMilestonesummaryProject ScheduleGibbons Creek Steam Electric StationTMPA - Asset Liability Transfer ProjectPage 4 of 4 GC0F393
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EXHIBIT B
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Gibbons Creek Steam
Generating Station Sale
January 26, 2021
ID 20-2507 460
Summary of Transaction
•Sale to Gibbons Creek Environmental Redevelopment Co. (Buyer)
•6200 acres including plant, CCR units and reservoir
•TMPA retains ownership of all transmission assets
•Buyer must decommission power plant and remediate all CCR unit to TCEQ/EPA standards
•Buyer provides independent financial security to TMPA for remediation/demolition and post closure period
•Certain land use limits imposed on CCR containing parcels
•Sale of Gibbons Creek represents a potential savings of $48.02 million to TMPA versus self-
performance
•Denton savings –$10.28 million
•Represents a FY 2021 savings of $1.823 million versus budget and $13.5 million versus five-year plan
•Environmental risk profile is significantly reduced
•All risk mitigated unless GCERG defaults
•Additional 10,000+ acres of mine land ultimately to be sold
•TMPA retains all transmission assets on plant site
•Denton pays $7.75 million to TMPA from FY 2021 budget
ID 20-2507 461
PUB Action Requested Today
•Approval of the Concurrent Ordinance
•The cities of Garland, Bryan and Greenville have approved
•City Council requested further information on future landuse
•Answers to questions provided in 1/15/21 Friday Report
•Land use must be in accordance with Grimes County regulations
•No zoning requirements, limited subdivision requirements
ID 20-2507 462
Questions
Bob Kahn –General Manager, TMPA
Terry Naulty –Asst. General Manager, DME
ID 20-2507 463
City of Denton
Legislation Text
City Hall
215 E. McKinney St.
Denton, Texas 76201
www.cityofdenton.com
File #:ID 20-1898,Version:1
AGENDA CAPTION
Consider nominations and appointments to the Downtown Denton Tax Increment Financing Reinvestment
Zone No. One Board (Downtown TIRZ), including appointment of a Board Chair.
City of Denton Printed on 1/23/2021Page 1 of 1
powered by Legistar™464
City of Denton
_____________________________________________________________________________________
AGENDA INFORMATION SHEET
DEPARTMENT: Economic Development
ACM/CFO: David Gaines
DATE: January 26, 2021
SUBJECT
Consider nominations and appointments to the Downtown Denton Tax Increment Financing
Reinvestment Zone No. One Board (Downtown TIRZ), including appointment of a Board Chair.
BACKGROUND
Under Ordinance No. 2010-316, which establishes the Downtown TIRZ and its Board of Directors, Board
membership shall be as follows:
1. Two Members shall be City Council Members.
2. Two Members shall be either property owners of property located within the Downtown TIRZ or
residents whose primary residence is located within the Downtown TIRZ.
3. Two Members shall be either business owners of businesses located within the Downtown TIRZ
or a member of the Denton Chamber of Commerce Board of Directors.
4. One Member shall be a qualified voter in the City of Denton.
Five positions are currently up for appointment as detailed in the chart below.
There are currently three vacancies for full terms (indicated in green above). Council Member Meltzer and
Ben Esely have indicated they wish to continue to serve in their roles on the Downtown TIRZ Board. Board
Member Ken Gold respectfully declined to be considered for reappointment.
In addition, there are two vacant unexpired terms (indicated in gold above). One seat was previously held
by Mayor Gerard Hudspeth when he was the District 1 City Council representative. The other seat is vacant
due to the resignation of Board Member John Lenz, who stepped down to focus on his business due to the
impacts of COVID-19.
Because the TIRZ Board has specific qualifications that must be met by board members, staff published a
specific Downtown TIRZ Board application. The application was provided to the City Council in the
Members Qualification Current Term
VACANT (prev. Gerard Hudspeth) City Council Member 2019-2021
Council Member Paul Meltzer City Council Member 2018-2020
Alex Payne Property Owner or Resident of Zone 2019-2021
Melissa Lenaburg (Chair) Property Owner or Resident of Zone 2019-2021
Ben Esely Business Owner 2018-2020
VACANT (John Lenz) Business Owner 2019-2021
VACANT (Ken Gold) Qualified Voter 2018-2020
City Hall
215 E. McKinney Street
Denton, Texas
www.cityofdenton.com
465
December 18, 2020 Friday Report, was sent to current Downtown TIRZ Board members, and was published
on the City’s website. The City received four applications which were provided to the City Council
separately. In addition, a breakdown of the applicants corresponding to which they are qualified is in the
table below.
