HomeMy WebLinkAbout2015.08.18 City Council AgendaCity Council
City of University Park
Meeting Agenda
City Hall
3800 University Blvd.
University Park, TX 75205
Council Chamber5:00 PMTuesday, August 18, 2015
EXECUTIVE SESSION
3:30 - 4:00 P.M. Pursuant to TGC§ 551.071(2), the City Council will meet in closed session to receive
confidential legal advice from the City Attorney regarding property tax exemptions. No action will be
taken. Executive Conference Room, 1st Floor, City Hall.
PRE-MEETING WORK SESSION(S)
4:00 - 4:15 P.M. Discuss revision of Zoning Ordinance and consideration of potential committee
members for this task. No action will be taken. Council Conference Room, 2nd floor, City Hall.
15-331
Memo - Zoning Ord Work Session.docx
Attachment A - Zoning Ord Work Session.docx
Attachment B - Zoning Ord Target Sections.docx
Attachment C - Draft Scope of Work.docx
Attachment D - Committee Candidates.docx
Attachments:
4:15 - 5:00 P.M. The City Council will meet in open work session to receive agenda item briefings
from staff. No action will be taken. Council Conference Room, 2nd floor, City Hall.
TO SPEAK ON AN AGENDA ITEM
Anyone wishing to address the Council on any item must fill out a green “Request to Speak” form and
return it to the City Secretary. When called forward by the Mayor, before beginning their remarks,
speakers are asked to go to the podium and state their name and address for the record.
I.CALL TO ORDER
A.INVOCATION: Mayor Pro Tem Tommy Stewart
B.PLEDGE OF ALLEGIANCE: Mayor Pro Tem Tommy Stewart / Boy Scouts
C.INTRODUCTION OF COUNCIL: Mayor Olin Lane, Jr.
D.INTRODUCTION OF STAFF: City Manager Robbie Corder
Page 1 City of University Park Printed on 8/17/2015
August 18, 2015City Council Meeting Agenda
II.AWARDS AND RECOGNITION
Retirement of Bud Smallwood
III.CONSENT AGENDA
15-403 Consider a Resolution renewing the City's Investment Policy
Agenda Memo Investment Policy Renewal.docx
FY16 Investment Policy.pdf
Minutes FAC 06-11-2015.pdf
Resolution Renewing Invest Policy 08182015.docx
Attachments:
15-404 Consider a Resolution adopting Financial Management Policies
Memo Adoption of Financial Management Policies.docx
FY16 FINANCIAL MANAGEMENT POLICIES.pdf
Minutes FAC 06-11-2015.pdf
Resolution Renewing Financial Management Policies 08182015.docx
Attachments:
15-405 Consider approval of the minutes of City Council Meeting on August 4,
2015 with or without corrections.
Memo - Approval of Minutes.pdf
2015.08.04 Draft City Council Meeting Minutes.pdf
Attachments:
IV.MAIN AGENDA
15-402 Public Hearing on Proposed FY2016 Tax Rate
Agenda Memo Public Hearing Tax Rate 1.docx
City of University Park 2015 worksheet.pdf
2015 Tax Rate Notice.pdf
Attachments:
15-401 Consider Traffic Signal Removal at Southwestern and Airline
Memo Traffic Signal at Southwestern-Airline.docx
2015.02.13 - Southwestern at Ariline - Signal Warrant Report (Final).pdf
Letter to Property Owners.pdf
Responses - Southwestern Airline Traffic Light.pdf
Attachments:
15-399 Consider City of University Park / Park Cities YMCA Facilities Utilization
Agreement
YMCA Agreement Agenda Memo 8-18-15.docx
Park Cities YMCA Facilities Utilization Agreement.doc.docx
Attachments:
Page 2 City of University Park Printed on 8/17/2015
August 18, 2015City Council Meeting Agenda
15-400 Consider Amendment to Distribution Pole Attachment Agreement with
Oncor
Agenda Memo Oncor Amendment.docx
Proposed University Park Amendment 1
2013 Pole License Agreement
Attachments:
V.PUBLIC COMMENTS
Anyone wishing to address an item not on the Agenda should do so at this time. Please be advised
that under the Texas Open Meetings Act, the Council cannot discuss or act at this meeting on a
matter that is not listed on the Agenda. However, in response to an inquiry, a Council member may
respond with a statement of specific factual information or a recitation of existing policy. Other
questions or private comments for the City Council or Staff should be directed to that individual
immediately following the meeting.
VI.ADJOURNMENT
As authorized by Section 551.071(2) of the Texas Government Code, this meeting may be convened
into Closed Executive Session for the purpose of seeking confidential legal advice from the City
Attorney on any Agenda items listed herein.
CERTIFICATE:
I, Amanda Hartwick, Deputy City Secretary, do hereby certify that a copy of this Agenda was posted
on the City Hall bulletin board, a place convenient and readily accessible to the general public at all
times, and on the City's website, www.uptexas.org, in compliance with Chapter 551, Texas
Government Code.
DATE OF POSTING:____________________________
TIME OF POSTING:_____________________________
________________________________
Amanda Hartwick, Deputy City Secretary
Page 3 City of University Park Printed on 8/17/2015
3800 UNIVERSITY BOULEVARD UNIVERSITY PARK, TEXAS 75205 TELEPHONE (214) 363-1644
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AGENDA MEMO
8/18/2015Agenda
TO:Honorable Mayor and City Council
FROM:Patrick Baugh, Community Development Director
SUBJECT:Zoning Ordinance RevisionProject, Committee Identification
ISSUE:
Staff seeks Council directionin identifying themembership of the Steering Committeefor
the Zoning Ordinance RevisionProject with this Work Session agenda item.Committee
members could be selected from several staff-identified groups, including standing
boards and commissions, the home building industry and independent laypersons. From
the standpoint of practicality and productivity, maximum committee size would most
ideally consist of 12 members orless.
BACKGROUND:
InApril,the City Council confirmed theirdesireto advance the revision of the Zoning
Ordinance to provide regulatory clarity, application consistency and neighborhood
character preservation. Selecting a consultant and identifying a steering committee for
the revision effort is the next step in the process.Staff intendsto issue a Request for
Proposals, rank the submitted proposals and recommend a consultant in October and
asks Council to establish the Steering Committee membership.
The charge to the Steering Committee would be to:
Review consultant activity for assessing a broad enough universe of contributors
Review and validate comments, concerns and suggestions for revisions gathered
by the consultant
Share in representing the City at various listening sessions
Review and comment on reports from the consultant
Formulate a final suggested action or penultimate recommendation to the
Planning and Zoning Commission (the Commission would make the ultimate
recommendation to the City Council for adoption)
Serve on the committee for the duration of theproject, estimated to be 14 months
duration and most ideally meet 10 times or less
3800 UNIVERSITY BOULEVARD UNIVERSITY PARK, TEXAS 75205 TELEPHONE (214) 363-1644
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For general informational benefit, an outline of the process ofrevision was provided
during the April work session and that document is includedin this report as
ATTACHMENT A.
ATTACHMENT B is a growing listof particular elements that have been of noted interest
and concern, andassuch,could potentially benefit from clarity or revision.
Also included is a draft project scope, ATTACHMENT C.This scope provides insight
into the overall involvement of variousparticipants.Capturing the desires of the
community, keeping the project on track and communicating progress of the project will
be promoted though oversight of a steering committee. Having such a committee in
place upon engaging the services of the selected consultant will help advance the
process.
RECOMMENDATION:
Staff seeks Council action in identifying the membership of the Steering Committee for
the Zoning Ordinance Revision Project. The nominated members’ names should be
forwarded to the City Manager’s office for aggregation into a slate of candidates to be
officially appointed to the ad hoc committee through formal Resolution.
Further,for Council’s consideration,the composition of the Steering Committee is
suggested to consist ofone or more persons from each of the following groups(rosters,
as available,are included on ATTACHMENT D):
City Council (Chair and liaison to Council)
Planning and Zoning Commission
Zoning Board of Adjustment
Zoning Ordinance Advisory Committee
Local resident / layperson
Home Buildercurrently building/active in the community(See)
3800 UNIVERSITY BOULEVARD UNIVERSITY PARK, TEXAS 75205 TELEPHONE (214) 363-1644
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ATTACHMENT A
AGENDA MEMO
4/21/2015Agenda
TO:Honorable Mayor and City Council
FROM:Patrick Baugh, Community Development Director
VIA:Robbie Corder, City Manager
SUBJECT:Discuss Zoning Ordinance Update
BACKGROUND:
History
The 2014-2015 City Council Work Plan identifies the Zoning Ordinance
“overhaul” as a priority. Conflicting, and perhaps confusing, parameters involving
Redevelopment and Neighborhood Character regulated by the Zoning Ordinance
elevated the priority statusof this initiative. A more cohesive, coordinated, clearly
understood Zoning Ordinance reflective of the desired concepts of the
community is anticipated through successful implementation of this initiative.
The current trends in redevelopment directly affect the neighborhood character
throughremoval of smaller, older houses so that larger houses may be
constructed. These larger structures certainly reflectthedesires of owners to
maximize dwelling space on existing lots.The larger housespotentially impact
the overall livability of the community through introduction of larger families
bringing increased traffic volume, more parked carsat the curb, loss of trees,
stressed utility systems and visually crowded street views within the
neighborhoods. Additionally, interpretation and enforcement of the various
regulations is made more complex with various,seemingly uncoordinated,
amendments.
Needand process
Homeowners, architects and builders need clear, understandable and
coordinated building regulations. Current regulations are scattered throughout
the Zoning Ordinance, with some additional site regulations in the remainder of
the Code of Ordinances.Staff believes that a clearer setof regulations can be
developed through a two-phased approach. Consultant assistance is anticipated
to be enlisted in both phases.
3800 UNIVERSITY BOULEVARD UNIVERSITY PARK, TEXAS 75205 TELEPHONE (214) 363-1644
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The first phase objective would be to improve the clarity of existing regulations.
Redevelopment is expected to continue and necessary controls to preserve the
neighborhood charactershallremain codified in the Zoning Ordinance. To assure
continuity of the establishedlevels of quality, quantity, character and spatial
relationship, the existing Zoning Ordinance oughtundergo a review of relativity
and compatibility. This phase would, primarily, be one of editorial review and
comparison that would eliminate, consolidate, coordinate and illustrate the
variousprovisions, regulations and amendments of the existing adopted
Ordinances.
From this revised first draft, the overall concept of the developed environment
under existing regulations would be validated. This concept would reflect the
desire to continueredevelopment trends currently observed. Consequently, this
concept would be presented to assembled stakeholder groups for consideration.
If the current trends are acceptable for the foreseeable future, this preferred draft
would be presented to the Planning and Zoning Commission for consideration of
approval of a recommendation for adoption by the City Council.
The second phase would be a to solicit comment from the assembled
stakeholder groups on the appropriateness of existing redevelopment or ifthere
are more appropriate regulations that ought to be considered for adoption to alter
the developing neighborhood character.The consultant would continue working
with the stakeholders to solidify the neighborhood character vision and regulatory
measures required to produce the desired goals. Then, this preferred modified
conceptfor the foreseeable future, captured ina revised version of the
Ordinance,to beoffered for consideration by the Planning and Zoning
Commission.
Both phases will run concurrently through the Stakeholder groupdiscussions to
reduce time, scope and fees of the consultant. It is anticipated that the entire
process for the revision will take approximately twelve months to complete. The
above narrative and overall project schedule is based on this excerpt of the
processmilestones outlined in the Council’s action plan:
Action Steps (Begin each with a verb)Desired Target
Date
1. Council Workshop Q1 2015
2. Appoint a committee Q2 2015
3. Select a consultant Q2 2015
4. Define expectations for the new ordinance Q3 2015
5. Create a framework for the new ordinance Q3 2015
6. Draft specific content and illustrations for the new ordinance Q4 2015
7. Present draft ordinance to P&Z with public hearing Q2 2016
8. Amend ordinance to address public comments Q2 2016
9. Present draft ordinance to Council with public hearing Q2 2016
10. Adopt new Comprehensive Zoning Ordinance Q3 2016
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This initiative has lagged, somewhat,behind the proposed schedule, so staff has
already begun the effort to qualify a few candidate consultants, craft a basis for
the project scope and question firms and other entities about budgetary numbers.
These preliminary findings will be presented for consideration in the upcoming
process to adopt the municipal budget for 2015-2016.
RECOMMENDATION:
Staff requests confirmation of the City Council’s desire to pursue revising the
Zoning Ordinance, including utilization of an expert consultant in the process.
Upon confirmation, staff will continueefforts to be prepared for an early October
project start with a City Council authorized Consultant under contract.
ATTACHMENT B
ZONING ORDINANCEREVIEW CONSIDERATIONS(partial)
Concepts for review consideration
1.Modified residential structure ‘envelope’parametersto better regulate overall imposing
appearance/neighborhood character
2.Façade height and articulation parameters to reduce ‘barrier wall’ perceptions
Ease of use review considerations
1.Illustrated ‘visual preference’ appendix to crystallize the envisioned concepts or desired
appearance parameters of housing
2.Grouping of related information for redevelopmentperzoning district
3.Embed applicable references to relative sections in other articles
Targeted code sections and articles for review considerationsmingled with coordinated construction
ordinance requirements(In no particular order)
1.Section 14-101, BOA –Special exceptions: fences all districts, mechanical equipment in side-
yard zero set-back
2.Section 20, Use table –
a.construction officeSF-1
b.UC-3 District (28-113)
3.Section 23-105, Shopping CenterDistrict –Block building/ setback line
4.Article 6, Nonconformities–Construction to enlarge a structure by an amount equal to or
greater than fifty-percent (50%) valuation require (clear the lot?)
5.Section 40, Definitions –Bay Window, Adjacent, Below-grade construction, basement
6.Section 13-100, Fence or Retaining Wall Permit –
a.Permit requirements list in the IBC and IRC
b.Fence requirements for trash inset (continued hand collection, roll-out totes, etc)
7.IRC Section 401.3, Drainage and control of runoff water -Gutter and ground water drainage
system relief valves (pop-ups)
8.Clearance poles
9.Section 23-100, Single Family Dwelling Districts(3) Development Standards –
a.Balconies in the rear 40’ of lots
b.Height of main residential structurewalls–42% lot depth rule
c.Dormers
d.Extended ridgeline calculations
e.Window placement on or near rear of house –neighbor privacy
f.Lo t area coverage, setbacks
g.Front driveways –circular and flag
h.Front façade of house –height, setback, articulation/jog, courtyards
i.Roof pitch/ building envelope, maximum square footage, “TARDIS”
10.Section 25, Accessory and Temporary Use Requirements-
a.Pools in front half of lot –indoor/courtyard/ court placement
b.Pool equipment in side yard
c.HVAC equipment in side yard, accommodate in the buildable footprint
11.Appendix D,Planned Developments -
a.Requirement for 40,000 Square feet / 200 Parking space development (Use Table)
b.Require Gross Floor Area in concept submittal (Time of DRC meeting)
c.PD’s 3, 6, 13, 18, 30, 33
12.Section 27-100, Driveways
a.50’ width lots cannot currently comply
b.Such areas have higher parking
13.21-100 (2) (c)
a.Requirements for basement or deep crawl space excavations to be designed by an
approved professional engineer with work standards and resident inspector oversight
14.21-100 (4) Special Yard Requirements
a.State the minimum setback as either the minimum or the established average minimum
per block to eliminate confusion
b.Revise the allowable features in the front yard part (b) moving temporary elements like
the storage container to a temporary use permit section.
c.Consider underground structures within required yards such as basements or cisterns
ATTACHMENT C
DRAFT -SCOPE OF WORKFOR ZONING ORDINANCE UPDATE -DRAFT
PHASE 1: EVALUATE THE EXISTING ORDINANCE
The purpose of Phase 1 is to complete a technical diagnosis and, working with stakeholders and the City,
determine drafting direction. This phase will consist of the following tasks.
Task 1-1: Kick-Off Meeting & Reconnaissance
The team will meet with City staff to kick-off the project. We will finalize the project scope, work schedule,
and public participation program, and obtain all existing ordinances, plans and data relevant to the
project. We will also undertake a reconnaissance led by staff to tour the City and understand the issues
involved in the application of the current development regulations. The goal of Task 1-1 will be to discover
major issues with current development regulations, understand development trends that need to be
addressed, and determine the specific steps needed to address these goals, issues and trends.
Task 1-2: Website
We will create a project website that contains updates on the project status, all work products related to
the project, drafts of the ordinance available for viewing and download, and feedback mechanisms.
Task 1-3: Review of Existing Ordinance & Plans
We will review all materials, including existing zoning and subdivision ordinances and policy documents in
order to understand the relationship between the current ordinance and existing plans and policies.
Task 1-4: Stakeholder Interviews
The team will conduct interviews with select public and private stakeholders. We will work with staff to
determine how best to structure this public input with participants. The purpose of these interviews is to
gain insight into the growth characteristics, development issues, administrative systems and zoning
needs and concerns as viewed by these sectors. Groups should include City staff, representatives of City
boards and commissions, representatives of local citizen activist groups, historic preservationists,
realtors, developers, architects, neighborhood organization representatives, and others identified by staff.
This technique generates useful insights and identifies sources for information that might not come up in
the normal information scan.
Task 1-5: Technical Review & Approaches Report
After reviewing the current ordinances and policy documents, meeting with City staff, conducting
stakeholder interviews, we will prepare a Technical Review and Approaches Report that identifies key
problems, inconsistencies, omissions, and gaps between regulations and policies. More specifically, this
report will include:
»A technical analysis and evaluation of the current regulations
»A sustainability audit of current development regulations
»An analysis of how well the zoning districts match existing development patterns and future land
use policies
»An analysis of how well the subdivision regulations facilitate desired development patterns and
future land use policies, including the Environmental Action Plan
»How well the regulations implement established City policies, and how well the regulations
integrate with other ordinances and initiatives, including a summary of consistencies or
inconsistencies
»Where the regulations meet or fail to meet public expectations
»A summary of “best practices” solutions for key issues
»The general strengths and weaknesses of the existing regulations -especially structure,
organization, clarity, ease of use, existing zoning districts and district standards, regulations of
general applicability, definitions and procedures
An approach to making the ordinances easier to understand through graphics, tables and maps will also
be included. This report will also include an outline of the proposed structure. Once key City staff has
reviewed and approved the report, and we have made all requested revisions, we will present the
document to the Project Team and the public.
Task 1-6: Project Team Review
We will present an overview of the report to the Project Team. Once they have provided input, we will
make any final revisions and present the findings of the report in a public meeting.
Task 1-7: Public Meeting
We will conduct a public meeting on the findings of the Technical Review and Approaches Report to the
public. Based on the policy decisions within the Report, techniques such as keypad polling and/or surveys
may be used.
Task 1-8: Formal Presentation
Ifdesired, the team can meet with the Plan Commission and/or City Council to present the findings of the
Technical Review and Approaches Report and review any public comment received at the public
meeting.
PHASE 2: DRAFT ORDINANCE
The purpose of this phase is for the team to take the input received in Phase 1 and prepare full and
complete draft ordinance. Testing and modeling of new regulations, as well as mapping, will take place
during each draft iteration and for any particular issues that emerge during draft review. Informational
materials as to new regulations within the ordinances will be prepared as needed for public release.
Task 2-1: Prepare Draft 1
This is a work task used to prepare Draft 1. It will be a concentrated period in which the team will craft the
first draft.
Task 2-2: Staff Review of Draft 1
We will submit the draft ordinance for key staff review. In this way, City staff will gain familiarity and
agreement as to the content and concepts within the draft prior to any public release. Camiros has found
that conducting this staff review over two consecutive day-long review sessions is an efficient and
effective way to undertake draft review.
Task 2-3: Prepare Draft 2
This is a work task used to prepare Draft 2. All staff changes requested in Task 2-2 will be incorporated
into Draft 2.
Task 2-4: Project Team Review of Draft 2
We will attend a series of review meetings with the Project Team to review Draft 2.
Task 2-5: Prepare Draft 3
This is a work task used to prepare Draft 3. All staff changes requested in Task 2-4 will be incorporated
into Draft 3.
Task 2-6: Public Workshop(s)
To allow for additional public input prior to presentation to the Plan Commission, we will conduct a public
workshop(s). This would be a presentation of the new ordinance, with the team present to field questions
and comments. This can be conducted in an open house format, with a brief PowerPoint presentation and
“stations” for each major component of the ordinance, staffed by the consultant and City staff, that
attendees can visit. In addition, if detailed information is needed to refine regulations, public workshops
can include exercises such as charrettes and visual preference surveys.
Task 2-7: Plan Commission Presentation
We will present Draft 3 to the Plan Commission and undergo a review of the proposed revisions through a
series of meetings.
Task 2-8: Prepare Public Hearing Draft
This is a work task used to prepare the public hearing draft. All changesdetermined in Tasks 2-5 through
2-6 will be incorporated into this draft. The intent is to present an ordinance during the public hearing that
has staff, public and Plan Commission consensus.
PHASE 3: ORDINANCE ADOPTION
In this phase, we will assist intaking the ordinances from hearings to adoption.
Task 3-1: Public Meeting
We will conduct a public meeting prior to the public hearing to present the proposed ordinance to the
public. Alternately, this can be conducted as a Plan Commission meeting.
Task3-2: Public Hearings
The team will present the new ordinance at a series of public hearings before the Plan Commission. We
will prepare a memorandum that summarizes any changes to the draft recommended by the Plan
Commission.
Task 3-3: City Council Review of Draft
To allow for additional input prior to adoption, we will present the ordinance to the City Council for review
in a series of public meetings.
Task 3-4: Adoption
Following the Council review, we will attend a meeting of the City Council to adopt the final document.
Following adoption, we will provide the final version of the ordinances in the format described in the RFP.
Steering Committee Member Candidates Page 1
ATTACHMENT D
BOARD AND COMMITTEE MEMBERS, JULY 2015
P&Z:
Bob West, Chair
Mark Aldredge
Liz Farley
Neil Harris
Doug Roach
Alternates:
Blair Mercer
Jerry Jordan
Charlie Little
John Walsh, III
BOA:
Eddy Moore, Chair
John Jackson
Darrell Lane
Alternates:
Eurico Francisco
Rusty Goff
Kevin Maguire
Clay Snelling
Bobby Womble
ZOAC:
Syd Carter
Corbin Crews
Mary Graves
Gretchen Henry
Kitty Holleman
Casey Meyers
Terry Skartsiaris
Doug Slagel
Bob Spies
Steering Committee Member Candidates Page 2
ACTIVE HOMEBUILDER RESIDENTS,JULY 2015
Chuck Barnett (Barnett/West)
Mark Clifton (Mark Clifton Homes)
Rusty Goff (Rusty Goff Homes)
Clay Grasso (Ellen Grasso Homes)
Bill Hitzelberger (WHH Professional Builders)
Rob Jackson (Rob Jackson Homes)
Todd James (Todd James Homes)
Bill Manning (Manning/Snelling/McIlyar)
Mark Molthan (Platinum Homes)
Lance Rogers (Holland Rogers Homes)
Robbie Skinner (Sleepy Hollow Homes)
Clay Snelling (Manning/Snelling/McIlyar)
Taylor Stark (Taylor Stark Companies)
Gregg Yates (JGH, LLC)
Mark Danuser (Tatum Brown)
3800 UNIVERSITY BOULEVARD UNIVERSITY PARK, TEXAS 75205 TELEPHONE (214) 363-1644
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AGENDA MEMO
8/18/2015Agenda
TO:Honorable Mayor and City Council
FROM:Thomas W. Tvardzik, Director of Finance
SUBJECT:Resolution renewing the City’s Investment Policy
BACKGROUND:
Chapter2256 ofthe TexasGovernmentCode, known as TheTexasPublicFunds
InvestmentAct(the “PFIA”) requiresa city’sgoverningbodyto “review its investment
policyandinvestmentstrategiesnot lessthanannually”and to adopt the policyby rule,
order,ordinance,orresolution.By request, the FinanceAdvisoryCommitteereviews the
proposed policyeachyearbefore makingarecommendationto theCouncil. TheCity
Councillast approvedand adopted the UniversityParkInvestmentPolicyvia resolution
on October 21, 2014.
Citystaffproposedno substantive changesto theInvestmentPolicysince it was last
adopted. Also, therewerenoamendmentsto thePFIAthat would impacttheCity's
policy.
Belowis asummaryof theinvestmentpolicy’skeypoints:
Identificationofthepolicy’sfourobjectives:safety,liquidity,yield,andprudence.
Safetyis alwaysthe highestpriorityobjective.(Section2.)
Descriptionof eligibleinvestments:U.S. Treasuryandagencyobligations; State
ofTexasandrelatedobligations; certainmunicipalbonds; repurchase
agreements;CD’s;moneymarketmutual funds; andlocalgovernment
investmentpools.(Section4.1.)
Approvalof investment vendors:theCitymayonlydo businesswithbroker-
dealers,banks,andotherswho havebeenreviewed andapprovedannuallyby
theFinanceAdvisoryCommittee.(Section 4.2.1.1.)
Diversificationofportfolio:Investmentholdings must remain within certain
maximum percentagesofthe total portfolioto limit exposure to potential losses.
(Section4.2.1.3.)
3800 UNIVERSITY BOULEVARD UNIVERSITY PARK, TEXAS 75205 TELEPHONE (214) 363-1644
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Designationofinvestment officers:Onlyauthorized, trained individuals may
conductinvestmenttransactionsforthe City. These individuals are designated
within the resolution adopting the Investment Policy. The authorized individuals
are generally the DirectorofFinance, the City Controller, and the CityManager,
although others may be designated.
TheFinance Advisory Committeemet on June11, 2015to considerthe proposed
InvestmentPolicy.TheCommitteerecommendedapprovalof the policy.
RECOMMENDATION:
CitystaffandtheFinanceAdvisory Committeerecommendapproval oftheproposed
Cityinvestment policy.
