Minutes April 9, 1996302
CITY OF DENTON CITY COUNCIL MINUTES
April 9, 1996
The Council convened into a Closed Meeting on Tuesday, April 9,
1996 at 5:15 p.m. in the Civil Defense Room of CitY Hall.
PRESENT: Mayor Castleberry; Mayor Pro Tem Biles; Council Members
Brock, Cott, Krueger, Miller and Young.
ABSENT: None
1. The Council convened into a Closed Meeting to discuss the
following:
A. Legal Matters -- Under TEX. GOV'T CODE Sec. 551.071
1. Considered settlement of Carreiro claim.
B. Real Estate -- Under TEX. GOV'T CODE Sec. 551.072
Discussed the acquisition of property for expansion
of the city's landfill and wastewater treatment
plant.
Ce
Personnel/Board Appointments -- Under TEX. GOV'T CODE
Sec. 551.074
Deliberated and considered the appointment of the
Board of Directors of the Economic Development
Corporation of Denton, Inc.
The Council convened into a Work Session on Tuesday, April 9, 1996
at 6:00 p.m. in the City Council Chambers of City Hall.
PRESENT: Mayor Castleberry; Mayor Pro Tem Biles; Council Members
Brock, Cott, Krueger, Miller and Young.
ABSENT: None
1. The Council received a report, held a discussion with staff,
the consultant, and the Planning and Zoning Commission concerning
the re-write of the zoning ordinance.
Frank Robbins, Director of Planning and Development, stated that
there w~re a number of detail~ to work through on this i~sue.
Since 1989 there had been a number of amendments to the zoning
Ordinance. One of the recommendations of the Planning and Zoning
Commission was to continue to phase in the rewrite.
Summary - Mixed Use Districts, grandfathering zoning, bufferyards,
and phasing. Recommendations from the Planning and Zoning
Commission included that Phase I should continue to review the re-
write and incorporate no-glare standards into the current
supplementary regulation section and refer the mixed use district
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Page 2
to the Development Policy Committee. Phase II suggested that after
the Planning and Zoning Commission made a Phase I ordinance
recommendation, it begin to revise the landscape ordinance
including bufferyard standards, requiring bufferyards for all new
development in five years and review new non-residential districts
using the new standards. Phase III included that the Development
Policy Committee would make the MDX and DDP policy recommendations
to the Planning and Zoning Commission and the Council.
Mayor Castleberry indicated that the Council could not take a vote
on these items but could take a consensus.
Robbins stated that without Council objection, staff would write
the ordinance as proposed.
Consensus of the Council was to proceed with the summary
recommendations as noted above.
Issue (4) Planned Development. Staff was proposing to follow all
eight recommendations as noted on Page 23-24 in the agenda back-up
information. Recommendation 7 and 8 dealt with expiring planned
development districts and old planned development districts which
were undeveloped. One issue dealt with how long a development plan
or a detailed plan would be good. The current standard was ten
years. If the planned development was not developed over that
period of time, that type of zoning might be a problem for
adjoining development and would be out of context in the future.
It had been suggested to shorten that period of time to ten years
for a development plan and a detailed plan to two years. Once any
part of the development plan or detailed plan was built it would be
good forever and could not expire.
Mayor Castleberry asked if the ten years was a recommendation of
the Planning and Zoning Commission.
Robbins stated that the Commission had not made a recommendation at
this point in time. A concept plan or development plan currently
was good for ten years unless a detailed plan was submitted. If a
detailed plan was not submitted, it expired in ten years. The
issue was to decrease that amount of time. A detailed plan, when
approved, was good for two years before something was built on it.
After two years, if anything was built, the plan would stay in
effect permanently. The issue was should any part of the
undeveloped detailed plan continue to expire.
Bob Powell, Planning and Zoning Commission, stated that the
Commission did not take a vote on this issue but there was a
consensus that the current time frames were appropriate.
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Mayor Pro Tem Biles stated that once construction or improvements
had been placed on a detailed plan, then the entire plan had a
permanent application. He questioned the paragraph dealing with
inappropriate zoning and the requirement of a super majority vote
of the Council if protested by 20% of the land within the area.
Robbins replied that State law indicated that if 20% of the land
within the area being zoned protested that rezoning, a super
majority of Council was required or if 20% of the land within 200
feet was protested by the owners.
Consensus of the Council was to follow the ten-two plan.
Issue (5) Design Guidelines. Staff recommendation was to delete the
Design Guidelines as written from the zoning ordinance re-write.
Some of the guidelines would be added into the Planned Development
section as detailed plan criteria as recommended by the consultant.
Consensus of the Council was to proceed with the recommendation.
Issue (6) - Historic Landmark Ordinance. The Historic Landmark
Commission recommended that no changes be made at this point in
time and may make recommendations at a later date.
Consensus of the Council was to accept the recommendation.
Issue (7) - Farms in SF, 2F and MF districts. The staff
recommendation was to regulate directly the impacts of animals.
Farms and ranches, including grazing, would be allowed in most
zoning districts as was done now and to make no change to the
current standards.
Consensus of the Council was to proceed with the staff
recommendation.
(8) Cumulative residential zoning. The issue was if single family
homes should be allowed in a multi-family and manufactured housing
district. The staff recommendation was to make no change in the
current regulations.
Consensus of .the Council was to proceed with the staff
recommendation.
Issue (9) Cumulative non-residential zoning. The issue was if low
intensity non-residential uses would be allowed in the new Heavy
Environmental Impact district. The staff recommendation was to
delete some uses and develop new non-residential districts with
narrower and shorter lists of less cumulative, more compatible
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April 9, 1996
Page 4
permitted uses as part of Phase II.
Mayor Castleberry stated that the Planning and zoning Commission
had not had the opportunity to discuss the last several
recommendations.
Robbins replied correct.
Mayor Pro Tem Biles stated that on the issue of whether to allow a
single family home in a multifamily district, his opinion way that
if an individual wanted a detached home in a multifamily area, he
should be allowed to do so. It was di£ferent if an individual
wanted to place apartments in the middle of a single family
detached area.
Consensus of the Council was that the Council was not interested in
the recommendation to narrow the current regulations.