Seat Term Eligible/Applications Received
City Council Member Unexpired term
2019-2021*
Council Member Connie Baker was indicated
as the preferred appointee during the Council’s
Committee discussion on Jan. 5, 2021.
City Council Member Full term
2020-2022
Council Member Paul Meltzer holds this seat
and is eligible for reappointment. Council
Member Meltzer has indicated he would be
willing to continue to serve and was indicated as
the preferred appointee during the Council’s
Committee discussion on Jan. 5, 2021.
Business Owner or Member of
the Denton Chamber of
Commerce Board of Directors
Full term
2020-2022
Ben Esely, owner of Bearded Monk, currently
holds this seat, is eligible for reappointment, and
has indicated he is willing to continue to serve.
Business Owner or Member of
the Denton Chamber of
Commerce Board of Directors
Unexpired term
2019-2021*
Position is open.
Applications received:
Marybeth Reinke Doyle, owner of Mulberry
Street Cantina
Jimmy Meredith, owner of Sweetwater Grill and
Tavern
Kevin Roden, owner of Ready Rosie
Qualified Voter Full term
2020-2022
Position is open.
Applications received:
Marybeth Reinke Doyle, qualified voter
Jimmy Meredith, qualified voter
Eric Pruett, qualified voter
Kevin Roden, qualified voter
*Note: The 2021 terms expire on Aug. 31, 2021.
Appointment of Board Chair
In addition, the City Council is required by statute (Ch. 311.009(f)) to appoint the TIRZ Board chair.
Melissa Lenaburg is currently the Board chair and has indicated she is willing to continue to serve in that
role.
466
EXHIBITS
1. Agenda Information Sheet
2. Presentation
Respectfully submitted:
Jessica Rogers
Director of Economic Development
467
Downtown Tax Increment Financing
Reinvestment Zone No. 1
Board Appointments
Jessica Rogers
Director of Economic Development
Jan. 26, 2021
120-1898 468
Background
•Consider appointments to the Downtown Denton Tax Increment Financing Reinvestment Zone No. One Board, including appointment of a chairperson.
•Section 311.009 (f) of the Tax Increment Financing Act states: Each year the governing body of the municipality or county that created the zone shall appoint one member of the board to serve as chairman for a term of one year that begins on January 1 of the following year.
•Ord. 2010-316 Section 4.a states that “members shall be appointed by City Council.”
•Section 4.b states the “City Council shall designate a member of the board to serve as chair of the board of directors.”
220-1898; Jan. 26, 2021
469
Background
•The Downtown TIRZ Board is structured as follows:
•Two (2) members shall be City Council Members.
•Two (2) members shall be either property owners or
residents from within the zone.
•Two (2) members shall be either business owners from
within the zone or Chamber of Commerce members.
•One (1) member has no specific category but must be a
qualified voter in the City of Denton.
320-1898; Jan. 26, 2021
470
Current Board
4
Members Qualification Current Term
VACANT (prev. Gerard Hudspeth)City Council Member 2019-2021
Council Member Paul Meltzer City Council Member 2018-2020
Alex Payne Property Owner or Resident of Zone 2019-2021
Melissa Lenaburg, Chair Property Owner or Resident of Zone 2019-2021
Ben Esely Business Owner 2018-2020
VACANT (prev. John Lenz)Business Owner 2019-2021
VACANT (prev. Ken Gold)Qualified Voter 2018-2020
*Terms noted as ending in 2021 end on Aug. 31, 2021.
20-1898; Jan. 26, 2021
471
Appointments for Consideration
5
*Terms noted as ending in 2021 end on Aug. 31, 2021.
20-1898; Jan. 26, 2021
Seat Term Eligible/Applications Received
City Council Member Unexpired
term
2019-2021*
Council Member Connie Baker was indicated as the preferred appointee
during the Council’s Committee discussion on Jan. 5, 2021.
City Council Member Full term
2020-2022
Council Member Paul Meltzer holds this seat and is eligible for
reappointment. Council Member Meltzer was indicated as the preferred
appointee during the Councils Committee discussion on Jan. 5, 2021.