ATTACHMENTS:
City of University Park Investment Policy
Finance Advisory Committee minutes of 6/11/15
Resolution renewing and adopting Investment Policy
EXHIBIT A
City of University Park, Texas
Investment Policy
Effective October 01, 2015
City of University Park, Texas
Investment Policy
i
CONTENTS
Preface ......................................................................................................................... 1
1. PURPOSE
1. Authorization .................................................................................................... 1
2. Goal .................................................................................................................. 1
3. Scope ................................................................................................................ 1
4. Review and Amendment ................................................................................... 2
2. INVESTMENT OBJECTIVES
1. Preservation and Safety of Principal .................................................................. 2
1. Credit Risk ................................................................................................... 2
2. Interest Rate Risk ......................................................................................... 2
2. Maintenance of Adequate Liquidity ................................................................... 3
3. Return on Investments ....................................................................................... 3
4. Prudence and Ethical Standards ......................................................................... 3
3. INVESTMENT STRATEGY STATEMENT
1. Operating Funds ................................................................................................ 4
2. Bond Debt Service Funds .................................................................................. 4
3. Bond Reserve Funds .......................................................................................... 4
4. Capital Projects Funds ....................................................................................... 4
4. SPECIFIC INVESTMENT POLICIES
1. Eligible Investments .......................................................................................... 4
1. Obligations of the United States ................................................................ 5
2. Obligations of the State of Texas .............................................................. 5
3. Agencies of the United States and State of Texas ...................................... 5
4. Obligations of other States, Counties, Cities .............................................. 5
5. Direct Repurchase Agreements ................................................................. 5
6. Certificates of Deposit .............................................................................. 5
7. Share Certificates of state and federal Credit Unions ................................. 6
8. Money Market Mutual Funds .................................................................... 6
9. Local Government Investment Pools ......................................................... 6
2. Ensuring Safety of Principal ............................................................................... 7
1. Protection of Principal .............................................................................. 7
1. Approved Broker/Dealers/Financial Institutions/Depositories .............. 7
2. Collateralization.................................................................................. 8
City of University Park, Texas
Investment Policy
ii
3. Maximum Exposure Guidelines .......................................................... 8
4. Limiting Maturity ............................................................................... 8
2. Safekeeping ............................................................................................... 9
3. Effect of Loss of Required Rating .............................................................. 9
3. Ensuring Liquidity ............................................................................................ 9
4. Achieving Investment Return Objectives ......................................................... 10
1. Securities Swaps ...................................................................................... 10
2. Competitive Bidding ................................................................................ 10
3. Methods of Monitoring Market Price........................................................ 10
4. Benchmark Rate of Return ....................................................................... 10
5. Responsibility and Control .............................................................................. 11
1. Authority to Invest ................................................................................... 11
2. Bonding requirements/Standard of care .................................................... 11
3. Establishment of Internal Controls............................................................ 11
4. Standard of Ethics .................................................................................... 11
5. Training and Education ............................................................................ 12
6. Investment Committee ............................................................................. 12
6. Reporting ........................................................................................................ 12
7. Compliance Audit and Accounting Method ..................................................... 13
8. Certification .................................................................................................... 13
5. ADOPTING CLAUSE ............................................................................................. 14
ATTACHMENTS
1. Investment Vendor Acknowledgement
2. Broker-Dealer and Bank Questionnaires
3. Approved Investment Vendors List
City of University Park, Texas
Investment Policy
1
PREFACE
The purpose of this document is to establish specific investment policy and strategy guidelines
for the City of University Park, Texas (“City”) to achieve the goals of safety, liquidity, and yield
for all investment activity. The City shall review its investment strategies and policy not less than
annually. This policy serves to satisfy the statutory requirement, specifically the Public Funds
Investment Act, Chapter 2256 of the Texas Government Code (the “Act”), to define, adopt and
review a formal investment strategy and policy. All available funds shall be invested in
conformance with these legal and administrative guidelines.
Effective cash management is recognized as essential to good fiscal management. An aggressive
cash management and investment policy will be pursued to take advantage of investment interest
as viable and material revenue to all operating and capital funds. The City’s portfolio shall be
designed and managed in a manner responsive to the public trust and consistent with state and
federal law.
Investments shall be made with the primary considerations of:
Preservation of capital and protection of principal
Maintenance of sufficient liquidity to meet operating needs
Security of City funds and investments
Diversification of investments to avoid unreasonable or foreseeable risks
Maximization of return on the portfolio
SECTION 1. PURPOSE
1-1. Authorization
This Policy is authorized by the City Council in accordance with Section 5 of the Public Funds
Investment Act (Chapter 2256, Texas Government Code), which requires the adoption of a
formal written Investment Policy.
1-2. Goals
The primary goal of the City of University Park’s Investment Policy shall be: 1) to ensure the
safety of all funds entrusted to the City; 2) to maintain the availability of those funds for the
payment of all necessary obligations of the City; and 3) to provide for the investment of all
funds, not immediately required, in interest-bearing securities or pooled investment products.
The safety of the principal invested shall always be the primary concern.
1-3. Scope
This Investment Policy of the City of University Park shall include all investment activities of
any fund of the City. The Firefighters’ Relief and Retirement Fund is not a City fund and is
covered by a separate policy. In addition to this Policy, bond funds, including debt service and
reserve funds, shall be managed by their governing resolution, federal law, and subsequent
relevant legislation. City funds will be pooled for investment purposes.
City of University Park, Texas
Investment Policy
2
1-4. Review and Amendment
This Policy may be amended from time to time as the City Council may so desire or as State
Law may require. This Policy, which includes strategies for each fund or pooled fund group,
shall be adopted by resolution, rule, or ordinance by the City Council and shall be reviewed
annually by the City Council. The fact that the Investment Policy has been reviewed and that any
amendments have been made must be recorded by resolution, rule or ordinance.
SECTION 2. INVESTMENT OBJECTIVES
The City shall manage and invest its cash with four objectives, listed in order of priority:
Preservation and Safety of Principal; Liquidity; Yield; and Prudence. All investments shall be
designed and managed in a manner responsive to the public trust and consistent with State and
Local Law.
Cash management is defined as the process of managing monies in order to increase cash
availability and interest earnings on short-term investment of idle cash. The City shall maintain
a comprehensive cash management program that includes the prudent investment of available
cash.
2-1. Preservation and Safety of Principal
The primary objective of City investment activity is the preservation of principal in the overall
portfolio. Each investment transaction shall be conducted in a manner designed to avoid loss of
principal whether from securities defaults or erosion of market value. The manner in which the
City ensures safety of principal is presented in Section 4.2, “Ensuring Safety of Principal.”
2-1-1 Credit Risk
The City will minimize credit risk, which is the risk of loss due to the failure of the security
issuer or backer by:
a. Limiting investments to the types of securities listed in section 4-1 of this Investment
Policy.
b. Prequalifying the financial institutions, broker/dealers, intermediaries, and advisors
with which the City will do business in accordance with Section 4-2-1-1.
c. Diversifying the investment portfolio so that the impact of potential losses from any
one type of security or from any one individual issuer will be minimized.
2-1-2 Interest Rate Risk
The City will minimize interest rate risk, which is the risk that the market value of
securities in the portfolio will fall due to changes in market interest rates, by:
a. Structuring the portfolio so that securities mature to meet cash requirements for
ongoing operations.
City of University Park, Texas
Investment Policy
3
b. Investing operating funds primarily in short-term securities, money market mutual
funds, or similar investment pools and by limiting the average maturity of the portfolio
in accordance with this policy.
2-2. Maintenance of Adequate Liquidity
The City investment portfolio shall be structured so that the City is able to meet all obligations in
a timely manner. Maintenance of adequate liquidity is described in Section 4.3, “Ensuring
Liquidity.”
2-3. Return on Investments
Consistent with State law, the City shall seek to optimize return on investments within the
constraints of safety and liquidity. Investments (excluding assets managed under separate
investment programs, such as in arbitrage restrictive programs) shall be made in permitted
obligations at yields equal to or greater than the bond equivalent yield on United States Treasury
obligations of comparable maturity. Other appropriate performance measures may be
established by the Finance Advisory Committee. Specific policies regarding investment rate of
return are presented in Section 4.4, “Achieving Investment Return Objectives.”
For bond issues to which Federal yield or arbitrage restrictions apply, the primary objectives
shall be to obtain satisfactory market yields and to minimize the costs associated with investment
of such funds.
2-4. Prudence and Ethical Standards
The standard of prudence used by the City shall be the “prudent person rule” and shall be applied
in the context of managing the overall portfolio within the applicable legal constraints. The
prudent person rule is restated below:
“Investments shall be made with judgment and care, under circumstances then prevailing,
which persons of prudence, discretion and intelligence would exercise in the management
of their own affairs, not for speculation, but for investment, considering the probable safety
of their capital as well as the probable income to be derived.”
In determining whether the Investment Officer(s) or Investment Advisor under contract has
exercised prudence with respect to an investment decision, the determination shall be made
taking into consideration the investment of all funds over which the Officer or Advisor had
responsibility, rather than a consideration as to the prudence of a single investment, and whether
the investment decision was consistent with the written Investment Policy of the City.
The Investment Officers, acting in accordance with written procedures and exercising due
diligence, shall not be held personally responsible for a specific security’s credit risk or market
price changes, provided that these deviations are reported immediately.
Specific policies describing the City’s prudence and ethical standards are found in Section 4.5,
“Responsibility and Control.”
City of University Park, Texas
Investment Policy
4
SECTION 3. INVESTMENT STRATEGY STATEMENT
The City maintains portfolios that utilize four specific investment strategy considerations
designed to address the unique characteristics of the fund groups represented in the portfolios.
To maximize the effective investment of assets, all funds needed for general obligations may be
pooled into one account for investment purposes. The income derived from this account will be
distributed to the various funds based on their average balances on a periodic basis. Proceeds of
bond issues shall not be pooled with other assets of the City, but shall be maintained in the fund
issuing the bonds with interest earnings on these invested proceeds recorded directly to that fund.
3-1. Operating Funds
The investment strategy for operating funds has as its primary objective the assurance that
anticipated cash flows are matched with adequate investment liquidity. The secondary objective
is to create a portfolio structure which will experience minimal volatility during economic
cycles. This may be accomplished by purchasing high-quality short-to medium-term securities.
The dollar weighted average maturity shall be calculated in accordance with GASB
requirements. The weighted average maturity of operating funds shall not exceed 548 days.
Securities may not be purchased that have a final stated maturity date that exceeds five (5) years.
3-2. Bond Debt Service Funds
The investment strategy for bond debt service fund(s) has as its primary objective the assurance
of investment liquidity adequate to cover the debt service obligation on the required payment
date. Securities purchased shall not have a stated final maturity date that exceeds the next
unfunded bond debt service payment date.
3-3. Bond Reserve Funds
The investment strategy for bond reserve fund(s) has as its primary objective the ability to
generate a dependable revenue stream to the appropriate debt service fund from securities with a
low degree of volatility. Securities should be of high quality and, except as may be required by
the Bond Ordinance specific to an individual issue, of short-to-intermediate-term maturities. The
stated final maturity dates of securities held shall not exceed five (5) years.
3-4. Capital Projects Funds
The investment strategy for capital projects funds portfolios has as its primary objective the
assurance that anticipated cash flows are matched with adequate investment liquidity. These
portfolios should include at least 10% in highly liquid securities to allow for flexibility and
unanticipated project outlays. The stated final maturity dates of securities held should not exceed
the estimated project completion date.
SECTION 4. SPECIFIC INVESTMENT POLICIES
4-1. Eligible Investments
Investments described below are those authorized by the Public Funds Investment Act (Chapter
2256, Texas Government Code), as amended, which is made a part of this Policy. The following
list may not contain all of those securities that are authorized by state statutes, but only those that
the City Council wishes to include in their portfolios. The purchase of specific issues may at
City of University Park, Texas
Investment Policy
5
times be further restricted or prohibited because of current market conditions. City funds
governed by this Policy may be invested in:
1. obligations of the United States or its agencies and instrumentalities;
2. direct obligations of the State of Texas or its agencies;
3. other obligations, the principal and interest on which are unconditionally guaranteed or
insured by the State of Texas or the United States or its agencies and instrumentalities,
including obligations that are fully guaranteed or insured by the Federal Deposit Insurance
Corporation or by the explicit full faith and credit of the United States;
4. obligations of states, agencies, counties, cities and other political subdivisions of any state
having been rated of their own accord as to investment quality by a nationally recognized
investment rating firm and having received a rating of not less than AA or its equivalent,
and with additional credit enhancement having received a rating of not less than AAA or its
equivalent by a nationally recognized investment rating firm;
5. fully collateralized direct repurchase agreements: 1) having a defined termination date; 2)
secured by a combination of cash and obligations described by subdivision 1 of this
subsection: 3) having securities purchased by the City or cash held by the City pledged to
the City, held in the City’s name and deposited at the time the investment is made with the
City with a third party selected and approved by the City; and 4) placed through a primary
government securities dealer, as defined by the Federal Reserve, or a financial institution
doing business in Texas, and having a market value (including accrued interest) of no less
than the principal amount of the funds disbursed;
6. certificates of deposit:
a. issued by a depository institution with a main office or a branch office in Texas and is:
1. guaranteed or insured by the Federal Deposit Insurance Corporation, or its
successor; or,
2. secured by obligations that are described by 1 - 4 above, which are intended to
include all direct federal agency or instrumentality issues that have a market value
of not less than the principal amount of the certificates or,
3. in any other manner and amount provided by law for deposits of the City;
b. made in accordance with the following conditions:
1. the funds are invested by the City through:
a) a broker that has its main office or a branch office in this state and is selected
from a list adopted by the City or,
b) a depository institution (“bank”) that has its main office or a branch office in
this state and that is selected by the City;
2. the broker or bank selected by the City under Subdivision (1) arranges for the
deposit of the funds in certificates of deposit in one or more federally insured
depository institutions, wherever located, for the account of the City;
City of University Park, Texas
Investment Policy
6
3. the full amount of the principal and accrued interest of each of the certificates of
deposit is insured by the United States or an instrumentality of the United States;
and
4. the City appoints the bank selected by the City under Subdivision (1), an entity
described by the Texas Public Funds Collateral Act (Texas Government Code
2257.041(d)) or a clearing broker-dealer registered with the Securities and
Exchange Commission and operating pursuant to Securities and Exchange
Commission Rule 15c3-3 17 C.F.R. Section 240.15c3-3) as custodian for the
City with respect to the certificates of deposit issued for the account of the City.
7. share certificates issued by state and federal credit unions with a main office or branch in
Texas that are:
1. guaranteed or insured by the National Credit Union Share Insurance Fund, or its
successor; or,
2. secured by obligations that are described by 1 - 4 above, which are intended to
include all direct federal agency or instrumentality issues that have a market value
of not less than the principal amount of the certificates or in any other manner and
amount provided by law for deposits of the City.
8. SEC-regulated, no-load money market mutual funds with a dollar-weighted average stated
portfolio maturity of 90 days or less and whose investment objectives include seeking to
maintain a stable net asset value of $1 per share. No more than 15% of the City’s average
fund balance may be invested in money market mutual funds, and the City may not invest
funds under its control in an amount that exceeds 10% of the total assets of any individual
money market mutual fund.
9. Local government investment pools organized in accordance with the Interlocal
Cooperation Act (Chapter 791, Texas Government Act) as amended, whose assets consist
exclusively of the obligations that are allowed as a direct investment for funds subject to
the Public Funds Investment Act (Chapter 2256, Texas Government Code). A public funds
investment pool must be continuously rated no lower than AAA, AAA-m or at an
equivalent rating by at least one nationally recognized rating service.
Eligible investment pools must be authorized by the City Council, by rule, order, ordinance,
or resolution, as appropriate. The City Council has approved: 1) the Texas Local
Government Investment Pool (“TexPool”), administered by the Texas State Comptroller; 2)
the Texas Short Term Asset Reserve (“TexSTAR”); administered by JPMorgan Chase and
First Southwest Asset Management; and 3) TexasTERM and TexasDaily, administered by
PFM Asset Management LLC.
Unless backed by the full faith and credit of the U.S. government, investments in collateralized
mortgage obligations are strictly prohibited. These securities are also disallowed for collateral
positions. The City will not be required to liquidate investments that were authorized
investments at the time of purchase.
City of University Park, Texas
Investment Policy
7
4-2. Ensuring Safety of Principal
Ensuring safety is accomplished through protection of principal and safekeeping.
4-2-1 Protection of Principal
The City shall seek to control the risk of loss due to the failure of a security issuer or
guarantor by investing only in the safest types of securities as defined in the Policy.
Settlement of all investment transactions, except those transactions involving investments
in mutual funds or local government investment pools, must be made on a delivery versus
payment (DVP) basis. The purchase of individual securities shall be executed DVP through
the Federal Reserve System delivered to an authorized safekeeping agent or trustee
(“custodian”). By so doing, City funds are not released until the City has received, through
the Federal Reserve wire, the securities purchased. The security shall be held in the name
of the City. The custodian’s records shall assure the notation of City ownership of or
explicit claim on the securities.
Additionally, the City shall adhere to the following practices to protect its investment
principal:
4-2-1-1 Approved Broker/Dealers/Financial Institutions and Depositories
Investments shall only be made with those firms and institutions who have
acknowledged receipt and understanding of the City’s Investment Policy. The
“qualified representative” of the business as defined in Chapter 2256 of the Texas
Government Code shall execute a written certification to acknowledge receipt of the
City’s Investment Policy and to acknowledge that the organization has implemented
reasonable procedures and controls to preclude imprudent investment activities
arising out of the investment transactions conducted between the entity and the City.
Should the City contract with an external investment advisor to execute the
investment strategy, including the negotiation and execution of investment
transactions, a managing officer of the investment advisory firm may sign the written
certification in lieu of the broker/dealer firms. This certification must be included as
part of the investment advisory contract.
Securities and certificates of deposit shall only be purchased from those institutions
included on the City’s list of broker/dealers and financial institutions as approved by
the Investment Committee. All securities dealers shall provide the City with
references from other public entities that they are currently serving. This list of
approved investment providers must be reviewed at least annually by the City’s
Investment Committee and shall be recorded in the Committee’s meeting minutes.
The City’s Finance Advisory Committee shall comprise the Investment Committee.
All state and national banks located in the State of Texas, which are insured by the
Federal Deposit Insurance Corporation (FDIC), are to be considered as eligible
depositories. The financial condition of the bank shall be considered prior to
establishing any accounts with that bank. The Finance Advisory Committee shall
review the bids submitted by depository candidates and make a recommendation to
the City Council for final approval.
City of University Park, Texas
Investment Policy
8
4-2-1-2 Collateralization
Consistent with the requirements of State law, the City requires all bank deposits
(including time deposits) to be federally insured or collateralized with eligible
securities. Financial institutions serving as City Depositories will be required to sign
an Agreement with the City and its safekeeping agent for the collateral, perfecting the
City’s rights to the collateral in case of default, bankruptcy or closure.
The City shall not accept, as depository collateral, any security that is not specifically
allowed to be held as a direct investment by the City portfolio (see 4-1). Repurchase
agreements must also be collateralized in accordance with State law. Evidence of the
pledged collateral shall be maintained by the Finance Director or a third party
financial institution. All collateral shall be subject to inspection and audit by the
Finance Director or the City independent auditors.
4-2-1-3 Maximum Exposure Guidelines
Risk of principal loss in the portfolio as a whole shall be minimized by diversifying
investment types according to the following limitations. As discussed below, these
limitations do not apply to bond proceeds.
Investment Type: % of Portfolio
U.S. Treasury Notes/Bonds/Bills 100%
U.S. Agencies 60%
Local Government Investment Pools 50%
Repurchase Agreements 30%
Certificates of Deposit 30%
Municipal Bonds 20%
Money Market Mutual Funds 15%
It is the policy of the City to diversify its investment portfolio so that reliance on any
one issuer or broker will not place an undue financial burden on the City. Generally,
the City should limit its repurchase agreement exposure with a single firm to no more
than 15% of the value of the City’s overall portfolio. To allow efficient and effective
placement of proceeds from any bond sales, these limits may be exceeded for a
maximum of five business days following the receipt of bond proceeds. Proceeds of
a single bond issue may be invested in a single security or investment if the
Investment Committee determines that such an investment is necessary to comply
with Federal arbitrage restrictions or to facilitate arbitrage record keeping and
calculation.
4-2-1-4 Limiting Maturity
To minimize risk of loss due to interest rate fluctuations, investment maturities will
not exceed the anticipated cash flow requirements of the funds. For operating funds,
the dollar weighted average days to final stated maturity shall be 548 days or less.
The Investment Officer will monitor the maturity level and make changes as
appropriate. For bond funds, the investment maturity of bond proceeds (including
City of University Park, Texas
Investment Policy
9
reserves and debt service funds) shall be determined considering: 1) the anticipated
cash flow requirements of the funds, and; 2) the “temporary period” as defined by
Federal tax law during which time bond proceeds may be invested at an unrestricted
yield. After the expiration of the temporary period, bond proceeds subject to yield
restriction shall be invested considering the anticipated cash flow requirements of the
funds.
The City shall have a goal of maintaining a minimum of ten percent of the portfolio
maturing within thirty days, and twenty-five percent under one year.
Under 30 days 10% minimum
Under 1 year 25% minimum
Under 3 years 85% minimum
Five years maximum single investment
Reserve funds and other funds with longer-term investment horizons may be invested
in securities exceeding three years if maturities of such investments are made to
coincide as nearly as practical with the expected use of fund. The intent to invest in
securities with longer maturities shall be disclosed in writing to the City Council
4-2-2 Safekeeping
The City shall contract with a bank or banks for the safekeeping of securities either owned
by the City as a part of its investment portfolio or held as collateral to secure certificates of
deposits or repurchase agreements. The Safekeeping Agreement shall clearly define the
procedural steps for gaining access to the collateral should the City determine that the City
funds are in jeopardy. The safekeeping institution, or Trustee, shall hold all aforementioned
securities in an account at the Federal Reserve Bank that specifies City ownership of the
account. The Safekeeping Agreement shall include the signatures of authorized
representatives of the City, the firm pledging the collateral and the Trustee. The City shall
request from the safekeeping institution a copy of its most recent report on internal controls
(Statement of Auditing Standards 70, or SAS 70).
4-2-3 Effect of Loss of Required Rating
If a holding’s credit quality rating falls below the minimum required, the City shall take all
prudent measures that are consistent with its investment policy to liquidate the holding.
City staff will periodically review the credit quality rating of instruments in the City
portfolio using rating agency online resources or other media reporting these changes.
4-3. Ensuring Liquidity
Liquidity shall be achieved by matching investment maturities with forecasted cash flow
requirements, by investing in securities with active secondary markets, and by investing in
eligible money market mutual funds (MMMF’s) and local government investment pools
(LGIP’s). A security may be liquidated to meet unanticipated cash requirements, re-deploy cash
into other investments expected to outperform current holdings, or to otherwise adjust the
portfolio.
City of University Park, Texas
Investment Policy
10
4-4. Achieving Investment Return Objectives
Investment selection for all funds shall be based on legality, appropriateness, liquidity, and
risk/return considerations. Although the City adheres to a “buy and hold” approach, at times the
portfolios may be actively managed to enhance overall interest income. Active management will
take place within the context of the “Prudent Person Rule.” (See Section 2.4).
4-4-1 Securities Swaps
The City may take advantage of security swap opportunities to improve portfolio yield. A
swap which improves portfolio yield may be selected even if the transaction results in an
accounting loss.
4-4-2 Competitive Bidding
It is the policy of the City to require competitive bidding for all individual security
purchases except for those transactions with money market mutual funds (MMMFs) and
local government investment pools (LGIP’s) which are deemed to be made at prevailing
market rates, and for government securities purchased at issue through a primary dealer at
auction price. Rather than relying solely on yield, investment in MMMFs and LGIP’s shall
be based on criteria determined by the Investment Committee, including adherence to
Securities and Exchange Commission (SEC) guidelines for MMMFs when appropriate. At
least three bidders must be contacted in all transactions involving individual securities.
Competitive bidding for security swaps is also required. Bids may be solicited in any
manner provided by law. For those situations where it may be impractical or unreasonable
to receive three bids for a transaction due to a rapidly changing market environment or to
secondary market availability, documentation of a competitive market survey of
comparable securities or an explanation of the specific circumstance must be included with
the transaction bid sheet. All bids received must be documented and filed for auditing
purposes.
4-4-3 Methods of Monitoring Market Price
The methods/sources to be used to monitor the price of investments that have been
acquired with public funds shall be from sources deemed reliable by the Investment
Officer, including primary or regional broker/dealers, established financial institutions
providing portfolio management/accounting services, third-party safekeeping reports,
financial publications such as the Wall Street Journal, market information vendors such as
Bloomberg or Telerate, and market pricing services.
4-4-4 Benchmark Rate of Return
As a general guideline, the City’s cash management portfolio shall be designed with the
objective of regularly meeting the average return on three-month U.S. Treasury Bills, or the
average rate of 90-day Certificates of Deposit. These indices are considered benchmarks
for risk-free investment transactions and therefore comprise a standard for the portfolio’s
rate of return. Additional benchmarks may be developed and recommended by the
Investment Committee and used as a comparative performance measures for the portfolio.
Additional benchmarks that may be considered for targeting by the Investment Committee
include the Constant Maturity Treasury Bill with the maturity that most closely matches the
weighted average maturity of the portfolio or a more customized index made up of blended
City of University Park, Texas
Investment Policy
11
Merrill Lynch Treasury/Agency indices. The investment program shall seek to augment
rates of return above this threshold, consistent with legal restrictions and prudent
investment principles. In a diversified portfolio, measured losses are inevitable and must be
considered within the context of the overall portfolio.
4-5. Responsibility and Control
4-5-1 Authority to Invest
Authority to manage the City investment program is derived from a resolution of the City.
Those authorized by said resolution are designated as Investment Officers of the City, and,
in conjunction with the Investment Committee, are responsible for investment decisions
and activities. All investment transactions must be acknowledged by a second investment
officer besides the one who initiated the transaction. All wire transfers must be approved
by two investments officers. The City reserves the right to contract with an external
investment advisory firm to manage the investment assets, and the resulting resolution will
grant investment authorization to the contracted firm. The Finance Director shall establish
written procedures for the operation of the investment program consistent with this
Investment Policy.
