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2011_02.10 CC PacketINU � k 405 Municipal Drive, Kennedale, Texas 76060 www.citvofl AGENDA KENNEDALE CITY COUNCIL REGULAR MEETING — FEBRUARY 10, 2011 COUNCIL CHAMBERS WORK SESSION — 5:30 PM REGULAR SESSION — 7:00 PM I. CALL TO ORDER II. ROLL CALL III. WORK SESSION — 5:30 PM A. Discuss and review any item on the agenda, if needed. 1. Discuss Atmos Energy franchise fee calculation 2. Discuss CAPP participation 3. Discuss 2011 citizen opinion surveN 4. Discuss amendment to the City Drug and Alcohol Policy regarding Commercial Driver random testing as required by the Department of Transportation 5. Discuss other items on the agenda *NOTE: Pursuant to Section 551.0 71, Texas Government Code, the City Council reserves the rMit to adiouru into Executive Session at any time durinz the work session or the rezular session to discuss Posted executive session items or to seek lezal advice from the City Attorney ou any item Posted ou the agenda. REGULAR SESSION - 7:00 PM IV. INVOCATION V. UNITED STATES PLEDGE OF ALLEGIANCE VI. TEXAS PLEDGE OF ALLEGIANCE "Honor the Texas Flag; I Pledge Allegiance to Thee, Texas, One State under God; One and Indivisible." VII. VISITOR/CITIZENS FORUM At this time, any person Nvith business before the Council not scheduled on the agenda may speak to the Council. No formal action can be taken on these items at this meeting. Page 1 of 3 VIII. REPORTS /ANNOUNCEMENTS In addition to any specific matters listed below, the city council may receive a report about items of community interest, including but not limited to recognition of individual officials, citizens or departments, information regarding holiday schedules, upcoming or attended events, etc. A. Mavor B. Citv Council C. City Manager IX. CONSENT AGENDA All matters listed under consent agenda have been previously discussed, require little or no deliberation, or are considered to be routine by the council. If discussion is desired, then an item Nvill be removed from the consent agenda and considered separately. A. Consider approval of meeting minutes: Regular meeting dated January 13, 2011 B. Consider acceptance of Police Department Racial Profiling Report C. Consider approval of amendments to the Drug and Alcohol policy to include Commercial Driver Random testing as required by Department of Transportation X. REGULAR ITEMS D. Conduct a public hearing, discuss and consider approval of Ordinance No. 473 regarding CASE #PZ 11 -0, considering a request by M. Naseem Patel for a zone change of approximately 2/3 acre at James A Arthur Addn Lot 1R2 (3 17 W Kennedale PkN-' T) from "C2" General Commercial to "C F Restricted Commercial. E. Discuss and consider authorizing temporary permission to Art in the Park to sell alcohol in the TovnCenter Park during the Art in the Park event on April 8, 9, and 10, 2011. F. Conduct a public hearing relative to Tarrant County Community Development and Housing for the 37 "' Year Community Development Block Grant (CDBG) Project for Nvater and seNver improvements. G. Discuss and consider approval of Resolution No. 350, to authorize funding participation Nvith Tarrant County Community Development and Housing for the 37 Near Community Development Block Grant (CDBG) project for Nvater and sewer improvements. H. Discuss and consider approval of Resolution No. 351, calling the 2011 General Election. Discuss and consider approval of Resolution No. 352, authorizing TCAP to negotiate an extension to the current electric supply agreement and approving TCAP contracting Nvith Next Era and authorizing the City Manager to sign a contract Nvith TCAP for the city s electricit -,T needs. Page 2 of 3 Discuss and take action defining the method of calculating franchise fees pursuant to the Atmos Franchise Agreement. XI. EXECUTIVE SESSION A. The City Council will meet in closed session pursuant to Section 551.071 of the Texas Government Code for consultation Nvith the City Attorney pertaining to any matter in Nvhich the duty of the City Attorney under the Texas Disciplinary Rules of Professional Conduct may conflict Nvith the Open Meetings Act, including discussion on any item posted on the agenda. B. The City Council will meet in closed session pursuant to Section 551.072 of the Texas Government Code to deliberate the purchase, exchange, lease, or value of real property for the folloNving: 1. Various properties in Oak Crest Addition 2. Property at 1029 Bovman Springs Road 3. Various properties on Little School Road C. The City Council Neill meet in closed session pursuant to Section 551.087 of the Texas Government Code to deliberate the offer of a financial or other incentive to a business prospect Nvith Nvhich the city is conducting economic development negotiations. 1. Briefing on KEDC incentive for manufacturing business XII. RECONVENE INTO OPEN SESSION, AND TAKE ACTION NECESSARY PURSUANT TO EXECUTIVE SESSION, IF NEEDED. XIII. ADJOURNMENT In compliance with the Americans with Disabilities Act, the City of Kennedale will provide for reasonable accommodations for persons attending City Council meetings. This building is wheelchair accessible, and parking spaces for disabled citizens are available. Requests for sign interpreter services must be made forty -eight (48) hours prior to the meetings. Please contact Amethyst G. Cirmo, City Secretary, at 817.985.2104 or (TDD) 1.800.735.2989 CERTIFICATION I certIA- that a copy of the February 10 "', 2011, agenda Nvas posted on the City Hall bulletin board next to the main entrance of the City Hall building, 405 Municipal Drive, of the City of Kennedale, Texas, in a place convenient and readily accessible to the general public at all times and said Agenda Nvas posted on the folloNving date and time: Monday, February 7" 2011 by 5:00 p.m., at least 72 hours preceding the schedule time of said meeting, in accordance Nvith Chapter 551 of the Texas Government Code. Amethyst G. Cirmo, City Secretary Date Agenda Removed from Bulletin Board Page 3 of 3 Date: February 10, 2011 Agenda Item No: IX -A Subject: Approval of meeting minutes: Regular meetings dated January 13 ", 2011 Originated by: Amethyst G. Cirmo, City Secretary Attachments: Meeting minutes will be sent to you via email by Tuesday, February 8 t ", 2011. Summary: n/a Recommendation: Staff recommends approval Disposition by Council: MINUTES KENNEDALE CITY COUNCIL REGULAR MEETING — JANUARY 13, 2011 405 MUNICIPAL DR. — KENNEDALE MUNICIPAL BLDG. COUNCIL CHAMBERS II. III. CALL TO ORDER Mavor Lankhorst called the Nyork session to order at 5:38 p.m. ROLL CALL Kelly Cooper, Interim City Secretary called roll Nyith the folloNving persons present/absent: Council Present: Baran Lankhorst Mavor John Clark Mavor Pro -Tem, Place 1 Liz Carrington Councilmember, Place 2 Brian Johnson Councilmember, Place 3 Kelly Turner Councilmember, Place 4 Jerry Miller Councilmember, Place 5 Staff Present: Bob Hart City Manager Wavne Olson Legal Counsel Rachel Roberts Planner Sakura Moten- Dedrick Director of Finance Tommv Williams Chief of Police Mike McMurray Fire Chief Larry Ledbetter Director of Public Works James CoNyev Building Official Amethvst Cirmo Citv Secretary Kelly Cooper Human Resource Director WORK SESSION A. Meet Nyith Planning and Zoning Commission Mayor Lankhorst had previously stated that he thought Council should start meeting Nyith the Advisory Boards periodicalIv. A discussion Nyas held betNyeen the City Council and members of the Planning and Zoning Commission regarding the noise levels and smell issues related to the gas Nyell drilling. A discussion Nyas also held betNyeen Council and P &Z regarding regulations for the sale of alcohol from local convenience stores and Nyhether or not re- zoning Nyill have to take place for these businesses to operate in the zones they are in nosy. B. Discuss and revieNy any item on the agenda, if needed. There being no further discussion, Mayor Lankhorst recessed the Nvork session to enter into the regular meeting at 6:50 p.m. *NOTE: Pursuant to Chapter 551, Texas Government Code, the City Council reserves the rizht to adiouru into Executive Session at any time durinz the work session or the regular session to discuss posted executive session items or to seek lezal advice from the City Attorney ou any item posted ou the azeuda. IV. REGULAR SESSION Mavor Lankhorst called the regular session to order at 7:08 p.m. V. INVOCATION Bob Hart, City Manager provided the Invocation. VI. US PLEDGE OF ALLEGIANCE VII. TEXAS PLEDGE OF ALLEGIANCE "Honor the Texas Flag; I Pledge Allegiance to Thee, Texas, One State under God; One and Indivisible." Mavor Baran Lankhorst led the recital of the US Pledge of Allegiance and the Texas Pledge of Allegiance. VIII. VISITOR/CITIZENS FORUM Greg Hudson, Executive Director for the Kennedale Chasmber of Commerce provided Council Nvith updates regarding the upcoming Texas Independence Day parade as Nvell as other happening at the Chamber. Felipe Gutierrez of the Art in the Park Committee provided Council Nvith an update regarding the upcoming 2" a Annual "Art in the Park Festival'. IX. REPORTS /ANNOUNCEMENTS In addition to any specific matters listed below, the city council may receive a report about items of community interest, including but not limited to recognition of individual officials, citizens or departments, information regarding holiday schedules, upcoming or attended events, etc. A. Mavor The Mayor had no reports or announcements B. Citv Council Councilmember Clark thanked Kelly Cooper for her Nvorked performed as acting Interim City Secretarv. Brian Johnson thanked Chief McMurray for the picture he provided of the frozen Eagle statue and then asked Bob Hart, City Manager to provide an update regarding Sonora Park. C. City Manager Mr. Hart informed Council that the renovations to Sonora Park are close to being finished and that the Grand Opening has been scheduled for April 30, 2011. Mr. Hart also informed Council that the city received the "Certificate of Achievement for Excellence in Financial Reporting" making note that the final part of the report was completed in -house which is usually done by our auditors. He then proceeded to give Council up to date reports on the TovnCenter project. X. CONSENT AGENDA All matters listed under consent agenda have been previously discussed, require little or no deliberation, or are considered to be routine by the council. If discussion is desired, then an item will be removed from the consent agenda and considered separately. A. Consider approval of meeting minutes: Regular meeting dated December 9, 2010 Special Meeting dated December 15, 2010 Special Meeting dated December 16, 2010 Special Meeting dated December 21, 2010 B. Review and consider action to approve as Mutual Aid Agreement with the District Attorney's Office for Tarrant County. Councilmember Turner made a motion to approve Consent Agenda Items X -A and X -B, and was seconded by Council member Miller. Motion passed unanimously (5 -0) XI. REGULAR ITEMS C. Public hearing, review, and consider action to approve Ordinance No. 469, CASE 4 PZ 10- 14 to amend Chapter 17, Sections 17 -426 of the Kennedale city code, by amending regulations governing distance between padsites and by amending the requirements for drilling permit applications. Rachel Roberts, City Planner provided Council with an update regarding the requirements for drilling permit applications. Councilmember Turner made a motion to approve Ordinance No. 469 and was seconded by Councilmember Carrington. Motion carried (5 -0) D. Public hearing, review, and consider action to approve Ordinance No. 470 , CASE 4 PZ 10- 15 to amend Chapter 17, Article VI of the Kennedale city code, by amending regulations governing zoning, including definitions and the Schedule of Uses. Rachel Roberts provided Council with an update regarding the regulations governing zoning, including definitions and the Schedule of Uses. A discussion took place between Council members and city staff. Councilmember Clark made a motion to approve Ordinance No. 470 and was seconded by Councilmember Turner. Motion carried (5 -0) E. Public hearing, review, and consider action to approve Ordinance No. 471, CASE 4 PZ 10- 16, for a zoning change of approximately 0.2 acres at Tr 3E Abst 1260 Jesse B Renfro Survey (100 E Kennedale Pkwy) from "C2" General Commercial to "Cl" Restricted Commercial in order to permit the sale of beer and wine. The zone change is requested by Alnasir Dhalla of Lanar, Inc. Rachel Roberts provided Council Nvith an update regarding zone changes. Councilmember Clark made a motion to approve Ordinance No. 471 and Nvas seconded b v Councilmember Carrington, Motion carried (5 -0) F. Review and consider action to appoint members to the Comprehensive Land Use Plan Update Task Force. Councilmember Clark made a motion to approve the appointment of the folloNving people to the Comprehensive Land Use Plan Update Task Force and Nvas seconded by Councilmember Miller. Motion carried (4 -0 -1): ChervI Abbott, David McMillan, Don Harrelson, Frederick White Julie Green, Ronnie NoNvell, Pat Turner, Charles Overstreet, Ernest Harvev, David Hunn, Linda Elam, Donna Gerron, Pat Doescher, Liz Carrington, Jerry Miller, Kelly Turner as Nvell as two volunteers, and four students G. Review and consider action to appoint/re- appoint members to the Kennedale Economic Development Corporation. Due to Doug Parker resigning from the Economic Development Corporation, staff recommended replacing him Nvith Pat Turner. Councilmember Johnson made a motion to approve and Nvas seconded by Councilmember Carrington. Motion carried (5 -0) H. Review and consider action to approve Resolution No.349, authorizing application to the Texas Water Development Board for a Grant to complete a flood