Business Owner or Member of the
Denton Chamber of Commerce Board
of Directors
Full term
2020-2022
Ben Esely, owner of Bearded Monk, currently holds this seat, is eligible for
reappointment, and has indicated he is willing to continue to serve.
Business Owner or Member of the
Denton Chamber of Commerce Board
of Directors
Unexpired
term
2019-2021*
Applications received:
Marybeth Reinke Doyle, owner of Mulberry Street Cantina
Jimmy Meredith, owner of Sweetwater Grill and Tavern
Kevin Roden, owner of Ready Rosie
Qualified Voter Full term
2020-2022
Applications received:
Marybeth Reinke Doyle, qualified voter
Jimmy Meredith, qualified voter
Eric Pruett, qualified voter
Kevin Roden, qualified voter
472
Appointment of Board Chair
620-1898; Jan. 26, 2021
•Chapter 311.009(f): “Each year the governing body of the municipality or county that created the zone shall appoint one member of the board to serve as chairman for a term of one year that begins on January 1 of the following year. The board of directors may elect a vice-chairman to preside in the absence of the chairman or when there is a vacancy in the office of chairman. The board may elect other officers as it considers appropriate.”
•Melissa Lenaburg currently serves as the Board Chair and has indicated her willingness to continue to serve in that role.
473
Action Needed
Appointment of Board Members Appointment of Board Chair
•Melissa Lenaburg
•Other Board Member
720-1898; Jan. 26, 2021
Seat Eligible/Applications Received
City Council Member (Unexp. Term)Council Member Connie Baker
City Council Member (Full Term)Council Member Paul Meltzer
Business Owner or Member of the
Denton Chamber of Commerce
Board of Directors (Full Term)
Ben Esely
Business Owner or Member of the
Denton Chamber of Commerce
Board of Director (Unexp. Term)
Marybeth Reinke Doyle
Jimmy Meredith
Kevin Roden
Qualified Voter (Full Term)Marybeth Reinke Doyle
Jimmy Meredith
Eric Pruett
Kevin Roden
474
Questions?
820-1898; Jan. 26, 2021
475
City of Denton
Legislation Text
City Hall
215 E. McKinney St.
Denton, Texas 76201
www.cityofdenton.com
File #:ID 20-2550,Version:1
AGENDA CAPTION
Consider nominations/appointments to the City’s Economic Development Partnership Board.
City of Denton Printed on 1/23/2021Page 1 of 1
powered by Legistar™476
City of Denton
_____________________________________________________________________________________
AGENDA INFORMATION SHEET
DEPARTMENT: Economic Development
ACM/CFO: David Gaines
DATE: January 26, 2021
SUBJECT
Consider nominations/appointments to the City’s Economic Development Partnership Board.
BACKGROUND
The Economic Development Partnership Board (EDPB) is a 12-member (plus 3 ex-officio) body that advises
and makes recommendations to the Denton City Council and the Denton Chamber of Commerce Board of
Directors. EDPB is composed of the following representatives:
• Two members of the Denton City Council;
• Two members of the Denton Chamber of Commerce Board of Directors;
• Two members currently employed by a top 20 City of Denton ad valorem or sales taxpayer (must
reside in work in the city of Denton);
• One member shall be the President of UNT or his/her designee;
• One member shall be the President/Chancellor of TWU or his/her designee;
• One member with knowledge or experience in general aviation-related matters;
• One member shall be a citizen of the City of Denton who, in the discretion of the City Council, has
specific knowledge, skills, and abilities to assist in all or any one of the functions and responsibilities
of the Board;
• One member will be nominated by the Denton Black Chamber of Commerce Board of Directors;
• One member will be nominated by the Denton Hispanic Chamber of Commerce; and
• The City Manager, the President of the Chamber, and the Superintendent of Denton ISD serve as ad
hoc ex-officio (non-voting members).
The ordinance establishing the EDPB requires that the City Council appoint three (3) people to serve as a
Nominating Committee to select nominees for consideration of appointment. The Committee is made up of
two (2) City Council Members and one (1) member of the Chamber of Commerce. Mayor Chris Watts,
Council Member Paul Meltzer, and Chamber member Marty Rivers served as the 2020 Nominating
Committee.
There are currently two vacancies on the EDPB, a City Council member position, previously held by Council
Member Briggs, and a top 20 taxpayer position, previously held by Chris Davis of Peterbilt.