4-5-2 Bonding requirements/Standard of care
Each of the authorized investment officers shall be a bonded employee. All participants in
the investment process shall act responsibly as custodians of the public trust and shall
exercise the judgment and care, under prevailing circumstances, that a prudent person
would exercise in the management of the person’s own affairs.
4-5-3 Establishment of Internal Controls
The Finance Director is responsible for establishing and maintaining an internal control
structure designed to ensure that the assets of the entity are protected from loss, theft, or
misuse. The internal control structure shall be designed to provide reasonable assurance
that the objectives are met. The concept of reasonable assurance recognizes that (1) the cost
of a control should not exceed the benefits likely to be derived, and (2) the valuation of
costs and benefits requires estimates and judgments by management.
4-5-4 Standard of Ethics
City staff involved in the investment process shall refrain from personal business activity
that could conflict with proper execution of the investment program, or which could impair
the ability to make impartial investment decisions.
City staff shall disclose to the City any material interests in firms or businesses that conduct
investment matters with the City, and they shall further disclose positions that could be
related to the performance of the City portfolio. City staff shall subordinate their personal
financial transactions to those of the City, particularly with regard to the timing of
purchases and sales.
An investment officer of the City who has a personal business relationship with an
organization seeking to sell an investment to the City shall file a statement disclosing that
personal business interest. An investment officer who is related within the second degree
City of University Park, Texas
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by affinity or consanguinity to an individual seeking to sell an investment to the City shall
file a statement disclosing that relationship. A statement required under this subsection
must be filed with the Texas Ethics Commission and the governing body of the City.
4-5-5 Training and Education
In accordance with the Public Funds Investment Act (Chapter 2256, Texas Government
Code), the designated Investment Officers, or those personnel authorized to execute
investment transactions, must attend periodic investment training. State law requires that
training relating to investment responsibilities must be provided by an independent source,
such as the Texas Municipal League, North Central Texas Council of Governments, or the
University of North Texas Center for Public Management, or as approved by the City
Manager. Personnel authorized to execute or approve investment transactions must receive
at least 10 hours of investment training for each two year period that begins on the first day
of the City’s fiscal year and consists of the two consecutive fiscal years after that date.
Newly appointed investment officers must attain at least 10 hours of instruction relating to
the officer’s responsibility under the Act within 12 months after assuming investment
duties.
4-5-6 Investment Committee
An Investment Committee that is comprised of the membership of the Finance Advisory
Committee shall be established to determine investment guidelines, general strategies, and
monitor performance. The Committee shall meet quarterly to review performance, strategy,
and procedures. The Investment Committee shall include in its deliberation such topics as:
performance reports, economic outlook, portfolio diversification, maturity structure,
potential risk to the City funds, authorized brokers and dealers, and the target rate of return
on the investment portfolio.
4-6. Reporting
Investment performance is continually monitored and evaluated by the Finance Director. The
Investment Officer(s) will provide detailed reports, as required by the Public Funds Investment
Act (Chapter 2256, Texas Government Code, Section 2256.023) for the City on a quarterly basis.
The Finance Director shall submit a quarterly investment report signed by the investment
officers. The report shall include a succinct management summary that provides a clear picture
of the status of the current investment portfolio and transactions made over the last quarter. This
management summary will be prepared in a manner which will allow the City to ascertain
whether investment activities during the reporting period have conformed to the Investment
Policy. The management summary shall: 1) summarize current market conditions, economic
developments and anticipated investment conditions; 2) summarize investment strategies
employed in the most recent quarter; 3) describe the portfolio in terms of investment securities,
maturities, risk characteristics, and average return for the quarter; 4) outline conformance to the
restrictions of the Policy in the area of diversification and term of maturity; 5) compare the
performance of City’s portfolio to appropriate benchmarks as determined by the Investment
Committee.
City of University Park, Texas
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Additionally, the quarterly financial report will include the following detailed information:
1. A listing of individual securities held at the end of the reporting period.
2. Unrealized gains or losses resulting from appreciation or depreciation by listing the
beginning and ending book and market value of securities for the period.
3. Additions and changes to the market value during the period.
4. Average weighted yield to maturity or total return performance of the portfolio on
entity investments as compared to applicable benchmarks.
5. Listing of investments by maturity date.
6. The percentage of the total portfolio which each type of investment represents.
7. Statement of compliance of the City investment portfolio with State Law and the
investment strategy and policy approved by the City.
Within 60 days of the end of the fiscal year, the Finance Director or the Investment Advisory
firm shall present an annual report on the investment program and investment activity. The
report may be presented as a component of the fourth quarter report to the City.
4-7. Compliance Audit and Accounting Method
In conjunction with its annual financial audit, the City shall perform a compliance audit of
management controls on investments and adherence to the City’s established Investment
Policies. The results of the audit shall be reported to the Investment Committee and the
governing body of the City.
The City shall comply with all required legal provisions and Generally Accepted Accounting
Principles (GAAP) relating to investment accounting. The accounting principles are those
contained in the pronouncement of authoritative bodies including but not necessarily limited to,
the Governmental Accounting Standards Board (GASB), the American Institute of Certified
Public Accountants (AICPA), and the Financial Accounting Standards Board (FASB).
4-8. Certification
A copy of this Investment Policy will be provided to the senior management of any bank, dealer,
broker, investment advisor, or safekeeping institution wishing to transact investment business
directly with the City in order that it is apprised of the investment goals of the City. Before
business is transacted with the firm, a certification (Attachment 1) must be signed by a senior
member of a firm. Should the City contract with an external investment advisor to execute the
entity’s investment strategy, including the negotiation and execution of investment transactions,
a managing officer of the investment advisory firm may sign the written certification in lieu of
the broker/dealer firms. This certification must be included as part of the investment advisory
contract.
City of University Park, Texas
Investment Policy
14
SECTION 5. ADOPTING CLAUSE
This Investment Policy for the City of University Park, Texas is hereby adopted as of the 18th
day of August, 2015.
Mayor
Director of Finance
ATTEST:
City Secretary
City of University Park, Texas
Investment Policy
15
ATTACHMENT 1
ACKNOWLEDGEMENTS
City of University Park, Texas
Investment Policy
1
TEXAS PUBLIC FUNDS INVESTMENT ACT
ACKNOWLEDGMENTS
These Acknowledgments are executed on behalf of the City of University Park, Texas
(“Investor”) and ________________________ (“Business Organization”) pursuant to the Public
Funds Investment Act, Chapter 2256, Government Code, Texas Codes Annotated (the “Act”), in
connection with investment transactions conducted between the Investor and the Business
Organization.
Acknowledgment by Investor
The undersigned investment officer of the Investor (“Investment Officer”) hereby acknowledges,
represents and agrees on behalf of the Investor that:
(i) The Investment Officer (a) has been duly designated by official action of the governing
body of the Investor to act as its Investment Officer pursuant to the Act, (b) is vested with
full power and authority under the Act and other applicable law to engage in investment
activities on behalf of the Investor, and (c) is duly authorized to execute this
Acknowledgment on behalf of the Investor,
(ii) Pursuant to the Act, the governing body of the Investor has duly adopted a written
investment policy which complies with the Act, including an investment strategy (as the
same may be amended, the “Investment Policy”), and the Investment Officer (a) has
furnished a true and correct copy of the Investment Policy to the Business Organization
and (b) will notify the Business Organization of any rescission of, or amendment to, the
Investment Policy. The Business Organization shall be entitled to rely upon the most
recent version of the Investment Policy furnished by the Investment Officer until
provided with an amended version;
(iii) Attached hereto is a list of investments that are authorized pursuant to the Investment
Policy and that the Investment Officer understands may be available from the Business
Organization. The attached list may be amended from time to time by mutual agreement
of the Investor and the Business Organization, and
(iv) In connection with any investment transaction between the Business Organization and the
Investor, the Business Organization is not responsible for assuring compliance with those
aspects of the Investment Policy over which the Business Organization has no control or
knowledge, such as restrictions as to diversity and average maturity, or which require an
interpretation of subjective investment standards.
INVESTMENT OFFICER
Thomas W. Tvardzik
Director of Finance
City of University Park, Texas
Signature:
Date:
City of University Park, Texas
Investment Policy
2
Acknowledgment by Business Organization
I am a registered principal or authorized representative of _________________ (the “Firm”).
The Firm is a registered dealer under the Securities Exchange Act of 1934 (the “Act”), and a
member of the Financial Industry Regulatory Authority (“FINRA”).
I have received a copy of the City of University Park (the “City”) Investment Policy dated
_________. I have provided each current licensed member of the sales personnel who perform
investment services for the City with a copy of your Investment Policy and have instructed these
professionals to familiarize themselves with the terms of the Policy. The Firm has implemented
reasonable procedures and controls in an effort to preclude investment transactions conducted
between the Firm and the City that are not authorized by the City’s Investment Policy, except to
the extent that this authorization is dependent on an analysis of the composition of the entity’s
entire portfolio.
As a FINRA registered dealer, the Firm is subject to the rules of the Securities and Exchange
Commission (the “SEC”) and the Rules of Fair Practices of FINRA. Those rules establish
requirements for, among other things, net capital, reserves and custody of customer securities,
and suitability of investment recommendations. Those rules also prohibit the use of fraudulent
and deceptive practices.
The Firm has extensive internal procedures to assist the firm in complying with the rules of the
SEC, FINRA and other regulatory bodies having jurisdiction. The Firm’s compliance with these
rules will be monitored by FINRA-licensed supervisory principals and its Compliance
Department. This process is audited routinely by both internal and outside auditors.
Signature:
Name
Title
Date
City of University Park, Texas
Investment Policy
ATTACHMENT 2
BROKER-DEALER AND BANK
QUESTIONNAIRES
City of University Park, Texas
Investment Policy
1
City of University Park, Texas
BROKER/DEALER QUESTIONNAIRE
1. Name of Firm
2. Address
(Local) (National Offices)
3. Telephone ( )
4. Primary Representatives/Manager/Partner In-charge:
Name Name
Title Title
Telephone Telephone
5. Are you a primary dealer in U.S. Government securities? [ ] Yes [ ] No
6. If so, for how long has your firm been a primary dealer? years
7. What was your firm's total volume in U.S. Government securities trading last year?
Firmwide $ Number of transactions
Your local office $ Number of transactions
8. Which instruments are offered regularly by your local desk?
[ ] T-bills [ ] Agencies (specify) [ ] Instrumentalities [ ] Bank CDs [ ] S&L CDs
[ ] Treasury notes/bonds [ ] BAs (domestic) [ ] BAs (foreign) [ ] Commercial paper
[ ] Other (specify)
9. Identify all personnel who will be trading with or quoting securities to our government's
employees.
Name: Telephone Number:
(Attach Resumes Of All The Above Persons)
10. Which of the above personnel have read our government investment policies?
11. Please identify our most directly comparable public sector clients in our geographical
area.
Entity: Contact Person: Telephone No.: Client Since:
12. Have any of your clients ever sustained a loss on a securities transaction arising from a
misunderstanding or misrepresentation of the risk characteristics of the instrument? If so,
explain.
13. Have any of your public sector clients ever reported to your firm, its officers or
employees, orally or in writing, that they sustained a loss (in a single year) exceeding 10
percent of original purchase price on any individual security purchased through your firm?
(Explain.)
14. Has your firm ever been subject to a regulatory or state/federal agency investigation for
alleged improper, fraudulent, disreputable or unfair activities related to the sale of
securities? Have any of your employees ever been so investigated? (Explain.)
City of University Park, Texas
Investment Policy
2
15. Has a public sector client ever claimed, in writing, that your firm was responsible for
investment losses? (Explain.)
16. Please include samples of research reports that your firm regularly provides to public
sector clients.
17. Please explain your normal custody and delivery process. Who audits these fiduciary
systems?
18. Please provide certified financial statements and other indicators regarding your firm's
capitalization.
19. Describe the Capital line and trading limits that support/limit the office that would conduct
business with our government.
20. What training would you provide to our employees and investment officers?
21. Has your firm consistently complied with the Federal Reserve Bank's capital adequacy
guidelines? As of this date, does your firm comply with the guidelines? Has your capital
position ever fallen short? By what factor (1.5, 2x, etc.) does your firm presently exceed
the capital adequacy guideline's measure of risk? Include certified documentation of your
capital adequacy as measured by the Federal Reserve standards.
22. Do you participate in the S.I.P.C. insurance program? If not, explain why.
23. What portfolio information do you require from your clients?
24. What reports, transactions, confirmations and paper trail will we receive?
25. Enclose a complete schedule of fees and charges for various transactions.
26. How many and what percentage of your transactions failed last month? Last year?
27. Describe the precautions taken by your firm to protect the interest of the public when
dealing with governmental agencies as investors.
28. With whom are you doing business in the Dallas area?
29. Are you representing a parent corporation or a subsidiary of another corporation? If you
are a subsidiary, will you furnish audited financial statements on your parent corporation
as well as your subsidiary?
30. For all employees listed in part 9 above, please provide resumes for each and within
each resume include the company names of former employers.
31. Provide banking references and include officer contact names and telephone numbers.
32. Do you give perfected security interest in securities under repurchase agreements?
FINANCIAL RATIO CRITERIA
1. Growth in current assets and current liabilities must be parallel.
2. Total liabilities, as a multiple of equity, must be less than a ratio of 20:1.
3. The total of securities owned and securities purchased under agreement to resell
(reverse repos) must be greater than the total of short-term loans and securities sold
under agreements to repurchase (repos).
4. Equity, as a percentage of total assets, must be 5% or more.
5. Growth in retained earnings must exceed 7% for the last two years.
6. Equity growth must be parallel to asset and liability growth.
7. The auditor's opinion must be unqualified.
City of University Park, Texas
Investment Policy
City of University Park, Texas
BANK QUESTIONNAIRE
1. Name of Bank
2. Address
(Local) (National Offices)
3. Telephone
4. Primary Representatives/Managers:
Name Name
Title Title
Telephone Telephone
5. Are you a primary dealer in U.S. Government securities? [ ] Yes [ ] No
6. If so, for how long has your firm been a primary dealer? Years
7. Please attach a list of comparable public sector clients in north Texas; include entity
name, contact name, contact telephone number and email, and number of years as a
client.
8. General banking information – please attach on separate sheet:
Financial statements for the past two fiscal years, with an unqualified opinion
from a certified public accountant
Call reports for the last four quarters or credit rating information for senior and
subordinate debt from a recognized credit rating agency
Rating information from recognized bank rating agencies
Proof of current standing as an eligible public depository
Capital ratios: tangible capital, core capital, and risk capital
Evidence of growth in current assets and current liabilities being parallel
Total liability to equity ratio (must be less than 20:1)
Equity as a percentage of assets (must be at least 5%)
9. Please attach a list of the names of the current and most immediate past Board of
Directors.
City of University Park, Texas
Investment Policy
ATTACHMENT 3
APPROVED INVESTMENT VENDORS LIST
CITY OF UNIVERSITY PARK, TEXAS
APPROVED INVESTMENT VENDORS LIST
EFFECTIVE: October 1, 2015
Firm Rep Address City ST ZIP Email address Phone
Broker-Dealers
1.BOSC, Inc.Vickie Wise 5956 Sherry Lane, Suite 700 Dallas, TX 75225 vwise@mail.bokf.com (214) 346-3940
2.Cantor Fitzgerald Kevin Webb 5847 San Felipe, Suite 870 Houston, TX 77057 kwebb@cantor.com (713) 906-7673
3.Coastal Securities Tony Sekaly 5555 San Felipe, Suite 2200 Houston, TX 77056 tony.sekaly@coastalsecurities.com (713) 435-4334
4.FTN Financial (First Tennessee)Tina Kramer 350 Madison Avenue New York, NY 10017 tina.kramer@ftnfinancial.com (212) 418-7991
5.Wells Fargo Securities Chuck Landry 1445 Ross Ave., Suite 210 Dallas, TX 75202 Chuck.Landry@wellsfargo.com (214) 777-4018
6.First Financial Equity Corporation A.R. (Ric) Panzera 5005 LBJ Freeway, Suite 1410 Dallas, TX 75244 rpanzera@ffec.com (214) 545-3322
Investment pools
1.TexPool Jerry Landrum 2200 Ross Ave., Suite 2500 Dallas, TX 75201 jerry.landrum@federated.com (214) 720-9412
2.TexSTAR Mary Ann Dunda 325 N. St. Paul St., Suite 800 Dallas, TX 75201 Mdunda@firstsw.com (214) 953-4086
3.TexasTERM/TexasDaily Anne Romanick Two Logan Square, Suite 1600 Philadelphia, PA 19103-2770romanicka@pfm.com (866) 839-8376
Banks
1.Bank of Texas Vickie Wise 5956 Sherry Lane, Suite 700 Dallas, TX 75225 vwise@mail.bokf.com (214) 346-3940
2.Frost Bank Michael Alcantar 2727 N. Harwood, 10th Floor Dallas, TX 75201 michael.alcantar@frostbank.com (214) 515-4889
3.Texas Capital Bank Darla Wisdom 2100 McKinney Ave., Suite 1250 Dallas, TX 75201 darla.wisdom@texascapitalbank.com (214) 932-6711
4.Legacy Texas Bank (ViewPoint)Rewaz Chowdury 5851 Legacy Circle, 12th Floor Plano, TX 75024 Rewaz.Chowdhury@legacytexas.com (972) 461-7103
5.Wells Fargo Bank Andy Deskins 98 San Jacinto Blvd., Suite 850 Austin, TX 78701 andrew.b.deskins@wellsfargo.com (512) 482-4306
6.BB&T Ana Hernandez 2001 Ross Ave., Suite 2700 Dallas, TX 75201 Ana.Hernandez@BBandT.com (469) 791-4525
CITY OF UNIVERSITY PARK, TEXAS
FINANCE ADVISORY COMMITTEE
THURSDAY, JUNE 11, 2015
UNIVERSITY PARK CITY HALL
SECOND FLOOR – COUNCIL OVERFLOW ROOM
MINUTES
Attending:
Canfield, Charles
Coleman, Russ
G
Absent:
Gordon, David
Lane, Alvin
Gordon, David
City Council and Staff:
Moore, Dawn – City Council
Corder, Robbie – City Manager
Groves, Irving
Kipp, Cynthia
Tvardzik, Tom – Dir. of Finance
Yip, Civic – Controller
Yip, Civic – Controller
Hailey, Dianne – Administrative Asst.
Noble, Julie
Russell, Thomas
Hailey, Dianne – Administrative Asst.
Slagel, Jamie
Stuart, John - Chair
Thomas
Slagel, Jamie
Touchstone, Neill
Wilson, Claude
MINUTES
1. Call to order.
John Stuart called the meeting to order at 7:28 am.
2. Review and approve minutes of April 16, 2015.
Russ Coleman moved to approve the minutes of the April 16, 2014 meeting. Irving Groves
seconded the motion and the motion passed unanimously.
3. Update on Audit RFP process.
Tom Tvardzik briefed the committee on the status of the RFP process. He noted eleven
firms submitted proposals and that two finalists were chosen: CliftonLarsonAllen, LLP and
Crowe Horwath. The RFP committee will conduct interviews with each firm immediately
after the meeting. Claude Wilson, RFP committee chair, mentioned the committee’s goal of
upgrading the quality of the accounting firm coupled with obtaining a reasonable offer.
4. Update on Banking Service RFP process.
Tom Tvardzik noted the option of hiring consultant Jim Cook of Valley View Consulting
was rejected due to cost. Thomas Russell questioned whether standard/similar proposals
would be submitted from the banks for ease in comparison. Tvardzik stated the City of
Plano was going through their Banking RFP and have shared their RFP and self scoring
process. He noted the final RFP will likely be a combination of the previous CUP RFP and
Plano’s. The banking RFP committee will meet sometime in July to review the draft RFP.
John Stuart noted the banking services are not required to change, but that they need to be
competitive.
5. Review and recommend City Investment Policy.
Tom Tvardzik presented a basic overview of the City Investment Policy, noting Chapter
2256 of the Texas Government Code requires a review every year during the budget
process. He proposed the policy be adopted before September 30th and be effective October
1st, to better align it with the fiscal year of the City. Noting the investment policy was
professionally reviewed a few years ago to confirm compliance; Tvardzik suggested the
phrase “commonly known as the Certificate of Deposit Account Registry Service
(CDARS)” be eliminated from the “Eligible Investments” section of the policy to more
closely conform to the language found in the Public Funds Investment Act.
After the review and changes noted - Julie Noble moved to approve, Irving Groves
seconded the motion and the motion passed unanimously.
6. Review and recommend Financial Management Policies.
Tvardzik presented a review of the Financial Management Policies, noting that while there
are no legal requirements regarding the policies; GFOA Best Practices recommend yearly
review and adoption during the budget process. Tvardzik noted the review and
recommendation of this policy will be on the same timetable as the Investment Policy. He
also mentioned any changes or corrections going forward would be red-lined for the
committee.
Irving Groves stated he had several amendments to the policy. Tvardzik asked that any
suggestions be submitted to the committee for review and consideration. He noted an item
that will likely be brought back to the committee at a later date is the use of one-time
revenues the City receives (generally from the sale of property or rights-of-way). Both
Tvardzik and Robbie Corder, City Manager, believe the policy should include a section
stating that any monies obtained through “one time revenues” be transferred to Capital
Projects.
Noting amendments can be added anytime, Thomas Russell moved to approve, John Stuart
seconded the motion and the motion passed unanimously.
7. New business.
John Stuart announced the retirement of Bud Smallwood, Director of Public Works.
Robbie Corder briefly summarized the SMU construction and noted he would share the
SMU master plan. Corder also gave updates on some of the housing construction projects
around the city along with the Creek project, McFarlin project and Hillcrest construction.
Cynthia Kipp asked if the construction on Douglas and Hillcrest will be done before school
starts. Corder confirmed it would be.
John Stuart noted the date change for the budget workshop from Thursday, July 16th
to Thursday, July 23rd. Also the regular August meeting will change from Thursday,
August 13th to Tuesday, August 11th.
8. Adjourn.
John Stuart thanked the committee and adjourned the meeting at 8:25.
________________________________ ____________________________
John Stuart, Chair Tom Tvardzik, Director of Finance
RESOLUTION NO. _____________________
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
UNIVERSITY PARK, TEXAS, ADOPTING THE INVESTMENT POLICY
OF THE CITY OF UNIVERSITY PARK HERETOFORE ADOPTED BY
RESOLUTION NO. 14-013; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, the Public Funds Investment Act, as amended, requires the City to adopt an
investment policy by rule, order, ordinance or resolution, and to review such policy not less than
annually; and
WHEREAS, the Public Funds Investment Act, as amended, requires the Treasurer, the
Chief Financial Officer, and the Investment Officers of the City to attend investment training;
and
WHEREAS, the City of University Park approves of the investment training courses
sponsored by the Texas Municipal League and other independent sources; and
WHEREAS, the Treasurer, the Chief Financial Officer, and the Investment Officers of
the City have attended investment training courses as required by the Public Funds Investment
Act; and
WHEREAS, the attached investment policy complies with the Public Funds Investment
Act, as amended, and authorizes the investment of City funds in safe and prudent investments;
NOW, THEREFORE,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF UNIVERSITY
PARK, TEXAS:
SECTION 1.That the City of University Park has complied with the
requirements of the Public Funds Investment Act, and the Investment Policy, as amended,
attached hereto as Exhibit “A” is hereby adopted as the Investment Policy of the City of
University Park, effective October1, 2015.
SECTION 2.That the following individuals are hereby designated as Investment
Officers for the City of University Park: Thomas Tvardzik, Director of Finance; Robbie Corder,
City Manager; andCivic Yip, Controller.
SECTION 3.This resolution shall take effect from and after its passage, and it is
accordingly so resolved.
DULY PASSED AND APPROVED by the City Council of the City of University Park,
Texas, on the 18thday of August, 2015.
APPROVED:
__________________________________
OLIN B. LANE, MAYOR
APPROVED AS TO FORM:ATTEST:
_____________________________________________________________________
CITY ATTORNEY CHRISTINE GREEN,
CITY SECRETARY
3800 UNIVERSITY BOULEVARD UNIVERSITY PARK, TEXAS 75205 TELEPHONE (214) 363-1644
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AGENDA MEMO
8/18/2015Agenda
TO:Honorable Mayor and City Council
FROM:Thomas W. Tvardzik, Director of Finance
SUBJECT:Resolution adopting Financial Management Policies
BACKGROUND:
TheCityCouncillast approvedand adopted the City of UniversityParkFinancial
Management Polices via resolution on September 6, 2011. This action was taken due
to changes in fund balance reporting, mandated by the Government Accounting
Standards Board (“GASB”) Statement Number 54, titled“Fund Balance Reporting and
Governmental Fund Type Definitions.”
Since that date, there have beenno other official GASB pronouncements regarding the
policies requiring City Council action.
While there is no state requirement (unlike for an Investment Policy) mandating yearly
review or adoption of Financial Management Policies, the Government Finance Officers
Association recommends (as part of its 161 “Best Practices”) that financial management
policiesbe reviewed and adopted as part of the budget process.
Accordingly, staff suggests it be treated similarly to the Investment Policy, in that it
should be updated as necessary,reviewed by the Finance Advisory Committee and
presented to the City Council for formal adoption on a yearly basis. The policies would
then be effective for the coming fiscal year.
In short, the policies are a framework guiding the operations of the City regarding issues
of fiscal management. The policies address the following areas of financial
management within the City:
Annual budgets and transfer authority,
Commitment to Generally Accepted Accounting Principles,
Financial reporting and auditing,
Revenue and expenditure policies,
Capital projects, internal controls and cash management.
TheFinance Advisory Committeemet on June11, 2015to considerthe proposed
Financial Management Policies. TheCommitteerecommendedapproval.
3800 UNIVERSITY BOULEVARD UNIVERSITY PARK, TEXAS 75205 TELEPHONE (214) 363-1644
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RECOMMENDATION:
CitystaffandtheFinanceAdvisory Committeerecommendapproval oftheproposed City
of University Park Financial Management Policies.