control study at Village Creek. Mr. Hart provided council Nvith a brief update regarding the flood control study at Village Creek and recommend Council approve Resolution No. 349 authorizing the application to the Texas Water Development Board for a grant to complete a flood control study. Councilmember Turner made a motion to approve and Nvas seconded by Councilmember Miller. Motion carried. (5 -0) Discuss, review, and consider action to call a public hearing February 10, 2011 to authorize funding participation Nvith Tarrant County Community Development and Housing for the 37` Year Community Development Block Grant Project for Nvater and sewer improvements Councilmember Miller made a motion to approve a public hearing for February 10, 2011 and Nvas seconded by Councilmember Turner. Motion carried (5 -0) Review and consider action authorizing the City Manager to execute a contract in the amount of $170,479 for the purchase of one new 2011 Horton Emergency Ambulance from Professional Ambulance Texas, the licensed and authorized dealer for Horton Emergency Vehicles. After a thorough discussion regarding the costs and how the city Nvill pay for the new ambulance John Clark made a motion to approve spending the money but to discuss other options to pay for it. Liz Carrington seconded the motion. Jerry Miller made a motion to table the item Nvith no second on the motion. Motion passed K. Review and consider action to approve Ordinance No. 472 denving the proposed change in rates of Oncor Electric Delivery Company LLC. Councilmember Johnson made a motion to approve Ordinance No. 472 and Nvas seconded by Councilmember Carrington. Motion carried (5 -0) L. Discuss Curbside Reeveling. A discussion regarding curbside recycling Nvas held between city staff and Council. No action Nvas necessary at this time. M. Discuss and consider action to appoint/re- appoint members to the Parks & Recreation Board. Jerry Miller made a motion to remove Larry Summers from the Parks and Recreation Board due to his inactivity at previous meeting and replace him Nvith Cruz Pitre who serves an a board alternate. Councilmember Johnson seconded the motion. Motion carried (5 -0) XII. EXECUTIVE SESSION A. The City Council Nvill meet in closed session pursuant to Section 551.071 of the Texas Government Code for consultation Nvith the City Attorney pertaining to any matter in Nvhich the duty of the City Attornev under the Texas Disciplinary Rules of Professional Conduct may conflict Nvith the Open Meetings Act, including discussion on any item posted on the agenda. B. The City Council Nvill meet in closed session pursuant to Section 551.072 of the Texas Government Code to deliberate the purchase, exchange, lease, or value of real property for the folloNving: 1. Property at Oakerest 2. Property at Bowman Springs 3. Bovman Springs and Little School Road right- of -Nvav acquisition XIII. RECONVENE INTO OPEN SESSION, AND TAKE ACTION NECESSARY PURSUANT TO EXECUTIVE SESSION, IF NEEDED. XIV. ADJOURNMENT There being no further business to consider, Mayor Lankhorst asked for a motion to adjourn the meeting. Councilmember Clark so moved and Councilmember Johnson seconded the motion. Meeting adjourned at 9:41p.m. APPROVED: Mavor, Baran Lankhorst ATTEST: Kelly Cooper, Interim City Manager Date: February 10, 2011 Agenda Item No: IX -B Subject: Consider acceptance of Police Department Racial Profiling Report. Originated by: Police Chief Tommy Williams Attachments: - Racial Profiling Report - Racial Profiling Data Summary: Attached for council consideration is the Racial Profiling Report for the period January 1 through December 31, 2010. The data indicates that the Kennedale Police Department's citation and search activity was well within tolerances for the population groups. This report is to be submitted to council on or before March 1 of each year. Recommendation: Staff recommends acceptance of the attached report Disposition by Council: KENNEDALE POLICE DEPARTMENT February 10, 2011 To: City Manager, Mayor, and Council Members From: Tommy Williams, Police Chief Re: Racial Profiling Report As required by SB 1074 I am presenting this report on the Kennedale Police Department's racial profiling statistics. Statistical Data Attached is a table outlining the data from our citations issued during calendar year 2010. Once again I used both the total population and the Fair Roads Standard as baselines for our data. Because such a large majority of our citations continue to be issued to persons outside of the city, the baseline still includes the combined populations of our neighboring cities of Arlington, Forest Hill, and Mansfield, as well as Kennedale. Motorists come from or through these cities in order to get to or through Kennedale. Our stops and searches are within tolerances for the percentile groups. One addition this year is the required reporting to the Texas Commission on Law Enforcement Officer Standards and Education ( TCLEOSE). New legislation during the 2009 session set a requirement that, starting this year, TCLEOSE would be the state repository for all racial profiling data. In line with this, I have electronically filed a copy of this report and spreadsheet for posting on their web site. Complaints We had no racial profiling complaints filed during the reporting period of 2010. Public Education The process for filing racial profiling complaints against employees is posted in three places. The first is on our police department website, the second in the police building lobby, and the third is in the city hall lobby. A copy of the entire racial profiling policy is available to the public on request. Employee Training Numerous discussions occurred throughout the year during briefing and staff meetings about racial profiling issues to be aware of In addition, supervisors were required to review random video tapes of stops each quarter to identify any problems that had not been reported. No problems were identified. 401 Municipal Dr. Kennedale, Texas 76060 Office 817 - 985 -2160 Fax 817 - 478 -6433 Percent of Group Total 15.40% 3.00% 4.30% 2.60% Percent of Group Total 11.80% 10.00% 7.10% 9.00% Percent of Group Total 0.10% 0.00% 0.00% 0.00% Percent of Group Total 0.06% 0.00% 0.00% 0.00% Percent of Group Total 0.50% 0.00% 0.00% 10.20% * These figures represent the combined populations of Kennedale, Arlington, Mansfield, and Forest Hill. Kennedale Police Department Racial Profiling Data 01 -01 -2010 through 12 -31 -2010 Representative Fair Roads Citations Total Consent Population - Standard - From Traffic Arrests From Searches Searches Southeast Southeast Tarrant Race Stops Traffic Stops Conducted Conducted Tarrant County * County Percent of Group Total 71.30% 87.00% 88.60% 78.20% Percent of Group Total 15.40% 3.00% 4.30% 2.60% Percent of Group Total 11.80% 10.00% 7.10% 9.00% Percent of Group Total 0.10% 0.00% 0.00% 0.00% Percent of Group Total 0.06% 0.00% 0.00% 0.00% Percent of Group Total 0.50% 0.00% 0.00% 10.20% * These figures represent the combined populations of Kennedale, Arlington, Mansfield, and Forest Hill. Date: February 10, 2011 Agenda Item No: IX -C Subject: Consider approval to amend the Drug and Alcohol policy to include Commercial Driver Random testing as required by Department of Transportation Originated by: Kelly Cooper Summary: The Federal Motor Carrier Safety Administration's (FMCSA) regulations require alcohol and drug testing of drivers, who are required to have a CDL. The Department of Transportation (DOT) rules include procedures for urine drug testing and breathe alcohol testing. These regulations apply to safety- sensitive employees, who operate commercial motor vehicles requiring a CDL and include employees who work for state and local governments. Public Works employees that are required to have a CDL for their jobs are those that operate dump trucks, backhoes, or pull a trailer behind a vehicle to move equipment to various work locations. The city has required department employees to maintain a CDL license, but has yet to implement the required random testing policy. The policy is designed to protect the employee and the city from potential fines, as well as ensure that the city is following all required regulations to provide a safe work environment for all employees. The policy is attached for your review; it has been reviewed by the City Attorney and is in compliance with regulations. Implementation of the policy was anticipated for 2011, and during the budget process appropriate funding as approved to support this program. All testing procedures will be provided through our current drug testing provider, Concentra, who provides a third party administrator, FleetScreen, to coordinate the random testing program, training, reporting and regulation update assistance. The program requires 10% of employees to be tested for controlled substances /drugs and 5% to be tested for alcohol on a quarterly basis. This equates to approximately one drug test quarterly and one alcohol test every two quarters. Attachments: Proposed policy Recommendation: City Staff recommends approval Disposition by Council: SECTION 9 DRUGS AND ALCOHOL 9.1 DRUG AND ALCOHOL USE It is the City's desire to provide a drug -free, healthful, and safe workplace. To promote this goal, employees are required to report to work in appropriate mental and physical condition to perform their jobs in a satisfactory manner. Prohibition against Alcohol and Illegal and Unauthorized Drugs. While on City premises, while on duty, while conducting City - related business or other activities off premises, while driving a City vehicle, or while operating or using other City property or equipment, no employee may use, possess, distribute, sell, or be under the influence of alcohol, inhalants, illegal drugs, including drugs which are legally obtainable but which were not legally obtained, and prescribed or over - the- counter drugs which are not being used as prescribed or as intended by the manufacturer. Prohibition against Illegal and Unauthorized Druq Related Paraphernalia. This policy also prohibits the use, possession, distribution and sale of drug - related paraphernalia while on City premises, while on duty, while conducting City - related business or other activities off premises, while driving a City vehicle, or while operating or using other City property or equipment. Drug - related paraphernalia includes material and /or equipment designed for use in testing, packaging, storing, injecting, ingesting, inhaling or otherwise introducing illegal or unauthorized drugs into the body. Permissive Use of Prescribed and Over - the - Counter Drugs. The legal use of prescribed and over - the - counter drugs is permitted if it does not impair an employee's ability to perform the essential functions of the job (or operate the vehicle, property or other equipment) effectively and in a safe manner that does not endanger the employee, citizens or other individuals in the workplace. Examples of impairment include, but are not limited to, drowsiness, dizziness, confusion, or feeling shaky. Employees are required to notify their supervisor prior to reporting for work if their performance is compromised or diminished from use of prescription or over -the- counter drugs. It is the responsibility of employees to request reassignment to other duties, if needed, for the duration of impairment, or to request the use of available leave. Employees who fail to notify their supervisor of such impairment, and who continue to work, may be required to take available leave, or to perform other assignments and may be subject to disciplinary action if supervisory intervention is required. Fire and Police Department Employees. Certain City Fire and Police Department employees may be required to be in possession of alcohol and /or drugs in carrying out their job duties. Such employees will be exempted from certain portions of this policy under certain limited conditions, these employees will be advised in writing of the specific exemptions applicable to them. Additional guidelines will be established by Police and Fire Department operating procedures. Police officers on under -cover assignments must follow the drug and alcohol guidelines established by their department. On -Call Employees. Employees scheduled to be on -call are expected to be fit for duty upon reporting to work. Any employee scheduled to be on -call who is called out is governed by this policy. Sometimes an employee who is not scheduled to be on -call may nevertheless be called out. If this occurs and the employee called out is under the influence of drugs and /or alcohol such that reporting to work would result in a violation of this policy, the employee must so advise the appropriate supervisor on duty prior to reporting for work; the employee will not be required to report to work. Mandatory Reporting of Convictions. Within five calendar days, employees must notify their Department Head, in writing, of any criminal convictions involving drugs or alcohol (including a plea of nolo contendere), if the violation occurred in the workplace, during working hours, while attending to City business or while operating a City vehicle. Off -Duty Conduct. The City may take disciplinary action, up to and including termination of employment, if an employee's off -duty use or involvement with drugs or alcohol is damaging to the City's reputation or business, is inconsistent with the employee's job duties, or when such off -duty use or involvement adversely affects the employee's job performance. Rehabilitation /Treatment. It is the City's desire to assist employees who voluntarily request assistance with their alcohol or drug dependency. For City support and assistance, however, an employee must acknowledge