Issue (10) Heavy Environmental Impact zoning adjacent to
residential zoning. Staff's recommendation was that if the Heavy
Environmental Impact zoning classification was sought for a tract
of land adjacent to a residential use or district, the City should
impose conditions and restrictions on such pursuant to the
provisions contained in the conditioned zoning section.
Consensus of the Council was to proceed with the staff
recommendation.
Issue (11) - Major activity center Denton Development Plan, Single
Family policy and the Central Business district's permitted uses.
Staff was recommending to continue to allow single family use in
that unique area of the downtown area.
Consensus of the Council was to proceed with the staff
recommendation.
Issue (12) - Specific use permits. The current ordinance required
the same public hearings and notice to landowners within 200 feet
before Planning and zoning Commission and in the newspaper before
Council's pubic hearings, the same way as for a rezoning amendment.
Staff recommendations were to clarify the ordinance that SUP's were
not zoning map changes or rezonings, continue the current decision
making process with notice, state that the super majority rule did
not apply and state that a denied SUP could not be considered again
for 12 months unless a more restrictive SUP was applied for, or
Planning and Zoning Commission or Council found that conditions
changed from those at the time of the earlier application.
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Mayor Pro Tem Biles stated that he liked the original
recommendation that the super majority rule did not apply on a
specific use permit because a specific use permit was not a zoning
change.
Council Member Brock stated that technically a specific use permit
was not a zoning change. If that use went away, the land retained
the original zoning. However, a specific use permit did have the
same impact as a zoning change. She asked what the State law
indicated in this area.
Terry Morgan, consultant for Morgan, Freilich, Leitner and
Carlisle, stated that State law was silent on the particular
impacts on what to do in terms of a specific use permit. He knew
of nothing to distinguish a specific use permit from a zoning
amendment as it might just as well be called a zoning amendment.
The problem with that was that it could be challenged as spot
zoning.
Robbins stated that staff was recommending that the super majority
would apply for specific use permits.
Consensus of the Council was to keep the language as suggested by
staff.
Issue (13) - Number of members on the Board of Adjustment. The
staff recommendation was to continue the existing membership
number, appoint two alternates as ex-officio members who would
attend all meetings, and delegate by ordinance that alternate
members would serve in the absence of a regular member at the
request of the chair, rather than the Mayor or City Manager.
Mayor Pro Tem Biles stated that there were a number of boards and
commissions on which certain Council Members did not have an
appointment. He asked for more information and discussion about
having a seven member Board of Adjustment.
Consensus of the Council was change to the membership number to
seven members.
Issue (14) - Changes to Non-Conforming uses. The current ordinance
allowed the Building Official or the Board of Adjustment to allow
a more restrictive but still non-conforming use to occur in a non-
conforming building, but with different conditions. The staff
recommendation was to retain the Building official's authority but
with the more detailed conditions and change the 50% damage rebuild
section.
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April 9, 1996
Page 6
Consensus was to proceed as recommended.
Issue (15) Non-Conforming Abandonment. since the Zoning ordinance
Task Force made its recommendations, staff discovered a problem
with the current criteria for determining whether non-conforming
use rights were lost. The current criteria required intent to
abandon as a necessary criteria for loss of non-conforming rights.
The intent of an owner could for many reasons be impossible to
discern or it might change. The consultant recommended that
whenever a nonconforming use was abandoned, all nonconforming
rights would cease and the use of the premises would be in
conformance to the ordinance. A non-conforming use would be
considered abandoned if the intent of the user or owner to
discontinue the non-conforming use was apparent, the characteristic
equipment and furnishings of the non-conforming use had been
removed from the premises and had not been replaced by similar
equipment within six months, the non-conforming building,
structure, or land had remained vacant for a continuous six months,
and the non-conforming use had been replaced by a conforming use.
Consensus of the Council was to proceed with the recommendation.
Issue (16) - Zoning change petition to Planning and Zoning
Commission. Staff recommendation was to add the Planning and
Zoning Commission to whom a petitioner could petition to for a
zoning district or regulation change.
Consensus of the Council was to proceed with staff recommendation.
Issue (17) Denied rezoning waiting period conditions. Staff
recommendation was to add to the planned development provision not
to require a 12 month wait before submitting another application on
property with a denied zoning case, more restrictive conditions of
a conditioned zoning petition. Also, in a case where there was
withdrawal after the Planning and Zoning Commission public hearing
when the Planning and Zoning Commission recommended denial and
there was no appeal to the Council, the 12 month wait would be
triggered. The current ordinance stated that if the Planning and
Zoning Commission recommended denial, the applicant must apply
within ten days in writing for an appeal to Council.
Morgan pointed out that the purpose of Issue #9 was to not impede
economic development but was just the opposite. If an incompatible
use was allowed in the heavy industrial area, those uses might try
to keep out a heavy industrial use and if the heavy use was
authorized, there could be complaints with that use. The land
might be tied up with other uses if low intensity uses occupied the
area first.
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City of Denton City Council Minutes
April 9, 1996
Page 7
The Council convened into a Special Call Meeting on Tuesday, April
9, 1996 at 7:30 p.m. in the Council Chambers of City Hall.
PRESENT: Mayor Castleberry; Mayor Pro Tem Biles; Council Members
Brock, Cott, Krueger, Miller and Young.
ABSENT: None
1. Presentation by Paul J. Cowan.
Mr. Cowan stated that several weeks ago he was in eastern Kentucky
and discovered a book entitled "It's Hard to Make a Living on a
Mayor's Salary". He presented the book to Mayor Castleberry plus
a cap from the City of Olive Hill, Kentucky.
2. The Council considered a request for exception to the noise
ordinance for the Denton Gospel Mission on Thursday, April 11,
1996, from 6:30 p.m. until 12:00 midnight.
Veronica Rolen, Administrative Assistant, stated that the Denton
Gospel Mission was requesting an exception to the noise ordinance
for April 11, 1996. Their event was scheduled to take place on Fry
and Hickory Streets from 6:30 p.m. to midnight. There was a street
closure associated with six parking spaces in which all of the
property owners had signed in favor of the closure.
Krueger motioned, Young seconded to approve the request. On roll
vote, Miller "aye", Young "aye", Cott "aye", Krueger "aye", Brock
"aye", Biles "aye", and Mayor Castleberry "aye". Motion carried
unanimously.