ATTACHMENTS:
City of University Park Financial Management Policies
Finance Advisory Committee minutes of 6/11/15
Resolution renewing and adopting Financial Management Policies
EXHIBIT A
City of University Park, Texas
Financial Management
Policies
Effective: October 1, 2015
City of University Park, Texas
Financial Management Policies
2
Table of Contents
Introduction 4
1. Annual Budget 4
a. Fiscal year 4
b. Budget preparation 4
c. Budget administration 5
i. Amendments 5
ii. Transfers 5
2. Basis of Accounting and Budgeting 5
a. Use of GAAP 5
b. Organization of funds and accounts 5
i. Governmental funds 6
ii. Proprietary funds 6
iii. Internal service funds 6
c. Budget basis 6
d. Encumbrances 6
3. Financial Reporting and Auditing 7
a. Monthly financial reports 7
b. Annual financial reporting 7
c. External audit 7
4. Revenues 7
a. Revenue projections 7
b. Property taxes 7
i. Tax rate types 7
ii. Property tax policies 8
c. User fees 8
5. Operating Expenditures 8
a. Classification of operating expenditures 8
b. Annual appropriation 9
c. Service delivery review 9
d. Personnel expenditures 9
e. Capital expenditures 9
i. Equipment replacement 9
ii. Capitalization threshold 9
6. Fund Balance 10
a. Purpose 10
b. Definitions 10
i. Nonspendable fund balance 10
ii. Restricted fund balance 10
iii. Committed fund balance 10
City of University Park, Texas
Financial Management Policies
3
iv. Assigned fund balance 10
v. Unassigned fund balance 11
c. Policy by category 11
i. Committed fund balance 11
ii. Assigned fund balance 11
iii. Unassigned fund balance 11
d. Order of fund categories 11
e. Fund balance appropriations 12
f. Non-governmental fund balances 12
7. Capital Project Expenditures 12
a. Capital project definition 12
b. Capital Improvement Program (CIP) 12
c. Capital Projects Review Committee 13
8. Debt Expenditures 13
9. Long-term Financial Plan 13
10. Internal Controls 13
11. Cash Management and Investments 13
a. Cash Management 13
b. Investments 14
c. Selection of Depository Bank 14
12. Internal Audit/Review 14
City of University Park, Texas
Financial Management Policies
4
Introduction
These financial policies set forth the basic framework for the fiscal management of the City
of University Park. These policies were developed within the parameters established by
applicable provisions of the Texas Local Government Code and the City of University Park
City Charter. The policies are intended to assist the City Council and City staff in
evaluating current activities and proposals for future programs. The policies are to be
reviewed on a regular basis and modified to accommodate changing circumstances or
conditions.
The primary goal of these policies is to help the City achieve and maintain a long-term
stable and positive financial condition. The City’s financial management, as directed by
these policies, is based on the foundations of integrity, prudent stewardship, planning,
accountability, and full disclosure.
1. Annual Budget
a. Fiscal year
The fiscal year of the City of University Park shall begin on October 1 of each
calendar year and will end on September 30 of the following calendar year. The
fiscal year will also serve as the accounting and budget year.
b. Budget preparation
The City Manager, prior to September 1st of each year, shall prepare and submit to
the Mayor and the City Council an annual budget for the next fiscal year containing
the following information:
A description of the proposed budget, including an explanation of any
significant changes from the previous year’s expenditures and any major
changes of policy.
An estimate of all revenue from taxes and other sources, including the
present tax structure rates and property valuations for the ensuing year.
An estimate of proposed user fees for all proprietary funds.
An itemized list of proposed expenditures by fund, department, and type for
the budget year, compared to the adopted budgets from the two years
immediately prior.
A description of all outstanding bonded indebtedness (if any) of the City.
A statement detailing significant capital expenditures deemed necessary
during the next budget year and recommendations for financing.
The City Council may refer the proposed budget to the City’s advisory committees
for their review and recommendation.
City of University Park, Texas
Financial Management Policies
5
The Council shall conduct at least one public hearing to allow interested citizens to
express their opinions concerning items of expenditures or revenues. The City shall
observe the notice and hearing requirements of the Texas “Truth in Taxation”
statutes (Texas Tax Code Section 26). Following the public hearing, the Council
shall analyze the budget, making any additions or deletions which they feel
appropriate, and shall, by ordinance, adopt the budget by a majority vote.
On final adoption, the budget shall be in effect for the budget year. Final adoption of
the budget by the Council shall constitute the official appropriations for the current
year and shall constitute the basis of the official levy of the property tax.
c. Budget administration
All expenditures of the City of University Park shall be made in accordance with the
annual budget. During the fiscal year, conditions may arise that require
modification to the adopted budget.
i. Amendments
The City Council may amend or change the budget by ordinance to provide for
any additional expense. As a matter of course, continuous budget monitoring
requires that deviations from expected amounts of revenue and/or expenditures
be noted and estimates revised, if necessary, to avoid financial distress. Budget
amendments are thus considered prudent financial management techniques.
ii. Transfers
Transfers between expenditure accounts within a single department may be
authorized by the department director. Transfers between departments within a
single fund may occur with the written approval of the City Manager. Transfers
between funds must be accomplished by budget amendment approved by the
City Council. Transfers between salary and benefit accounts and any other
accounts are discouraged.
2. Basis of Accounting and Budgeting
a. Use of GAAP
City finances shall be accounted for in accordance with Generally Accepted
Accounting Principles (GAAP), as established by industry practice and the
Governmental Accounting Standards Board (GASB).
b. Organization of funds and accounts
The accounts of the City of University Park are organized and operated on the basis
of funds and account groups. Fund accounting segregates monies according to their
intended purpose and is used to aid management in demonstrating compliance with
finance-related legal and contractual provisions.
City of University Park, Texas
Financial Management Policies
6
In general, the City will maintain the minimum number of funds consistent with
legal and managerial requirements. Funds are divided into three categories:
governmental, proprietary, and internal service.
i. Governmental funds
Governmental funds are used to account for the City’s general government
activities and include the General, Capital Projects, Special Revenue and Debt
Service funds (if necessary). Governmental fund types use the flow of current
financial resources measurement focus and the modified accrual basis of
accounting. Under the modified accrual basis of accounting revenues are
recognized when susceptible to accrual (both “measurable” and “available”).
“Measurable” means the amount of the transaction can be determined and
“available” means collectible within the current period, or soon thereafter.
Substantially all material revenues are considered to be susceptible to accrual.
A sixty-day availability period is used for revenue recognition for all
governmental fund revenues. Expenditures are recognized when the related fund
liability is incurred, if measurable. Compensated absences, claims, and
judgments are recorded when the obligations are expected to be paid with
current available financial resources.
ii. Proprietary funds
Proprietary funds are used to account for those activities that are business-like in
nature, and include the Utility, Storm water and Sanitation funds. Proprietary
fund types are accounted for on a flow of economic resources measurement
focus and use the accrual basis of accounting. Under this method, revenues are
recorded when earned and expenses are recorded at the time liabilities are
incurred.
iii. Internal Service funds
Internal Service funds account for the services provided by one department to
other departments of the city on a cost reimbursement basis and include the
Equipment Service and Comprehensive Self-Insurance funds.
c. Budget basis
Budgets shall be prepared and adopted on a cash basis for the General Fund and on
accrual basis for the Utility and Sanitation funds. Annual budgetary appropriations
will lapse at fiscal year end.
d. Encumbrances
Encumbrance accounting shall be used. Purchase orders, contracts and other
commitments for the expenditure of monies are recorded to reserve that portion of
the applicable appropriation. Outstanding encumbrances are reported as
City of University Park, Texas
Financial Management Policies
7
reservations of fund balances and do not constitute expenditures or liabilities since
the commitments will be re-appropriated and honored during the subsequent fiscal
year(s).
3. Financial Reporting and Auditing
a. Monthly financial reports
Monthly reports shall be prepared comparing expenditures and revenues to the
amended budget. Explanatory notes and charts will be included, as needed. These
reports shall be provided to the City Council and Finance Advisory Committee each
month, and they may also be posted to the City’s Web site.
b. Annual financial reporting
Following the conclusion of the fiscal year, the Finance department shall prepare a
Comprehensive Annual Financial Report (CAFR) in accordance with GAAP. The
document shall be prepared to satisfy all criteria of the Government Finance
Officers Association's Certificate of Achievement for Excellence in Financial
Reporting program.
The CAFR shall include the results of the annual audit prepared by independent
certified public accountants designated by the City Council.
c. External audit
As required by State law, the City shall engage an external auditor each year to
examine its financial records and provide an opinion. The auditor shall be chosen
by the City Council for a multiyear period, and audit proposals shall be reviewed by
the Finance Advisory Committee. In general, the City will seek proposals from
external auditors every five years, although it is under no obligation to change.
4. Revenues
a. Revenue projections
When developing the annual budget, the City Manager shall project revenues from
each source based on actual collections from the preceding year and estimated
collections of the current fiscal year, while considering known circumstances which
will impact revenues for the new fiscal year. Revenue projections for each fund
should be made conservatively so that total actual fund revenues exceed budgeted
projections.
b. Property taxes
i. Tax rate types
The City shall levy two property tax rates: operations and maintenance, and debt
service. The operation and maintenance levy shall be accounted for in the
City of University Park, Texas
Financial Management Policies
8
General Fund. The debt service levy, if any, shall be sufficient to meet all
principal and interest payments associated with the City's outstanding general
obligation debt for that budget year and shall be accounted for in a Debt Service
fund.
ii. Property tax policies
The City will levy the lowest tax rate on the broadest tax base. Exemptions will
be provided to home owners, senior citizens (age 65 years and over), and
disabled citizens. The homestead exemption shall be equal to 20% of a
property’s value.
City Council will review the senior citizen and disabled persons homestead
exemptions annually, with a goal of maintaining an exemption equal to
approximately 25% of the average single-family home value from the prior tax
year.
c. User fees
The City will establish user charges and fees at a level that fully supports the total
direct and indirect cost of operations, including depreciation. User fees, particularly
utility rates, should identify the relative costs of serving different classes of
customers, if possible.
The City of University Park will make every reasonable attempt to ensure accurate
measurement of the variables impacting taxes and fees (e.g., verification of business
sales tax payments, verification of appraisal district property values, accuracy of
water meters, and so on).
5. Operating Expenditures
a. Classification of operating expenditures
Expenditures shall be accounted, reported, and budgeted for in the following major
categories:
Salaries and Benefits
Supplies
Professional Services
Utilities
Insurance
Outside Services
Other
Capital Expenditures
City of University Park, Texas
Financial Management Policies
9
b. Annual appropriation
The annual budget shall appropriate funds for operating and recurring expenditures
sufficient to maintain established quality and scope of city services. The City shall
operate on a current funding basis. Expenditures shall be budgeted and controlled
so as not to exceed current revenues.
c. Service delivery review
The City shall constantly examine the methods for providing public services to
reduce recurring operating expenditures and/or enhance the quality and scope of
public services. The City will utilize contract labor for the provision of City
services whenever private contractors can perform the established level of service at
less expense to the City. Agreements with private contractors will be regularly
reviewed to ensure the established levels of service are performed at the lowest
possible cost.
d. Personnel expenditures
Salaries and benefits expenditures will reflect the optimal staffing needed to provide
established quality and scope of city services. To attract and retain employees
necessary for providing high-quality service, the City shall maintain a compensation
and benefit package competitive with relevant public and private sector employers.
e. Capital expenditures
Within the resources available each fiscal year, the City shall maintain capital assets
and infrastructure at a level sufficient to protect the City’s investment, minimize
future replacement and maintenance costs while maintaining acceptable service
levels. Existing capital equipment shall be replaced when needed, to ensure the
optimal productivity of City of University Park employees.
i. Equipment replacement
The City shall establish a fleet equipment program that includes a detailed
maintenance and replacement schedule. Funding for equipment replacements
will be made through budgeted contributions by the user departments. These
charges shall be held in the Equipment Services Fund until expended.
Additional funding may be obtained through year-end budget surpluses, if any.
Expenditures for new (not replacement) capital equipment shall be made only to
enhance employee productivity, improve quality of service, or expand scope of
service.
ii. Capitalization threshold
The GFOA recommends that “best practice” guidelines be followed in
establishing capitalization thresholds for tangible capital-type items.
Accordingly, the following criteria are followed:
City of University Park, Texas
Financial Management Policies
10
Individual items costing $5,000 or more and capital projects whose total cost
(in the aggregate) exceeds $50,000 or more will be capitalized and
depreciated according to GASB rules.
Tangible, capital assets will only be capitalized if they have an estimated
useful life of at least two years following the date of acquisition.
Capitalization thresholds will be applied to individual items rather than
groups of similar items.
Records and procedures will be established at the departmental level to
ensure adequate control over non-capitalized tangible assets. It shall be the
responsibility of the individual department directors to maintain records and
procedures sufficient to demonstrate compliance with this policy.
6. Fund Balance
a. Purpose
The purpose of this policy is to establish guidelines for governmental fund balances
in accordance with Governmental Accounting Standards Board Statement 54, Fund
Balance Reporting and Governmental Fund Type Definitions.
b. Definitions
i. Nonspendable fund balance - includes amounts that are not in a
spendable form or are required to be maintained intact. (Examples are
inventory or permanent funds.)
ii. Restricted fund balance - includes amounts that can be spent only for the
specific purpose stipulated by external resource providers either
contractually, constitutionally or through enabling legislation. (Examples
include grants and child safety fees.)
iii. Committed fund balance - includes amounts that can be used only for
the specific purposes determined by a formal action of the government's
highest level of decision-making authority. Commitments may be modified
or rescinded only by the government taking the same formal action that
imposed the original constraint.
iv. Assigned fund balance - comprises amounts intended to be used by the
government for specific purposes. Intent can be expressed by the governing
body or by an official or body to which the governing body delegates the
authority. In governmental funds other than the general fund, assigned fund
balance represents the amount that is not restricted or committed. This
indicates that resources in other governmental funds are, at a minimum,
intended to be used for the purpose of that fund.
City of University Park, Texas
Financial Management Policies
11
v. Unassigned fund balance - is the residual classification of the General
Fund and includes all amounts not contained in the above mentioned
classifications. Unassigned fund balance is available for any valid
governmental purpose and may include negative balances for any
governmental fund in which expenditures exceed the amounts restricted,
committed, or assigned for a specific purpose.
c. Policy by category
i. Committed fund balance
The City Council is the City's highest level of decision-making authority and
the formal action required to be taken to establish, modify, or rescind a fund
balance commitment is a resolution approved by the Council at a City
Council meeting. The resolution must be approved, modified or rescinded,
as applicable, prior to the last day of the fiscal year for which the
commitment is made. The amount subject to the commitment may be
determined in the subsequent period.
ii. Assigned fund balance
The City Council has authorized both the City Manager and the Finance
Director to assign fund balance to a specific purpose, as necessary.
iii. Unassigned fund balance
The City recognizes that unassigned fund balance is an important measure of
economic stability. It is the goal of the City to achieve and maintain an
unassigned fund balance in the General Fund equal to at least 30 days of
expenditures to mitigate financial risk that can occur from unforeseen
revenue fluctuations, significant unanticipated expenditures and natural
disasters. The City considers a balance of less than 30 days to be cause for
concern, barring unusual or deliberate circumstances. Should unassigned
fund balance fall below the above minimum, the City shall refrain from
making additional appropriations from fund balance.
d. Order of fund expenditure
When multiple categories of fund balance are available for expenditure (for
example, a construction project being funded partly by a grant, funds set aside by
the City Council, and unassigned fund balance), the City will first spend the most
restricted category of funds before spending the next most restricted category with
available funds. Normally, this will result in the use of committed, then assigned,
and lastly, unassigned fund balance when expenditures are made, with the exception
of the emergency reserve established by the City Council. Under normal
circumstances, the City would first elect to utilize unassigned fund balance before
considering use of its emergency funds.
City of University Park, Texas
Financial Management Policies
12
e. Fund balance appropriations
Fund balances in excess of the minimum level established above may be
appropriated for non-recurring capital projects or programs. The City of University
Park will exercise diligence in avoiding the appropriation of fund balance for
recurring operating expenditures. In the event fund balance is appropriated for
recurring operating expenditures to meet the needs of the community, the budget (or
other authorizing) document shall include an explanation of the circumstances
requiring the appropriation and the methods to be used to arrest its future use.
f. Non-governmental fund balances
Insofar as the above definitions, policies and fund balance categories do not apply to
proprietary funds, the City recognizes the need to apply a different minimum
balance policy to the Utility Fund, in order to ensure continued operation in the
event of a natural disaster or significant shortfall in revenues. Therefore, the City
shall maintain a minimum ending working capital balance (current assets minus
current liabilities) of at least 90 days of budgeted expenditures. Should working
capital fall below the desired minimum, the City shall refrain from making
additional appropriations from fund net assets.
7. Capital Project Expenditures
Capital projects will be constructed to 1) protect, maintain or improve the community's
quality of life and economic vitality, and 2) to provide significant rehabilitation of City
infrastructure for sustained service. All projects shall be prioritized based on an analysis of
current needs and resource availability. Capital project expenditures will not be authorized
by the City Council without identification of a sufficient funding source. Potential funding
sources include but are not limited to: reserve funds, debt issuances, matching fund
revenues, user fees, grants, or reallocation of existing capital funds with the recognition that
construction of previously authorized capital projects may be delayed or postponed.
a. Capital project definition
Capital projects are defined as non-recurring expenditures for improvements that
exceed $50,000 and have useful lives exceeding one year. Examples include water
and wastewater line replacement, street resurfacing, building construction and
renovation, major software and hardware projects, and park improvements.
b. Capital Improvement Program (CIP)
The City will develop a multi-year plan for capital projects which identifies all
projects likely to be constructed within five years. It is acknowledged that the
preference of the City is to support capital projects with appropriations from
operating revenues or excess fund balances (i.e. "pay-as-you-go"), rather than debt.
City of University Park, Texas
Financial Management Policies
13
c. Capital Projects Review Committee
The City Council shall annually review the CIP, and it shall adopt by resolution the
first year of the CIP as the capital budget. The Council shall appoint a Capital
Projects Review Committee to review and provide recommendations about the CIP.
8. Debt Expenditures
It is the intention of the City Council to avoid the issuance of debt, preferring to fund capital
expenditures on a “pay-as-you-go” basis. However, should the issuance of debt become
necessary, the following principles shall apply:
To minimize interest payments on issued debt, the City will maintain a rapid debt
retirement policy by issuing debt with maximum maturities not exceeding 20 years.
The City of University Park will attempt to maintain base bond ratings (prior to
insurance) of at least Aa2 (Moody's Investors Service) and AA+ (Standard & Poor's)
on its general obligation debt.
When needed to minimize annual debt payments, the City will obtain insurance for
new debt issues.
Generally, competitive underwriting is preferred to a negotiated sale.
9. Long-term Financial Plan
The City of University Park will adopt the annual budget in the context of a long-term
financial plan, or other multi-year budget analysis. The long-term financial plan will
establish assumptions for revenues, expenditures and the changes to fund balances over a
five-year horizon. The assumptions will be evaluated periodically, as part of the budget
development process.
10. Internal Controls
The City shall maintain written guidelines on accounting, cash handling, segregation of
duties, investing, and other financial matters. Each department director shall ensure that
departmental procedures are adequate to safeguard City funds and assets. Staffing and
training shall be reviewed periodically to ensure adequacy. The City shall conduct periodic
reviews of Internal Controls and Cash Handling Procedures.
11. Cash Management and Investments
a. Cash Management
Daily deposits of cash shall be made unless the amounts collected (or expected to be
collected) warrant less frequent deposits, as determined by the Finance Director.
The timing and amount of cash needs and availability of funds shall be analyzed in
order to maximize interest earnings from investments. City staff shall monitor and
manage activity in the City’s bank accounts to optimize the availability of funds and
interest earned.
City of University Park, Texas
Financial Management Policies
14
b. Investments
The City’s investment portfolio shall be managed in accordance with the Public
Funds Investment Act and the City’s Investment Policy. The City Council shall
adopt a formal investment policy by resolution annually, following review and
recommendation by the Finance Advisory Committee.
c. Selection of Depository Bank
The City will undertake a comprehensive review of its banking needs and seek
competitive proposals for bank services on a regular basis. The bank shall be
chosen by the City Council for a multiyear period, and banking services proposals
shall be reviewed by the Finance Advisory Committee. In general, the City will
seek proposals from depository banks every five years, although it is under no
obligation to change.
12. Internal Audit/Review
Recognizing that the cost of a control should not outweigh its intended or actual benefit, the
City does not currently employ an Internal Audit Department. Instead, City staff, under the
guidance of the Finance Director and with appropriate checks and balances, will identify
operations, processes and practices to be periodically reviewed for compliance with City
policy and best practices. Projects may be added, amended, or deleted as deemed necessary
by the Finance Director or City Manager.
Recommendations and findings will be submitted to the Finance Director upon completion
of the review and discussed with the applicable department Director. It is the responsibility
of each department Director to ensure policies and procedures are correctly implemented
and followed.
CITY OF UNIVERSITY PARK, TEXAS
FINANCE ADVISORY COMMITTEE
THURSDAY, JUNE 11, 2015
UNIVERSITY PARK CITY HALL
SECOND FLOOR – COUNCIL OVERFLOW ROOM
MINUTES
Attending:
Canfield, Charles
Coleman, Russ
G
Absent:
Gordon, David
Lane, Alvin
Gordon, David
City Council and Staff:
Moore, Dawn – City Council
Corder, Robbie – City Manager
Groves, Irving
Kipp, Cynthia
Tvardzik, Tom – Dir. of Finance
Yip, Civic – Controller
Yip, Civic – Controller
Hailey, Dianne – Administrative Asst.
Noble, Julie
Russell, Thomas
Hailey, Dianne – Administrative Asst.
Slagel, Jamie
Stuart, John - Chair
Thomas
Slagel, Jamie
Touchstone, Neill
Wilson, Claude
MINUTES
1. Call to order.
John Stuart called the meeting to order at 7:28 am.
2. Review and approve minutes of April 16, 2015.
Russ Coleman moved to approve the minutes of the April 16, 2014 meeting. Irving Groves
seconded the motion and the motion passed unanimously.
3. Update on Audit RFP process.
Tom Tvardzik briefed the committee on the status of the RFP process. He noted eleven
firms submitted proposals and that two finalists were chosen: CliftonLarsonAllen, LLP and
Crowe Horwath. The RFP committee will conduct interviews with each firm immediately
after the meeting. Claude Wilson, RFP committee chair, mentioned the committee’s goal of
upgrading the quality of the accounting firm coupled with obtaining a reasonable offer.
4. Update on Banking Service RFP process.
Tom Tvardzik noted the option of hiring consultant Jim Cook of Valley View Consulting
was rejected due to cost. Thomas Russell questioned whether standard/similar proposals
would be submitted from the banks for ease in comparison. Tvardzik stated the City of
Plano was going through their Banking RFP and have shared their RFP and self scoring
process. He noted the final RFP will likely be a combination of the previous CUP RFP and
Plano’s. The banking RFP committee will meet sometime in July to review the draft RFP.
John Stuart noted the banking services are not required to change, but that they need to be
competitive.
5. Review and recommend City Investment Policy.
Tom Tvardzik presented a basic overview of the City Investment Policy, noting Chapter
2256 of the Texas Government Code requires a review every year during the budget
process. He proposed the policy be adopted before September 30th and be effective October
1st, to better align it with the fiscal year of the City. Noting the investment policy was
professionally reviewed a few years ago to confirm compliance; Tvardzik suggested the
phrase “commonly known as the Certificate of Deposit Account Registry Service
(CDARS)” be eliminated from the “Eligible Investments” section of the policy to more
closely conform to the language found in the Public Funds Investment Act.
After the review and changes noted - Julie Noble moved to approve, Irving Groves
seconded the motion and the motion passed unanimously.
6. Review and recommend Financial Management Policies.
Tvardzik presented a review of the Financial Management Policies, noting that while there
are no legal requirements regarding the policies; GFOA Best Practices recommend yearly
review and adoption during the budget process. Tvardzik noted the review and
recommendation of this policy will be on the same timetable as the Investment Policy. He
also mentioned any changes or corrections going forward would be red-lined for the
committee.
Irving Groves stated he had several amendments to the policy. Tvardzik asked that any
suggestions be submitted to the committee for review and consideration. He noted an item
that will likely be brought back to the committee at a later date is the use of one-time
revenues the City receives (generally from the sale of property or rights-of-way). Both
Tvardzik and Robbie Corder, City Manager, believe the policy should include a section
stating that any monies obtained through “one time revenues” be transferred to Capital
Projects.
Noting amendments can be added anytime, Thomas Russell moved to approve, John Stuart
seconded the motion and the motion passed unanimously.
7. New business.
John Stuart announced the retirement of Bud Smallwood, Director of Public Works.
Robbie Corder briefly summarized the SMU construction and noted he would share the
SMU master plan. Corder also gave updates on some of the housing construction projects
around the city along with the Creek project, McFarlin project and Hillcrest construction.
Cynthia Kipp asked if the construction on Douglas and Hillcrest will be done before school
starts. Corder confirmed it would be.
John Stuart noted the date change for the budget workshop from Thursday, July 16th
to Thursday, July 23rd. Also the regular August meeting will change from Thursday,
August 13th to Tuesday, August 11th.
8. Adjourn.
John Stuart thanked the committee and adjourned the meeting at 8:25.
________________________________ ____________________________
John Stuart, Chair Tom Tvardzik, Director of Finance
RESOLUTIONNO._________________________
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
UNIVERSITY PARK, TEXAS, ADOPTING THE FINANCIAL
MANAGEMENT POLICIES OF THE CITY OF UNIVERSITY PARK
HERETOFORE ADOPTED BY RESOLUTION NO.11-08; AND
PROVIDING AN EFFECTIVE DATE.