his /her problem and seek and accept counseling and /or rehabilitation before it impairs his /her job performance and /or jeopardizes his /her employment. Employees with drug or alcohol problems that have not resulted in, and are not the immediate subject of, disciplinary action may request approval to take a one -time leave of absence to participate in a rehabilitation or treatment program. (An employee may not enroll in a rehabilitation or treatment program in lieu of disciplinary action.) The one -time leave of absence may be granted in the City's sole discretion. Factors considered by the City in deciding whether to grant leave include the length of the employee's employment with the City, the employee's prior work and disciplinary history, the employee's agreement to abstain from the use of the problem substance and follow all other requirements of the rehabilitation /treatment program, the reputation of the program and the likelihood of a successful outcome, the employee's compliance with City policies, rules, and prohibitions relating to conduct in the workplace, and the resulting hardship on the City due to the employee's absence. The cost of any rehabilitation or treatment may be covered under the City's group health insurance policy. In any case, the employee is responsible for all costs associated with any rehabilitation or treatment program. During time off for a City- approved rehabilitation or treatment program, the employee must use any available vacation leave, sick leave, compensatory time off, or other accrued paid leave time. If the employee has no paid time off available, the time away from work will be unpaid. Where applicable, any time off for rehabilitation or treatment under this policy will also be designated as leave under the City's Family and Medical Leave policy. If the employee successfully completes his /her prescribed rehabilitation or treatment, the City will make reasonable efforts to return the employee to his /her prior position or one of similar pay and status. However, employment with the City following a City- approved leave for rehabilitation or treatment is conditioned on the following: (A) Initial negative test for drugs and /or alcohol before returning to work, (B) A written release to return to work from the City- approved rehabilitation or treatment facility /program, (C) Periodic and timely confirmation of the employee's on -going cooperation and successful participation in any follow up or ongoing counseling, testing, or other treatment required in connection with the City- approved rehabilitation or treatment program, if applicable, (D) In addition to any testing required in connection with the employee's ongoing treatment or follow up to treatment, all employees who participate in rehabilitation or treatment under this section will also be required to submit to periodic and /or random testing by the City during the two years following the employee's return to work following treatment, (E) The employee's formal written agreement to abide by the above conditions as well as any other conditions deemed appropriate by the City. The employee must meet with a City representative to discuss the terms of his /her continued employment and sign a formal agreement before returning to work. Policy Violations. Violations of this policy will generally lead to disciplinary action, up to and including immediate termination of employment and /or required participation in a substance abuse rehabilitation or treatment program. Employees with questions or concerns about substance dependency or abuse are encouraged to discuss these matters with their supervisor or Department Head to receive assistance or referrals to appropriate resources in the community. The City may have additional obligations in addressing controlled substances and alcohol abuse for those employees regulated by the U.S. Department of Transportation. The City will ensure that the controlled substance and alcohol testing conforms to US DOT workplace testing requirements. 9.2 DRUG AND ALCOHOL TESTING Types of Tests. Testing may include one or more of the following: urinalysis, hair testing, breathalyzer, intoxilyzer, or other generally accepted testing procedure. Testing of Applicants. All applicants to whom a conditional offer of employment has been made may be required to submit to testing for alcohol and illegal and unauthorized drugs. A positive test result, refusal to test, or attempts to alter or tamper with a sample or any other part of the test, will render the applicant ineligible for consideration of employment or future employment with the City. Testing of Employees. (A) Employees will be tested for alcohol and /or illegal and unauthorized drugs after a workplace injury or accident or "near miss," or when reasonable suspicion exists, or in connection with any required treatment or rehabilitation. (B) For purposes of this policy, reasonable suspicion is a belief based on articulable observations (e.g., observation of alcohol or drug use, apparent physical state of impairment, incoherent mental state, changes in personal behavior that are otherwise unexplainable, deteriorating work performance that is not attributable to other factors, a work - related accident or injury, evidence of possession of substances or objects which appear to be illegal or unauthorized drugs, or drug paraphernalia) sufficient to lead a supervisor to suspect that the employee is under the influence of illegal or unauthorized drugs or alcohol. Supervisors must document the specific, observable facts in support of reasonable suspicion testing (e.g., the who, what, when, where of the employee's behavior and other symptoms, statements from other employees or third parties, and other evidence supporting the reasonable suspicion testing). (C) Tests will be paid for by the City. To the extent possible, testing will normally be done during the employee's normal work time. (D) Any employee who refuses to be tested, or who attempts to alter or tamper with a sample or any other part of the testing process, will be subject to disciplinary action, up to and including termination. (E) A positive test result is a violation of the City's Drug and Alcohol Use Policy and will likely result in disciplinary action, up to and including termination of employment. Any employee who is terminated for violation of the City's Drug and Alcohol Use Policy is ineligible for future employment with the City (F) Police and Fire Department employees are also subject to departmental rules and regulations regarding illegal and unauthorized drug and alcohol testing, including provisions for random testing. (G) The City may have additional obligations when testing for controlled substances and alcohol for those employees regulated by the U.S. Department of Transportation. Testing Procedures (A) All testing must be authorized in advance by the City Manager. For reasonable suspicion testing, testing may not be authorized without a supervisor's documentation of the articulable observations which led him or her to suspect that the employee is under the influence of illegal or unauthorized drugs or alcohol. Testing should be arranged as soon as possible after the supervisor's articulable observations. (B) If an employee's conduct resulted in a work place accident, injury or "near miss," or reasonable suspicion otherwise exists to believe that the employee has violated the City's Drug and Alcohol Use Policy, the employee will be provided with transportation to the testing facility. A supervisor or other designated City representative may be required to stay with the employee during the testing process. The City may, at its discretion, reassign the employee or put him /her on administrative leave until the test results are received. The City will make arrangements to have the employee transported home after the testing. (C) All substance abuse testing will be performed by a laboratory or health -care provider chosen by the City. All positive test results will be subject to confirmation testing. (D) Test results will be maintained in a confidential file separate and apart from the employee's personnel file. Any medical - related information will be confidential and only accessible by designated City representatives on a need to know basis, including those who have a need to know about necessary restrictions on the work or duties of an employee and any necessary accommodation, first aid and safety personnel when appropriate, government officials, insurance companies as may be necessary to provide health or life insurance to employees, by court order or as otherwise legally mandated, and as necessary to protect the interests of the City. Positive Test. A positive drug and /or alcohol test will likely result in termination. 9.3 DRUG AND ALCOHOL TESTING FOR CDL COMMERCIAL DRIVERS Federal Mandate. The City intends to comply with mandates issued by the U.S. Department of Transportation (DOT) and the Federal Highway Administration (FHWA) relating to alcohol and drug testing, which require employers to test employees who drive commercial vehicles as part of their iob duties, for the use of alcohol and drugs. The purposes of the provisions of these requirements are to deter misuse of alcohol and drugs and to protect the public from the damage such misuse may cause. To implement the Federal requirements, the city adopts and implements this policy. Being under the influence of a controlled substance or alcohol on the iob poses serious safety and health risks to the user and to all those who work with the user. Drug and /or alcohol testing for employees subiect to this policy can occur in five instances: 1) post- offer; 2) post- accident; 3) reasonable suspicion; 4) random, and 5) return to work following alcohol /drug abuse treatment. This policy applies to all employees who drive or whose positions may require them to drive commercial motor vehicles requiring a commercial driver's license. Prohibited Conduct. The following alcohol and controlled substance - related activities are prohibited by this polio 1. reporting to duty or remaining on duty while having any alcohol concentration of 0.02 or greater: 2. being on duty or operating a commercial motor vehicle while in possession of alcohol or drugs: 3. using alcohol while on duty, 4. the use any alcohol for eight hours after an accident requiring the a post - accident test or prior to under -going a post- accident test, whichever comes first, 5. refusing to submit to an alcohol and /or controlled substances test required by post- accident, random, reasonable suspicion, return -to -duty or follow -up tests, 6. failing to stay in contact with the city and its medical review officer (MRO) while awaiting test results, 7. reporting for duty or remaining on duty when an affected employee uses, is under the influence of, or possesses any controlled substance except when instructed by a physician that the substance does not adversely affect the employee's ability to perform his /her safety- sensitive functions, 8. reporting for duty, remaining on duty or performing a safety- sensitive function if the affected employee tests positive for controlled substances, 9. being under the influence of legal drugs that are being used illegally, 10. usina or beina under the influence of leaal druas whose use can adversel affect the ability to work safely, 11. buying, selling, soliciting to buy or sell, transport, or possess controlled substances /illegal drugs while on city time or property; and 12. using alcohol within four (4) hours of performing work duties An employee who violates any of the above, or who is convicted of a felony for a drug or alcohol - related offense, will be subiect to disciplinary action by the city, up to and including termination. Employee Taking Medication. An employee taking prescription or over -the- counter medication which may impair the employee's ability to perform his /her job must notify his /her immediate supervisor prior to performing in a safety sensitive position. Substances Tested For. The following substances will be tested for to determine their presence: Alcohol Mariivana (THQ Cocaine Amphetamines, including methamphetamines Phencyclidine (PCP) Opiates Tests Required. All employees who are required to be tested for alcohol and /or controlled substance use or misuse will be tested under the following circumstances: Post - Offer, includinq transfer. All applicants for iobs requiring a commercial driver's license and /or current employees transferring to a iob which requires a commercial driver's license will be required to be tested for the use of controlled substances. Supervisor Accountabilities. No supervisor will allow a new hire or employee transfer to perform any safety- sensitive function until an alcohol and drug test has been completed and achieved an alcohol test result indicating an alcohol concentration of less than 0.02 and has achieved a verified negative drug test result. 2. Random. All affected employees are subiect to random testing for alcohol and controlled substance at rates determined by the US Department of Transportation Regulations. These random tests will be unannounced and will be spread throughout the calendar year. The selection of drivers for random testing, the timing and frequency of the random tests and the number of drivers to be tested on any given day will be determined by the third party administrator who is coordinating the program. The selection of drivers for random testing is a valid method in which each driver will have an equal chance of being selected for testing each time random selections are made. An employee who is notified of selection for random alcohol or drug testing is required to proceed to the test site as instructed. An employee notified of selection may be required to submit to either alcohol or drug test, or both. An affected employee who tests positive to a random test is unaualified to drive, and will be terminated from emolovment. 