According to Ordinance No. 2017-203, “the Nominating Committee will solicit nominations, contact
nominees to relate duties and responsibilities, and to confirm the willingness to serve for all nominees. The
Committee will solicit recommendations from the Chamber Board of Directors, the President of UNT, the
President and Chancellor of TWU, the Denton Black Chamber of Commerce Board of Directors, and the
Denton Hispanic Chamber of Commerce Board of Directors. If any such recommendation is not submitted,
City Hall
215 E. McKinney Street
Denton, Texas
www.cityofdenton.com
477
the Committee will consider the racial, ethnic, and gender diversity objectives of the City Council, as well
as the knowledge skills, and abilities of the nominees to assist in any one or all of the functions of the Board
when making its nomination recommendations to the City Council. After evaluating the recommended
nominees, the Committee will present to the City Council a slate of Board nominees for City Council
approval.”
EDPB members serve two-year terms and may serve as many as three terms. For both vacant seats, the
appointees will serve the unexpired terms of their predecessors, which will end on Sept. 30, 2021.
Current EDPB Board Members
Member Category Term Expires
Lee Ramsey Chamber of Commerce 2022
John Baines, Chair Denton Black Chamber of Commerce 2021
Bob Eames Aviation 2021
Jill Jester, Vice Chair Chamber of Commerce 2021
VACANT (Keely G. Briggs) City Council 2021
Jesse Davis City Council 2022
Steve Edgar Top 20 Taxpayer 2022
VACANT (Chris Davis) Top 20 Taxpayer 2021
Neal Smatresk/Mark McLellan UNT President/designee 2022
Carine Feyten/Jason Tomlinson TWU Chancellor/designee 2022
Jimmy Mejia Denton Hispanic Chamber of Commerce 2022
Tony Clark At Large 2022
*The President of UNT and the Chancellor/President of TWU or his/her designee are not restricted to the
three-term limit. However, such member must be reappointed by City Council for each term.
On Jan. 12, 2021, the City Council appointed Mayor Gerard Hudspeth, Mayor Pro Tem Jesse Davis, and
Chamber Board Member Marty Rivers to serve as the 2021 Nominating Committee. The Nominating
Committee met on Jan. 14.
The Nominating confirmed the willingness to serve of each nominee and offers the following slate of
nominees to the City Council:
• Mayor Gerard Hudspeth
o Mayor Hudspeth would fill the unexpired term of former Council Member Keely Briggs.
• Tina Albert
o Tina Albert of Peterbilt/PACCAR would fill the unexpired term of Chris Davis. She is the
new plant manager at the Denton Peterbilt plant, and has previously served in other positions
with PACCAR in Texas, Mississippi, and Washington. Ms. Albert holds a Bachelor of
Science in Accounting and is a Certified Public Accountant. She will complete her MBA
from Texas Christian University in May 2021.
PRIOR ACTION/REVIEW (Council, Boards, Commissions)
Jan. 12, 2021 – Council selected the EDPB Nominating Committee.
Jan. 14, 2021 – The Nominating Committee met and selected nominees.
478
EXHIBITS
1. Agenda Information Sheet
2. EDP Board Ordinance (No. 2017-203)
3. Presentation
Respectfully Submitted,
Jessica Rogers
Director of Economic Development
479
ORDINANCE NO.
2017-203
AN ORDINANCE REPEALING ORDINANCE NO. 2003-258, AND SUBSEQUENT
AMENDMENTS UNDER ORDINANCE NO. 2011-042, ORDINANCE NO. 2014-009,
ORDINANCE NO. 2015-074, AND ORDINANCE NO. 2016-249, RELATING TO THE
CREATION, APPOINTMENTS, AND DUTIES OF THE ECONOMIC DEVELOPMENT
PARTNERSHIP BOARD (THE "BOARD") AND REPLACING THESE ORDINANCES WITH
THIS ORDINANCE RELATING TO THE CREATION, APPOINTMENTS, AND DUTIES OF
THE ECONOMIC PARTNERSHIP BOARD IN ORDER TO CLARIFY THE
QUALIFICATIONS AND LIMITATIONS OF BOARD MEMBERS; AMENDING THE
DENTON CODE OF ORDINANCES, CHAPTER 2, ARTICLE IX; AND PROVIDING FOR A
REPEALER AND CONFLICT CLAUSE AND AN EFFECTIVE DATE.