Item #9 was considered.
9. The Council received recommendations and annual report from
the Juvenile Crime Interagency Coalition.
Margaret Smith, Chair, stated that the Coalition had a requirement
to provide an annual report to Council. The Coalition had had
great successes in th~ past year.
Tom Josey, Court Administrator, stated that the Coalition was
making a recommendation to the Council to execute an agreement with
"Contracts and Bonuses" which was a counseling program for
juveniles. Funding should be coming from a grant program. The
Coalition also recommended to continue to search for grant sources,
programs and ideas. The combining of two groups currently
servicing juvenile programs was suggested and the Coalition asked
the Council to defer appointing members until the Coalition had a
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April 9, 1996
Page 8
recommendation on how to combine the tWO groups. The Coalition
secured a Title V grant for juvenile preVention and the two grants
received would service juveniles for twoyears. Total grant money
to be received was approximately $399,000 which were external
funds. By leveraging the County, City and DISD cooperation,
facilities were used which would not cost the program but for which
the internal component value was $300,000.
The Council returned to the regular agenda order.
3. Public Hearings
A. The Council held a public hearing and considered adoption
of an ordinance to rezone 0.9485 acres from the Single Family 7
(SF-7) zoning district to the Commercial (C) zoning district and
Multi-Family i (MF-1) zoning district. The property was located on
the north side of Dallas Drive, at the intersection of Cook Street.
Z-96-009 (The Planning and Zoning Commission recommended approval
?-0. )
Frank Robbins, Director for Planning and Development, stated that
this was a rezoning to the commercial and multi-family district. It
was anticipated that the property would be used as an auto parts
supply store. This proposal was in a low intensity area but given
the adjacent uses and because the infrastructure was in place, the
Planning and Zoning Commission recommended approval.
The Mayor opened the public hearing.
Joe Dodd stated that this item was incorrectly shown on the zoning
map as commercial. The back-up information indicated that the
official zoning map would be changed to show the correction in the
zoning classification. He hoped that this indicated that someone
was reviewing the zoning map and was preparing an official zoning
map of the City. ~
Rob Rayner stated that the petitioners had a neighborhood meeting
with individuals in the area. An Auto Zone would be built on the
property.
The Mayor closed the public hearing.
The following ordinance was considered:
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Page 9
NO. 96-087
AN ORDINANCE OF THE CITY OF DENTON, TEXAS, PROVIDING FOR A
CHANGE FROM THE SINGLE FAMILY 7 (SF-7) ZONING DISTRICT
CLASSIFICATION AND USE DESIGNATION TO THE COMMERCIAL (C)
ZONING DISTRICT CLASSIFICATION AND USE DESIGNATION FOR 0.9382
ACRES OF LAND, AND FROM THE SINGLE FAMILY 7 (SF-7) ZONING
DISTRICT CLASSIFICATION AND USE DESIGNATION TO THE MULTI-
FAMILY 1 (MF-1) ZONING DISTRICT CLASSIFICATION AND USE
DESIGNATION FOR 0.0103 ACRES OF LAND LOCATED ON THE NORTH SIDE
OF THE INTERSECTION OF DALLAS DRIVE AND COOK STREET; PROVIDING
FOR A PENALTY IN THE MAXIMUM AMOUNT OF $2,000.00 FOR
VIOLATIONS THEREOF; AND PROVIDING FOR AN EFFECTIVE DATE.
Krueger motioned, Young seconded to adopt the ordinance. On roll
vote, Miller "aye", Young "aye", Cott "aye", Krueger "aye", Brock
"aye", Biles "aye", and Mayor Castleberry "aye". Motion carried
unanimously.
B. The Council held a public hearing and considered adoption
of an ordinance to rezone 3.1176 acres from the Agricultural (A)
zoning district to the Commercial (C) zoning district. The
property was located on the north side of University Drive (US
380), 580 feet west of Cooper Creek Road. Z-96-006 (The Planning
and Zoning Commission recommended approval 7-0.)
Frank Robbins, Director for Planning and Development, stated that
this was zoning for the existing use. There was a need for
expansion on the property and it was discovered that the property
was actually zoned agricultural. There was no opposition to the
proposal. The applicant would not make a presentation but was
present if there were any Council questions.
The Mayor opened the public hearing.
No one spoke during the public hearing.
The Mayor closed the public hearing.
The following ordinance was considered:
NO. 96-088
AN ORDINANCE OF THE CITY OF DENTON, TEXAS, PROVIDING FOR A
C~L~NGE FROM THE AGRICULTURAL (A) ZONING DISTRICT
CLASSIFICATION AND USE DESIGNATION TO THE COMMERCIAL (C)
ZONING DISTRICT CLASSIFICATION AND USE DESIGNATION FOR 3.1176
ACRES OF LAND LOCATED ON THE NORTH SIDE OF UNIVERSITY DRIVE
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City of Denton city Council Minutes
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Page 10
(U.S. 380), 580 FEET WEST OF COOPER!CREEK ROAD; PROVIDING FOR
A PENALTY IN THE MAXIMUM AMOUNT OF $2,00.00 FOR VIOLATIONS
THEREOF; AND PROVIDING FOR AN EFFECTIVE DATE.
Young motioned, Krueger seconded to adopt the ordinance. On roll
vote, Miller "aye", Young "aye", Cott "aye", Krueger "aye", Brock
"aye", Biles "aye", and Mayor Castleberry "aye". Motion carried
unanimously.
C. The Council held a public hearing and considered adoption
of an ordinance to rezone 1.211 acres from the Single Family 7 (SF-
7) zoning district to the office Conditioned (O[c]) zoning
district. The property was located on the west side of Hinkle
Drive, approximately 500 feet south of Haggard Lane. Z-96-003
(The Planning and Zoning Commission recommended approval 7-0.)
Frank Robbins, Director of Planning and Development, stated that
this was an office zoning in a low intensity area but with
conditions, the intensity allocation was on target. The conditions
included that the use would be for professional and administrative
offices only, there would be a fifty-five foot building and
dumpster setback from the southern property line, and lighting
would not directly illuminate adjoining property.
The Mayor opened the public hearing.
No one spoke during the public hearing.
The Mayor closed the public hearing.