3. Post - Accident. Drivers will be alcohol and controlled substance tested in the following situations: a. In all accidents involving a fatality, b. If the accident involves one or more vehicles being towed from the scene of the accident, C. Or involves an iniury of anyone involved to the degree that the iniury must be treated immediately away from the scene of the accident, or d. If the commercial vehicle driver receives a summons for a "moving traffic violation" as a result of the accident. Supervisor Accountabilities. As soon as practicable following an accident involving a commercial motor vehicle, the supervisor will coordinate with the Human Resources Department to test the city driver for alcohol and controlled substances. When required testing for alcohol and controlled substances has not been administered within the required time frame followina the accident, the followina actions will be taken: a. Testing for alcohol must be completed within two (2) hours following the accident. When two hours has elapsed and the driver has not been tested, the supervisor will prepare and maintain on file a record stating the circumstances preventing the testing from occurring promptly; b. If eight (8) hours has elapsed without alcohol testing, the supervisor will cease attempts to administer the test and will prepare and maintain a record stating the reason why the test was not administered. c. Testing for a controlled substance must occur within thirty - two (32) hours following an accident. If the drug test cannot be conducted within the required time frame, testing efforts will cease and the supervisor will prepare and maintain a record stating the reason why the test was not administered. Employee Availability Following an Accident. A driver who is subiect to post- accident testing must remain available, or the supervisor may consider the driver to have refused to submit to testing. The driver subiect to post- accident testing must refrain from consuming alcohol for eight (8) hours following the accident, or until he /she submits to an alcohol test, whichever comes first. Nothing in the policy should be construed as requiring the delay of necessary medical attention for iniured people following an accident, or to prohibit a driver from leaving the scene of an accident for the period necessary to obtain assistance in responding to the accident, or to obtain necessary emergency medical care. Employee Status after Post - Accident Testing. A driver who has submitted to a post- accident test will, at the supervisor's discretion, in coordination with the Human Resources Department, either be restricted from driving or or placed on administrative leave oendina the results of the testina. 4. Reasonable suspicion. All drivers that exhibit signs and /or symptoms of alcohol and /or controlled substance use or misuse, which are observed by a trained supervisor, while performing safety sensitive functions or lust before or lust after performing safety sensitive functions will be required to submit to an alcohol and /or controlled substance test. The trained supervisor who made the observation will document and sign a written record of what was observed leading to the reasonable suspicious behavior within 24 -36 hours of the observed hehnvier_ The employee will be requested to submit to an alcohol and /or drug test in accordance with the DOT regulations and this policy and at the discretion of the supervisor in coordination with Human Resources Department, will either be restricted from safety- sensitive duties, or be placed on administrative leave, pending the results of the testing. 5. Return to work following treatment. Any employee may identify himself /herself at anv time as an abuser of druas or alcohol and voluntarily through a recognized treatment program, seek counseling and rehabilitation. In these instances the employee will be permitted the use of available leave, beginning with sick leave benefits. An employee undergoing treatment will be required to authorize disclosure of their progress in treatment to the Director of Human Resources. An employee who fails to actively participate in and comply with the rules of the rehabilitation program will be subiect to immediate revocation of their leave and will be terminated of employment. Nothing within this policy should be construed as a means for an employee to avoid any required drug and alcohol testing. Once the process of establishing reasonable suspicion has been initiated, or an accident or iniury has occurred, or an employee has been selected for a random test, an employee may not seek treatment in an effort to avoid testing and possible disciplinary action. An employee that self identifies prior to notification of an upcoming drua and /or alcohol test will not automatically be dismissed. A self - declaration as a substance abuser who has complied with the rules of the rehabilitation program, prior to returning to work must: a. Be evaluated by a substance abuse professional that will provide a comprehensive face -to -face assessment and clinical evaluation of the employee and recommend a course of education and /or treatment with which the employee must demonstrate successful compliance prior to returning to a DOT safety sensitive function. b. Submit to a return -to -duty alcohol and /or controlled substance test. The results of the drug test must be negative and /or alcohol test concentration level less than 0.02, before the employee may be allowed to perform a safety sensitive fumtinn. Follow -up Testinq of Known Substance Abuser: An employee who has completed a drug or alcohol rehabilitation program, has successfully completed the return -to -duty testing with negative result or alcohol test concentration level less than 0.02, will be subject to periodic unscheduled testing for the period of two years after completion of the program. An employee who successfully completes treatment for use of drugs or alcohol and subsequently is found during working hours to be in possession of or under the influence of alcohol or drugs, or tests positive at anv time will be subiect to immediate termination of employment. Notice of Rehabilitation Resources: If a post- accident, reasonable suspicion or random test results in a "positive" (as is specified within this policy) for alcohol or controlled substances, the supervisor will make the affected employee aware of resources available for rehabilitation. The cost of treatment, counseling, or rehabilitation resulting from a "positive" or self - declared substance abuser is the responsibility of the employee. The city's group health plan may provide benefits for substance abuse treatment. Tampering with Tests or Test Process: Any action taken by an applicant or employee which can reasonably be construed as an attempt to tamper with a breath or urine sample or any part of the testing process may result in termination or an employee or automatic rejection of a job offer. If the medical facility collection site personnel have reasonable suspicion that a test was tampered with, the employee may be required to remain at the site until another sample is provided. Refusal to Test. No employee will refuse to submit to any testing required by this policy (post- accident, random, reasonable suspicion or follow -up testing). Any affected employee who refuses to submit to a test for controlled substances /or alcohol will be terminated. Refuse to submit (to an alcohol or controlled substances test) means that an employee: Failed to appear for any test within a reasonable time, as determined by the employer, consistent with applicable DOT agency regulations, after being directed to do so by the employer, 2. Failed to remain at the testina site until the testina process is complete: 3. Failed to provide a specimen for any drug test required; 4. In the case of a directly observed or monitored collection in a drug test, fails to permit the observation or monitoring of the driver's provision of a specimen, 5. As determined, through a required medical evaluation, there was no adequate medical explanation for a failure to provide a sufficient specimen sampling, 6. Failed or declined to participate in a second test the employer or collector has directed of the employee; 7. Failed to undergo a medical examination or evaluation, as directed by the M RO as part of the verification process; 8. Failed to cooperate with any part of the testing process (e.g., refuse to empty pockets when so directed by the collector, behave in a confrontational way that disrupts the collection process), or 9. Is reported by the MRO as having a verified adulterated or substituted test result. Disciplinary Action. An affected employee is subiect to disciplinary action, up to and including termination, for any violation of this policy including: Fails to report a conviction for operatina an motor vehicle while under the influence of alcohol or drugs, 2. Fails to report a conviction for operating a city motor vehicle or motor vehicle operated in the performance of city business while under the influence of alcohol or drugs, 3. Obstructs, interferes, or refuses to submit with the administration of any drug or alcohol testing, or 4. Has an alcohol result indicating concentrations of level of alcohol in the system or tests positive for one or more drugs. Notices. The city will provide each driver subiect to the US Department of Transportation Regulations a copy of this policy. Before performing an alcohol or drug test under the requirement of the US Department of Transportation reaulations, the driver being tested will be notified the test is reauired. The city will notify an applicant or an employee of the results of a post- offer employment drug test conducted under this policy. The city will notify employees of the results of random tests, conducted under this policy if the test results are verified positive. Confidentiality. All test results are treated confidentially and no results will be released to outside parties without the employees express consent or when required by law, rule or regulation or expressly authorized. Records of drug and alcohol testing of drivers are subiect to the following: All records are reauired to be maintained in a secure location with controlled access. 2. Upon receipt of a written request from an employee, the city will make records available to a subsequent employer. 3. Upon request, an employee is entitled to copies of any records pertaining to the testing conducted pursuant to this policy. 4. All results of alcohol and drua testina conducted pursuant to this policy will be made available, upon request, to the Secretary of Transportation. 5. The city may disclose information pertaining to the drug or alcohol testing of a driver to the decision maker in a lawsuit, grievance, or other proceeding initiated by or on behalf of the employee, and including, but not limited to, a workers' compensation, unemployment compensation, or other proceeding relating to a benefit sought by the driver and arising from the results of an alcohol or drug test. ACKNOWLEDGEMENT I certify that I have received a copy of the City of Kennedale's Drug and Alcohol Testing for Employees Driving Commercial Vehicles policy, and written material concerning the effects of alcohol and controlled substance on an individual's work and personal life, signs and symptoms of a drug or alcohol problem, and the methods to deal with a substance abuse problem. I have been given an opportunity to ask questions about the policy and understand that my position as an employee falls under the guidelines of the US Department of Transportation pre - employment, random, post accident, reasonable suspicion, return to duty and follow -up drug and alcohol testing requirements. Date Driver's Signature Witness Signature Date: February 10, 2011 Agenda Item No: X -D Subject: Conduct public hearing, review and consider action to approve Ordinance No. 473 regarding CASE #PZ 11 -0, considering a request by M. Naseem Patel for a zone change of approximately 2/3 acre at James A Arthur Addn Lot 1R2 (317 W Kennedale Pkwy) from "C2" General Commercial to "Cl" Restricted Commercial. Originated by: Rachel Roberts, Planner Summary: Background. Naseem Patel owns and operates P & P Mart, located at 317 W Kennedale Pkwy. P & P Mart is a gas station and convenience store. During its January meeting, city council approved an amendment to the zoning ordinance changing the zoning classification for gas stations (whether service stations or convenience stores) to C -1 zoning. When that was approved, Mr. Patel's use became non- conforming, because he now has a C -1 only use on a property zoned C -2. Mr. Patel has requested a zone change from "C -2" General Commercial to "C -1" Restricted Commercial at the encouragement of city staff. Compliance with Comprehensive Land Use Plan. The future land use plan indicates this area as "Commercial ", and both C -1 and C -2 uses fit this designation. (The future land use plan does not designate different levels of "Commercial "; all commercial /retail properties are classified the same way.) C -1 zoning would therefore not be in conflict with the comprehensive land use plan. Compatibility with Surrounding Zoning Classifications, Properties. The properties running along the Parkway to the northwest of the subject property are zoned C -2 until about halfway to the intersection with Dick Price. The zoning for several (short) blocks to the southeast of the subject property is C -1. The car wash and tire store to the