WHEREAS, in 2003, the City Council of the City of Denton, Texas, determined that is
was beneficial and in the public interest to establish an Economic Development Partnership Board
to provide economic development policy guidance for the City and adopted Ordinance No. 2003-
258 (the "Ordinance"), which ordinance was codified in the Denton Code of Ordinance, Chapter
2, Article IX; and
WHEREAS, in 2011, the City Council amended the Ordinance by adopting Ordinance No.
2011-042 in order to add two seats to the Board, consisting of an at -large position and a position
for a member with general knowledge ofor experience in general aviation, and to expand the duties
of the Board to include branding and marketing for Denton Municipal Airport; and
WHEREAS, in 2014, the City Council amended the Ordinance by adopting Ordinance No.
2014-009in order to add the Superintendent of the Denton Independent School District as an ad
hoc non-voting member of the Board; and
WHEREAS, in 2015, the City Council amended the Ordinance by adopting Ordinance No.
2015-074 in order to add two seats to the Board, one for a representative nominated by the Denton
Black Chamber of Commerce Board of Directors and one for a representative nominated by the
Denton Hispanic Chamber of Commerce Board of Directors; and
WHEREAS, in 2016, the City Council amended the Ordinance by adopting Ordinance No.
2016-249 in order to add one seat to the Board for the Chancellor and President of Texas Woman's
University; and
WHEREAS, in 2017, the City Council determined that it is beneficial and in the public
interest to repeal the Ordinance and subsequent amendments in order to clarify and refine the
Board member qualifications, terms, duties, and responsibilities; NOW THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION11. Findings.
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The findings contained in the preamble of this Ordinance are incorporated into the body of
this Ordinance.
SECTION 2. The Code of Ordinances of the City of Denton, Chapter 2, Article IX is
hereby amended by deleting it in its entirety and replacing it with the following:
ARTICLE IX. ECONOMIC DEVELOPMENT PARTNERSHIP BOARD
Sec. 2-251. Creation, Members, Qualifications, and Tenure.
A. There is hereby created a City of Denton board entitled the Denton Economic
Development Partnership Board (the "Board"). The Board shall consist of twelve members. Six
members shall be appointed for a two-year term in even -numbered years, and six members shall
be appointed for a two-year term in the odd -numbered years. No member shall serve more than
three consecutive terms; members who have served three consecutive terms are eligible for re-
nomination after one year off the Board. The President of the University of North Texas ("UNT")
and the Chancellor of Texas Woman's University ("TWU") or his or her designee may serve
unlimited terms but must be re -nominated upon the expiration of each term.
B. The Board members shall be appointed by the City Council and shall serve at the
City Council's pleasure. To aid the City Council in making appointments to the Board, the City
Council will appoint two City Council members and one Chamber of Commerce ("Chamber")
member to act as a nominating committee ("Committee"). The Committee members are qualified
for appointment to the Board. The Committee will solicit nominations, contact nominees to relate
duties and responsibilities, and to confirm willingness to serve. The Committee will solicit
recommendations from the Chamber Board of Directors, the President of UNT, the President and
Chancellor of TWU, the Denton Black Chamber of Commerce Board of Directors, and the Denton
Hispanic Chamber of Commerce Board of Directors. If any such recommendation is not submitted,
the Committee will consider the racial, ethnic, and gender diversity objectives of the City Council,
as well as the knowledge, skills, and abilities of the nominees to assist in any one or all of the
functions of the Board when making its nomination recommendations to the City Council. After
evaluating the recommended nominees, the Committee will present to the City Council a slate of
Board nominees for City Council approval.
C. Notwithstanding anything contained herein to the contrary, the membership
makeup ofthe Board shall consist of the following:
1. Two members of the Board shall be City Council members at the time of their
appointment. If such a member is no longer on the City Council, their
appointment to the Board is terminated and their unexpired term shall be filled
by a currently serving City Council member. Such members must be residents
ofthe City of Denton.
2. Two members of the Board shall be members of the Denton Chamber of
Commerce Board of Directors ("Chamber Board"), which are nominated by the
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481
Chamber Board, at the time of their appointment. If such a member is no longer
on the Chamber Board, their appointment to the Board is terminated and their
unexpired term shall be filled by a currently serving Chamber Board member.
Such members must reside or work in the City of Denton.