The following ordinance was considered:
NO. 96-089
AN ORDINANCE OF THE CITY OF DENTON, TEXAS, PROVIDING FOR A
CHANGE FROM THE SINGLE FAMILY 7 (SF-7) ZONING DISTRICT
CLASSIFICATION AND USE DESIGNATION TO THE OFFICE CONDITIONED
(O[c]) ZONING DISTRICT CLASSIFICATION AND USE DESIGNATION FOR
1.211 ACRES OF LAND LOCATED ON THE WEST SIDE OF HINKLE DRIVE,
APPROXIMATELY 500 FEET SOUTH OF HAGGARD LANE; PROVIDING FOR A
PENALTY IN THE MAXIMUM AMOUNT OF $2,00.00 FOR VIOLATIONS
THEREOF; AND PROVIDING FORAN EFFECTIVE DATE.
Young motioned, Brock seconded to adoPt the ordinance. On roll
vo%e, Mille~ "aye", Young "aye", Cott "aye". Krueger "aye", Brock
"aye", Biles "aye", and Mayor Castleberry "aye". Motion carried
unanimously.
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city of Denton City Council Minutes
April 9, 1996
Page 11
4. Ordinances
A. The Council considered adoption of an ordinance
authorizing the City Manager to execute a real estate contract
between the City of Denton and Robert W. Callahan, James E.
Callahan and Ann C. Stark.
Acting city Manager Svehla stated that Council had considered this
item in Closed Meeting and staff was recommending approval.
The following ordinance was considered:
NO. 96-090
AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY
MANAGER TO EXECUTE A REAL ESTATE CONTRACT BETWEEN THE CITY OF
DENTON AND ROBERT W. CALLAHAN, JAMES E. CALLAHAN AND ANN C.
STARK; AUTHORIZING THE EXPENDITURE OF FUNDS; AND PROVIDING AN
EFFECTIVE DATE.
Biles motioned, Young seconded that the city offer to purchase the
land for $575,000 total. It would be comprised of 151.2 acres
flood plain at $1,500 per acre and 110.6 acres upland at $3,148 an
acre for a total of $575,000. On roll vote, Miller "aye", Young
"aye", Cott "aye", Krueger "aye", Brock "aye", Biles "aye", and
Mayor Castleberry "aye". Motion carried unanimously.
B. The Council considered adoption of an ordinance retaining
Wayne Paul Frank to provide part-time Municipal Court prosecutorial
services on certain dates between April 15, 1996 and May 30, 1996.
city Attorney Prouty stated that Mr. Frank had resigned from the
City Attorney's office but that this agreement enabled him to serve
as a part-time prosecutor to back-up the full-time prosecutor. His
salary would be $25 per hour. The dockets in Municipal Court for
the rest of this month and for the next month were full and having
this service would be very helpful.
The following ordinance was considered:
NO. 96-091
AN ORDINANCE OF THE CITY OF DENTON, TEXAS RETAINING WAYNE PAUL
FRANK TO PROVIDE PART-TIME MUNICIPAL COURT PROSECUTORIAL
SERVICES ON CERTAIN DATES BETWEEN APRIL 15, 1996 AND MAY 30,
1996; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND
PROVIDING AN EFFECTIVE DATE.
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April 9, 1996
Page 12
Young motioned, Cott seconded to adopt the ordinance. On roll
vote, Miller "aye", Young "aye", Cott "aye", Krueger "aye", Brock
"aye", Biles "aye", and Mayor Castleberry "aye". Motion carried
unanimously.
C. The Council considered adoption of an ordinance
authorizing the Mayor to execute Amendment No. 3 to an agreement
between the City of Denton, the Denton Chamber of Commerce, and the
Economic Development Corporation of Denton, Inc. for the purpose of
providing a program to promote economic development.
City Attorney Prouty presented suggested changes to the contract
from those in the back-up materials. Article 1, Section 1 of the
agenda back-up amendment would transfer all of the economic
functions from the Chamber under the contract to the new Economic
Development Corporation with the exception of some marketing
functions. The proposed change would transfer all economic
development functions including all of the tasks set forth in the
contract to the new Economic Development Corporation from the
Chamber and then the EDC could contract with the Chamber to perform
promotional and marketing functions or any other type of economic
development functions with a limitation that the expenditures on
promotional purposes would not exceed 10% of the EDC's revenues in
accordance with that section of the Economic Development Act. A
fourth change on page two carried that through and stated that the
Chamber would, upon the formation of the EDC, transfer to it all
funds previously approved in the city's budget for economic
development. With the change from the agenda back-up contract
there was a blank left in the contract whereby all but-a certain
portion of the funds could be left with the Chamber for marketing
purposes. He was not sure if the change in Section 8 of the
resolution would require in the proposed Article i to indicate
"shall" rather than "may".
Mayor Pro Tem Biles stated that Section $ did refer to the
resolution. The wording "shall" was conditioned on the fact that
the sales and use tax election would pass. The version which was
different from the agenda back-up materials indicated that
promotional expenditures could not exceed 10% of the EDC's
revenues. Promotional purposes was the marketing intent of the
State statute on the sales tax. The way this was written was "of
the EDC's revenues". It was his understanding that the State
statute directed the 10% maximum for marketing purposes to the
sales tax revenue which was different from all EDC revenues because
the EDC might solicit private contributions and as such, did the
City have the ability to place a 10% cap on private funds.
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Page 13
city Attorney Prouty stated that that was not the intent. The
definition indicated that promotional expenditures would not exceed
10% of the Corporation's revenues which was the EDC. That was not
defined and he did not feel that that included private donations.
The intent was that the EDC would initially be funded only with
those municipal revenues from the public utility department to the
EDC and not private contributions. The intent of the contract was
to transfer municipal revenues and not private revenues which would
remain with the Chamber.
Mayor Pro Tem Biles suggested inserting a more descriptive phrase
of the EDC's revenues "derived from the economic development sales
tax or received directly from the City of Denton". That omitted any
other sources of funding which the private sector might raise.
There were two sources of funds currently on deposit at the
Chamber. One source was dollars received directly from the City.
The other source was private sector contributions. His concern was
that the City could not compel the Chamber to take those private
sector dollars and give them to the EDC. He asked where that
protection was located in the amendment.