WHEREAS,formalfinancialmanagementpoliciesserveasa framework formanagement
decisionsandtherebyprovideconsistencyandqualitycontrol;and
WHEREAS,suchpoliciesareevidenceofprudentstewardshipandare recommendedbythe
GovernmentFinanceOfficersAssociation;and
WHEREAS,suchpoliciespromotelong-termandstrategicthinkingandestablish guidelines
thatoutlivetheircreators;and
WHEREAS,theCityCouncillastapprovedaresolutionadoptingcomprehensive financial
managementpoliciesfortheCityonSeptember 6, 201,and
WHEREAS,theattachedfinancial management policieshavebeenreviewedand
recommendedforapprovalbytheCity'sFinanceAdvisoryCommittee;
NOW,THEREFORE,
BEITRESOLVEDBYTHECITY COUNCIL OF THECITYOFUNIVERSITY
PARK,TEXAS:
SECTION1.ThattheFinancialManagementPolicies of theCityofUniversityPark
asattachedheretoasExhibit"A",are hereby adopted, effective October 1, 2015.
SECTION2.ThisResolutionshall takeeffectfromandafterits passage,anditis
accordinglysoresolved.
DULY PASSED AND APPROVED by the City Council of the City of University Park,
Texas, on the 18th day of August, 2015.
APPROVED:
__________________________________
OLIN B. LANE, MAYOR
APPROVED AS TO FORM:ATTEST:
_____________________________________________________________________
CITY ATTORNEY CHRISTINE GREEN,
CITY SECRETARY
3800 UNIVERSITY BOULEVARD UNIVERSITY PARK, TEXAS 75205 TELEPHONE (214) 363-1644
\\10.176.2.252\granicus_nas\insite\files\UPTE\Attachments\7117edca-da12-475d-a7bf-09bd31a2310c.docx 1:19 PM 07/31/15
AGENDA MEMO
8/18/2015 Agenda
TO: Honorable Mayor and City Council
FROM: Amanda Hartwick, Communications Spec./Deputy City Secretary
SUBJECT: Minutes of the August 4, 2015 City Council Meeting
Minutes of the August 4, 2015 City Council Meeting are included for the Council’s review.
City Hall
3800 University Blvd.
University Park, TX 75205
City of University Park
Meeting Minutes
City Council
5:00 PM Council ChamberTuesday, August 4, 2015
PRE-MEETING WORK SESSION(S)
4:30 - 5:00 P.M. The City Council met in open work session to receive agenda item briefings
from staff. No action was taken. Council Conference Room, 2nd floor, City Hall.
CALL TO ORDERI.
Mayor Olin Lane, Councilmember Dawn Moore and Councilmember
Taylor Armstrong
Present:3 -
Councilmember Bob Begert and Mayor Pro Tem Tommy StewartAbsent:2 -
INVOCATION: Director of Public Works Bud SmallwoodA.
PLEDGE OF ALLEGIANCE: Director of Public Works Bud Smallwood / Boy
Scouts
B.
Boy Scout Jack Fitzmartin, Troop 82, Citizenship in the Community merit
badge
INTRODUCTION OF COUNCIL: Mayor Olin Lane, Jr.C.
INTRODUCTION OF STAFF: City Manager Robbie CorderD.
Staff in attendance included Community Information Officer Steve Mace,
Director of Information Services Dale Harwell, Chief of Police Greg Spradlin,
Director of Public Works Bud Smallwood, City Secretary Christine Green,
Director of Finance Tom Tvardzik, Library Director Sharon Martin,
Communications Specialist Amanda Hartwick, Director of Parks Gerry
Bradley, Fire Chief Randy Howell, Community Development Director Pat
Baugh, Deputy Director of Public Works Jacob Speer, and Purchasing
Manager Elizabeth Anderson.
AWARDS AND RECOGNITIONII.
None
CONSENT AGENDAIII.
15-393 Consider approval of the minutes of the City Council Meeting of July
21, 2015 with or without corrections.
Page 1City of University Park
August 4, 2015City Council Meeting Minutes
The minutes were approved.
Approval of the Consent Agenda
A motion was made by Councilmember Armstrong, seconded by
Councilmember Moore, to approve the Consent Agenda. The motion carried
by the following vote:
Aye:Mayor Lane, Councilmember Armstrong, and Councilmember Moore3 -
MAIN AGENDAIV.
PZ 15-004 Conduct a public hearing to receive comments on a request to amend
Planned Development District, PD 20 to allow a perimeter fence to
define a children’s playground at the University Park United Methodist
Church.
Mayor Lane opened the public hearing. Community Development Director
Pat Baugh provided a presentation with photos to show the proposed fence
at the University Park United Methodist Church. Mayor Lane asked if there
were any speakers in favor of the ordinance. Libby Nicodemus, Director of
the Weekday School at UP United Methodist, spoke to the Council. She
said the addition of the fence would help encourage outdoor play, and would
ensure a safe environment for the children. She asked that the Council
approve the PD amendment.
Mayor Lane then asked if there was anyone else present to speak in favor
of, or in opposition to the PD amendment. With no one coming forward, the
Mayor closed the public hearing.
This PD Amendment was presented
15-391 Consider an ordinance to amend Planned Development 20 to allow a
perimeter fence to define a children’s playground at the University
Park United Methodist Church.
A motion was made by Councilmember Moore, seconded by Councilmember
Armstrong, that this ordinance be adopted. The motion carried by the following
vote:
Aye:Mayor Lane, Councilmember Moore, and Councilmember Armstrong3 -
15-394 Consider selection of external audit firm.
City Manager Corder said that this item is to approve an external audit firm.
He explained that Weaver and Tidwell, LLP has served as the City's external
auditor for the past ten fiscal years. Based on GFOA best practices, it has
generally been the practice of the City to limit auditors to two five-year terms.
With this in mind, the City published a Request for Proposals in March of
2015. A sub-committee for the Finance Advisory Committee reviewed and
Page 2City of University Park
August 4, 2015City Council Meeting Minutes
ranked the responding firms. After completion of the review process, the
sub-committee recommends the selection of of Crowe Horwath LLP as the
external audit firm. City Manager Corder explained that Crowe Horwath
provided their best and final offer at a total not-to-exceed price of $207,200
for a five year contract, which was included in the Council report.
Mayor Lane clarified that the agreement is a two year base contract, with
three optional yearly renewals, at a total price of $207,200. Director of
Finance Tom Tvardzik confirmed the not-to-exceed price is for a total of five
years.
Tom then commended Cindy Kipp, Claude Wilson, and Thomas Russell for
for their work serving on the sub-committee.
A motion was made by Councilmember Moore, seconded by Councilmember
Armstrong, that this proposal be approved. The motion carried by the following
vote:
Aye:Mayor Lane, Councilmember Armstrong, and Councilmember Moore3 -
15-395 Consider a resolution adopting a maximum proposed property tax rate
for FY2016; and set the dates for both the required tax rate hearings
and the adoption of the final FY2016 property tax rate.
City Manager Corder said that the item before Council is a resolution
adopting a maximum tax rate for fiscal year 2016. Staff recommends that the
tax rate maximum be set at the same amount as last year, which was 26.979
cents per $100 of taxable value. He explained that city staff is in the final
stages of developing the budget for the upcoming year. City Manager Corder
then announced August 18th and September 1st, as the public hearing dates
for the 2016 tax rate. He stated that there will be separate public hearings for
the 2016 budget on September 1st and September 15th.
A motion was made by Councilmember Armstrong, seconded by
Councilmember Moore, that this resolution be adopted. The motion carried by
the following vote:
Aye:Mayor Lane, Councilmember Armstrong, and Councilmember Moore3 -
15-396 Consider a proposal in the amount of $40,400 for surveying and
design of certain traffic signals.
City Manager Corder said that the final item on the agenda is to approve a
traffic signal design contract. The City is committed to a ten year
replacement cycle of all traffic signals, which will require replacement of
three signals per year. The current proposal in the amount of $40,400 from
Binkley & Barfield is for design work associated with the replacement of
signals along Preston at the following intersections, St. Andrews, McFarlin,
and Purdue in the year 2016.
15-396 Consider a proposal in the amount of $40,400 for surveying and design
of certain traffic signals.
Aye:Mayor Lane, Councilmember Armstrong, and Councilmember Moore3 -
Page 3City of University Park
August 4, 2015City Council Meeting Minutes
PUBLIC COMMENTSV.
Heidi Levy, who owns a commercial space at 6719 Hillcrest in Snider Plaza,
approached the podium to address the Council. She requested that the City
put in a 15-minute parking space or a handicap space in front of her store.
She explained that there was previously a 15-minute parking space out front
which has since been removed. The parking spaces in front of this location
now have a 2-hour limit. The plumbers, from the office next door, disregard
the time limit and park in the spaces all day, which leaves no available
parking in front of her store. Mrs. Levy further explained that all other
businesses along Hillcrest have handicap parking and/or 15-minute parking
in front of their stores. She asked that the City consider changing the parking
requirements in front of her store to match those along Hillcrest, with either a
15-minute space or handicap space.
Mayor Lane explained that the standard procedure for a request of this
nature is to first submit to the Director of Public Works. He thanked Mrs.
Levy for bringing the matter to the Council's attention, and asked her to visit
with the Director of Public Works so that the request could be properly
considered.
ADJOURNMENTVI.
As there was no further business, Mayor Lane adjourned the meeting at 5:20
P.M.
Considered and approved this DATE:
_____________________________
Olin Lane, Jr., Mayor
ATTEST:
_____________________________
Christine Green, City Secretary
Page 4City of University Park
3800 UNIVERSITY BOULEVARD UNIVERSITY PARK, TEXAS 75205 TELEPHONE (214) 363-1644
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AGENDA MEMO
8/18/2015Agenda
TO:Honorable Mayor and City Council
FROM:Thomas W. Tvardzik, Director of Finance
SUBJECT:PUBLIC HEARING:on proposed FY2016 tax rate
BACKGROUND:
The Texas Tax Code (Section 26, Truth-in-Taxation) requires the calculation and
publication of the effective tax rate (ETR), a number intended to “enable the public to
evaluate the relationship between taxes for the preceding year and for the current year,
based on a tax rate that would produce the same amount of taxes if applied to the same
properties taxed in both years” (2012 Truth-in-Taxation Guide, Texas State Comptroller).
These rates are calculated by the city’s tax collector, the Dallas County Tax Office.
Texas statutes further require that cities provide notice and hold at least two public
hearings before adopting an annual property tax rate that exceeds either the ETRor the
“rollback rate”(ETRplus 8%).
The applicable tax rates for the 2015 tax year (FY2016) are as follows:
2015 ETR = 25.3335 cents per $100 of taxable value
2015 RTR = 27.3601cents per $100 of taxable value
2014 University Park property tax rate= 26.979cents per $100 of taxable value.
At its meeting of August 4, 2015, the City Council adopted a 2015 maximum proposed
tax rate of .26979 per $100 of taxable value. As this rate exceeds the ETR, public
hearings must be held. Accordingly, notice of the hearings was placed in the August 6,
2015 edition of The Park Cities News, the newspaper of record.
As noted in the published item, the maximum proposed rate should be considered a
“not-to-exceed” rate. City Council may adopt a final tax rate at or below (but not higher
than) the rate in the notice.
RECOMMENDATION:
Hold the first public hearing on the proposed tax rate and invite public comments.
ATTACHMENTS:
3800 UNIVERSITY BOULEVARD UNIVERSITY PARK, TEXAS 75205 TELEPHONE (214) 363-1644
C:\Users\GRANIC~1\AppData\Local\Temp\BCL Technologies\easyPDF 7\@BCL@B40516FD\@BCL@B40516FD.docx 11:53 AM 08/13/15
2015 Effective Tax Rate Worksheet
2015 Rollback Tax Rate Worksheet
Notice of Proposed Tax Rate and Hearings
2015 Effective Tax Rate Worksheet
City of University Park
Date: 07/28/2015 09:07 AM
1. 2014 total taxable value. Enter the amount of 2014 taxable value on the 2014 tax roll
today. Include any adjustments since last year's certification; exclude Tax Code Section
25.25(d) one-third over-appraisal corrections from these adjustments. This total includes the
taxable value of homesteads with tax ceilings (will deduct in Line 2) and the captured value
for tax increment financing (will deduct taxes in Line 14).
$6,308,408,520
2. 2014 tax ceilings. Counties, cities and junior college districts. Enter 2014 total taxable
value of homesteads with tax ceilings. These include the homesteads of homeowners age 65
or older or disabled. Other taxing units enter 0. If your taxing units adopted the tax ceiling
provision in 2014 or a prior year for homeowners age 65 or older or disabled, use this step.
$0
3. Preliminary 2014 adjusted taxable value. Subtract Line 2 from Line 1.$6,308,408,520
4. 2014 total adopted tax rate.$0.269790/$100
5. 2014 taxable value lost because court appeals of ARB decisions reduced 2014
appraised value.
A. Original 2014 ARB Values.
B. 2014 values resulting from final court decisions.
C. 2014 value loss. Subtract B from A.
$36,401,980
$29,702,100
$6,699,880
6. 2014 taxable value, adjusted for court-ordered reductions. Add Line 3 and Line 5C.$6,315,108,400
7. 2014 taxable value of property in territory the taxing unit deannexed after Jan. 1,
2014. Enter the 2014 value of property in deannexed territory.$0
8. 2014 taxable value lost because property first qualified for an exemption in 2015.
Note that lowering the amount or percentage of an existing exemption does not create a new
exemption or reduce taxable value. If the taxing unit increased an original exemption, use
the difference between the original exempted amount and the increased exempted amount.
Do not include value lost to freeport or goods-in-transit exemptions.
A. Absolute exemptions. Use 2014 market value:
B. Partial exemptions. 2015 exemption amount or 2015 percentage exemption times 2014
value:
C. Value loss. Add A and B.
$1,061,282
$50,367,275
$51,428,557
9. 2014 taxable value lost because property first qualified for agricultural appraisal (1-
d or 1-d-1), timber appraisal, recreational/scenic appraisal or public access airport
special appraisal in 2015. Use only properties that qualified in 2015 for the first time; do
not use properties that qualified in 2014.
A. 2014 market value:
B. 2015 productivity or special appraised value:
C. Value loss. Subtract B from A.
$0
$0
$0
10. Total adjustments for lost value. Add lines 7, 8C and 9C.$51,428,557
11. 2014 adjusted taxable value. Subtract Line 10 from Line 6.$6,263,679,843
12. Adjusted 2014 taxes. Multiply Line 4 by line 11 and divide by $100.$16,898,781
13. Taxes refunded for years preceding tax year 2014. Enter the amount of taxes refunded
by the taxing unit for tax years preceding tax year 2014. Types of refunds include court
decisions, Tax Code Section 25.25(b) and (c) corrections and Tax Code Section 31.11
payment errors. Do not include refunds for tax year 2014. This line applies only to tax years
preceding tax year 2014.
$36,617
14. Taxes in tax increment financing (TIF) for tax year 2014. Enter the amount of taxes
paid into the tax increment fund for a reinvestment zone as agreed by the taxing unit. If the
taxing unit has no 2015 captured appraised value in Line 16D, enter 0.
$0
15. Adjusted 2014 taxes with refunds and TIF adjustment. Add Lines 12 and 13, subtract
Line 14. $16,935,398
16. Total 2015 taxable value on the 2015 certified appraisal roll today. This value
includes only certified values and includes the total taxable value of homesteads with tax
ceilings (will deduct in Line 18). These homesteads include homeowners age 65 or older or
disabled.
A. Certified values:
B. Counties: Include railroad rolling stock values certified by the Comptroller's office:
C. Pollution control exemption: Deduct the value of property exempted for the current tax
year for the first time as pollution control property:
D. Tax increment financing: Deduct the 2015 captured appraised value of property taxable
by a taxing unit in a tax increment financing zone for which the 2015 taxes will be deposited
into the tax increment fund. Do not include any new property value that will be included in
Line 21 below.
E. Total 2015 value. Add A and B, then subtract C and D.
$6,831,257,440
$0
$0
$0
$6,831,257,440
17. Total value of properties under protest or not included on certified appraisal roll.
A. 2015 taxable value of properties under protest. The chief appraiser certifies a list of
properties still under ARB protest. The list shows the appraisal district's value and the
taxpayer's claimed value, if any, or an estimate of the value if the taxpayer wins. For each of
the properties under protest, use the lowest of these values. Enter the total value.
B. 2015 value of properties not under protest or included on certified appraisal roll.
The chief appraiser gives taxing units a list of those taxable properties that the chief
appraiser knows about, but are not included in the appraisal roll certification. These
properties also are not on the list of properties that are still under protest. On this list of
properties, the chief appraiser includes the market value, appraised value and exemptions for
the preceding year and a reasonable estimate of the market value, appraised value and
exemptions for the current year. Use the lower market, appraised or taxable value (as
appropriate). Enter the total value.
C. Total value under protest or not certified: Add A and B.
$654,955
$0
$654,955
18. 2015 tax ceilings. Counties, cities and junior colleges enter 2015 total taxable value of
homesteads with tax ceilings. These include the homesteads of homeowners age 65 or older
or disabled. Other taxing units enter 0. If your taxing units adopted the tax ceiling provision
in 2014 or a prior year for homeowners age 65 or older or disabled, use this step.
$0
19. 2015 total taxable value. Add Lines 16E and 17C. Subtract Line 18.$6,831,912,395
20. Total 2015 taxable value of properties in territory annexed after Jan. 1, 2014.
Include both real and personal property. Enter the 2015 value of property in territory
annexed.
$0
21. Total 2015 taxable value of new improvements and new personal property located
in new improvements. New means the item was not on the appraisal roll in 2014. An
improvement is a building, structure, fixture or fence erected on or affixed to land. New
additions to existing improvements may be included if the appraised value can be
determined. New personal property in a new improvement must have been brought into the
taxing unit after Jan. 1, 2014, and be located in a new improvement. New improvements do
include property on which a tax abatement agreement has expired for 2015.
$146,934,742
22. Total adjustments to the 2015 taxable value. Add Lines 20 and 21.$146,934,742
23. 2015 adjusted taxable value. Subtract Line 22 from Line 19.$6,684,977,653
24. 2015 effective tax rate. Divide Line 15 by Line 23 and multiply by $100.$0.253335/$100
25. COUNTIES ONLY. Add together the effective tax rates for each type of tax the county
levies. The total is the 2015 county effective tax rate.
A county, city or hospital district that adopted the additional sales tax in November 2014 or in May 2015 must adjust its
effective tax rate. The Additional Sales Tax Rate Worksheet sets out this adjustment. Do not forget to complete the
Additional Sales Tax Rate Worksheet if the taxing unit adopted the additional sales tax on these dates.
2015 Rollback Tax Rate Worksheet
City of University Park
Date: 07/28/2015
26. 2014 maintenance and operations (M&O) tax rate.$0.269790/$100
27. 2014 adjusted taxable value. Enter the amount from Line 11.$6,263,679,843
28. 2014 M&O taxes.
A. Multiply Line 26 by Line 27 and divide by $100.
B. Cities, counties and hospital districts with additional sales tax: Amount of additional
sales tax collected and spent on M&O expenses in 2014. Enter amount from full year's sales
tax revenue spent for M&O in 2014 fiscal year, if any. Other taxing units enter 0. Counties
exclude any amount that was spent for economic development grants from the amount of
sales tax spent.
C. Counties: Enter the amount for the state criminal justice mandate. If second or later year,
the amount is for increased cost above last year's amount. Other taxing units enter 0.
D. Transferring function: If discontinuing all of a department, function or activity and
transferring it to another taxing unit by written contract, enter the amount spent by the taxing
unit discontinuing the function in the 12 months preceding the month of this calculation. If
the taxing unit did not operate this function for this 12-month period, use the amount spent
in the last full fiscal year in which the taxing unit operated the function. The taxing unit
discontinuing the function will subtract this amount in H below. The taxing unit receiving
the function will add this amount in H below. Other taxing units enter 0.
E. Taxes refunded for years preceding tax year 2014: Enter the amount of M&O taxes
refunded in the preceding year for taxes before that year. Types of refunds include court
decisions, Tax Code Section 25.25(b) and (c) corrections and Tax Code Section 31.11
payment errors. Do not include refunds for tax year 2014. This line applies only to tax years
preceding tax year 2014.
F. Enhanced indigent health care expenditures: Enter the increased amount for the
current year's enhanced indigent health care expenditures above the preceding tax year's
enhanced indigent health care expenditures, less any state assistance.
G. Taxes in TIF: Enter the amount of taxes paid into the tax increment fund for a
reinvestment zone as agreed by the taxing unit. If the taxing unit has no 2015 captured
appraised value in Line 16D, enter 0.
H. Adjusted M&O Taxes. Add A, B, C, E and F. For unit with D, subtract if discontinuing
function and add if receiving function. Subtract G.
$16,898,781
$0
$0
$0
$36,617
$0
$0
$16,935,398
29. 2015 adjusted taxable value. Enter Line 23 from the Effective Tax Rate Worksheet.$6,684,977,653
30. 2015 effective maintenance and operations rate. Divide Line 28H by Line 29 and
multiply by $100.$0.253335/$100
31. 2015 rollback maintenance and operation rate. Multiply Line 30 by 1.08.$0.273601/$100
32. Total 2015 debt to be paid with property taxes and additional sales tax revenue.
"Debt" means the interest and principal that will be paid on debts that:
(1) are paid by property taxes,
(2) are secured by property taxes,
(3) are scheduled for payment over a period longer than one year and
(4) are not classified in the taxing unit's budget as M&O expenses
A. Debt also includes contractual payments to other taxing units that have incurred debts on
behalf of this taxing unit, if those debts meet the four conditions above. Include only
amounts that will be paid from property tax revenue. Do not include appraisal district budget
payments. List the debt in Schedule B: Debt Service.
B. Subtract unencumbered fund amount used to reduce total debt.
C. Subtract amount paid from other resources.
D. Adjusted debt. Subtract B and C from A.
$0
$0
$0
$0
33. Certified 2014 excess debt collections. Enter the amount certified by the collector.$0
34. Adjusted 2015 debt. Subtract Line 33 from Line 32D.$0
35. Certified 2015 anticipated collection rate. Enter the rate certified by the collector. If
the rate is 100 percent or greater, enter 100 percent.100.00%
36. 2015 debt adjusted for collections. Divide Line 34 by Line 35 $0
37. 2015 total taxable value. Enter the amount on Line 19.$6,831,912,395
38. 2015 debt tax rate. Divide Line 36 by Line 37 and multiply by $100.$0/$100
39. 2015 rollback tax rate. Add Lines 31 and 38.$0.273601/$100
40. COUNTIES ONLY. Add together the rollback tax rates for each type of tax the county
levies. The total is the 2015 county rollback tax rate.
A taxing unit that adopted the additional sales tax must complete the lines for the Additional Sales Tax Rate. A taxing
unit seeking additional rollback protection for pollution control expenses completes the Additional Rollback Protection
for Pollution Control.
50-819
(05-14/2)
NOTICE OF TAX YEAR
PROPOSED PROPERTY TAX RATE FOR
A tax rate of $ _______________ per $100 valuation has been proposed for adoption by the governing body of
__________________________________________. This rate exceeds the lower of the effective or rollback tax rate,
and state law requires that two public hearings be held by the governing body before adopting the proposed tax rate.
PROPOSED TAX RATE $ _______________ per $100
PRECEDING YEAR’S TAX RATE $ _______________ per $100
EFFECTIVE TAX RATE $ _______________ per $100
ROLLBACK TAX RATE $ _______________ per $100
The effective tax rate is the total tax rate needed to raise the same amount of property tax revenue for
__________________________________________ from the same properties in both the _____________ tax year
and the _____________ tax year.
The rollback tax rate is the highest tax rate that _______________________________________ may adopt before
voters are entitled to petition for an election to limit the rate that may be approved to the rollback rate.
YOUR TAXES OWED UNDER ANY OF THE ABOVE RATES CAN BE CALCULATED AS FOLLOWS:
property tax amount = ( rate ) x ( taxable value of your property ) / 100
For assistance or detailed information about tax calculations, please contact:
________________________________________________
________________________________________________ tax assessor-collector
_____________________________________________________________________________________________
________________________________
_____________________________________________________________________________________________
_____________________________________________________________________________________________
You are urged to attend and express your views at the following public hearings on the proposed tax rate:
First Hearing: _________________________________ at ____________________________________________.
Second Hearing: _______________________________ at ____________________________________________.
3800 UNIVERSITY BOULEVARD UNIVERSITY PARK, TEXAS 75205 TELEPHONE (214) 363-1644
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AGENDA MEMO
8/18/2015Agenda
TO:Honorable Mayor and City Council
FROM:Gene R. Smallwood, P.E.; Director of Public Works
SUBJECT:Consider Traffic Signal Removal–Southwestern atAirline
BACKGROUND:
Staff reviewed the request to remove the flashing traffic signal at the Southwestern-
Airline intersection with the City Council on 03.0.2015 and 04.07.2015 and with the
Public Safety Advisory Committee on 03.27.2015.Council authorized staff to proceed
with the “closure plan” as detailed in the traffic consultant’s technical memo. Following
the bagging of the signal heads,we received feedback from two of the property owners
at the intersection, stating that they had not been notified of the operational change.
Staff followed up with a letter to all four property owners at the intersection soliciting their
input. We received responses from two of the resident who desired for the flashing
signal to remain in operation. We also received a third e-mail from a resident (not
abutting the intersection) with the same opinion.
If left in place, some pruning will be necessary to preclude branches (tree at NW corner)
from bearing on the old mast arms. Again, staff, Public Safety Committee, and the
consultant recommend removal of the signal.
RECOMMENDATION:
Staff would ask for City Council direction on the matter of removal of the flashing signal.