3. Two members will be, or must be currently employed by, a top 20 City of
Denton ad valorem or sales tax payer. Such members must reside or work in
the City of Denton. If such a member is no longer a top 20 City of Denton
taxpayer or employed by one, their appointment to the Board is terminated and
their unexpired term shall be filled by a current City of Denton top 20 taxpayer
or City of Denton top 20 taxpayer employee.
4. One member will be the President of UNT or a UNT faculty or staff member
designated by the President. Such member need not reside in the City ofDenton.
5. One member will be the Chancellor and President of TWU or a TWU faculty
or staff member designated by the Chancellor and President. Such member need
not reside in the City of Denton.
6. One member will have knowledge or experience in general aviation -related
matters and shall have no financial interest in matters at the Denton Enterprise
Airport. This member must reside or work in the City of Denton.
7. One member will be a citizen of the City of Denton who, in the discretion of
the City Council, has specific knowledge, skills, and abilities to assist in all or
any one of the functions and responsibilities ofthe Board.
8. One member will be nominated by the Denton Black Chamber of Commerce
Board of Directors. This member must reside or work in the City of Denton.
9. One member will be nominated by the Denton Hispanic Chamber of
Commerce. This member must reside or work in the City of Denton.
10. The City Manager, the President ofthe Chamber, and the Superintendent of the
Denton Independent School District will serve as ad hoc ex officio (non-voting)
members of the Board.
D. The Board shall elect its chairperson and vice -chairperson from among its members,
who shall serve for one-year terms or until his or her successor is elected or qualified.
The Board may remove and reelect a chairperson or vice -chairperson at any time with
an affirmative vote of at least 10 members.
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482
E. Board members shall serve without compensation. Board members may be allowed
out-of-pocket expenses for activities performed in furtherance of their duties to the
Board. Such expenses must be pre -approved by the City Manager if paid for out of City
funds, or the Chamber President ifpaid for out of Chamber funds.
Sec. 2-252. Meetings.
The Board shall meet on a regular basis and no less than on a quarterly basis. Monthly
meetings are encouraged. The chairperson, vice -chairperson, or any five Board members may call
any regular or special meeting. Notice of the meetings shall be posted and the meetings shall be
conducted in accordance with the Texas Open Meetings law, being Chapter 551 ofthe Government
Code, as amended. A majority of the qualified voting members of the Board shall constitute a
quorum for the transaction of business at any meeting of the Board. The act of a majority of the
qualified voting members of the Board present at a meeting at which a quorum is present shall be
the act of the Board.
Sec. 2-253. Rules of Procedure.
The Board shall adopt rules of procedure governing the operation of the Board
incorporating Section 2-29 of City Council Rules of Procedure insofar as it is possible.
Sec. 2-254. Duties and Responsibilities of the Board.
The role of the Board is to provide economic development policy guidance. The Board
may make recommendations to the City Council and Chamber Board of Directors. The Board's
duties include:
A. The Board may create committees or task forces consisting of Board members and/or
non -Board members to assist with the implementation of projects or activities.
Committee or task force chairpersons shall be appointed by the Board and will serve at
the pleasure of the Board.
B. The Board will be responsible for designing economic development incentive policies
and recommending those policies to the City Council for adoption. These policies may
include tax abatement, Chapter 380 agreements, infrastructure assistance, etc. In
making any recommendations, the Board shall comply with applicable law. It will be
the Board's responsibility to review policies of other cities and to be informed as to
legislative changes affecting state and local incentive programs.
C. The Board shall act as the recommending body to the City Council for economic
development incentives authorized by law for specific projects, including without
limitation tax abatements and incentives authorized under Chapter 312 ofthe Tax Code,
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483
economic development agreements authorized under Chapter 380 of the Local
Government Code, public improvement districts authorized under Chapter 372 of the
Local Government Code, and certain Downtown Reinvestment Grants under
Ordinance No. 2012-001. However, utility incentives based on thresholds, such as
Denton Municipal Electric's Economic Growth Rider and the Water/Wastewater Plan
Line Extension may be made without Board review or recommendation. Nothing
herein shall be construed so as to invalidate an economic development incentive
authorized by the City Council that did not receive a recommendation from the Board.
D. The Board will review, consider, and make recommendations to the City Council
regarding marketing and branding for the Denton Enterprise Airport. The Board will
review, consider, and make recommendations to the City Council regarding Denton
Enterprise Airport incentive policies, as assigned by the City Council or requested by
the City Manager, and will act as a recommending body to the City Council for specific
airport economic development incentives, as assigned by City Council or requested by
the City Manager and permitted by City and State law."