City Attorney Prouty stated that that was covered in Section 4.
That section indicated the Chamber would transfer to the EDC all
funds previously approved in the City's budget for economic
development.
Mayor Pro Tem Biles expressed a concern because the City council's
approval on an annual basis of that budget did incorporate into it
dollars which were in an annual budget. He suggested using that
same language in which the Chamber would transfer to the EDC all
funds previously received directly from the City of Denton.
The following ordinance was considered:
NO. 96-092
AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING THE MAYOR TO
EXECUTE AMENDMENT NO. 3 TO AN AGREEMENT BETWEEN THE CITY OF
DENTON, THE DENTON CHAMBER OF COMMERCE, AND THE ECONOMIC
DEVELOPMENT CORPORATION OF DENTON, INC. FOR THE PURPOSE OF
PROVIDING A PROGRAM TO PROMOTE ECONOMIC DEVELOPMENT; AND
PROVIDING AN EFFECTIVE DATE.
Biles motioned, Young seconded to adopt Amendment No. 3 to the
agreement between the City of Denton and the Denton Chamber of
Commerce as submitted by the City Attorney with the following
changes: #1 - Article 1, Section 1 would add language" from the
EDC sales tax or received directly from the city of Denton". ~2 -
city of Denton city Council Minutes
April 9, 1996
Page 14
Article 3, Section 4 would include the Wording "received directly
from the City of Denton for economic development purposes.
Council Member Miller felt that to have funding in the Chamber of
Commerce doing economic development and funding from the City going
to the Economic Development Corporation diffused the issue. He did
not see anything wrong with the EDC subcontracting with the Chamber
for those items which the Chamber currently was doing. One group
would be responsible for the economic development. He felt that
the Chamber, as well as the City, needed to support the Economic
Development Corporation. That Corporation would decided the best
place to provide these services which right now was with the
Chamber. The Corporation needed to subcontract with the Chamber
for services.
On roll vote, Miller "aye", Young "aye", Cott "aye", Krueger "aye",
Brock "aye", Biles "aye", and Mayor Castleberry "aye". Motion
carried unanimously.
5. Resolutions
A. The Council considered approval of a resolution
authorizing the creation of the Economic Development Corporation of
Denton, Inc. as an instrumentality of the City of Denton; approving
bylaws and articles of incorporation; and containing other
provisions relating to the subject.
Joe Dodd stated that a plan was being presented to establish an
Economic Development Corporation and to fund the Corporation with
a % cent sales tax. He still did not know how much the CEO would
be paid, how big the staff would be and how much they would be
paid, what they would be able to spend on consultants, where the
office would be located, and what would be spent on that location.
He did not know the long term goals of this organization. What
kind of industry would they be trying to attract to Denton. He
liked the prohibition of using City money to promote the sales tax
election. He suggested a second question on the ballot asking if
the voters approved of the EDC's existence. A voter could vote
against the sales tax but vote for economic development.
City Attorney Prouty stated that this resolution would authorize
the creation of the Economic Development Corporation of Denton. A
change was recommended in Section 8 which carried through the idea
of transferring all the economic development functions that the
Chamber had, once the EDC was formed, to the EDC. The EDC could
contract with the Chamber to provide marketing services and other
services to promote economic development. Another change included
Section 2.01 which required the EDC rather than the Chamber to
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City of Denton City Council Minutes
April 9, 1996
Page 15
perform all the tasks and charges of Amendment Two and Three
between the City and the Chamber. The by-laws in Section 10.01
would be changed to authorize the Board of Directors, either at a
special or regular meeting, to make amendments to the bylaws.
There was no authority for the City Council to initiate amendments
to the bylaws. This change would allow, by affirmative vote of
four or more members of the City Council, an amendment of the
bylaws. The agenda back-up materials would not allow the City
Council to make amendments to the bylaws but no amendment of the
bylaws initiated by the Corporation would be effective until the
City Council approved the amendment. Another change stated that
the City Attorney would be the registered agent with the registered
office in the City of Denton. The Council needed to appoint five
members of the Board of Directors and had to appoint three
incorporators who could be the same as the Directors. The initial
office had been established at 215 E. McKinney. As per the bylaws
and recommendations made by the Economic Development Transition
Committee, the Council had the right to name up to 5 non-voting ex-
officio members to the Board of Directors. It had been suggested
that three of these five ex-officio members be the City Manager,
and the volunteer head and staff head of the Chamber of Commerce.
The bylaws made all members of the city Council ex-officio non-
voting members.
Council Member Miller felt that the section in the Articles of
Incorporation which dealt with amendments gave the Council the
opportunity to decide on what was going to happen in the
corporation itself. He felt that for the bylaws to then only
provide for the Board of Directors to do it would provide a
situation whereby if the Council felt it needed to provide an
amendment, it would not be able to do that. He felt it needed to
be consistent between the two documents.
Council Member Cott felt that there was no reason for the Council
to be involved in this operation. There was no need for ex-officio
members. Council should be kept out of the process.
Council Member Miller stated that both documents provided for
amendments and he felt there should be consistency between the two
documents. The City would be held accountable for the dollars put
into the corporation.
Mayor Pro Tem Biles stated that the Articles of Incorporation
provided for amendments by the Board of Directors who then obtained
approval of those amendments by the Council or the City Council
could amend the Articles of Incorporation at any time. He felt
Council, rather than at its sole discretion at any time, should
discuss any proposed changes with the Board of Directors. That
City of Denton City Council Minutes
April 9, 1996
Page 16
317
should be included in the Articles of Incorporation as well as in
the bylaws. He suggested a change in the Articles of Incorporation
to state that the City Council may, at its sole discretion, but
only after obtaining the advise of the Corporation's Board of
Directors, amend the Articles of Incorporation. By incorporating
that particular phrase into both the Articles of Incorporation and
the bylaws, the Council would demonstrate a trust of the Board of
Directors to act in the best interest of the citizens. Council
should not second guess the Corporation.
The following resolution was considered:
NO. R96-017
A RESOLUTION AUTHORIZING THE CREATION OF THE ECONOMIC
DEVELOPMENT CORPORATION OF DENTON, INC. AS AN INSTRUMENTALITY
OF THE CITY OF DENTON; APPROVING BYLAWS AND ARTICLES OF
INCORPORATION; CONTAINING OTHER PROVISIONS RELATING TO THE
SUBJECT; AND PROVIDING FOR AN EFFECTIVE DATE.