left of the subject property are on land zoned C -2, but most of the property on Mr. Patel's block (the same block as City Hall) is zoned C -1. Properties across the street are also zoned C -1. A change to C -1 zoning at this location would be compatible with surrounding properties and zoning classifications. Summary. Rezoning this property to C -1 would not be in conflict with the comprehensive land use plan or with the zoning policies and visioning established since the comprehensive plan was adopted. Moreover, it would not be incompatible with the zoning in the immediate area. In addition, the requested rezoning would remove the property's recently- obtained non - conforming zoning status as a C -1 -only use in a C -2 zoning district. Attachments: - Proposed Ordinance 473 - Legal Description - Area Map Recommendation: The Planning & Zoning Commission held a public hearing on this item during its January meeting and recommended city council approve the proposed zoning amendment. Disposition by Council: Case PZ 11 -01 Legal Description of property James A Arthur Addition Blk Lot 1R2 Future Land Use Plan Showing 317 W Kennedale Pkwy Approximate location of 317 W Kennedale Pkwy RRIIRE LAM USE � L wr BFb* " L E �Pkftlswmw L wr Dm ft Pserl nMa1 �Oxmrw 1PAW& me* " kbMJONAMW W1 �Ugmh*W �hd M Wanft PAsbbrM ) rasa �I CITY OF KENNEDALE ORDINANCE NO. 473 AN ORDINANCE AMENDING ORDINANCE NO. 40, AS AMENDED, THE COMPREHENSIVE ZONING ORDINANCE OF THE CITY OF KENNEDALE; BY CHANGING THE ZONING CLASSIFICATION OF CERTAIN PROPERTY WITHIN THE CITY OF KENNEDALE, BEING APPROXIMATELY 2/3 ACRE ENCOMPASSING JAMES A ARTHUR ADDN LOT 1R2; PROVIDING FOR THE AMENDMENT OF THE OFFICIAL ZONING MAP TO REFLECT SUCH CHANGES; PROVIDING THAT THIS ORDINANCE SHALL BE CUMULATIVE OF ALL ORDINANCES; PROVIDING A SAVINGS CLAUSE; PROVIDING A SEVERABILITY CLAUSE; PROVIDING A PENALTY CLAUSE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Kennedale, Texas is a home rule city acting under its charter adopted by the electorate pursuant to Article XI, Section 5, of the Texas Constitution and Chapter 9 of the Local Government; WHEREAS, pursuant to Chapter 211 of the Local Government Code, the City has adopted a comprehensive zoning ordinance and map regulating the location and use of buildings, other structures and land for business, industrial, residential or other purposes, for the purpose of promoting the public health, safety, morals and general Nvelfare, all in accordance Nvith a comprehensive plan; and WHEREAS, a change in the zoning classification of the property listed below Nvas requested by a person or entity having a proprietary interest in said property, and WHEREAS, a public hearing Nvas duly held by the Planning and Zoning Commission of the City of Kennedale on January 20, 2011 and bV the City Council of the City of Kennedale on the 10th day of February 2011 Nvith respect to the zoning change described herein; and WHEREAS, all requirements of law dealing Nvith notice to other property ovmers, publication and all procedural requirements have been complied Nvith in accordance Nvith Chapter 211 of the Local Government Code; and WHEREAS, the City of Kennedale, Texas does hereby deem it advisable and in the public interest to amend Ordinance No. 40, as amended, as described herein. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF KENNEDALE, TEXAS: SECTION I. Ordinance No. 40, as amended, the comprehensive zoning ordinance of the City of Kennedale, is hereby amended to rezone the folloNving property from "C -2" General Commercial District to that of "C -1" Restricted Commercial District as shoN -,n and described below: See Exhibit "A" and Exhibit `B" SECTION 2. The zoning districts and boundaries as herein established have been made in accordance Nvith the comprehensive plan for the purpose of promoting the health, safety, morals, and general Nvelfare of the community. They have been designed to lessen congestion in the streets, to secure safety from fire, panic, flood and other dangers, to provide adequate light and air, to prevent overcrowding of land, to avoid undue concentration of population, to facilitate the adequate provisions of transportation, Nvater, sewerage, parks and ether public requirements. They have been made after a full and complete hearing Nvith reasonable consideration among other things of the character of the district and its peculiar suitability for the particular uses allowed and Nvith a view of conserving the value of the buildings and encouraging the most appropriate use of land throughout the community. SECTION 3. The City Secretary is hereby directed to amend the official zoning map to reflect the changes in classifications approved herein. SECTION 4. The use of the property hereinabove described shall be subject to all the applicable regulations contained in the Comprehensive Zoning Ordinance and all other applicable and pertinent ordinances of the City of Kennedale, Texas. SECTION 5. This Ordinance shall be cumulative of Ordinance No. 40, as amended, and all other Ordinances of the City of Kennedale affecting zoning and land use, and shall not repeal any of the provisions of such ordinances except in those instances where provisions of such ordinances are in direct conflict Nvith the provisions of this ordinance. SECTION 6. All rights or remedies of the City of Kennedale, Texas are expressly saved as to any and all violations of Ordinance No. 40 or of anv amendments thereto that have accrued at the time of the effective date of this Ordinance and as to such accrued violations and all pending litigation, both civil and criminal, same shall not be affected by this Ordinance but may be prosecuted until final disposition by the Courts. SECTION 7. It is hereby declared to be the intention of the City Council that the phrases, clauses, sentences, paragraphs, and sections of this ordinance are severable, and if any phrase, clause, sentence, paragraph or section of this ordinance shall be declared unconstitutional by the valid judgment or decree of anv court of competent jurisdiction, such unconstitutionality shall not affect any of the remaining phrases, clauses, sentences, paragraphs and sections of this ordinance, since the same Nvould have been enacted by the City Council Nvithout the incorporation in this ordinance of any such unconstitutional phrase, clause, sentence, paragraph or section. SECTION 8. Any person, firm or corporation who violates, disobeys, omits, neglects or refuses to comply Nvith or N-, resists the enforcement of any of the provisions of this Ordinance shall be fined no more than Two Thousand Dollars ($2,000.00) for all violations involving zoning and Five Hundred Dollars ($500.00) for all other offenses, and in addition shall pay all costs and expenses involved in the case. Each day a violation occurs is a separate offense. Nothing herein contained shall prevent the City from taking such other lav,ful action as is necessary to prevent or remedy anv violation. SECTION 9. This ordinance shall be in full force and effect from and after its passage and it is so ordained. PASSED AND APPROVED THIS 10 "' DAY OF FEBRUARY 2011. Baran Lankhorst, Mavor ATTEST: Amethvst G. Cirmo, City Secretary EFFECTIVE: APPROVED AS TO FORM AND LEGALITY: Wavne Olson, City Attornev Date: February 10, 2011 Agenda Item No: X -E Subject: Discuss and consider authorizing temporary permission to Art in the Park to sell alcohol in the TownCenter Park during the Art in the Park event on April 8, 9, and 10, 2011. Originated by: Felipe Gutierrez Summary: Art in the Park has submitted its application to sell alcohol in TownCenter Plaza during its upcoming event in April. This application falls under the guidance of City Ordinance 468 Section(2)(a): The City Council is authorized to allow nonprofit groups and nonprofit organizations to obtain temporary written permission from the City for the sale and consumption of alcohol in parks during special events for a period not to exceed 72 consecutive hours. A nonprofit group or nonprofit organization may apply for a special event permit to allow the sale, consumption, or possession of alcoholic beverages in a city park during a special event. If the permit is granted by the City Council, the sale, consumption or possession of alcoholic beverages shall be allowed at the locations and during the times specified in the permit, notwithstanding Section 16 -4. Any permission to sell alcohol granted by this Section is contingent on the seller obtaining all necessary authority to sell alcohol from the Texas Alcoholic Beverage Commission. All consumption or possession of alcohol allowed in parks during special events is limited to the consumption or possession of alcohol purchased at the event from a retailer possessing an appropriate state law license or permit to sell alcoholic beverages at the event. The submitted application is attached to this staff report, and a representative from Art in the Park will be available during the city council meeting to answer questions from council. Attachments: - Permit applications - Site Plan - TABC Temporary Catering Permit Requirements Recommendation: City staff recommends acceptance of permit. Disposition by Council: Applicar. ik Clh'wd(9 NAME OF ORGANIZPIrION: HEAD OF ORGANIZATION: Organization Miling Addwss: (Street) �� ►lit (City, State, Zip Code) "7 Organization Phone: L j SPECIAL E1 T CHAIFtM (NAME AND ADDRESS): to AS I VCLAi � L. C_ (THIS PERSON WILL BE RESPONSIBLE FOR CONDUCT AT THE SPECIAL EVENT.) Special Event Chairman Phone: 0 " -7 7: L Special ftprif In Enaflon ■ NAME OF� AND DESCRIPTION OF EVENT' i Dates to be held: �`C 1 Hours of event: f � Estimated number of persons to attend: [�' 000 Event address: + ■ ■ ON d Monal I atmaon No permit shall be is ,4ed until szosfactory proof has been provided that liability insurance has been obtained in compliance with the Texas Alcoholic BeverageACode and rules issued by the appropriate state agency. Has the organization obtained liability insurance in compliance With the Texas Alcoholic Beverage Code and rules issued by the appropriate state agency? es � i� �Vi ❑ NO Please submit with -rouw application a copy of the cedificate of insurarse. Has the applicant received all necessary authority to sell alcohol from the Texas Alcoholic Beverage Commission? ❑ Yes C l6 no, has the applicant applied for all necessary authority to sell alcohol from the Texas Alcoholic Beverage Commission? ❑ Yes Date application was submitted to TABC: 0 Please submit the following information with your application: El Site layout information, including all exits and locations where alcohol sales are proposed A y_a4e_ © Security information iCevtvj& P'O' MME ■ ■ 11 . f. ■ ❑ S [l tor ra age and containment, 7 ceW6'er- shed at time of application irked.. I e, cc�vin "I'd i � AD Vor ilft* 1 ❑ Food vendor information (for vendors who will sell alcohol) T IREC So ve r 3r, 6- 6 & ❑ A copy of the current, valid 501(c) determination letter (or ? er proof aswequired ky the City) ww�� h +l!#�'1 �fGS *-jsOq L � 1 /t-I ecoo�'�t GR&IW*&J0Wd§ Post Aj&okld!L Ik _ A RCS. The City Council shall issue a permit for the proposed spwial event mvithin sixty (66) days of receipt of an application, uPless the gouncil finds that: (1) The conduct of the special event will require the diversion of so great a number of police officers of the City to properlp police the spacial event and the contiguous areas, so that adequate police protection cannot be provided the remainder of the City; (2) The conduct of the special event will require the diversion of so great a number of ambulances, so that adequate ambulance service to portions of the City not occupied by the special event anchcontiguous areas will be preventeM; (3) The Nonduct of the special event is reasonably ftly to result in violence to persons or property causing serious harm to the public; (4) The special event is to be held for the primary purpose of advertising a product, or gwds, and is designed to be held primarily for private profit and no public purpose is served; 6155) The spacial event will interfere with the movement of firefighting equipment to such an extent that adequate fire protection cannot be provided to the City; or (6) The special event will conflict! in time and location with another special event, a permit for vyPich has been granted, e r may establish appwpdatalees Jw issuance of such pearft-by resolution of the GrW ouitil. %' 60 ■ qF DATE PERMIT APPLICATION RECEIVED: In issuing such permit the City Council may designate an area yAthin the city pa0k or facility for the serving, possession and consumption of alcoholk beverages under such permit, and shall establish such hours that the beverages may be dispensed, consumed, or possessed under the ,permit. The city manager or his designee is further authorized to adopt and enforce such other appropriate health, safety and welfare measures to ensure safe use of the premises and general welfare of the areas adjacent thereto. List stafWecothmendfiations, Many, fcW hou MAN& alcoholic bqy0agps malt be dispensed, consumed, or possessed unde the permit: List stafPFbcoffimendations, if any, f4Brea (s) Within the cityl-pA or facilit'rfa the sd ing, possession, and consumption of alcoholic boyeEages undekhe pemie Additional Comments Recommendation: Approval ❑ Denial Signature of planner: nature of director of de pmen ervices: Si ature of super' tendent. Signature of ire chief or authorized fire department representative: Signature of police chief or authorized police representative: � § � � � a \ . �� § � .� � \ 2 � 2 « � . � �� , _, �� r � ƒ� . � � , > � . , - ,� � a ° . \ — — \ . � . + ®® � ^ m � � . .� .