Traffic Signal Warrant Analysis – Southwestern Boulevard at Airline Road
Binkley & Barfield – C&P, Inc. i
TABLE OF CONTENTS
Introduction ................................................................................................................................... 1
Study Area Conditions .................................................................................................................. 1
Roadway System .................................................................................................................... 1
Data Collection .............................................................................................................................. 4
Vehicular Traffic Volumes ....................................................................................................... 4
Pedestrian Traffic Volumes ..................................................................................................... 4
Traffic Accident Data ............................................................................................................... 5
Analyses ....................................................................................................................................... 1
Warrant Analysis ..................................................................................................................... 1
Sight Distance Analysis ........................................................................................................... 2
Findings and Recommendations .................................................................................................. 3
Closing .......................................................................................................................................... 3
Appendix ....................................................................................................................................... 4
LIST OF FIGURES
Figure 1. Intersection Location ...................................................................................................... 2
Figure 2. Existing Conditions ........................................................................................................ 3
LIST OF TABLES
Table 1. Vehicular Volumes .......................................................................................................... 4
Table 2. Traffic Accident Data ....................................................................................................... 5
Table 3. Warrant Analysis Summary ............................................................................................ 1
Traffic Signal Warrant Analysis– Southwestern Boulevard at Airline Road
Binkley & Barfield – C&P, Inc. 1
INTRODUCTION
At the request of the City of University Park, Binkley & Barfield | C&P Consulting Engineers
(BBCPI) has completed a traffic signal warrant study for the intersection of Southwestern
Boulevard and Airline Road.
This intersection has been operating as an all-way stop controlled intersection for many years.
Previously the intersection was signalized. The existing mast arms were left in place and the
signal operated in an all-way flash mode with stop signs installed on all approaches.
The intent of this study is to analyze if signal operations are needed or if the existing signal
which is operating in all-way flash can be removed. This report documents the results of that
study including: study area conditions, data collections, analyses, findings, and
recommendations. Figure 1 provides the location of the study intersection.
STUDY AREA CONDITIONS
Provided below is a summary of the existing conditions which encompassed the study area.
ROADWAY SYSTEM
Southwestern Boulevard is a two-lane undivided asphalt curb and gutter roadway way
oriented in a east-west direction. Southwestern Boulevard is approximately 31 feet wide and
has houses fronting the street. There is residential parking along the street. The posted speed
limit on Southwestern Boulevard is 30 mph.
Airline Road is a two-lane undivided asphalt curb and gutter roadway oriented in a north-south
direction. Airline Road is approximately 34 feet wide. The posted speed limit on Airline Road is
30 mph.
Figure 2 provides an overview of the existing conditions at the intersection.
The area surrounding the study intersection is residential. There is a signalized intersection at
Hillcrest Avenue and Southwestern Boulevard approximately 1,250 feet west of the study
intersection. The closest signalized intersection to the east is approximately 3,700 feet at US 75
Southbound Frontage Road. Airline Road terminates at Northwest Highway approximately
3,000 north of the study intersection. South of the intersection the closest signalized intersection
is at Lovers Lane, it is approximately 2,200 feet to away.
The existing stop signs on each of the approaches are 30” x 30” with all-way stop plaques
placed below the stop signs. The bottom of the stop signs are located between 7’-5” and 7’-10”
above the existing grade. Each of the stop sign installations has red reflective strips on the
poles. Additionally, there are crosswalks striped across each leg of the intersection.
Figure 1. Site Location
DFWMaps.com
Copyright NCTCOG
DISCLAIMER
This data has been compiled for
NCTCOG.Various official and unofficialsources were used to gather thisinformation. Every effort was madeto ensure the accuracy of thisdata, however, no guarantee isgiven or implied as to the accuracyof said data.
Southwestern Blvd.
Ai
r
l
i
n
e
R
d
.
SOUTHWESTERN BLVD.
(30 MPH)
AI
R
L
I
N
E
R
D
(3
0
M
P
H
)
TREE TO BE REMOVED
1801 Gateway Blvd.Suite 101Richardson, Texas 75080
972.644.2800Fax 972.644.2817www.bbcpi.com
Job No.:
Scale:1"=40'Date:
Dwg. File:
FEBRURARY 2015
BC14026 FIGURE 2
SOUTHWESTERN BLVD. AT AIRLINE RD.
EXISTING CONDITIONS
NOTES:
1. EXHIBIT IS FOR INFORMATIONAL PURPOSES ONLY AND NOT FOR PERMIT OR CONSTRUCTION
2. NOT ALL INTERSECTION ELEMENTS ARE SHOWN AND EXISTING TRAFFIC SIGNAL LOCATIONS ARE APPROXIMATE.
3. NOT ALL TREES AND LANDSCAPING ARE SHOWN, ONLY THOSE THAT ARE TO BE REMOVED.
Traffic Signal Warrant Analysis– Southwestern Boulevard at Airline Road
Binkley & Barfield – C&P, Inc. 4
DATA COLLECTION
The primary data used in warranting the construction of traffic signals are traffic volumes.
Secondary data that are typically included in the analysis of traffic signal needs are speed limits,
pedestrian volumes, pedestrian crossing gaps, and traffic accidents. A summary of the traffic
volume data used in the study along with additional data utilized in the signal warrant analysis
are described in this section.
VEHICULAR TRAFFIC VOLUMES
Twenty-four hours of approach count data were collected at the study intersection on January
27, 2015. Table 1 provides a summary of the approach volumes at the study intersection for the
24 hours which were counted.
Table 1. Vehicular Volumes
Time
Period
Southwestern Boulevard Airline Road
Eastbound
Approach
Westbound
Approach
Northbound
Approach
Southbound
Approach
12 AM - 1 AM 1 3 1 1
1 AM - 2 AM 0 1 0 2
2 AM - 3 AM 2 2 0 0
3 AM - 4 AM 0 1 0 0
4 AM - 5 AM 2 1 0 0
5 AM - 6 AM 6 8 3 1
6 AM - 7 AM 14 43 15 21
7 AM - 8 AM 74 327 75 119
8 AM - 9 AM 113 424 100 136
9 AM - 10 AM 93 206 73 82
10 AM - 11 AM 79 122 68 58
11 AM - 12 PM 120 165 62 73
12 PM - 1 PM 139 180 77 68
1 PM - 2 PM 99 166 68 44
2 PM - 3 PM 129 166 79 54
3 PM - 4 PM 178 168 120 87
4 PM - 5 PM 214 185 131 88
5 PM - 6 PM 308 216 141 118
6 PM - 7 PM 215 168 96 76
7 PM - 8 PM 72 98 47 46
8 PM - 9 PM 48 72 29 32
9 PM - 10 PM 41 31 20 16
10 PM - 11 PM 6 14 5 4
11 PM - 12 PM 4 6 2 4
PEDESTRIAN TRAFFIC VOLUMES
Since this intersection is already operating as an all-way stop, no pedestrian data was collected
since protected crossings are provided by the stop signs on all approaches.
Traffic Signal Warrant Analysis– Southwestern Boulevard at Airline Road
Binkley & Barfield – C&P, Inc. 5
TRAFFIC ACCIDENT DATA
Traffic accident data was provided by the City of University Park Police Department. Table 2
provides a summary of the accidents based on the data provided.
Table 2. Traffic Accident Data
# Date Time Causative Factors Officer Narrative
1 6/23/2013 4:50pm Driver Inattention
Unit number 2 was parked next to the curb at 3136
Southwestern. Driver of unit number 1 collided with unit
number 2 and fled the scene FLID. The owner of Unit 2
and Witness were standing in front of the house at 3136
Southwestern and observed the accident. When unit
number 1 collided with unit number 2 the passenger
side mirror came off the vehicle and was put into UPPD
evidence locker.
2 3/8/2014 12:43am Distraction in Vehicle
Unit 1 was traveling W/B in the 3200 blk of
Southwestern. Driver of Unit 1 became distracted in
vehicle by his cell phone. Unit 1 then crashed into Unit 2
(parked vehicle) FR/BL. No injuries were reported to
officer at the scene. Both vehicles were towed privately.
NFI.
3 7/13/2014 6:41pm Fail to Yield ROW – Stop
Sign (Both Vehicles)
Unit 1 was heading north on Airline. Unit 2 was heading
east on Southwestern. Both Unit 1 & 2 advised that they
had stopped for the stop sign. Unit 1 FD made contact
with Unit 2 RP.
A witness stopped and gave the driver of Unit 2 his
name and phone number. Officer tried calling the
witness several times however; officer could never
make contact with him.
4 1/3/2015 5:05pm 1 -Faulty Evasive Action
2 -Failed to Control Speed
On January 2, 2014 at about 17:07 Unit 1 was traveling
westbound in the 3100 block of Southwestern. Unit 1
was observed by witness driving westbound in the
eastbound lane. Unit 1 came to the intersection at
Southwestern and Airline. Unit 1 failed to stop and ran
the flashing red light. Unit 1 made a faulty evasive
action and hit front distributed to the stop sign at the
north corner of the 3200 block of Southwestern. Unit 1
came to rest after hitting front left to the tree owned by
the residents at 3200 Southwestern.
The driver and the passenger were observed by witness
fleeing the location on foot traveling north bound. The
subject were later located and apprehended by officers
at the scene.
The driver had a visible bruise on his forehead but
stated that he was not injured. The passenger also
stated that she was not injured. The vehicle sustained
heavy damage to the front left and was not operable
and was towed by Walnut Hill Wrecker Services. The
weather was clear and the roadway was dry.
There have only been four reported accidents at or near the study intersection in the past 18
months. Two of the accidents occurred at the intersection and two occurred in the blocks
preceding the intersection. The causes of the accidents were due to distractions, inattention,
speed, or failure to yield ROW after stopping. None of the accidents appear to be the result of
not seeing the traffic control devices at the intersection.
Traffic Signal Warrant Analysis– Southwestern Boulevard at Airline Road
Binkley & Barfield – C&P, Inc. 1
ANALYSES
The traffic data collected for this study were evaluated against the nine traffic signal warrants
listed and described in the Texas Manual on Uniform Traffic Control Devices (TxMUTCD). The
nine warrants are listed below:
Warrant 1 – Eight-Hour Vehicular Volume
Warrant 2 – Four-Hour Vehicular Volume
Warrant 3 – Peak Hour
Warrant 4 – Pedestrian Volume
Warrant 5 – School Crossing
Warrant 6 – Coordinated Signal System
Warrant 7 – Crash Experience
Warrant 8 – Roadway Network
Warrant 9 – Intersection Near a Grade Crossing
All nine warrants and their warranting criteria as described in the TxMTUCD have been included
in the Appendix.
BBCPI utilized the TxDOT 2011 TMUTCD Warrants Spreadsheet to conduct the Traffic Signal
Warrant Analysis. The output for the warrants evaluated in this study have been included in the
Appendix.
WARRANT ANALYSIS
Table 3 provides a summary of the analysis results for the nine warrants as described in the
TxMUTCD.
Table 3. Warrant Analysis Summary
Warrant Satisfied?
Warrant 1 – Eight-Hour Vehicular Volume No
Warrant 2 – Four-Hour Vehicular Volume No
Warrant 3 – Peak Hour No
Warrant 4 – Pedestrian Volume N/A
Warrant 5 – School Crossing N/A
Warrant 6 – Coordinated Signal System N/A
Warrant 7 – Crash Experience No
Warrant 8 – Roadway Network N/A
Warrant 9 – Intersection Near a Grade Crossing N/A
The TxMUTCD indicates that the satisfaction of a warrant or warrants is not in itself justification
for a signal. It suggests that an engineering study be conducted to determine if traffic signals will
improve the overall safety and/or operation of the intersection. If these requirements are not
met, a traffic signal should neither be placed into operation nor continued in operation (if already
installed).
The results of the analyses conclude that the traffic conditions, as analyzed, at this intersection
do not satisfy the requirements for consideration of traffic signalization.
Traffic Signal Warrant Analysis– Southwestern Boulevard at Airline Road
Binkley & Barfield – C&P, Inc. 2
SIGHT DISTANCE ANALYSIS
In regard to sight distances for all-way stop controlled intersections the 2004 AASHTO
Geometric Design of Highways and Streets states the following:
“At intersections with all-way stop control, the first stopped vehicle on one approach
should be visible to the drivers of the first stopped vehicles on each of the other
approaches. There are no other sight distance criteria applicable to intersections with all-
way stop control and, indeed, all-way stop control may be the best option at a limited
number of intersections where sight distance for other control types cannot be attained.”
- AASHTO page 674
Based on field observations vehicles stopped on each of the approaches are visible to all other
approaches.
The stop signs at the intersection should be also visible to drivers prior to arriving at the
intersection. This distance from the intersection should be based on stopping sight distance
which is composed of two distances, brake reaction distance and braking distance. For a
posted speed limit of 30 mph the stopping sight distance is 200 feet.
Based on field observations, three of the four existing stop signs are visible on the approaches a
minimum of 200 feet from the intersection. The stop sign on the westbound approach is not
currently visible due to an existing tree. This same tree actually blocks the visibility of the
overhead all-way flash traffic signal. It is understood that the City of University Park has
received permission to remove this tree.
The sight distance analysis was conducted in February when most trees did not have foliage.
On each of the intersection approaches trees should be trimmed as required to maintain
adequate sight distance. See the appendix for photos of each approach to the intersection.
Traffic Signal Warrant Analysis– Southwestern Boulevard at Airline Road
Binkley & Barfield – C&P, Inc. 3
FINDINGS AND RECOMMENDATIONS
Based on the analysis approach none of the volume warrants were satisfied. At this time, it is
recommended to keep the intersection as an all-way stop controlled intersection. Additionally,
the sight distance analysis indicated that there is adequate stopping sight distance on the
approaches to the intersection assuming the following tasks are completed.
1. Remove existing tree on westbound approach which obstructs the visibility of the
existing stop sign.
2. Keep trees on northbound, southbound, and eastbound approaches trimmed to
maintained minimum stopping sight distance requirements of the existing stop signs.
Section 4B.02 of the TxMUTCD provides the following guidance for removal of a traffic signal.
A. Determine the appropriate traffic control to be used after removal of the signal.
B. Remove any sight-distance restrictions as necessary.
C. Inform the public of the removal study.
D. Flash or cover the signal heads for a minimum of 90 days, and install the appropriate
stop control or other traffic control devices.
E. Remove the signal if the engineering data collected during the removal study period
confirms that the signal is no longer needed.
Since the existing signal equipment has been operating in all-way flash for many years and the
existing conditions show that there is adequate sight distance for the existing stop signs, it is
recommended to remove the existing signal equipment by completing the following:
1. Inform the public of the intent to remove the existing flashing operations.
2. Deactivate the existing signal and cover the existing signal heads for 90 days.
3. After 90 days evaluate to make sure all-way stop has operated safely by reviewing crash
data and public feedback.
4. Remove existing signal equipment from the intersection based upon satisfactory results
from step 3.
CLOSING
We have appreciated the opportunity to assist you in the preparation of a traffic signal warrant
study for the Southwestern Boulevard and Airline Road intersection in the City of University
Park. Please do not hesitate to contact our office should you have any questions or comments
concerning this report.
Traffic Signal Warrant Analysis– Southwestern Boulevard at Airline Road
Binkley & Barfield – C&P, Inc. 4
APPENDIX
TRAFFIC COUNT SUMMARY SHEETS ......................................................................... 8 PAGES
SIGNAL WARRANT DESCRIPTIONS ......................................................................... 13 PAGES
TXDOT 2011 TMUTCD WARRANTS OUTPUT .......................................................... 8 PAGES
PHOTOS .................................................................................................................. 4 PAGES
AIRLINE RD NB APPROACH @ SOUTHWESTERN BLVD
AIRLINE RD NB APPROACH @ SOUTHWESTERN BLVD
Start Date: 1/27/2015
Start Time: 12:00:00 AM
Site Code: 867
DateTime NB
1/27/201512:00 AM0
1/27/201512:15 AM0
1/27/201512:30 AM1
1/27/201512:45 AM0
1/27/201501:00 AM0
1/27/201501:15 AM0
1/27/201501:30 AM0
1/27/201501:45 AM0
1/27/201502:00 AM0
1/27/201502:15 AM0
1/27/201502:30 AM0
1/27/201502:45 AM0
1/27/201503:00 AM0
1/27/201503:15 AM0
1/27/201503:30 AM0
1/27/201503:45 AM0
1/27/201504:00 AM0
1/27/201504:15 AM0
1/27/201504:30 AM0
1/27/201504:45 AM0
1/27/201505:00 AM0
1/27/201505:15 AM0
1/27/201505:30 AM2
1/27/201505:45 AM1
1/27/201506:00 AM3
1/27/201506:15 AM3
1/27/201506:30 AM3
1/27/201506:45 AM6
1/27/201507:00 AM10
1/27/201507:15 AM13
1/27/201507:30 AM22
1/27/201507:45 AM30
1/27/201508:00 AM37
1/27/201508:15 AM22
1/27/201508:30 AM21
1/27/201508:45 AM20
1/27/201509:00 AM30
1/27/201509:15 AM20
1/27/201509:30 AM12
1/27/201509:45 AM11
1/27/201510:00 AM15
1/27/201510:15 AM13
1/27/201510:30 AM27
1/27/201510:45 AM13
1/27/201511:00 AM10
1/27/201511:15 AM14
1/27/201511:30 AM16
1/27/201511:45 AM22
1/27/201512:00 PM21
Page 1 of 2
AIRLINE RD NB APPROACH @ SOUTHWESTERN BLVD
1/27/201512:15 PM19
1/27/201512:30 PM19
1/27/201512:45 PM18
1/27/201501:00 PM19
1/27/201501:15 PM13
1/27/201501:30 PM18
1/27/201501:45 PM18
1/27/201502:00 PM16
1/27/201502:15 PM18
1/27/201502:30 PM19
1/27/201502:45 PM26
1/27/201503:00 PM26
1/27/201503:15 PM31
1/27/201503:30 PM27
1/27/201503:45 PM36
1/27/201504:00 PM32
1/27/201504:15 PM31
1/27/201504:30 PM38
1/27/201504:45 PM30
1/27/201505:00 PM34
1/27/201505:15 PM45
1/27/201505:30 PM28
1/27/201505:45 PM34
1/27/201506:00 PM28
1/27/201506:15 PM20
1/27/201506:30 PM28
1/27/201506:45 PM20
1/27/201507:00 PM13
1/27/201507:15 PM12
1/27/201507:30 PM14
1/27/201507:45 PM8
1/27/201508:00 PM6
1/27/201508:15 PM11
1/27/201508:30 PM5
1/27/201508:45 PM7
1/27/201509:00 PM4
1/27/201509:15 PM5
1/27/201509:30 PM10
1/27/201509:45 PM1
1/27/201510:00 PM1
1/27/201510:15 PM0
1/27/201510:30 PM2
1/27/201510:45 PM2
1/27/201511:00 PM0
1/27/201511:15 PM1
1/27/201511:30 PM1
1/27/201511:45 PM0
1212
Page 2 of 2
AIRLINE RD SB APPROACH @ SOUTHWESTERN BLVD
AIRLINE RD SB APPROACH @ SOUTHWESTERN BLVD
Start Date: 1/27/2015
Start Time: 12:00:00 AM
Site Code: 708
DateTime SB
1/27/201512:00 AM0
1/27/201512:15 AM1
1/27/201512:30 AM0
1/27/201512:45 AM0
1/27/201501:00 AM1
1/27/201501:15 AM0
1/27/201501:30 AM1
1/27/201501:45 AM0
1/27/201502:00 AM0
1/27/201502:15 AM0
1/27/201502:30 AM0
1/27/201502:45 AM0
1/27/201503:00 AM0
1/27/201503:15 AM0
1/27/201503:30 AM0
1/27/201503:45 AM0
1/27/201504:00 AM0
1/27/201504:15 AM0
1/27/201504:30 AM0
1/27/201504:45 AM0
1/27/201505:00 AM0
1/27/201505:15 AM0
1/27/201505:30 AM1
1/27/201505:45 AM0
1/27/201506:00 AM4
1/27/201506:15 AM2
1/27/201506:30 AM7
1/27/201506:45 AM8
1/27/201507:00 AM18
1/27/201507:15 AM21
1/27/201507:30 AM36
1/27/201507:45 AM44
1/27/201508:00 AM36
1/27/201508:15 AM33
1/27/201508:30 AM38
1/27/201508:45 AM29
1/27/201509:00 AM31
1/27/201509:15 AM20
1/27/201509:30 AM14
1/27/201509:45 AM17
1/27/201510:00 AM16
1/27/201510:15 AM14
1/27/201510:30 AM18
1/27/201510:45 AM10
1/27/201511:00 AM17
1/27/201511:15 AM16
1/27/201511:30 AM16
1/27/201511:45 AM24
1/27/201512:00 PM20
Page 1 of 2
AIRLINE RD SB APPROACH @ SOUTHWESTERN BLVD
1/27/201512:15 PM14
1/27/201512:30 PM18
1/27/201512:45 PM16
1/27/201501:00 PM12
1/27/201501:15 PM12
1/27/201501:30 PM11
1/27/201501:45 PM9
1/27/201502:00 PM8
1/27/201502:15 PM16
1/27/201502:30 PM14
1/27/201502:45 PM16
1/27/201503:00 PM14
1/27/201503:15 PM22
1/27/201503:30 PM27
1/27/201503:45 PM24
1/27/201504:00 PM24
1/27/201504:15 PM27
1/27/201504:30 PM14
1/27/201504:45 PM23
1/27/201505:00 PM24
1/27/201505:15 PM24
1/27/201505:30 PM30
1/27/201505:45 PM40
1/27/201506:00 PM28
1/27/201506:15 PM18
1/27/201506:30 PM18
1/27/201506:45 PM12
1/27/201507:00 PM18
1/27/201507:15 PM8
1/27/201507:30 PM6
1/27/201507:45 PM14
1/27/201508:00 PM11
1/27/201508:15 PM6
1/27/201508:30 PM9
1/27/201508:45 PM6
1/27/201509:00 PM7
1/27/201509:15 PM2
1/27/201509:30 PM5
1/27/201509:45 PM2
1/27/201510:00 PM0
1/27/201510:15 PM0
1/27/201510:30 PM4
1/27/201510:45 PM0
1/27/201511:00 PM1
1/27/201511:15 PM2
1/27/201511:30 PM0
1/27/201511:45 PM1
1130
Page 2 of 2
SOUTHWEST BLVD EB APPROACH @ AIRLINE RD
SOUTHWEST BLVD EB APPROACH @ AIRLINE RD
Start Date: 1/27/2015
Start Time: 12:00:00 AM
Site Code: 816
DateTime EB
1/27/201512:00 AM0
1/27/201512:15 AM0
1/27/201512:30 AM0
1/27/201512:45 AM1
1/27/201501:00 AM0
1/27/201501:15 AM0
1/27/201501:30 AM0
1/27/201501:45 AM0
1/27/201502:00 AM0
1/27/201502:15 AM1
1/27/201502:30 AM0
1/27/201502:45 AM1
1/27/201503:00 AM0
1/27/201503:15 AM0
1/27/201503:30 AM0
1/27/201503:45 AM0
1/27/201504:00 AM0
1/27/201504:15 AM1
1/27/201504:30 AM0
1/27/201504:45 AM1
1/27/201505:00 AM0
1/27/201505:15 AM3
1/27/201505:30 AM1
1/27/201505:45 AM2
1/27/201506:00 AM2
1/27/201506:15 AM4
1/27/201506:30 AM4
1/27/201506:45 AM4
1/27/201507:00 AM11
1/27/201507:15 AM12
1/27/201507:30 AM23
1/27/201507:45 AM28
1/27/201508:00 AM38
1/27/201508:15 AM22
1/27/201508:30 AM26
1/27/201508:45 AM27
1/27/201509:00 AM25
1/27/201509:15 AM24
1/27/201509:30 AM28
1/27/201509:45 AM16
1/27/201510:00 AM19
1/27/201510:15 AM20
1/27/201510:30 AM26
1/27/201510:45 AM14
1/27/201511:00 AM26
1/27/201511:15 AM22
1/27/201511:30 AM30
1/27/201511:45 AM42
1/27/201512:00 PM41
Page 1 of 2
SOUTHWEST BLVD EB APPROACH @ AIRLINE RD
1/27/201512:15 PM32
1/27/201512:30 PM40
1/27/201512:45 PM26
1/27/201501:00 PM22
1/27/201501:15 PM19
1/27/201501:30 PM30
1/27/201501:45 PM28
1/27/201502:00 PM24
1/27/201502:15 PM28
1/27/201502:30 PM29
1/27/201502:45 PM48
1/27/201503:00 PM32
1/27/201503:15 PM44
1/27/201503:30 PM44
1/27/201503:45 PM58
1/27/201504:00 PM58
1/27/201504:15 PM44
1/27/201504:30 PM50
1/27/201504:45 PM62
1/27/201505:00 PM80
1/27/201505:15 PM70
1/27/201505:30 PM90
1/27/201505:45 PM68
1/27/201506:00 PM79
1/27/201506:15 PM58
1/27/201506:30 PM45
1/27/201506:45 PM33
1/27/201507:00 PM20
1/27/201507:15 PM22
1/27/201507:30 PM14
1/27/201507:45 PM16
1/27/201508:00 PM11
1/27/201508:15 PM20
1/27/201508:30 PM10
1/27/201508:45 PM7
1/27/201509:00 PM15
1/27/201509:15 PM12
1/27/201509:30 PM6
1/27/201509:45 PM8
1/27/201510:00 PM1
1/27/201510:15 PM1
1/27/201510:30 PM2
1/27/201510:45 PM2
1/27/201511:00 PM2
1/27/201511:15 PM0
1/27/201511:30 PM2
1/27/201511:45 PM0
1957
Page 2 of 2
SOUTHWESTERN BLVD WB APPROACH @ AIRLINE RD
SOUTHWESTERN BLVD WB APPROACH @ AIRLINE RD
Start Date: 1/27/2015
Start Time: 12:00:00 AM
Site Code: 712
DateTime WB
1/27/201512:00 AM2
1/27/201512:15 AM0
1/27/201512:30 AM1
1/27/201512:45 AM0
1/27/201501:00 AM1
1/27/201501:15 AM0
1/27/201501:30 AM0
1/27/201501:45 AM0
1/27/201502:00 AM2
1/27/201502:15 AM0
1/27/201502:30 AM0
1/27/201502:45 AM0
1/27/201503:00 AM0
1/27/201503:15 AM0
1/27/201503:30 AM0
1/27/201503:45 AM1
1/27/201504:00 AM0
1/27/201504:15 AM0
1/27/201504:30 AM0
1/27/201504:45 AM1
1/27/201505:00 AM1
1/27/201505:15 AM2
1/27/201505:30 AM3
1/27/201505:45 AM2
1/27/201506:00 AM3
1/27/201506:15 AM6
1/27/201506:30 AM16
1/27/201506:45 AM18
1/27/201507:00 AM29
1/27/201507:15 AM62
1/27/201507:30 AM112
1/27/201507:45 AM124
1/27/201508:00 AM92
1/27/201508:15 AM110
1/27/201508:30 AM108
1/27/201508:45 AM114
1/27/201509:00 AM72
1/27/201509:15 AM55
1/27/201509:30 AM46
1/27/201509:45 AM33
1/27/201510:00 AM29
1/27/201510:15 AM31
1/27/201510:30 AM30
1/27/201510:45 AM32
1/27/201511:00 AM37
1/27/201511:15 AM36
1/27/201511:30 AM46
1/27/201511:45 AM46
1/27/201512:00 PM48
Page 1 of 2
SOUTHWESTERN BLVD WB APPROACH @ AIRLINE RD
1/27/201512:15 PM34
1/27/201512:30 PM42
1/27/201512:45 PM56
1/27/201501:00 PM40
1/27/201501:15 PM42
1/27/201501:30 PM44
1/27/201501:45 PM40
1/27/201502:00 PM32
1/27/201502:15 PM52
1/27/201502:30 PM40
1/27/201502:45 PM42
1/27/201503:00 PM48
1/27/201503:15 PM34
1/27/201503:30 PM46
1/27/201503:45 PM40
1/27/201504:00 PM34
1/27/201504:15 PM58
1/27/201504:30 PM45
1/27/201504:45 PM48
1/27/201505:00 PM50
1/27/201505:15 PM58
1/27/201505:30 PM58
1/27/201505:45 PM50
1/27/201506:00 PM46
1/27/201506:15 PM53
1/27/201506:30 PM37
1/27/201506:45 PM32
1/27/201507:00 PM36
1/27/201507:15 PM29
1/27/201507:30 PM19
1/27/201507:45 PM14
1/27/201508:00 PM21
1/27/201508:15 PM19
1/27/201508:30 PM18
1/27/201508:45 PM14
1/27/201509:00 PM10
1/27/201509:15 PM7
1/27/201509:30 PM8
1/27/201509:45 PM6
1/27/201510:00 PM6
1/27/201510:15 PM2
1/27/201510:30 PM3
1/27/201510:45 PM3
1/27/201511:00 PM3
1/27/201511:15 PM0
1/27/201511:30 PM1
1/27/201511:45 PM2
2773
Page 2 of 2
Page 458 2011 Edition - Revision 1
CHAPTER 4C. TRAFFIC CONTROL SIGNAL NEEDS STUDIES
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counted as vehicles and bicyclists who are clearly using pedestrian facilities are usually counted as pedestrians.