Biles motioned, Young seconded adopt the resolution making a change
to Section 8 of the resolution so that it was worded the way the
city Attorney had just handed out indicating that until the sales
and use tax election passed and the EDC was fully funded, the EDC
shall contract with the Chamber to continue to provide marketing
services and the services to promote economic development set forth
in the Chamber contract as amended. That the Articles of
Incorporation be adopted except for a change in Article 8 adding a
clause "but only after obtaining the advice of the Corporation's
Board of Directors" and striking the words "and at any time". That
the bylaws be adopted adding to Section 10.1 the clause stating
"after obtaining the advice of the Corporation's Board of
Directors". The five members and ex-officio members would be a
separate motion.
Council Member Miller felt that the Council would still be
dictating to the Economic Development Corporation. He felt this was
inconsistent with the philosophy of the Corporation.
Council Member Brock felt that there was support in the community
for the EDC and for the sales tax. She still had reservations on
some of the issues. There originally was a long list of duties in
the bylaws which was changed so that the bylaws became very open
ended. At the first report to Council by the Economic Development
Transition Committee ~he had brought up the issue of accountability
as she felt that that was the number one responsibility as elected
officials. Even with appointing very knowledgeable people to this
Board, the issue was one of being accountable to the citizens. At
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City of Denton City Council Minutes
April 9, 1996
Page 17
that first report, she had been assured that the bylaws and
Articles of Incorporation were full of areas where the
representatives of the citizens would have some control. Very
methodically and persistently, quite a few of those had been
removed. The Council had been taken out of the bylaws in many
instances. It was down to the point of having an annual review in
approving the budget and the program planned for that year. She
felt it was possible to trust honorable people and still realize
the need to be daily accountable to the taxpayers. She would vote
for the resolution with the admission that she was disappointed in
some of the changes which were made.
On roll vote, Miller "aye", Young "aye", Cott "aye", Krueger "aye",
Brock "aye", Biles "aye", and Mayor Castleberry "aye". Motion
carried unanimously.
Mayor Castleberry stated that the next issue was the appointment of
the five members of the Economic Development Corporation.
city Attorney Prouty stated that the Articles of Incorporation
indicated that the Board of Directors would be appointed for
staggered terms. One director would have a three year tern, two
directors would have two year terns and two directors would have
one year terms. The Council would have to determine the length of
each director's term.
Mayor Castleberry asked if the Council could vote on the five
members and then determine their terms.
City Attorney Prouty stated that that could be done.
also had to name three incorporators at this time.
could also be members of the Board of Directors.
The Council
Those three
Council Member Brock asked about the procedure for naming people.
Would nominations be done one by one.
Mayor Castleberry stated that he would open it to nominations.
Council Member Brock nominated Troy LaGrone.
Council Member Krueger nominated Carl Anderson.
Council Member Young nominated Ed Smith.
Council Member Miller nominated Bob Coplen.
Mayor Pro Tem Biles nominated Richard Hayes.
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City of Denton City Council Minutes
April 9, 1996
Page 18
Council Member Krueger nominated Harry Hall.
Krueger motioned, Young seconded to cease nominations.
Council Member Miller stated that there was one individual who was
nominated which he considered to be an elected official. He was
not looking at the legal issues of what the State of Texas said
about elected officials. But when the bylaws and Articles of
Incorporation were set up, it was indicated that no employee of the
City of Denton or the Denton Chamber Commerce and no elected
official could serve as a voting member of the Board of Directors.
That meant that someone elected bythe citizens of Denton could not
be elected as a member of the Board of Directors. There were
political parties placed on a ballot and were elected. There was
one individual who was nominated who was elected under that
process. In keeping in the spirit of this, to deny the citizens of
Denton to have an elected official on the Board but to allow this
to happen for people who were voting throughout the County, was not
in keeping with the spirit of what was intended.
Council Member Krueger stated that there might be in the future a
precinct chairman, who by Miller's definition, was an elected
official and who could not serve under this capacity. There was no
basic difference between a precinct chairman or the chairman of the
party who oversaw those precincts. Richard Hayes was not a public
official.
Council Member Miller stated that the wording did not indicate a
public official but rather an elected official. The intent was to
not allow someone from City Council to serve because they were
elected. The issue of credibility and representation and the issue
of independence were a part of this.
Council Member Young stated that Richard Hayes had worked hard to
create this corporation. He was not an elected official but only
an elected official within the Republican party.
On roll vote to cease nominations, Miller "aye", Young "aye", Cott
"aye", Krueger "aye", Brock "aye", Biles "aye", and Mayor
Castleberry "aye". Motion carried unanimously.
Mayor Pro Tem Biles stated that Council had sought the opinion of
the City Attorney as to the definition of an elected official. The
City Attorney advised that since Council was the one which wrote
the ordinance, Council was the one which could determine the
definition. The minutes of prior Council meetings would show that
he was the one who made the suggestion which incorporated that
language into the rules. His intent at that time was that elected
32O
City of Denton City Council Minutes
April 9, 1996
Page 19
officials meant people elected to City Council, Commissioners
Court, State legislature or Congress. He felt it was a convenient
deception to use those two particular words to try and preclude
someone who had devoted a long time to furthering the community.
He felt that everyone at that time anticipated that the clause
meant no one on Council would be on the Board of Directors.
Council Member Miller stated that this was an honest feeling on the
issue and was not a deception. At the time Council voted on
restricting elected officials, it did not have all of this
discussion.
Council voted on the nominations to the Board of Directors.
On roll vote for Troy LaGrone, Miller "aye", Young "aye", Cott
"aye", Krueger "aye", Brock "aye", Biles "aye", and Mayor
Castleberry "aye". Motion carried unanimously.
On roll vote for Carl Anderson, Miller "aye", Young "aye", Cott
"aye", Krueger "aye", Brock "aye", Biles "aye", and Mayor
Castleberry "aye". Motion carried unanimously.
On roll vote for Ed Smith, Miller "aye", Young "aye", Cott "aye",
Krueger "aye", Brock "aye", Biles "aye", and Mayor Castleberry
"aye". Motion carried unanimously.