� ■ Thera,is a updataid form on the interneiat our website under forms, you will need to submit one motarized original Am our office alerg with *ismdditional iinformation: 1. One jtariWd or§iRRI `lRmpbrarij lgaily 'Permit AppliLwatiol! (Please All you local City Secretary or 09erk to make sure i bat you eier* locatioq is in a wet area before submi%g to T)hC, if in a drp area yomvill need a private wub to cater your event). i A Cashier's ■heakdor the fees A silp mieftlifere @he event will be, includilMg a red line around where the alcohol4villift cWt&e ntrarijes gnd exits lb th1% *Fa q - j and'LLxplain what kin j of confWl tl%re will sib ing, secgrity, qff duty PR, jNivate �curity, Rarity liprgpnrjpl, A.)9" map dale o� 8 [ 11 Aersiw er. 4. 1 sent letter from thmwrmr ekhepemty, cc■isenting to iheavent and the sale of akBoinl rr� t rty. 5. If h, ra CharillWe AWi@R you will neRWo Irovide a list of all alcoilbl that Ps 1 1ein %auctiprFad. 'FRe IWJ&hpuld i WJ& the size, name, and %a prigp of the alcohol, and Ile name and contact infgvmatiom of *e donator. 6. Ammpy of ipouriiWc)3 7. If this is the firstRime your Venue has alplieclifor one of theA permits, an officer of your permit wlluld%e retired t, atten an irlerview, that will take asbut an Rbur and needs to be schefflAd in adya - mifiaM Sid i ,-- if I� f1P&b0ii✓W�- For s Ienvw � Pwwril all of Artbove needs to be embmittird to the Arlington District Office 14- WWm s i ne s n W apief=mWn Eme■en6 Fair aE@atfflMqLWRhN iWnsWWlsereal V"icMwould Ire a Catehing CeWifiMe IROWst instea *d$ th atM vPWcIR can lye emialAl■61 lb yfu Pt your request), 3, dllIR4. st Ztgt�e Agngton District Iffice 3 busiripss days before the wept. If rfou have any questions feel free i3 contact me. I do all the temporaries amdriaterimg prermits for On Dallasll■t. VArth areas. To pwnt 1Phw *jpliae *mn6orws frwm our website go to: diabc.state. tir ws Then: @0 to 1. Forms (WWhewwah bar at *op) 2. I n naiailille in bluff} dick an Licewsing - Qrig Applications 3. On middle in flue) Mick QM Licewsing (Packets by Type) 4 `hay are a%Netical, Scroll dews to: Temparasr License /Permit Application Packet The cafming Z'ertflIsrate Reauosfis not available on !he Website, please call the local linoWn WrI ice @ - 0 ask; licensing, or email h kite bc.staRe.tj.us guest one sent tWou. Date: February 10th, 2011 Agenda Itewn "40: X -G Subject: 37 Year Community Development Block Grant Project Originated by: Larry Ledbetter, Public Works Director Summary: The City participates in an annual Public Works project selection that is funded, in part, by a HUD Community Development Block Grant (CUBG) and administered by Tarrant County. As part of the application procacs, the County requires that the City authorize the project and pledge any funds 'Phat may exceed the HUD grant for the design and construction. The 2011 (37 Year CDBG) recommended project is a continuation of the 35 and 36 Year CDB9 projects. The project encompasses sanitary sewer irnprovemewts in the low / moderate income areas of Kenny and Sulphur Streets. The purpose of this project is to replace the aging clay tile sewer lines and brick manholes with new materials. This in turn will cut down on maintenance costs and associated I &I problems. The proposed project will reconstruct 1,200' of exisiing 6" sanitary sewer and manholes with 8" PVC and HDPE. Construction shall be a combination of open cut and pipe burst. The estimated Engineering and construction cost of the project is $128,397 of which the City's participation is estimated at $38,397 and would be budgeted in next years Waker and Sewer Budget. Recommendation: Staff recommends approval Disposition by Council: I : C9?W#RJNffY!,W W-UWWRT BUMKXA"NY 37thYeafr FY. 2011 r *,, 16 Sanitary Sewer Improvements for Sulphur Street and Kenney Street (An Extension of the A th YearC ORG Project) ■ LE 0 0 0 L e V �Y� if -1 I ' 1� r—v d d I I r Q ■ Z7 L m ■ ■ .i 9 Tarrant County Community Development Community Development Block Grant 37 th Year — PY 2011 e ue Nall a -PAM, Inc. Firm Address 1100*1acon Street Fort Worth, TX 7J10T Firm Contact Person 1 Joseph Patterson Contact Person Phone 1 817 -665 -7116 Contact Person E -mail 1 jpatterson @tnp- online.com Firm Contact Person 2 Greg Saunders Contact Person Phone 2 817 -336 -5773 Contact Person E -mail 2 gsaunders @tnp- online.com Project Cost/ Engineering Estimate $128,397 CDBG 37 "' Year — PY 2011 Project Proposal Form 1 of 5 1 Sly Type of Project lyuolic aci i ies - anitary ewer Project Address Sanitary Sewer Reconstruction from Spiller to Sulphur and Kenney Zip Code 76060 Census Tract/BG 1114.051 and 1114.052 Project Description (Complete & Detailed) Reconstruct 1,260' of exist. 6" SS and manholes with 8" PVC and HDPE. Construction shall be a combination of open cut and pipe burst. Service Area Description (Street boundaries and Rescription of non - residential area) All residential service area at the upstream end of an existing old clay pipe SS. ■ Land Use Information ■ State Land Use Codes (Single Family Residential) 42 (Mobile Homes) B1 (Multi family Residential) C1 (Residential Vacant) C2 (Commercial Vacant) C6 (Exempt — ROW) D3 (Farm land) D4 (Undeveloped) F1 (Commercial) F2 (Industrial) 31 -8 (Utilities) OTHERO ) TOTAL RESIDE TEAL: Land Use in Ncres Total 5Acres in Seivice Area Q/o of Total Semice Area 10.3 20.3 100 ■ 10.3 10.3 100 0 /0 ■ MAPS (Check each which you have included) X Map(s) indicating Service Area and Project location X Map of FEMA Flood Map (FIRM) of project area X MAPSCO map with coordinates CDBG 37"' Year — PY 2011 Project Proposal Form 2 of 5 ■ ■ ■ ti ■ Name IIICitV ofnnedale Address Ilphur and Kenna► Atreets Please fill in the below Information Item Ro. Description Quantity, Unit Price Amount 1 mobilization, Preparation and Restoration Lump Sum $7,500 $7,500 2 San. SaMeranhole 3 A $4,000 $12,000 3. 8" HDPE San. Sewer (Open Cut /Pipe Burst) 1,200 LF $45 $54,000 4. 4" PVC SS Service with Cleanout 8 1111 $850 $6,800 5. ' 'iscellaneous Utilit*Adjusluents Lump Sum $5,000 $5,000 6. Pu ment Repair 600 LF $25 $15,000 7. '`f rench!Safety 600 LP $2 $fA00 S. Contingency (15 %) $15,225 Sub - Total: $116,5 City Match Amount $38,397 Design /Engineering z ti Other Sources $90,000 Total Project Cost $IX,397 Prepared By: ■ Greg D. Saunders, P.E. CDBG 37 ` Year —PY 2011 Project Proposal Form 3 of 5 '% stoppages, failmes and root intrusion. The gravity sewer in both streets is undersize. While repairs are made on the line, the surrounding neighborhood's wastewater collection is susc�tible to backups. The new PVC and HDPE gravity sewer will be less susceptible to blockages and overflows and immediately improve wastewater collection in the neighborhood. This project connects to the 35 Year CDBG project in Spiller Street. revenue sources for public works projects. CDBG funding for this project will ensure its construction in the upcoming year. ■ sewer mains and services that are past their service life. This project will improve the current conditions by immediately providing improved wastewater service to the neighborhood. There will be no negative impacts on the environment due to this project. CDBG 37 "' Year —PY 2011 Project Proposal Form 4of5 111111. ,' Place an "X" in the appropriate response. If compliance response is other than "Not Applicable" please incRate needed requirement and any additional information. CDBG 37' Year — PY 2011 Project Proposal Form 5 of 5 " " Y o �a v m 2 _0 oo.v CU n o2 :a V 6 CU M E ° ° Progide Compliance area of Statutory Y .o O = Y N Documentation. Additional or R ulato Com fiance z °- O " N °` Gl O N S " b O a " R materiallill1mg be attached. Historic PropEdies Flood Plain Tarrant County, Texas does not contain Wetlands X any protected wetlands. US Dept. of Interior National Wetlands Inventory, 1992, Map. Tarrant County, Texas is not located along Coastal Zone Management X a coastal area. Map on File. Edwards Aquifer is the only sole source Sole- Source Aquifers X aquifer exchange zone in Texas. This Aquifer is not located in Tarrant County, Texas. Map on file. Endangered Species No wild and scenic rivers are located in Wild and Scenic River X Tarrant County, Texas. Map on file. Air Quality Farmlands Atection Thermal/Explosive X Noise Airport Clear Zones Toxic Sites Solid Waste Environmental Justice CDBG 37' Year — PY 2011 Project Proposal Form 5 of 5 RESOLUTION NO. 350 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF KENNEDALE, TEXAS AUTHORIZING FUNDING PARTICIPATION WITH TARRANT COUNTY COMMUNITY DEVELOPMENT AND HOUSING FOR THE 37 YEAR COMMUNITY DEVELOPMENT BLOCK GRANT PROJECT FOR SANITARY SEWER IMPROVEMENTS WITHIN THE CITY OF KENNEDALE, TEXAS AND PROVIDING AN EFFECTIVE DATE. WHEREAS, in the City Council Meeting of February 10 "', 2011, the City Council of the City of Kennedale approved the 37 "' Year Community Development Block Grant Project (CDBG) to reconstruct 1,200 feet of existing 6" sanitary sewer and manholes Nvith 8 "PVC and HDPE in the City of Kennedale, Texas; and WHEREAS, the budget for the project approved on February 10, 2011 reflected an estimated construction cost in an amount of $128,397.00 Nvith the City of Kennedale pledging funds in an amount of $ 38,397 ; and WHEREAS, the City funds Nvill be budgeted in the 2011 /2012 fiscal Near budget and Nvill be utilized for project costs in excess of the CDBG funds available for the project. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF KENNEDALE, TEXAS: Section 1. That all matters stated in the preamble of this resolution are true and correct and are incorporated herein as if copied in their entirety. Section 2. That this resolution shall be effective upon its passage. PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF KENNEDALE, TEXAS on this 10 "' day of February 2011. APPROVED: Baran Lankhorst, Mavor ATTEST: Amethvst Cirmo, City Secretary Date: February 10, 2011 Agenda Item No: X -H Subject: Consider approval of Resolution 351, calling the 2011General Election. Originated by: Amethyst G. Cirmo, City Secretary Summary: The City of Kennedale prefers to continue contracting with Tarrant County for general election purposes. No changes to this contract have been made since 2010. Dates of importance for the 2011 general election include: February 14, 2011 First day for filing application for place on ballot. March 14, 2011 Deadline to file application for place on ballot ( must be received by 5:00 p.m. March 15, 2011 Drawing for place on ballot at 9:00 a.m. in City Secretary's Office. First day to accept applications for early ballots to be voted by mail. March 21, 2011 Deadline to file for write -in candidate ( must be received by 5:00 p.m.) March 22, 2011 Last day for a candidate to withdraw ( Must receive in writing by 5:00 p.m. April 14, 2011 Last day to register to vote in order to be able to vote in May 8th election. May 2, 2011 Early voting by personal appearance begins. Early Voting will be conducted May 2n through May 10 2011 in the Kennedale Community Center, 316 W. 3r St., Kennedale, TX May 6, 2011 Last day to receive applications for early voting ballots to be voted by mail. May 10, 2011 Last day to vote early by personal appearance. May 14, 2011 ELECTION DAY 7:00 a.m to 7:00 p.m at the Kennedale Community Center May 17 -25, 2011 Period for Official canvass of returns and oaths of office of newly elected officers, unless runoff election is necessary. June 18, 2011 Runoff Election, if necessary. Attachments: Resolution 351 Recommendation: City Staff recommends approval Disposition by Council: RESOLUTION NO. 351 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF KENNEDALE, TEXAS, CALLING FOR A GENERAL ELECTION TO BE HELD ON MAY 14, 2011; APPROVING A JOINT CONTRACT WITH TARRANT COUNTY ELECTIONS ADMINISTRATOR TO ADMINISTER THE ELECTION; AND ESTABLISHING PROCEDURES FOR THAT ELECTION; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Kennedale, Texas, (the "City ") is a home rule city acting under its charter adopted by the electorate pursuant to Article XI, Section 5 of the Texas Constitution and Chapter 9 of the Local Government Code; and WHEREAS, the regular election for City Council of the City of Kennedale is required to be held on May 14, 2011, at which time the voters Neill elect persons to fill City Council Places 1, 3; and 5; and WHEREAS, the election Nvill be held as a joint election, conducted under the authority of Chapter 217 of the Texas Election Code; and WHEREAS, by this Resolution, it is the intention of the City Council to designate a polling place for the election, to appoint the necessary election officers to establish and set forth procedures for conducting the election, and authorize the Mayor to execute a contract Nvith Tarrant County for conducting the election. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF KENNEDALE, TEXAS, THAT: Section 1. General Election Called. An election is hereby called to elect City Council Places 1, 3, and 5 to serve from May of 2011 until May of 2013 or until their successors are duly elected and qualified. The election shall be held on May 14, 2011 between the hours of 7:00 a.m. and 7:00 p.m., at the Kennedale Community Center, 316 W. 1 Street, Kennedale, Texas 76060. Section 2. Joint Election Agreement Approved. The Joint Election Agreement for Tarrant County and the City of Kennedale (the "Agreement ") and incorporated herein for all purposes is hereby approved and the Mayor is authorized to execute the Agreement. In the event of conflict between this resolution and the Agreement, the Agreement shall control. Section 3. Application for Place on Ballot. Qualified persons may file as candidates by filing applications in the office of the City Secretary from 8:00 a.m. to 5:00 p.m., Monday through Friday, from February 14, 2011 through March 14, 2011. Page 1 of 3 Early Votin6. Section 4. a. Early voting by personal appearance. Early voting by personal appearance shall be conducted beginning on May 2 a 2011 and continuing through May 10th, 2011 in Kennedale at the Kennedale Community Center, 316 W. 1 Street, Kennedale, Texas 76060 at the folloN ing times: Monday, May 2, 2011 8:00 a.m. — 5:00 p.m. Tuesday, May 3, 2011 8:00 a.m. — 5:00 p.m. Wednesday, May 4, 2011 8:00 a.m. — 5:00 p.m. Thursday, May 5, 2011 8:00 a.m. — 5:00 p.m. Friday, May 6, 2011 8:00 a.m. — 5:00 p.m. Saturday, May 7, 2011 7:00 a.m. — 7:00 p.m. Sunday, May 8, 2011 11:00 a.m. — 4:00 p.m. Monday, May 9, 2011 7:00 a.m. — 7:00 p.m. Tuesday, May 10, 2011 7:00 a.m. — 7:00 p.m. Additional early voting Nvill be conducted at locations throughout Tarrant County as established by the Agreement. This Resolution will be amended at a later date to include early voting sites added due to the joint elections conducted Nvith other subdivisions pursuant to the Agreement. If there is any discrepancy between this resolution and the Agreement as to early voting locations or times, the Agreement shall control. b. Early voting by mail. Steve Raborn, the Tarrant County Election Administrator ( "Election Administrator ") is hereby designated as Early Voting Clerk for the general election. Applications for early voting by mail may be delivered to the Election Administrator at the folloNving address: Early Voting Clerk, P.O. Box 961011, Fort Worth, Texas 76161 -0011, not earlier than March 15, 2011 and not later than close of business on April 29, 2011, if delivered in person, and May 6th, 2011, if delivered by mail. Early voting by ballots shall be mailed to the Elections Administrator at the same address. C. Early Voting Ballot Board. Early voting, both by personal appearance and by mail, shall be canvassed by the Early Voting Ballot Board established by Tarrant County under the terms of the Agreement. Section 5. Appointment of Election Judge and Alternate Election Judge. The Presiding Election Judge and Alternate Presiding Judge shall be appointed by Tarrant County as authorized by Chapter 271 of the Code. Section 6. Method of Voting. The Hart InterCivic eSlate (Direct Recording Electronic Voting System) shall be used for voting by personal appearance and on election day the Hart InterCivic eSlate (Direct Recording Electronic Voting System) and Hart InterCivic eScan (Optical Scan Voting System) shall be used. The City Council hereby adopts the Hart InterCivic eSlate DRE for early voting and the Hart InterCivic eSlate DRE and Hart InterCivic eScan for Election Day. All expenditures necessary for the conduct of the election, the purchase of materials therefore, and the employment of all election officials are hereby authorized, and shall be conducted in accordance Nvith the Election Code. Page 2 of 3 Section. 7. Governing Law and Qualified Voters. The election shall be held in accordance Nvith the Constitution of the State of Texas and the Code, and all resident qualified voters of the City shall be eligible to vote at the election. Section 8. Publication and Posting of Notice of Election. Notice of the election shall be given as required by Chapter 4 of the Code. Section 9. Submissions to the United States Justice Department. Tarrant Countv is authorized to make such submissions as are necessary to the United States Justice Department to seek pre - clearance for any changes in voting practices as authorized by the Voting Rights Act of 1965, as amended. Section 10. Necessary Actions. The Mavor and the City Secretary of the City, in consultation Nvith the City Attornev, are hereby authorized and directed to take anv and all actions necessary to comply Nvith the provisions of the Code in earning out and conducting the election, Nvhether or not expressIv authorized herein. Section 11. Runoff Election. Should a runoff election be required folloNving the canvass of the May 14, 2011 election, the Council hereby orders that a runoff election be held on Saturdav, June 18, 2011. The polling place on Election Day for the runoff election shall be at the same polling places as those of the original election and the hours of voting shall be between 7:00 a.m. and 7:00 p.m. Section 12. Effective Date. This resolution shall be effective upon its adoption. PASSED AND APPROVED this 10 "' day of Februarv, 2011. Mavor, Brvan Lankhorst ATTEST: Amethvst G. Cirmo, City Secretary /_199lonIVA 107AVAMMMLI_1a1011 M W-11 0 told Wavne K. Olson, City Attornev Page 3 of 3 Date: February 10, 2011 Agenda Item No: X -I Subject: Consider action to accept Resolution 352, authorizing TCAP to negotiate an extension to the current electric supply agreement and approving TCAP contracting with Next Era and authorizing the City Manager to sign a contract with TCAP for the city's electricity needs. Originated by: Bob Hart, City Manager Summary: (adapted from Geoffrey M Gay, Llyod Gosselink Attorneys at Law memo dated 11/5/2010) Effective January 1, 2011: The merger of CAPP and STAP into the new identity, the Texas Coalition for Affordable Power ( "TCAP "). The merger will have no impact on existing contractual relationships with Next Era and Direct Energy. The current energy supply agreement expires December 31, 2013. Energy prices for each year of the current five -year contract were locked on at the time the contract was signed in the fall of 2008. Prices vary by ERCOT zone and for 2011; the energy prices are scheduled to be only slightly higher than 2010 prices. Our contractually scheduled price for 2011 is 7.895¢ per kWh. Kennedale's supplier, Next Era, has offered to liquidate the natural gas futures contracts it secured in 2008 to give CAPP and STAP fixed electric rates for five years. Next Era would then purchase new gas futures contracts to secure fixed pricing for an eight -year period at rates less than rates that must be paid next year under the existing terms and conditions of the contract with Next Era. For most CAPP and STAP members, Next Era's offer to "blend and extend" would reduce 2011 prices by approximately 1¢ per kWh. For the small users who consume less than 1 million kWh annually, that reduction should result in savings of between $2,500 and $30,000 over the remainder of the current five -year agreement. For the largest user, the savings should approximate $5 million. Background The current contract is referred to as a four -party agreement. It contractually commits CAPP and STAP to Next Era (aka, Florida Power & Light) as supplier and Direct Energy Business Services ( "DEBS ") as retail electric provider responsible for customer accounts and billing. Each CAPP and STAP member was required to pass a resolution agreeing to be bound by the four -party agreement and pledging to sign an individual customer energy supply agreement with DEBS. The current contract became effective on January 1, 2009 and will expire December 31, 2013. Under ordinary circumstances, bids for power to meet member needs in 2014 and beyond would not have commenced until sometime in 2012. In June, CAPP and STAP received an unsolicited offer for a block of base load energy to be available in 2014 from distressed generation assets to be purchased by some West Texas investors and backed by J.P. Morgan. The indicative pricing looked favorable for a five -to- twelve -year commitment. Both Boards were interested in the proposal. The CAPP Board directed R.J. Covington Consulting to perform a due diligence evaluation of the proposed pricing. Consultants were able to obtain several comparable offers, including an offer from Next Era. However, Next Era indicated that while they were willing to discuss the block power commitment, better pricing could be offered in a blend and extend arrangement. Indeed, their blend and extend proposal contained more favorable pricing with less risk than any other offer. Next Era proposed to liquidate the gas futures contracts obtained in 2008 to serve CAPP and STAP load through 2013 and to purchase new gas futures contracts at lower prices to serve CAPP's and STAP's full requirements through 2018. The energy price offered to members would be fixed for eight years subject to the same adjustment provisions (for ancillary services, nodal market prices and changes to total member load) in the current contract. Generally speaking, members in the North, South, and Houston ERCOT Zones would see a reduction in next year's price of about 1¢ per kWh. Multiplying each member's annual consumption by 1¢ yields a savings estimate for next year. In 2008, the excess supply in West Texas permitted CAPP members in the West Zone of ERCOT to realize about a 2¢ reduction off of North Zone prices during the five -year contract. Over the last year, pricing differentials between zones have narrowed significantly. Under the blend and extend arrangement, West Zone members, including Wichita Falls, Abilene, San Angelo, and Odessa and others should see some reduction in contract prices currently set for 2011 -2013, but not nearly as great as the 10 per kWh price reduction that should be available in the other three zones. Do Near -Term Savings Justify a Five Year Extension? Two factors largely determine electric prices in the Texas deregulated market: natural gas futures prices and heat rates which are in turn influenced by market perceptions of available generation capacity. At this point in time, natural gas prices are low and stable and there is excess capacity. Whether natural gas prices will remain low and stable through 2013 depends a great deal upon the future of shale gas extraction. If environmental factors such as potential groundwater contamination limit the production of shale gas or if the economy recovers and industrial and electric company demand for gas increases, natural gas prices will rise. Most analysts of population growth predict significant expansion of the population of Texas. How soon such growth will cause demand for electricity to grow faster than supply is unknown, but some forecasts suggest that the reserve margins for generation of electricity may dip below a reasonable level by as early as 2013. If that happens, electric prices will rise above current levels. An optimistic forecast would indicate that natural gas prices will remain around current levels for the next three or four years. To pass on an offer to reduce current contract rates and achieve a fixed price guarantee for eight years, one has to count on gas prices continuing to decline and for electric generation supply to remain comfortably greater than peak demand at least through the end of 2013. Even if gas prices decline so as to justify a lower rate in 2013 for the 2014 -2016 period, it is unlikely that the rate would be sufficiently lower to justify foregoing the potential near -term savings afforded by a blend and extend arrangement. Kennedale Option Kennedale is under contract through 2013. We may reject the blend and extend opportunity and remain under the current terms and conditions. If we desire to take the blend and extend offer, the City Council will need to authorize someone to sign an amended agreement with Next Era, if and when the CAPP and STAP Boards approve and recommend an amendment. Explanation of the Contracting Process The contracting process for the blend and extend agreement is exactly like the process used in the last several contracting periods. The council will need to approve one of the two attached model resolutions. One resolution (Model Resolution A) authorizes TCAP to act as an agent to negotiate and execute a contract for the member's electricity needs while the other resolution (Model Resolution B) requires the city to contract with TCAP to purchase power for the member through a Commercial Electricity Supple Agreement (CESA) and to designate an individual with the power to execute the contract. The resolutions streamline contracting procedures. The resolutions empower the Chairman of TCAP to sign a blend and extend agreement with the current power provider on behalf of all TCAP members for 2011 -2018 energy needs. A majority of TCAP members previously authorized the TCAP Chairman to execute the 2007 and the 2008 energy contracts on their behalf. Model Resolution A accomplishes that objective for 2011 -2018. Model Resolution B is to be adopted by those cities whose charters prevent the cities from delegating contracting power to anyone but the mayor or other designated city representative. For those cities, the resolution directs the city to contract with TCAP for the city's 2011 -2018 electricity needs. In addition, both resolutions reiterate that each member is obligated only for its proportionate share of the contracted load. Every TCAP member should expeditiously adopt one of the two resolutions and provide a copy of the resolution to my office. PLEASE NOTE: Passage of one of the attached resolutions does not guarantee that the Next Era contract will be extended. That will only happen if both Boards conclude that significant near -term savings and fixed prices will result. Passage of a resolution just ensures Kennedale the right to participate in the blend and extend agreement, if it is finalized, approved, and recommended by the TCAP Board. Attachments: Resolution 352 Recommended Motion: Staff recommends approval Disposition by Council: RESOLUTION NO. 352 A RESOLUTION OF THE CITY OF KENNEDALE TEXAS, AUTHORIZING THE TEXAS COALITION FOR AFFORDABLE POWER (TCAP) TO NEGOTIATE AN EXTENSION TO THE CURRENT ELECTRIC SUPPLY AND NECESSARY RELATED SERVICES AGREEMENT WITH NEXT ERA FOR A FIXED PRICE PER kWh THAT IS LOWER THAN CONTRACT RATES FOR 2011 -2013, SAID EXTENSION TO CONTINUE UNTIL DECEMBER 31, 2018; APPROVING TCAP CONTRACTING WITH NEXT ERA AND AUTHORIZING THE CITY MANAGER TO SIGN A CONTRACT WITH TCAP FOR THE CITY'S ELECTRICITY NEEDS FOR THE PERIOD BEGINNING AS SOON