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17 Engineering study data may include the following:
A. The number of vehicles entering the intersection in each hour from each approach during 12 hours of an
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the absence of a signal restrains their mobility. E. The posted or statutory speed limit or the 85th-percentile speed on the uncontrolled approaches to the location.
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like periods of a Saturday or Sunday. E. Queue length on stop-controlled approaches.
Section 4C.02 :DUUDQW(LJKW+RXU9HKLFXODU9ROXPH
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Table 4C-1. Warrant 1, Eight-Hour Vehicular Volume
Condition A—Minimum Vehicular Volume
Number of lanes for moving ÊÈ·ů¹ÅÄ»·¹¾·ÆÆÈÅ·¹¾»¾¿¹Â»ÉƻȾÅËÈÅÄ÷ÀÅÈÉÊÈ»»Ê ƺÊÅÊ·Âż¸Åʾ·ÆÆÈÅ·¹¾»Éƻ »¾¿¹Â»ÉƻȾÅËÈÅľ¿½¾»ÈƖÌÅÂËû ÿÄÅÈƖÉÊÈ»»Ê·ÆÆÈÅ·¹¾ƺÅÄ»º¿È»¹Ê¿ÅÄÅÄÂÏƻ
·ÀÅÈÊÈ»»Ê¿ÄÅÈÊÈ»»Ê 100%a 80%b 70%¹56%º100%a 80%b 70%¹56%º
1150040035028015012010584
2 or more160048042033615012010584
2 or more2 or more600480420336200160140112
12 or more500400350280200160140112
Åĺ¿Ê¿ÅÄƳ ÄÊ»ÈÈËÆÊ¿ÅÄżÅÄÊ¿ÄËÅËÉÈ·ů¹
Number of lanes for moving ÊÈ·ů¹ÅÄ»·¹¾·ÆÆÈÅ·¹¾»¾¿¹Â»ÉƻȾÅËÈÅÄ÷ÀÅÈÉÊÈ»»Ê ƺÊÅÊ·Âż¸Åʾ·ÆÆÈÅ·¹¾»Éƻ »¾¿¹Â»ÉƻȾÅËÈÅľ¿½¾»ÈƖÌÅÂËû ÿÄÅÈƖÉÊÈ»»Ê·ÆÆÈÅ·¹¾ƺÅÄ»º¿È»¹Ê¿ÅÄÅÄÂÏƻ
·ÀÅÈÊÈ»»Ê¿ÄÅÈÊÈ»»Ê 100%a 80%b 70%¹56%º100%a 80%b 70%¹56%º
1175060052542075605342
2 or more190072063050475605342
2 or more2 or more900720630504100807056
12 or more750600525420100807056
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Section 4C.03 :DUUDQW)RXU+RXU9HKLFXODU9ROXPH
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December 20116HFW&WR&
Page 462 2011 Edition - Revision 1
Figure 4C-2. Warrant 2, Four-Hour Vehicular Volume (70% Factor)
(COMMUNITY LESS THAN 10,000 POPULATION OR ABOVE 40 MPH ON MAJOR STREET)
MINOR
STREET
HIGHER-
VOLUME
APPROACH -
VPH
MAJOR STREET—TOTAL OF BOTH APPROACHES—
VEHICLES PER HOUR (VPH)
*Note: 80 vph applies as the lower threshold volume for a minor-street
approach with two or more lanes and 60 vph applies as the lower
threshold volume for a minor-street approach with one lane.
2 OR MORE LANES & 2 OR MORE LANES
2 OR MORE LANES & 1 LANE
1 LANE & 1 LANE
200 300 400500600700 800 900 1000
100
200
300
400
60*
80*
2 OR MORE LANES & 2 OR MORE LANES
2 OR MORE LANES & 1 LANE
1 LANE & 1 LANE
30040050060070080090010001100120013001400
100
200
300
400
500
MINOR
STREET
HIGHER-
VOLUME
APPROACH -
VPH
115*
80*
MAJOR STREET—TOTAL OF BOTH APPROACHES—
VEHICLES PER HOUR (VPH)
*Note: 115 vph applies as the lower threshold volume for a minor-street
approach with two or more lanes and 80 vph applies as the lower
threshold volume for a minor-street approach with one lane.
Figure 4C-1. Warrant 2, Four-Hour Vehicular Volume
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100*100
200
300
400
500
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150040050060070080090010001100120013001400 1600 17001800
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1 LANE & 1 LANE
MAJOR STREET—TOTAL OF BOTH APPROACHES—
VEHICLES PER HOUR (VPH)
*Note: 150 vph applies as the lower threshold volume for a minor-street
approach with two or more lanes and 100 vph applies as the lower
threshold volume for a minor-street approach with one lane.
Figure 4C-3. Warrant 3, Peak Hour
Figure 4C-4. Warrant 3, Peak Hour (70% Factor)
(COMMUNITY LESS THAN 10,000 POPULATION OR ABOVE 40 MPH ON MAJOR STREET)
MAJOR STREET—TOTAL OF BOTH APPROACHES—
VEHICLES PER HOUR (VPH)
*Note: 100 vph applies as the lower threshold volume for a minor-street
approach with two or more lanes and 75 vph applies as the lower
threshold volume for a minor-street approach with one lane.
300 400500600 700 800 900 1000
MINOR
STREET
HIGHER-
VOLUME
APPROACH -
VPH
100
200
300
400
75*
100*
11001200 1300
2 OR MORE LANES & 2 OR MORE LANES
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1 LANE & 1 LANE
December 20116HFW&
Page 464 2011 Edition - Revision 1
Section 4C.05 :DUUDQW3HGHVWULDQ9ROXPH
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2011 Edition - Revision 1 Page 465
30040050060070080090010001100120013001400
100
200
300
400
500
TOTAL OF ALL
PEDESTRIANS
CROSSING
MAJOR STREET-
PEDESTRIANS
PER HOUR (PPH)
107*
MAJOR STREET—TOTAL OF BOTH APPROACHES—
VEHICLES PER HOUR (VPH)
*Note: 107 pph applies as the lower threshold volume.
Figure 4C-5. Warrant 4, Pedestrian Four-Hour Volume
200 1000
100
200
300
400
TOTAL OF ALL
PEDESTRIANS
CROSSING
MAJOR STREET-
PEDESTRIANS
PER HOUR (PPH)
75*
MAJOR STREET—TOTAL OF BOTH APPROACHES—
VEHICLES PER HOUR (VPH)
*Note: 75 pph applies as the lower threshold volume.
400 500300 600 800700 900
Figure 4C-6. Warrant 4, Pedestrian Four-Hour Volume (70% Factor)
December 20116HFW&
Page 466 2011 Edition - Revision 1
300 1800
100
200
300
400
500
600
700
TOTAL OF ALL
PEDESTRIANS
CROSSING
MAJOR STREET-
PEDESTRIANS
PER HOUR (PPH)
133*
MAJOR STREET—TOTAL OF BOTH APPROACHES—
VEHICLES PER HOUR (VPH)
*Note: 133 pph applies as the lower threshold volume.
600 700 800500400 900 1000 1100 1200 15001300 16001400 1700
Figure 4C-7. Warrant 4, Pedestrian Peak Hour
100
200
300
400
500
TOTAL OF ALL
PEDESTRIANS
CROSSING
MAJOR STREET-
PEDESTRIANS
PER HOUR (PPH)
93*
MAJOR STREET—TOTAL OF BOTH APPROACHES—
VEHICLES PER HOUR (VPH)
*Note: 93 pph applies as the lower threshold volume.
200 400300 600 800 1000500700900 11001200
Figure 4C-8. Warrant 4, Pedestrian Peak Hour (70% Factor)
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Figure 4C-9. Warrant 9, Intersection Near a Grade Crossing
(One Approach Lane at the Track Crossing)
MINOR STREET,
CROSSING
APPROACH -
EQUIVALENT
VPH**
50
100
150
200
250
300
350
0100200300400500600700800
MAJOR STREET—TOTAL OF BOTH APPROACHES—VEHICLES PER HOUR (VPH)
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Minor Street
D
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MINOR STREET,
CROSSING
APPROACH -
EQUIVALENT
VPH**
50
100
150
200
250
300
350
0100200300400500600700800
25
MAJOR STREET—TOTAL OF BOTH APPROACHES—VEHICLES PER HOUR (VPH)
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Figure 4C-10. Warrant 9, Intersection Near a Grade Crossing
(Two or More Approach Lanes at the Track Crossing)
* 25 vph applies as the lower threshold volume
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December 20116HFW&
Page 470 2011 Edition - Revision 1
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Table 4C-4. Warrant 9, Adjustment Factor for Percentage of Tractor-Trailer Trucks
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»ÉÉʾ·Äʾʷ¼»»Ê D of 70 feet or more
0% to 2.5%0.500.50
2.6% to 7.5%0.750.75
7.6% to 12.5%1.001.00
12.6% to 17.5%2.301.15
17.6% to 22.5%2.701.35
22.6% to 27.5%3.281.64
ÅȻʾ·ÄʹʾƔʼ̈4.182.09
Table 4C-2. Warrant 9, Adjustment Factor for ·¿ÂÏ È»Ç˻ĹÏż·¿ÂÈ·ů¹
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10.67
20.91
3 to 51.00
6 to 81.18
9 to 111.25
12 or more1.33
Table 4C-3. Warrant 9, Adjustment Factor for Percentage of High-Occupancy Buses
̈ż ¿½¾Ɩ¹¹ËƷĹÏËÉ»ÉdžÅÄ¿ÄÅÈƖÊÈ»»ÊÆÆÈÅ·¹¾ºÀËÉÊûÄÊ ·¹ÊÅÈ
0%1.00
2%1.09
4%1.19
6% or more1.32
dž¾¿½¾ƖŹ¹ËƷĹϸËɿɺ»ŰÄ»º·É·¸ËÉŹ¹ËÆ¿»º¸Ï·Ê»·ÉÊʹʷÆ»ÅÆ»Ɣ
6HFW&'HFHPEHU11
Traffic Signal Warrant – Southwestern Boulevard at Airline Road
Binkley & Barfield – C&P, Inc. A-1
PHOTO 1. AIRLINE ROAD – LOOKING NORTHBOUND
PHOTO 2. AIRLINE ROAD – LOOKING NORTHBOUND (200’ FROM INTERSECTION)
Traffic Signal Warrant – Southwestern Boulevard at Airline Road
Binkley & Barfield – C&P, Inc. A-2
PHOTO 3. SOUTHWESTERN BOULEVARD – LOOKING WESTBOUND
PHOTO 4. SOUTHWESTERN BOULEVARD – LOOKING WESTBOUND (200’ FROM INTERSECTION)
Traffic Signal Warrant – Southwestern Boulevard at Airline Road
Binkley & Barfield – C&P, Inc. A-3
PHOTO 5. AIRLINE ROAD – LOOKING SOUTHBOUND
PHOTO 6. AIRLINE ROAD – LOOKING SOUTHBOUND (200’ FROM INTERSECTION)
Traffic Signal Warrant – Southwestern Boulevard at Airline Road
Binkley & Barfield – C&P, Inc. A-4
PHOTO 7. SOUTHWESTERN BOULEVARD – LOOKING EASTBOUND
PHOTO 8. SOUTHWESTERN BOULEVARD – LOOKING EASTBOUND (200’ FROM INTERSECTION)
July 14, 2015
ADDRESS
Dear
Prompted by a resident’s request, the flashing signal at the intersection of Southwestern and
Airline was taken out of service several weeks ago. Removal of the signal equipment is the
next step. Before that occurs, the City Council wants to know if you and the three other property
owners most adjacent to the intersection are in favor of that. Here is a summary of the
deliberations and actions that have taken place to this point.
Earlier this year, the homeowner at 3141 Southwestern asked staff to remove the flashing signal
at the Southwestern-Airline intersection. In response, the City hired a traffic consultant. The
consultant’s report concluded that if the signal was removed, 4-way stop signs would safely
manage traffic conditions. Staff presented those findings to the City Council on March 17. That
night the Council sent the item to the Public Safety Advisory Committee. That committee
discussed the item and reviewed the consultant’s report on March 24. At the conclusion of that
discussion the committee recommended unanimously that the Council authorize the signal’s
removal. Following that recommendation, staff placed the item on the City Council’s April 7
agenda for consideration. That night a Council member asked if the property owners on other
corners of the intersection were aware of the request. Staff responded saying they had
received an email from the owner of 3141 Southwestern stating that all corner residents were in
favor of the signal’s removal. At the conclusion of that night’s discussion, the Council told staff
to take the signal out of service for 90 days so that the police department could observe traffic
governed by the 4-way stop signs. Recently the City Council was advised that abutting
residents may not have been aware of the homeowner’s original request. Because of that, and
since the person who generated the request no longer lives at 3141 Southwestern, Council
wants to know if you favor the signal’s removal. In the next few days, please send me an email
or quick letter stating your preference. My email address is bsmallwood@uyptexas.org. If you
would prefer to respond with a letter, the mailing address for the City’s Public Works
Department is 4420 Worcola, Dallas 75205. Once I have heard from all five property owners, I
will report back to you. Thank you for your assistance.
Sincerely,
Gene R. “Bud” Smallwood, P.E.
Director of Public Works
Mayor & City Council City Manager Deputy DPW
From:Bobby Lutz
To:Bud Smallwood
Subject:Southwestern & Airline
Date:Tuesday, July 21, 2015 9:18:27 AM
Mr. Smallwood
My name is Bobby Lutz and my family resides at 3205 Southwestern – We are in receipt of your
letter of July 14, 2015 – We had no prior knowledge of the termination of the “flashing signal” at our
intersection – And we were disappointed by it being taken out of service
If given a vote we would be in favor of the “flashing signal” being re-activated – Our intersection is a
busy one, and the added benefit of the 4-way stop is only enhanced by the “flashing signal”
We also believe that it is a deterrent to illegal behavior
Thank you for your inquiry and your commitment to service
Bobby
From:Charles Angel
To:Bud Smallwood
Subject:Stoplight @ Southwestern & Airline
Date:Tuesday, July 21, 2015 11:03:16 AM
Bud,
Thanks for reconsidering this intersection. I am on the northwest corner and believe the stoplights
are a stronger statement than just a stop sign. With the increasing traffic coming off Central, we
need everything we can to slow traffic down. (also I probably do not enthusiastically embrace
change).
Anyway, that’s one corner voting. Hope you’re having a good summer.
Yours very truly,
Charlie Angel
3200 Southwestern
3800 UNIVERSITY BOULEVARD UNIVERSITY PARK, TEXAS 75205 TELEPHONE (214) 363-1644
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AGENDA MEMO
8/18/2015Agenda
TO:Honorable Mayor and City Council
FROM:Gerry Bradley, Directorof Parksand Recreation
SUBJECT:City of University Park / Park Cities YMCA
Facilities Utilization Agreement
BACKGROUND:
In 2005, the City of University Park and the Park Cities YMCA developed a
Facilities Utilization Agreement to protect scheduled field usage regarding youth
athletic programming. Attached, please find a revised copy of the 2015-2020
Facilities Utilization Agreement between the City of University Park and the Park
Cities YMCA. The agreement defines:
Responsibilities of both organizations regarding the use and maintenance
of athletic fields
Associatedfee schedule
Updated field closure policies
RECOMMENDATION:
Staff will take direction from City Council on how to proceedwith the agreement.
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CITY OF UNIVERSITY PARK I PARK CITIES YMCA
FACILITIES UTILIZATION AGREEMENT
THE STATE OF TEXAS
COUNTY OF DALLAS
The parties to this agreement (“agreement”) are the City of University Park, Texas,
hereinaftercalled "City" and the Park Cities YMCA, hereinaftercalled "Association."
FOR AND IN CONSIDERATION of the mutual undertakings herein set out, the parties agree
as follows:
I.
City agrees to permit the use by the Association of its public park facilities known as:
Burleson Park (tennis only) as approved by Parks Director
Caruth Park (soccer, baseball, tackle and flag football only)
Coffee Park (baseball and flag football only)
Curtis Park (baseball and flag football only)
Germany Park (soccer, tackle football,football clinics, track practice and track meets only)
Goar Park (soccer only)
Williams Park (soccer and flag football only)
All Germany Park activities will be coordinated through the Highland Park Independent
School DistrictAdministration office during the school year and through the City for all other
times. Football programs and practice at Germany Park will be permitted based on current
field conditions and field maintenance scheduling. Burleson Park athletic fields and Smith
Park shall be maintained and operated by the City as a rental facility with assigned rental fees
to be used by the general public.
II.
"Athletic Activities" shall be defined as seasonal games, practices, try-outs, scrimmages, playoff
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games or other related events associated with the sports and program departments of the
Association.
III.
The term of this agreement shall be from September 1,2015, through August 31, 2020.
IV.
Prior to the termination of this agreement, the Association shallhave a right of first refusal to
enter into a new agreement with the City. If the Association fails or refuses to enter into a new
agreement at least thirty (30) days after the termination of this agreement, the City shall have the
right to enter into anagreement for use of the facilities with other organizations. The
Association shall have thirty (30) days to remove its owned movable equipment, which is not of
a permanent nature, upon termination of this agreement.
V.
Association shall not assign its rights and obligations under this agreement, nor shall it allow
use ofany property of the City without prior written consent of City. This includes field usage
for non-sanctioned football practice and HPISD Girls and Boys lacrosse, field hockey, track,
soccer clubs or other activities. By its approval of this agreement, the City does not waive its
defense of sovereign immunity to tort liability for the operation of the parks, nor shall this
agreement be construed to grant any rights to third parties.
VI.
The Association shall not engage in any business on the fields or do anything in connection
therewith which shall be in violation of any existing state or federal law or municipal ordinances
or use the fieldsin such manner as to constitute a nuisance.
VII.
Association shall indemnify and hold harmless the City, its agents, officials and employees,and
any umpire or official employed by it, from any and all claims for bodilyinjury, illness, death,
personal injury and property damage arising out of the activities of Association and its members
in exercising its rights under this agreement.
VIII.
All food or drink prepared, served or stored by the Association on City property shall be handled
in strict conformity with all City ordinances,state, county and federal statutes. Association is
responsible for litter removal and condition of the fields after each use. The City shall seasonally
furnish additional trash receptacles at designated locations to assist the Associationin trash
removal and park appearance. Any complaints regarding trash or field conditions by the general
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public will be forward directly to University Park City Council for review. The sale of food and
merchandise within a public park of the City is prohibited.
IX.
The Association shall furnish to the City Parks Department on or before August 1st for the Fall
season and on or before December 1st for the Spring season of each year in which this
agreement is binding, a proposed utilization schedule for the fields and the seasonal Athletic
Activities. A “utilization schedule”will be furnished to the City within two weeks after final
registration for each sport. The schedule willlistall games that will be played at each facility
and includefield usage time.
In an effort to optimize field usage for the Association and other potential user groups, the
City and the Association will meet in August and January each year to review the actual hours
used during the previous season. The meeting will allow the City to review and determine the
total permitted hours of field usage, based on the Association's previous season's actual field
usage. This scheduled review will allow the City to consider the total hours of field use to be
granted to the Association during the subsequent season.
X.
The Association agrees to not begin play before 8:00 a.m. and to stop play by 8:00 p.m.
XI.
The Association agrees to pay the City a field utilization cost based on an annual fee schedule
for the hours scheduled and agreed to with the City through the final utilization schedule. The
Association will make these payments to the City annually in the month of July through the
termination of this agreement.
Fee Structure
August 1, 2015 through August 31,2016 $ 24,256 .00 Annually
September 1, 2016 through August 31, 2017 $ 24,983.00 Annually
September 1. 2017 through August 31, 2018 $ 25,733.00 Annually
September 1, 2018 through August 31, 2019 $ 26,505.00 Annually
September 1, 2019 through August 3 ·1, 2020 $ 27,300.00 Annually
XII.
The Association agrees to annually provide the City a copy of the Association's current
general liability insurance policy that names by endorsement the City, its officers and
employeesas additional insuredon the policy. This policy shall be provided to the City upon
execution of this agreement. Written noticewill be provided to the City by the insurance
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company and the Association at least fifteendays prior to the termination of the insurance
policy.
XIII.
This agreement will supersede all previous agreements between the City and the Association
regarding field usage, whether in writing or verbal. Any amendments to the agreement must
be presented by either party in writing for review, prior to approval and incorporation into the
agreement. Any other special event or field usage not describe within thisagreementmust be
approved by the Parks and Recreation Department and City Council.
In the event that any issues or proposed amendments to thisagreement are suggested, the
following representatives of each organization should be notified in letter form for review:
Director of Parks
City of University Park
3800 University Blvd.
University Park, Texas 75205
Executive Director
Park Cities YMCA
6030 Luther Lane Suite 180
Dallas, Texas 75225
XIV
It is especially provided and agreed by and between the Association and the City that the
exhibits hereto attached shall be part and parcel of this agreement as if set out in their entirety
said exhibits being:
1.FIELD MAINTENANCE EXHIBITS
"A" -City-Owned Field Maintenance Agreement
2.CLOSURE OF ATHLETIC FIELDS EXHIBITS
"B" -Field Inspection and Closure Agreement; City Ordinance re field closure
XV.
The City reserves the right for the public to utilize the facilities when the Association’s
Athletic Activities are not scheduled.
XIV.
Any violation of any of the provisions of this agreement shall result in the termination of this
agreement. Notwithstanding the foregoing, the City shall notify the Association of the
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violation and the Association shall have fifteen (15) days to cure the violation. Failure of
either party to enforce any breach of this agreement shall not act as a waiver of the right to do
so for subsequent breaches.
This agreement is made and entered into on the _____ day of ______________________.
City of University Park
Attest: Approved:
By:
City Secretary Mayor
City of University Park
Approved as to form:Approved:
_________________________
YMCA -Authorized Representative
City Attorney Representative
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EXHIBIT "A"
CITY-OWNED FIELD MAINTENANCE AGREEMENT
1.The Parks Department (City) shall maintain the infield and all turf areas in the outfield
to include mowing, weed control, fertilizing and herbicide spraying.
2.The City shall perform all pre-season clay and turf maintenance to include adding clay,
clay renovation, and cutting infield arcs and base paths. The City shall also provide
clay, sand, soil, etc. to be used in leveling or backfilling low areas when deemed
necessary.
3.The City shall drag the infields weekly, weather permitting, during regularly-
scheduled league games only. Note: Field will not be prepared by the City for any
game(s) unless the game(s) are on the utilization schedule.
4.The City shall maintain all back-stops, fences and gates in a satisfactory condition to
insure continuous play.
5.The City shall maintain all bleachers and dugouts in a satisfactory condition to insure
continuous play
6.The City shall be responsible for the maintenance of the irrigation system.
7.The City shall be responsible for the maintenance of any outfield and adjacent park
irrigation systems and the watering of the outfield and of non-athletic turf areas.
8.The Association shall provide bases, goals and nets including those items supporting
recreational play. The Association is responsible for keeping the support features in
safe and attractive manner during the season.
9.The Association will be responsible for the field markings and daily infield preparation
associated with the athletic fields.
10.The Association shall be responsible for daily game day policing of all litter on their
field(s) to include playing areas, dugouts, fences, backstops, bleachers, and adjacent
grounds. All litter shall be placed in the bins, cans, and receptacles pro- vided by the
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City. The City shall provide pick up for these receptacles.