On roll vote for Bob Coplen, Miller "aye" Young "nay" Cott "aye"
Krueger "nay", Brock "aye", Biles "nay", and Mayor Castleberry
"aye". Motion carried with a 4-3 vote.
On roll vote for Richard Hayes, Miller "nay", Young "aye", Cott
"aye", Krueger "aye", Brock "nay", Biles "aye", and Mayor
Castleberry "nay". Motion carried with a 4-3 vote.
On roll vote for Harry Hall, Miller "aye", Young "aye", Cott "aye",
Krueger "aye", Brock "aye", Biles "aye", and Mayor Castleberry
"aye". Motion carried unanimously.
Mayor Castleberry indicated that Troy LaGrone, Carl Anderson, Ed
Smith and Harry Hall were the top votes. There was a tie between
Bob Coplen and Richard Hayes.
On roll vote for Bob Coplen, Miller "aye", Young "nay", Cott "nay",
Krueger "nay", Brock "aye", Biles "nay", and Mayor Castleberry
"aye". Motion failed with a 3-4 vote.
On roll vote for Richard Hayes, Miller "nay" Young "aye" Cott
"aye" Krueger "aye", Brock "nay", Biles "aye" and Mayor
City of Denton city CoUncil Minutes
April 9, 1996
Page 20
Castleberry "nay". Motion carried with"a 4-3 vote.
Mayor Castleberry indicated that Richard Hayes would be the fifth
Director.
City Attorney Prouty asked about the terms of office.
Biles motioned, Young seconded that Troy LaGrone be appointed for
a three year term, Harry Hall and Richard Hayes for two year terms,
and Carl Anderson and Ed Smith for one year terms. On roll vote,
Miller "aye", Young "aye", Cott "aye", Krueger "aye", Brock "aye",
Biles "aye", and Mayor Castleberry "aye". Motion carried
unanimously.
Council Member Krueger left the meeting.
Biles motioned, Young seconded to appoint Troy LaGrone, Harry Hall,
and Richard Hayes as Incorporators. On roll vote, Miller "aye",
Young "aye", Cott "aye", Brock "aye", Biles "aye", and Mayor
Castleberry "aye". Motion carried unanimously.
B. The Council considered approval of
supporting the design and development of U. S.
proposed by the Texas Department of Transportation.
a resolution
Highway 77 as
Acting City Manager Svehla stated that the Transportation
Department would be holding a meeting this Thursday on this
project. It was important for Council to show support to the
Highway Department on this project.
The following resolution was considered:
NO. R96-018
A RESOLUTION OF THE CITY OF DENTON CITY COUNCIL SUPPORTING THE
DESIGN AND DEVELOPMENT OF U.S. HIGHWAY 77 AS PROPOSED BY THE
TEXAS DEPARTMENT OF TRANSPORTATION; AND PROVIDING ANEFFECTIVE
DATE.
Miller motioned, Young seconded to approve the resolution. On roll
vote, Miller "aye", Young "aye", Cott "aye", Brock "aye", Biles
"aye", and Mayor Castleberry "aye". MOtion carried unanimously.
6. The Council received a report, held a discussion and gave
staff direction regarding the TMPA/Denton Power Sales Agreemen%.
Bob Nelson, Executive Director for Utilities, stated that staff had
been working on this amendment for quite some time and the document
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City of Denton City Council Minutes
April 9, 1996
Page 21
was now ready for approval. The amendment to the TMPA power sales
agreement changed the agency from being a full requirements agency
which was an entity which provided power and energy for the cities
with each one of the shares of the cities changing slightly each
year, depending on the size of one another. The clause stated that
regardless of what happened, the cities would pay all the costs of
TMPA. The amendment brought TMPA to a one unit power plant
providing power from that unit. There would be provisions that
other units could be installed or other activities could be done
but each time, each city would enter into a separate agreement on
that basis. The agreement would also provide for a fixed amount
for this one unit for each city and tightened the payment clauses.
Section 3 (a) firmly established the percentage share of TMPA.
Denton's percentage would be 21.3%, Bryan would be 21.7%, Garland
would be 47% and Greenville would be 10%. The old contract
designed a percent share to change annually per a comparison of the
size of the cities. The amendment reemphasized the cities
obligation to pay TMPA costs regardless of any cause a city might
have for not being able to pay, eliminated wording regarding power
allocation if TMPA had insufficient power and eliminated force
majeure as a cause. Section 3 (b) established the allocation which
fell back to the percentages listed in 3 (a) and indicated that
TMPA would use its best efforts to provide power. The other
section which was changed was Section 7 which set the rates and
charges to cover all costs which was essentially the same as the
old contract. It eliminated the wording stating that the rates
would be non-discriminatory and fair, eliminated the 120 day notice
to cities of change of rates, and eliminated the procedure for any
kind of arbitration in case a city disagreed with the TMPA rates.
Section 7 also set the specific reserve funds which Garland and
some TMPA Board members disapproved. Section 13 eliminated all
reference to future approval/disapproval of a project and
eliminated the "opt-out" provisions, established a right to future
TMPA power based on the percentages in Section 3 (a). The amendment
tightened Denton's responsibility but allowed the City to do other
options.
Acting City Manager Svehla stated that the amendment set the
percentage~ different and allowed the City to oDt out at any time.
Council Member Miller asked if the opt-out clause required the
approval of the bond holders to be effective.
Nelson replied correct that about 85% of all the TMPA bonds were
insured. The procedure was that once the cities and the TMPA Board
approved the document, the contract went to the bond insurance
companies and large holders for approval.
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city of Denton City
April 9, 1996
Page 22
Mayor Castleberry asked what was the ne~t step in the agreement.
Nelson stated that the amendments would be retyped so as to present
a comparison of the two documents. That would be brought back to
Council for consideration. The other three cities were also
looking at the document.
Bill Giese, Public Utilities Board, expressed a concern about one
part of the amendment. A proposed change in the rates would allow
for $2 million in a contingency fund and $$ million for replacement
projects and all other funds would be distributed back to the
cities. He had a concern that in the last year, a number of assets
had been sold and those funds were put into a special bond fund.