SECTION 3. Ordinances 2003-258, 2011-042, 2014-009, 2015-074, and 2016-249 are
hereby repealed and are replaced with this Ordinance provided, however, that the repeal of any
such ordinance or code or part thereof shall not revive any other section or part of any ordinance
or code heretofore repealed or superseded. This ordinance supersedes any provision in any City
ordinance that is in conflict with this ordinance including without limitation any conflicting
provisions of Sections 2-61 through 2-65 of the Code of Ordinances of the City of Denton.
SECTION 4. This ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the day of 2017.
CHRIS WATTS, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:.... A' .....
APPR( l D AS T LEGAL FORM:
AARON EAL, INTERIM CITY ATTORNEY
484
Economic Development Partnership Board
Appointments
Jessica Rogers
Director of Economic Development
Jan. 26, 2021
City Council Meeting
120-2550; Jan. 26, 2021 485
Objective
•Consider nominations and appointments to the
Economic Development Partnership Board.
220-2550; Jan. 26, 2021
486
Background
•EDPB is appointed by Council and serves as an advisory body on economic development related matters.
•Members fall into specific categories:
•2 each City Council, Chamber of Commerce Board of Directors, and top 20 taxpayers in the City of Denton
•1 UNT
•1 TWU
•1 Denton Black Chamber of Commerce
•1 Denton Hispanic Chamber of Commerce
•1 aviation
•1 at-large
•Terms are two-years; members can serve up to three terms.
320-2550; Jan. 26, 2021
487
Nominating Process
•Council appoints a nominating committee.
•2 Council members
•1 Chamber member
•Nominating committee confirms candidates’ eligibility and willingness to serve and compiles slate of nominees.
•Slate is presented to Council for a vote.
•Jan. 12, 2021: Council appointed Mayor Gerard Hudspeth, Mayor Pro Tem Jesse Davis, and Chamber member Marty Rivers as the 2021 Nominating Committee
420-2550; Jan. 26, 2021
488
Nominees
•Mayor Gerard Hudspeth, City Council representative
•Mayor Hudspeth would fill the unexpired term of former Council Member
Keely Briggs.
•Tina Albert, Top 20 Taxpayer (Peterbilt) representative
•Tina Albert would fill the unexpired term of Chris Davis. She is the plant
manager at the Denton Peterbilt plant.
520-2550; Jan. 26, 2021
If approved, the slate of nominees will serve the unexpired terms of their predecessors, from
appointment to Sept. 30, 2021.
489
Questions?
620-2550; Jan. 26, 2021
490
City of Denton
Legislation Text
City Hall
215 E. McKinney St.
Denton, Texas 76201
www.cityofdenton.com
File #:ID 21-029,Version:1
AGENDA CAPTION
Consider nominations/appointments to the City’s Boards,Commissions,and Committees:Airport Advisory
Board,Animal Shelter Advisory Committee,Board of Ethics,Committee on Persons with Disabilities,
Community Development Advisory Committee,Health &Building Standards Commission,Human Services
Advisory Committee,Library Board,Parks,Recreation &Beautification Board,Planning &Zoning
Commission,Public Art Committee,Public Utilities Board,Traffic Safety Commission,and Zoning Board of
Adjustment.
City of Denton Printed on 1/23/2021Page 1 of 1
powered by Legistar™491
City of Denton
_____________________________________________________________________________________
AGENDA INFORMATION SHEET DEPARTMENT: City Manager’s Office
ACM: Sara Hensley DATE: January 26, 2021
SUBJECT
Consider nominations/appointments to the City’s Boards, Commissions, and Committees: Airport Advisory Board, Animal Shelter Advisory Committee, Board of Ethics, Committee on Persons with Disabilities, Community Development Advisory Committee, Health & Building Standards Commission,
Human Services Advisory Committee, Library Board, Parks, Recreation & Beautification Board, Planning
& Zoning Commission, Public Art Committee, Public Utilities Board, Traffic Safety Commission, and Zoning Board of Adjustment. BACKGROUND
On January 4, 2021, the 2020-2022 Boards & Commissions Screening & Appointment Process was presented and discussed with the City Council. This item is the first step in appointing members. Exhibit 2 includes those seats for the above-noted Boards, Commissions, and Committees for whom
nominations have been received, nominees fully vetted and found to meet all necessary qualifications to
serve on the respective board/commission/committee. As previously discussed, only those nominees who have been fully vetted and qualified will be presented for appointment. This is not a complete listing of nominees received to date as the vetting is still in progress for some or
(re)nominations have not been received.