AFTER FINALIZATION OF A CONTRACT AS POSSIBLE AND EXTENDING UP TO DECEMBER 31, 2018; COMMITTING TO BUDGET FOR ENERGY PURCHASES AND TO HONOR THE CITY'S COMMITMENTS TO PURCHASE POWER THROUGH TCAP FOR ITS ELECTRICAL NEEDS THROUGH DECEMBER 31, 2018. WHEREAS, the City of Kennedale, Texas (City) is a member of Texas Coalition for Affordable Power (TCAP), a nonprofit political subdivision corporation dedicated to securing electric power for its 157 political subdivision members in the competitive retail market; and WHEREAS, TCAP negotiated favorable contract terms and a reasonable commodity price for delivered electricity since 2002 resulting in significant savings for its members; and WHEREAS, the City's current contract for power with Next Era arranged through TCAP expires December 31, 2013; and WHEREAS, the TCAP Board of Directors is currently considering a blend and extend contract with Next Era with indicative retail energy prices that will reduce the prices under the current contract for the next three years and extend a fixed price for energy through December 31, 2018; and WHEREAS, the current contract is a master agreement between TCAP and Next Era endorsed by contract with individual TCAP members; and WHEREAS, TCAP must be able to commit contractually to prices in a blend and extend contract amendment within a 24 -hour period in order to lock -in favorable prices; and WHEREAS, experiences in contracting for TCAP load since 2002 demonstrated that providers demand immediate response to an offer and may penalize delay with higher prices; and WHEREAS, suppliers demand assurance that TCAP will pay for all contracted load; and WHEREAS, the City must assure TCAP that it will budget for energy purchases and honor its commitments to purchase power for its electrical needs through TCAP for the period beginning January 1, 2011 and extending through December 31, 2018; and WHEREAS, TCAP intends to continue to contract with Next Era (power supply) and Direct Energy (billing, administrative and other customer services); and WHEREAS, the current contractual relationships between TCAP and Next Era and Direct Energy have been beneficial and cost effective for TCAP members and the City. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF City of Kennedale, TEXAS: Section 1: That the TCAP Board and its consultants and advisors are agents authorized to negotiate for the City's electricity needs as a member of TCAP and extend the current supply agreement through December 31, 2018. Section 2: That the City approves TCAP extending its current contract with Next Era for the supply of electric power and related, necessary services for the City for a term to begin as soon after finalization of a contract as possible and extending up to December 31, 2018, so long as the extension results in savings over the current contract term of 2011 -2013 and results in fixed prices through December 31, 2018. Section 3: That the City Manager will execute a contract with TCAP that permits the President of TCAP to sign a Commercial Electricity Supply Agreement (CESA) for the City's electricity needs and related, necessary services beginning January 1, 2011 and extending up to December 31, 2018, as a member of TCAP and commits its load for the same period pursuant to the contract recommended and approved by the TCAP Board of Directors, provided that the energy price to be paid per kWh in 2011 -2013 is less than the current contract price for 2011 -2013 resulting in savings for the City and that the fixed price for the period 2011 -2013 will continue through December 31, 2018. Section 4: That the City will budget and approve funds necessary to pay electricity costs proportionate to the City's load under the supply agreement arranged by TCAP and signed by the President of TCAP on behalf of all TCAP members for the term beginning as soon after finalization of a contract as possible and extending up to December 31, 2018. Section 5: That a copy of the resolution shall be sent to Mary Bunldey with the City Attorney's office in Arlington and Geoffrey M. Gay, legal counsel to TCAP. PRESENTED AND PASSED on this 10 day of February, 2011, by a vote of ayes and nays at a regular meeting of the City Council of the City of KENNEDALE, Texas. Bryan Lankhorst, Mayor ATTEST: Amethyst G. Cirmo, City Secretary Date: February 10, 2011 Agenda Item No: X -J Subject: Discuss and take action defining the method of calculating franchise fees pursuant to the Atmos Franchise Agreement. Originated by: Sakura Moten - Dedrick Summary: At the August 12, 2010 workshop, staff discussed Atmos Energy franchise fee collections with the City Council. Specifically, the Director of Finance, Sakura Moten - Dedrick, indicated that Atmos franchise fee collections were, at the time, less than last fiscal year's due to a unilateral decision by Atmos to restructure their collection of fees. The purpose of this discussion was to inform Council of the previous method utilized by Atmos to calculate fees, the current method now being utilized, and then receive direction on the manner in which Council wished to proceed given our current ability to choose between the two methods moving forward. Council requested additional information at the workshop in order to determine a course of action, and this agenda item serves as the follow -up to this request. Prior to January 2009 the franchise fee paid by Atmos to the City of Kennedale was calculated at 5% of "gross revenues." Furthermore, the actual collection of the 5% franchise fee was included within the definition of gross revenues. So, in essence, the City received a franchise fee on franchise fee in its February payment from Atmos each year. As of January 2009 Atmos made the unilateral decision to discontinue paying franchise fees on franchise fees following an internal review, in which Atmos Energy concluded there was insufficient support to include franchise fees in the definition of Gross Revenues. Upon the discovery of this, several cities approached Atmos requesting franchise fees be re- included in the definition of Gross Revenues. While there is a difference of opinion among municipalities about whether current franchise language supports the payment of franchise fees on franchise fees, Atmos has agreed to offer cities the option to clarify whether their intent is to include or not include the franchise fees in the definition of Gross Revenues from this point forward This is with the understanding that all franchise fee amounts paid to the City will be recovered from customers. In addition, Atmos is also offering the City the option to make this clarification effective going back to January 1, 2009 when the unilateral decision was initially made. Should the City choose to backdate its election, Atmos will remit a one -time make -up payment for the time period from January 1, 2009 to present, when franchise fees were not included in Gross Revenues. It anticipates that recovery of the make -up payment will last approximately twelve months. It is important to note that the election to include fee on fee will impact customers by effectively raising the amount billed above the percentage reflected in the agreement in order to recover the franchise fees paid on franchise fees. Per the City Council's request for additional information at a prior workshop please note the following: • FY03 /04 Actual = $54,178 (Included Fee On Fee) • FY04 /05 Actual = $37,677 (Included Fee On Fee) • FY05 /06 Actual = $48,987 (Included Fee On Fee) • FY06 /07 Actual = $45,779 (Included Fee On Fee) • FY07 /08 Actual = $51,316 (Included Fee On Fee) • FY08 /09 Actual = $71,024 (Excluded Fee On Fee) • FY09 /10 Estimate = $45,417 (Excluded Fee On Fee) • FY 10/11 Adopted = $55,000 (Excluded Fee On Fee) • FY10/11 YTD = $0 (Revenue Received Annually In Feb) • One -Time Makeup Payment approximately $5000 total or $2500 each for FY08 /09 & FY09 /10. • The fee on fee impact to customers is equivalent to approximately a 0.2% increase from 5.0% to 5.2 %. Attachments: - Information sent from Atmost to Kennedale - Proposed collection information letter from Kennedale to Atmos Recommended Motion: The City has until March 31, 2011 to submit its election, in writing, to Atmos. Staff recommends both the recovery of the make -up payment by backdating our election to January 1, 2009, as well as, the election to include fee on fee collection from the present moving forward Disposition by Council: To the Honorable Mayor and Members of the City Council City of Kennedale 405 Municipal Drive Kennedale, Texas 76060 RE: Interpretation of Franchise Agreement Terms — Fee on Fee Dear City Officials: Following an internal franchise review, Atmos determined that there was no clear legal support allowing the inclusion of the recovery of fees pursuant to a franchise fee agreement in the definition of Gross Revenues and discontinued including franchise fees recovered from customers, including street and alley fees, in the calculation of the franchise payment as of January 1, 2009. In short, the Company determined that the franchises did not require the Company to pay franchise fees on franchise fees. Later Atmos was approached by several cities that interpreted the definition of Gross Revenues in their franchise agreement to include these franchise fees. Even though there is a difference in opinion, Atmos Energy is willing to include franchise fees in the definition of Gross Revenues with the understanding that it will be recovered from our customers within your city, as are franchise fees associated with the other components of Gross Revenues. The attached election letter provides the opportunity to add franchise fees to the definition of Gross Revenues, conditioned upon the ability of the Company to recover in full all franchise fees paid. Additionally, the election letter provides the opportunity to make the election effective as of January 1, 2009, resulting in an additional payment that reflects the inclusion of franchise fees in Gross Revenues for prior periods beginning January 1, 2009. It is important to note that the election to include fee on fee will impact customers within your city by effectively raising the amount billed above the percentage reflected in the agreement in order to recover the amount of fee paid on franchise fees. Due to the fee charged on the value of volumes of gas transported, transportation customers will see the most dramatic increase on their bill. Any additional makeup payment will also be recovered from customers. Atmos anticipates that this recovery will last approximately twelve months. If a municipality has passed a new franchise with an effective date on or after January 1, 2009, it may be necessary for the Council to pass a franchise amendment in addition to signing the election letter. This is because Atmos Energy clarified franchise compensation language following its internal review. In the interest of certainty with respect to contract administration, the Company will discontinue the opportunity to add franchise fees on franchise fees and request a makeup payment for the prior period as of March 31, 2011. Any election not postmarked by that date will not be accepted. Please contact me at 817 - 303 -2906 should you have any questions. Sincerely, On or Before March 31, 2011 Mr. David Park Vice President Rates and Regulatory Affairs Atmos Energy Corporation, Mid -Tex Division 5420 LBJ Freeway, Ste. 1862 Dallas, TX 75240 RE: Franchise Fees on Franchise Fees Dear Mr. Park: To the extent that the following paragraphs are applicable, the selections below indicate the City's interpretation of the franchise agreement between the City and Atmos Energy Corporation ( "Atmos ") as well as the election of the City to receive an additional payment consistent with the City's historical interpretation of the franchise agreement. The City has selected `Y' to indicate agreement or `N' to indicate disagreement. Franchise Fees other than on Value of Gas Transported Y or N The City intends that all amounts billed to and collected from customers for franchise fees (other than those assessed on the value of transported gas) be added to the revenue amount that Atmos uses to calculate the City's franchise fee payment. Y or N The City elects to receive an additional payment for the period of time beginning with January 1, 2009 that franchise fees (other than those assessed on the value of transported gas) were not included in the calculation of the City's franchise fee payment. Franchise Fees on Value of Gas Transported Y or N The City intends that the amount billed to and collected from transportation customers for franchise fees assessed on the value of gas transported on behalf of the customer be added to the revenue amount that Atmos uses to calculate the City's franchise fee payment. Y or N The City elects to receive an additional payment for the period of time beginning with January 1, 2009 that franchise fees on the value of transported gas were not included in the calculation of the City's franchise fee payment. It is understood that by indicating agreement to any or all of the above statements, the City explicitly agrees that any additional franchise fee amounts paid to the City by Atmos are recoverable by Atmos from Company's customers within the City. It is also understood that by indicating disagreement with or choosing not to select any or all of the above statements, the City is explicitly releasing Atmos from any future claims with respect to those items. The City understands that this election letter must be returned to David Park at the address above and postmarked on or before March 31, 2011 after which the City shall be deemed to have rejected the options contained herein. Sincerely, Signature Date Printed Name Title City