Under this amendment, those funds would have to be returned to the
cities. He felt that when assets were sold, those funds should be
used for the retirement of debt. There was also approximately $1
million from oil royalties and the leasing of oil ground. He again
felt that that was a disposition of assets and should be used for
debt retirement rather than to have to return those funds to the
cities. He had a policy objection for a set figure as conditions
changed and the view should be what was needed and what would be
the best use of the funds.
Acting City Manager Svehla stated that both Garland and Greenville
were offering language which addressed Mr. Giese's concern. Those
cities felt that any assets acquired using debt if sold, should be
used to retire debt. Council might consider such language when
giving final approval. There could also be wording which addressed
reserve funds in different manner.
Mayor Pro Tem Biles stated even though Mr. Giese supported this
amendment to the contract, it did not go far enough in terms of
dollars from disposition of assets as well as oil royalties. Mr.
Giese felt that TMPA should be using those funds to pay off bond
indebtedness.
Giese stated that there were other indebtedness and those should be
used also.
Mayor Pro Tem Biles asked if two of the four cities or three of the
four cities would agree to that.
Giese stated that he did not know at this point in time.
Mayor Pro Tem Biles stated that there was still have time to make
suggestions to include such language. If that language did not
reach the agreement, could the city of Denton adopt a policy that
if TMPA sent money to the City for such a purpose, the City could
City of Denton City Council Minutes
April 9, 1996
Page 23
put that money into an account to use for debt retirement in the
future.
Giese stated that that would be his recommendation.
Mayor Pro Tem Biles stated that the City could send a strong
message to the rest of the TMPA cities that if dollars were
received from the disposition of assets or oil royalties or
whatever, it be used to retire the indebtedness.
A. The Council considered approval of a resolution
requesting the Board of Directors of the Texas Municipal Power
Agency to reduce electric rates to actual costs of operations.
Bob Nelson, Executive Director for Utilities, stated that this
resolution may or may not be necessary at this point in time as the
TMPA Board had this on their agenda for consideration. One
direction given to the TMPA operation was that by January 1, 1996,
TMPA would reduce its total cost of power and energy sold to the
cities to 4 cents per Kwh. TMPA made the conversion and phased
down some of the personnel but not by January 1, 1996 but rather by
April 1, 1996. Thereafter, the staff came to the Planning and
Operating Committee and established a rate which would effectively
do the four cents per kwh. The Planning and Operating Committee
agreed and he had included an addition to change the percentage
allocation at that same time. When the proposal came to the TMPA
Board, it had a concern that there might be a need to hold on to a
few dollars until the change in operation was worked out in August.
It was now felt that it could be handled with the amount of money
on hand.
Council Member Miller asked if there was a middle date to look at.
There might be some validity to the point of not changing
immediately as the change had just been made in December.
Nelson replied that the agency had already phased down the
operation and the TMPA staff felt it could operate as it was.
Tom Harpool, Chair-TMPA Board of Directors, stated that it could be
done May 1st which was on the agenda.
Council Member Brook understood that~both representatives of the
City to the TMPA Board were not in favor of immediately changing
rates.
Harpool stated that the question was could the cities look after
the money better than TMPA was directed to do bythe bond holders.
He was comfortable with the change.
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city of Denton City Council. Minutes .-
April 9, 1996
Page 24
The following resolution was consldered:~
NO. R96-019
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS,
REQUESTING THE BOARD OF DIRECTORS OF THE TEXAS MUNICIPAL POWER
AGENCY TO REDUCE ELECTRIC RATES TO REFLECT ACTUAL COSTS OF
OPERATIONS; AND PROVIDING FOR AN EFFECTIVE DATE.
Miller motioned, Young seconded to approve. On roll vote, Miller
"aye", Young "aye", Cott "aye", Brock "aye", Biles "aye", and Mayor
Castleberry "aye". Motion carried unanimously.
7. The Council received a report, held a discussion on
deregulation of the electric industry and its effects on Denton.
Bob Nelson, Executive Director for Utilities, stated that one of
the major issues driving deregulation was technological changes.
Denton's power plants ran 30-33% efficient and the new technology
plants ran 55-65% efficient and were run on natural gas. Computer
technology used to explore for natural gas now gave a three
dimensional picture of geological structures. Existing power
producers built and financed their power production plants with the
assumption that they would have a firm market in which to sell
their power and thus receive the revenues necessary to pay off the
long term debt. The Pubic Utilities Commission was holding work
sessions to determine the extent of deregulation. Denton's
strategy was to work hard to be the power producer and provider of
choice in the community. Before there was a system with the bond
holders for repayment but now there was the possibility of stranded
investments and costs.
Julie Zeller, Environmental Compliance Manager, stated that there
were 13 states which were working on restructuring initiatives.
Public Utilities Commission Project 14045 amended sections of the
Public Utility Regulatory Act to permit wholesale transmission
service for electric utilities. Other projects involved a response
to the Legislature's request for a report on what the industry
looked like in Texas. The consultant would provide the Council with
detailed information when he made his presentation.
8. The Council received a report, held a discussion and gave
staff direction regarding the expansion of the Occupational Health
Nurse services contract.
Max Blackburn, Risk Manager, stated that three months into the
contract with the Occupational Health Nurse it was felt that the
savings and the efficiencies of the occupational health nurse had
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city of Denton City Council Minutes
April 9, 1996
Page 25
proven themselves and staff was asking for approval to change to a
full-time occupational health nurse. The funds would be paid from
the Risk Retention Fund.
Council Member Young asked how many employees a day the nurse
worked with.
Blackburn stated that with 20 hours of work per day, she did not
see anyone. She mainly dealt with drug screening and wellness
programs.
Council Member Brock stated that the nurse was proving to be cost
effective but there were no associated figures.
Blackburn stated that so far it was cost avoidance, which was hard
to put a number on. Most of the people had repetitive motion
injuries and she was trying to provide those employees with a way
to avoid having to go to a doctor.
Young motioned, Brock seconded to proceed with the change. On roll
vote, Miller "aye", Young "aye", Cott "aye", Brock "aye", Biles
"aye", and Mayor Castleberry "aye". Motion carried unanimously.
IF~R WALTERS -
SRCRETARY
CITY OF DENTON, TEXAS
With no further business, the meeting was adjourned at 10:10 p.m.
CITY OF DENTON,
ACC002FE