EXHIBITS Exhibit 1 – Agenda Information Sheet
Exhibit 2 – Nominations Sheet
Respectfully submitted: Rosa Rios City Secretary
City Hall 215 E. McKinney Street Denton, Texas www.cityofdenton.com
492
BOARD/COMMITTEE/COMMISSION COUNCIL
PLACE
NOMINATING
CCM
MEMBER
FIRST NAME PRESENT TERM NEW TERM
STATUS &
QUALIFICATION OR
PREFERENCE, IF ANY
Airport Advisory Board 3
Davis-3
[Orig. - Duff]Ed Ahrens 2018-2020
September 1, 2020
through
August 31, 2022
Reappointment
Animal Shelter Advisory Committee 1
Johnson-1
[Formerly
Hudspeth]
Charlie Hunter 2018-2020
September 1, 2020
through
August 31, 2022
Reappointment
Animal Shelter Advisory Committee 2 Baker-2 Randi Weinberg 2018-2020 - UN
September 1, 2020
through
August 31, 2022
Reappointment
Qualif. 3 - City Official
Board of Ethics 3
Davis-3
[Orig. - Duff]Don Cartwright 2018-2020
September 1, 2020
through
August 31, 2022
Reappointment
Qualif. 1 - Attorney
Committee on Persons with Disabilities 3 Davis-3 Joe Rivas 2018-2020 - UN
September 1, 2020
through
August 31, 2022
Reappointment
Community Development Advisory Committee 3 Davis-3 Doray Hill Jr. 2018-2020 - UN
September 1, 2020
through
August 31, 2022
Reappointment
Health & Building Standards Commission 2 Baker-2 David Mollen 2018-2020
July 1, 2020
through
June 30, 2022
Reappointment
Qualif. 4 - Associated
w/construction,
development or real estate
Human Services Advisory Committee 2 Baker-2 Gretchen Busl 2018-2020
September 1, 2020
through
August 31, 2022
Reappointment
Human Services Advisory Committee ALL-2 Baker-2 Hannah Garcia 2018-2020
September 1, 2020
through
August 31, 2022
Reappointment
Library Board 3
Davis-3
[Orig. - Duff]Jean Greenlaw 2018-2020 - UN
September 1, 2020
through
August 31, 2022
Reappointment
Library Board 5 Armintor-5 Vicki Byrd N/A
UNEXPIRED
September 1, 2020
through
August 31, 2022
New
Parks, Recreation & Beautification 3
Davis-3
[Orig. - Duff]Alana Presley Taylor 2018-2020
September 1, 2020
through
August 31, 2022
Reappointment
Parks, Recreation & Beautification 5 Armintor-5 George Ferrie 2018-2020
September 1, 2020
through
August 31, 2022
Reappointment
Planning & Zoning Commission 3
Davis-3
[Orig. - Duff]Jason Cole 2018-2020
September 1, 2020
through
August 31, 2022
Reappointment
Public Art Committee 3 Davis-3 Joey Liechty N/A
UNEXPIRED
September 1, 2020
through
August 31, 2022
New
Public Utilities Board 3 Davis-3 Lee Riback N/A
UNEXPIRED
September 1, 2020
through
August 31, 2024
New
Traffic Safety Commission 1
Johnson-1
[Formerly
Hudspeth]
Daniel Krutka 2018-2020
September 1, 2020
through
August 31, 2022
Reappointment
Traffic Safety Commission 2 Baker-2 Melissa Carr 2018-2020
September 1, 2020
through
August 31, 2022
Reappointment
Zoning Board of Adjustment 2 Baker-2 Amber Briggle 2018-2020
September 1, 2020
through
August 31, 2022
Reappointment
Zoning Board of Adjustment ALL - ALT. 3
Baker-2
[Previously
Briggs-2]
Kathryn (Kate) Lynass 2018-2020 - UN
September 1, 2020
through
August 31, 2022
Reappointment
BOARDS & COMMISSIONS ‐ NOMINATIONS LIST
January 26, 2021
493