11.The Association shall be prohibited from performing any major maintenance to any
infield areas without permission from the City and such permission shall not be
unreasonably withheld.
12.If the Association desires to request any special park components or other special
services be provided by the City for tournaments or other special events, such request
shall be submitted to the City at least two weeks prior to the start of the tournament or
event.
13.All rescheduled Athletic Activities must be approved by the City unless the Association
can reschedule the Athletic Activities within the utilization schedule furnished to the
City. Association must provide at least 24 hours notice to City for any rescheduled
Athletic Activities outside of the utilization schedule.
EXHIBIT "B"
FIELD INSPECTION AND CLOSURE AGREEMENT
Reasons for Athletic Field Closure
1.It is raining at game time.
2.Baseball, soccer or softball infields and/or outfields too wet.
3.If the City of University Park determines that athletic fields need to be closed in
the interest of participant safety and/or preservation of good playing surfaces.
4.See attached "Red Flag" field closure Ordinance.
City Procedures for Athletic Field Closure
(Weekdays)
1.Inspect Athletic Fields by 2:00 p.m.
2.Make a decision based upon field condition or weather.
3.Consult with the appropriate Athletic Association's Field Manager of YMCA, or
his/her designate, about the status of the field(s).
4.Should the Association's Field Manager and the ParksDepartment
representative not agree, the decision of the Parks Department representative
shall be final.
(Weekends)
1.Inspect Athletic Fields by 5:00 p.m. on Friday for Saturday and Sunday.
2.Make a decision based upon field condition or weather at the time if possible.
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3.If adecision at 5:00 p.m. Friday is not possible, a Parks Department Employee familiar with the Athletic Fields will monitor the weather and field conditions
throughout the weekend and make decisions on field closure as needed.
4.Parks Department Employee shallconsult with the Association's Field Manager
(YMCA) about the status of the fields.
5.Should the Association's Field Manager and the Parks Department Employee not
agree, the decision of the Parks Department Employee shall be final.
City Responsibility forImplementation
1.The primary responsibility for making field closure decisions rests with the
Director of Parks or his designee responsible for athletic field maintenance.
2.In the Director of Parks absence the designated employee shall make the
decision concerning Athletic Field closures.
3.The designated employee shall consult with the Director of Parks or the Parks
Superintendent on any decision concerning athletic field closures.
4.The appropriate Association's Field Manager has the responsibility to inform the
Association and the participants about the field closure decision.
ORDINANCE NO.------
AN ORDINANCE OF THE CITY OF UNIVERSITY PARK, TEXAS, AMENDING THE CODE OF
ORDINANCES OF THE CITY OF UNIVERSITY PARK, BY AMENDING ARTICLE 13.100 "PARK
REGULATIONS GENERALLY" BY ADDING SECTION 13.108 "RED FLAG FIELD CLOSURE";
PROVIDING A REPEALING CLAUSE; PROVIDING A SEVERABILITY CLAUSE; PROVIDING FOR A
PENALTY OF FIN E NOT TO EXCEED FIVE HUNDRED DOLLARS ($500.00) FOR EACH OFFENSE;
AND PROVIDING AN EFFECTIVE DATE.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF UNIVERSITY PARK, TEXAS:
SECTION 1. That the Code of Ordinances of the City of University Park, Texas, is hereby amended by
amending Article 13.100 "Park Regulations Generally" by adding a new Section 13.108 "Red Flag Field Closure"
to read as follows:
"Sec. 13.108 Red Flag Field Closure
In order to preserve the surface of designated athletic fields and open turf areas in the City's parks,
the following red flag field closure regulations shall apply:
(a) This section shall take effect on December 1, 2009;
(b) A flag pole will be erected and maintained by the City in each park (Burleson, Caruth, Coffee, Curtis,
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Germany, and Smith Parks; Goarand Williams (City Hall Flag Pole) and a red flag raised and
displayed at such park during the time the Parks Director or his designee has determined that, due to
periods of inclement weather, use of designated athletic fields and open turf areas would be
damaging to them; field closure signs placed on the fields can also indicate field closure.
(c)During the periods of red flag closure, it shall be un lawful and an offense for any person or group of
persons, including but not limited to the YMCA groups, HPISD groups, residents with field
reservations or any persons using the parks for open play, to use the closed fields for any play, sport
or activity;
(d)Any person violating the red flag field closure regulations shall be warned to cease such violation
and stay off the designated athletic field or open turf area; any person, having received such warning,
continues to violate the closure shall be guilty of a misdemeanor and subject to a fine not to exceed
five hundred dollars ($500.00) for each offense and lossoffield use privileges; and,
(e)Persons may call the City's field closure hotline at 214.987.5680 with any questions."
SECTION 2. That all provisions of the Code of Ordinances of the City of University Park in conflict
with the provisions of this ordinance are hereby repealed.
SECTION 3. That should any sentence, paragraph, subdivision, clause, phrase or section of this
ordinance be adjudged or held to be unconstitutional, illegal or invalid, the same shall not affect the validity of
this ordinance as a whole, or any part or provision thereof other than the part so decided to be invalid,illegal or
unconstitutional, and shall not affect the validity of the Code of Ordinances as a whole.
SECTION 4. This ordinance shall take effect immediately from and after its passage and the publication
of the caption, as the law and Charter in such cases provide.
DU LY PASSED by the City Council of the City of University Park, Texas, on the__________ day of
___________________ 2015.
APPROVED:
OLIN LANE, MAYOR
ATTEST:
CHRISTINE GREEN, ClTY SECRETARY
APPROVED AS TO FORM:
CITY ATTORNEY
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(rld/ 10-08-09trM39746)
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF UNIVERSITY PARK, TEXAS, AMENDING THE CODEOF
ORDINANCES OF THE CITY OF UNIVERSITY PARK, BY AMENDING ARTICLE13.100 "PARK
REGULATIONS GENERALLY"BY ADDING SECTION 13.108 "RED FLAG FIELD CLOSURE";
PROVIDING A REPEALING CLAUSE; PROVIDING A SEVERABILITY CLAUSE; PROVIDING FOR A
PENALTY OF FINE NOT TO EXCEED FIVE HUNDRED DOLLARS ($500.00) FOR EACH OFFENSE;
AND PROVIDING AN EFFECTIVE DATE.
DU LY PASSED by the City Council of the City of University Park, Texas, on the __ day of_________
2015.
APPROVED:
MAYOR
ATTEST:
CITY SECRETARY
3800 UNIVERSITY BOULEVARD UNIVERSITY PARK, TEXAS 75205 TELEPHONE (214) 363-1644
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AGENDA MEMO
8/18/2015Agenda
TO:Honorable Mayor and City Council
FROM:Robbie Corder, City Manager
SUBJECT:Consider: Amendment to Oncor Distribution Pole Attachment
Agreement
BACKGROUND:
The City entered into a pole attachment agreement with Oncor in 2013 to allow
the City and its contractors to place infrastructure on Oncor poles. Oncor
requested variousamendments to the indemnificationprovisions of the original
agreement(Section 12. Indemnification, Consequential Damages and Texas
Deceptive Trade Practices –Consumer Protection Act).
The amendment has been modified based upon negotiations between the City of
Farmers Branch and Oncor. The amendments address various concerns the
City had with the original amendment as proposed by Oncor. More specifically,
the indemnification section now recognizes the sovereign immunity of the City as
granted by the State of Texas.
RECOMMENDATION:
Staff recommends approval of the amendment.
AMENDMENT NO. 1
DATED AUGUST 12, 2015
TO
DISTRIBUTION POLE LICENSE AGREEMENT
CW 2084166
BY AND BETWEEN
THE CITY OF UNIVERSITY PARK, TEXAS
AND
ONCOR ELECTRIC DELIVERY COMPANY LLC
DATED SEPTEMBER 13, 2013
1
EFFECTIVE DATE
The Effective Date of this Amendment is August 12, 2015.
PURPOSE
This Amendment modifies, alters or changes specific terms and conditions of Contract No. CW 2084166
(the “Agreement”) currently in effect between the parties hereto. Except as modified in this Amendment
or previous amendments, the Agreement will remain in full force and effect.
MODIFICATIONS
The Agreement is hereby modified as follows:
1.Section 12: INDEMNIFICATION, CONSEQUENTIAL DAMAGES AND TEXAS DECEPTIVE
TRADE PRACTICES-CONSUMER PROTECTION ACT.
The text of the Section 12.1 of the Agreement, entitled “LICENSEE’S OBLIGATION TO
INDEMNIFY,”shall be deleted in its entirety and replaced with the following:
(a)To the fullest extent allowed by Texas law, Licensee agrees to defend, protect,
indemnify and hold harmless the Indemnified Parties from and against all Claims
asserted by any person or entity, including, without limitation, any Licensee Party, in any
way arising out of, related to, caused by or incident to this Agreement, including, but not
limited to: (i) Claims arising out of, related to, caused by or incident to Licensee’s breach
of this Agreement or any representation, warranty, covenant or obligation of Licensee set
forth herein; (ii) Claims arising out of, related to, caused by or incident to the attachment,
maintenance, replacement, relocation, repair, modification, removal, use or operation of,
or in any other way arising out of, related to, caused by or incident to, any Equipment; (iii)
Claims arising out of, relating to, caused by or incident to the Permitted Use; or (iv)
Claims arising out of, related to, caused by or incident to any interruption, disruption,
interference or termination of the Permitted Use.
(b)As a condition to the grant of access to any Company Pole, any Licensee contractor
which attaches, maintains, replaces, relocates, or modifies any Equipment on any Pole
on behalf of Licensee must execute Attachment D hereto, whereby Licensee’s contractor
agrees to comply with the insurance and indemnification requirements stated therein.
Any failure by a contractor for Licensee to comply with the requirements of Attachment D
hereto, any lapse in Licensee’s contractor’s insurance coverage, and/or Licensee’s
contractor’s failure to provide contractual evidence of compliance with Attachment D’s
insurance requirements, shall constitute an event of default under this Agreement.
(c)LICENSEE’SINDEMNITY, HOLD HARMLESS, AND DEFENSE OBLIGATION
PROVIDED IN THIS SECTION 12.1 SHALL AND DOES INCLUDE CLAIMS ALLEGED
OR FOUND TO HAVE BEEN CAUSED IN PART BY THE NEGLIGENCE OR GROSS
NEGLIGENCE OF ANY INDEMNIFIED PARTIES, OR CONDUCT BY ANY
INDEMNIFIED PARTIES THAT WOULD GIVE RISE TO STRICT LIABILITY OF ANY
KIND. However, Licensee’s liability underthis Section 12.1 shall be reduced by
that portion of the total amount of the Claims (excluding defense fees and costs)
equal to the Indemnified Parties’proportionate share of the negligence or gross
negligence, or conduct that would give rise to strict liability of any kind, that
caused the Claim. Likewise, Licensee’s liability for the Indemnified Parties’
defense costs and attorneys’fees shall be reduced by that portion of the defense
costs and attorneys’fees equal to the Indemnified Parties’proportionate share of
the negligence, or conduct that would give rise to strict liability of any kind, that
2
caused the loss.
(d)To the extent necessary to permit the Indemnified Parties to enforce the indemnity
obligations provided for in Section 12.1(a), Licensee agrees that, with respect to any
Claims, it shall and does, to the fullest extent legally permissible, hereby waive, and shall
require each of its insurers to waive, as to the Indemnified Parties, any and all defenses,
limitations of liability, or other protections Licensee may have or claim pursuant to the
laws of the State of Texas, including, without limitation, those provided for in the Texas
Tort Claims Act (Chapter 101 of the Texas Civil Practice and Remedies Code), and the
Texas Workers’Compensation Act (Chapter 401 of the Texas Labor Code). The Parties
stipulate and agree that no provision of, or any part of this Agreement between Licensee
and Company, or any subsequent change order, amendment, or other modification shall
be construed:(1) as a waiver of the doctrine of sovereign immunity or immunity from suit
as provided for in the Texas Constitution and the Laws of the State of Texas; (2) to
extend liability to Licensee beyond such liability provided for in the Texas Constitution
and the Laws of the State of Texas; or (3) as a waiver of any immunity provided by the
11th Amendment or any other provision of the United States Constitution or any immunity
recognized by the Courts and the laws of the United States.
(e)The Parties acknowledge and agree that, within their lawful and reasonable
contemplation, all payments which may be made by Licensee, pursuant to its indemnity
obligations or other potential liabilities under this Agreement, can and will reasonably be
paid and satisfied from some fund in the immediate control of Licensee, readily available
for the purpose of satisfying and paying such indemnity obligations and other potential
liabilities.
(f)If, for whatever reason, any provision of this Agreement is held by a court to be in conflict
with or contradictory to Licensee’s duty to indemnify the Indemnified Parties, as provided
for in this Agreement, such conflicting or contradictory provision shall be subjugated to,
and shall not impair, affect, or invalidate, Licensee’s duty to indemnify the Indemnified
Parties, and such duty shall remain in full force and effect, but only to the extent allowed
by Texas law.
(g)With regard to Licensee’s obligations of indemnification and other potential liabilities
provided for in this Agreement, the Parties acknowledge and agree that Licensee has
entered into this Agreement in furtherance of public purposes, and that no payment made
or obligation incurred by Licensee hereunder shall constitute or be construed as an
application or lending of Licensee’s credit, or an application of public funds for private
use.
The parties have signed this Amendment acknowledging their agreement to its provisions as of
the Effective Date.
THE CITY OF UNIVERSITY PARK, TEXAS ONCOR ELECTRIC DELIVERY COMPANY LLC
Signature: Signature:
Name:Bob Livingston Name: Karen Flewharty
Title:City Manager Title: Joint Use Manager
Date:Date: ________________________________
3
ATTACHMENTD
DISTRIBUTION POLE LICENSE CONTRACTOR AGREEMENT BY ANDBETWEEN ONCOR
ELECTRIC DELIVERY COMPANY LLC AND
_________________________________________________________
WHEREAS,Oncor Electric Delivery Company LLC (“Company”) owns or has the right to use
certain utility poles (“Poles”) on which third parties place equipment pursuant to license agreements
granted by Company; and
WHEREAS,_________(“Licensee”) desires to attach to and thereafter maintain its equipment to
Company’s Poles pursuant to a Distribution Pole License Agreement between Licensee and Company
(“PLA”); and
WHEREAS,______(“Contractor”) desires to attach, maintain, replace, relocate, or modify
Licensee equipment on Company’s Poles on behalf of Licensee (“Work”); and
WHEREAS,the PLA requires that any Licensee contractor which performs Work on behalf of
Licensee must execute this Agreement as a condition of Company’s grant to Licensee of access to
Company’s Poles;
NOW,THEREFORE,in consideration of the covenants, agreements and undertakings set forth
below, theParties agree as follows:
ARTICLE I: STANDARDS
Whenever performing any Work on Company’s Poles, Contractor shall comply with the safety or
engineering standards Company applies to electric distribution and/or communication overhead and
underground construction and maintenance, both as effective on the Effective Date of this Agreement and
as may be hereafter amended from time to time, which shall include, without limitation:
(a)the National Electrical Safety Code;
(b)the rules and regulations of the Occupational Safety & Health Administration (“OSHA”);
(c)other applicable laws or regulations of any governing authority or regulatory body, having
jurisdiction over the subject matter of this Agreement; and
(d)Company’s standards and procedures applicable to the Poles, which are reasonably in
furtherance of and not expressly inconsistent with the other engineering and safety standards referenced
above, as referred to or included in the following website: http://www.oncor.com/EN/Pages/Joint-Use-
Management.aspx.
ARTICLE II: INSURANCE
A.Proof of Coverage.
Contractor shall, at its sole expense and during the term of this Agreement, purchase and
maintain insurance in accordance with the requirements of Exhibit1, Contractor’s Insurance
Requirements.
4
B.Notification of Accident, Injury or Damage.
Contractor will notify the Company manager of claims per the requirements in Exhibit1 as soon
as practical of any accidents or occurrences resulting in injuries to any person, including death, or
any property damage (including, without limitation, damage to any Licensee equipment or Pole),
arising out of or relating to the PLA or this Agreement.
C.Enhancement of Indemnification.
Nothing in this Article II, or the provision of any insurance required by this Article II, shall affect,
limit or otherwise reduce the indemnity obligations provided for in Article III.
ARTICLE III: INDEMNIFICATION AND CONSEQUENTIAL DAMAGES
A.Contractor’s Obligation to Indemnify.
1.To the fullest extent allowed by Texas law, Contractor shall indemnify, defend,
protect and hold harmless Company, its majority investor, Energy Future Holdings
Corp., and all subsidiaries and affiliates of Energy Future Holdings Corp., and all
officers, directors, shareholders, associates, related firms and entities, employees,
servants and agents of both Company and each such subsidiary or affiliate, as well
as any contractor, electric utility or other entity authorized by Company to perform
work on its Poles on its behalf (the “Indemnified Parties”) from and against all
claims, losses, expenses, damages, demands, judgments, causes of action, suits
and liability, in tort, warranty, contract or any other basis and of every kind and
character, including without limitation, claims, losses, expenses, damages,
demands, judgments, causes of action, suits and liability on account of personal
injuries or death, damage to property or economic loss, except as otherwise
expressly provided for herein (“Claims”) arising or claimed to have arisen by,
through or asa result of any of Contractor’s Work, Licensee’s equipment, or the
acts or omissions of Contractor, Licensee, or any of their respective employees,
agents or contractors, in respect to, without limitation, the following:
a.Claims arising out of, relating to, caused by or incident to Licensee’s or
Contractor’s use or Work on the Poles;
b.damage to or loss of property (including, without limitation, property of Company,
Licensee, or Contractor);
c.injuriesor death to persons, including payments made under any worker’s
compensation law or under any plan for employees’disability and death benefits;
d.any condition of the Poles and/or Licensee’s or Contractor’s equipment;
e.separateoperations being conducted on the premises;
f.Licensee’s or Contractor’s breach of this Agreement;
g.damages or injures to Licensee’s or Contractor’s Equipment;
h.any interference with the television or radio reception of, or with the transmission
or receipt oftelecommunications by, any person which may be occasioned by the
installation or operation of Licensee’s equipment;
5
i.additional compensation for use of Company’s distribution rights-of-way for an
additional use; or
j.the imperfection, whether latent or patent, of any Pole, material or equipment
furnished by an Indemnified Party.
2.IT IS THE EXPRESS INTENT OF THE PARTIES THAT CONTRACTOR’S
OBLIGATION TO INDEMNIFY, DEFEND, PROTECT, AND HOLD HARMLESS,
INCLUDING ATTORNEYS’FEES, SHALL INCLUDE, WITHOUT LIMITATION, CLAIMS
ARISING OR CLAIMED TO HAVE ARISEN BY, THROUGH OR AS A RESULT OF
ANY INDEMNIFIED PARTY’S SOLE OR CONCURRENT:
a.NEGLIGENCE;
b.STRICT LIABILITY IN TORT;
c.BREACH OF WARRANTY, EXPRESS OR IMPLIED; OR
d.OTHER FAULT OF ANY NATURE.
3.Article III(A)(1) notwithstanding, in any action, suit, or proceeding involving Claims arising
out of or incident to, directly or indirectly, this Agreement, in which both Contractor and
any Indemnified Party are made parties and where the Court, in such action, suit, or
proceeding, permitsa submission to the finder of fact as to the comparative fault or
responsibility of Contractor and any Indemnified Party in relation to each other, and in
relation to other parties to such action, suit, or proceeding, Contractor and Company
hereby agree that they will have their respective measures of comparative fault or
responsibility submitted to the finder of fact. Contractor shall not be required to indemnify
any Indemnified Party for the liability of any Indemnified Party, as to such Claims for or
with respect to any percentage of fault or responsibility found by the finder of fact to be
attributable to any Indemnified Party. Further, after such finding is made, Company shall
promptly reimburse Contractor for that portion of costs or expenses incurred by
Contractor, in defending or responding to such Claims, allocable to the percentage of
fault or responsibility found to be attributable to any Indemnified Party.
4.Article III(A)(1) notwithstanding, with regard to any action described in Article III(A)(3) in
which the Court, in such action, suit, or proceeding, fails or refuses to permit a
consideration by the finder of fact as to the comparative fault or responsibility of
Contractor and any Indemnified Party in relation to each other, and in relation toother
parties to such action, suit, or proceeding, and where, upon final adjudication of the
action, suit, or proceeding, either an Indemnified Party or Contractor is found to be liable
to the party or entity initiating such action, suit or proceeding; orupon final settlement and
release of Claims, under circumstances in which no such finder of fact has made a
determination as to such comparative fault or responsibility, Contractor and the
Indemnified Parties agree to submit to mediation the issue of comparative fault or
responsibility (whether arising from common law, statute, or this Agreement), as between
any Indemnified Party and Contractor. In the event that Contractor and the Indemnified
Parties are unable to agree upon their comparative fault or responsibility through that
mediation process, then Contractor and the Indemnified Parties agree to submit to
arbitration, in accordance with the then prevailing rules of the American Arbitration
Association, the issue of comparative fault or responsibility (whether arising from
common law, statute, or this Agreement), as between the Indemnified Parties and
Contractor. In determining the percentage of such responsibility as between the
Indemnified Parties and Contractor, the arbitrator shall consider the percentage
attributable to each party with respect to causing in any way, whether by negligent act or
omission or otherwise, the personal injury, property damage, death or other harm out of
6
which such Claims arose. With respect to the arbitrator’s findings as to the comparative
fault or responsibility of the parties, Contractor shall not be required to indemnify any
Indemnified Party for the liability of any Indemnified Party as to such Claims for or with
respect to any percentage of fault or responsibility found by the arbitrator to be
attributable to any Indemnified Party. Further, after such finding is made, Company shall
promptly reimburse Contractor for that portion of costs or expenses incurred by
Contractor, in defending, responding to, or settling such Claims, allocable to the
percentage of fault or responsibility found to be attributable to any Indemnified Party.
5.To the extent necessary to permit the Indemnified Parties to enforce the indemnity
obligations provided for in Article III, Contractor agrees that, with respect to any Claims, it
shall and does, to the fullest extent legally permissible, hereby waive, and shall require
each of its insurers to waive, as to the Indemnified Parties, any and all defenses,
limitations of liability, or other protections Contractor may have or claim pursuant to the
laws of the State of Texas, including, without limitation, those provided for in the Texas
Tort Claims Act (Chapter 101 of the Texas Civil Practice and Remedies Code), and the
Texas Workers’Compensation Act (Chapter 401 of the Texas Labor Code).
B.Notice of Claim to Contractor.
Within a reasonable period after receiving or becoming aware of the assertion of any Claim within
the scope of Article III, Company shall notify Contractor of the assertion of such Claim.
Company’s failure to provide such notice shall not, however, alter or, in any manner, impair
Contractor’s obligations of indemnity, as provided for in Article III.
C.Waiver of Consequential Damages.
Under no circumstances whatsoever shall any Indemnified Party be liable to Contractor in
contract, in tort (INCLUDING SOLE OR CONCURRENT, ACTUAL OR IMPUTED,
NEGLIGENCE, OR STRICT LIABILITY), under any warranty, or otherwise for any special,
indirect, incidental, or consequential loss or damage of any nature, including, without limitation,
for the cost of capital, loss of profits or revenues or the loss of use thereof, attorneys’fees or the
cost of purchased or replacement services, and Contractor agrees to indemnify and hold each
Indemnified Party harmless from and against such losses or damages.
This Agreement shall be effective on the date signed by the last party to sign as indicated below.
ONCOR ELECTRIC DELIVERY COMPANY
LLC
By:
Title:
Date:
By:
Title:
Date:
7
EXHIBIT1
CONTRACTOR’S INSURANCE REQUIREMENTS
A.Coverage Requirements
Contractor will, at its own expense, maintain in force throughout the period of the Agreement, or as
otherwise specified, and until released by Company the following minimum insurance coverages, with
insurers acceptable to Company.
1)Commercial General Liability Insuranceincluding bodily injury and property damage, personal
and advertising injury, contractual liability, and including products and completed operations,
with minimum limits of one million dollars ($1,000,000) per occurrence for bodily injury, including
death and property damage.
2)Automobile Liability Insurancefor coverage of owned, non-owned and hired autos, trailers or
semi-trailers with a minimum combined single limit of one million dollars ($1,000,000) per
accident for bodily injury, including death, and property damage.
3)Excess Liability Insuranceover and above the employers’ liability, commercial general liability
and automobile liability insurance coverage, with a minimum limit of two million dollars
($2,000,000) per occurrence. Coverage must replace exhausted aggregate limits under
Commercial General Liability and Workers’ Compensation (Employers Liability) insurance
coverages referenced herein.
4)Workers' Compensation and Employers’ Liability Insuranceproviding statutory benefits in
accordance with the laws and regulations of the State of Texas or state of jurisdiction as
applicable. The minimum limits for the employers’ liability insurance will be five hundred
thousand dollars ($500,000) bodily injury each accident, five hundred thousand dollars
($500,000) each employee bodily injury by disease, five hundred thousand dollars ($500,000)
policy limit bodily injury by disease.
Note: The required limits of insurance can be satisfied by any combination of primary and excess
coverage.
B.Additional Requirements
1)Each of the policies in section A., above, except workers’ compensation and employers’ liability
insurance, will contain provisions that specify that the policies are primary and will apply without
consideration for other policies separately carried and will state each insured is provided
coverage as though a separate policy had been issued to each, except with respects to limits of
insurance, and that only one deductible will apply per occurrence regardless of the number of
insureds involved in the occurrence. Contractor will be responsible for any deductibles or
retentions.
2)Each of the policies in section A, above, except workers’ compensation and employers’ liability
insurance, if written on a claims-made basis, will be maintained in full force and effect for two (2)
years after final acceptance or completion of the Work, whichever is later.
3)All policies must be issued by carriers having an A.M. Best’s rating of “A-” or better, and an A.M.
Best’s financial size category of “VIII”, or better. If requested in writing by Company, Contractor
will make available to Company a certified copy of any or all insurance policies or endorsements
required of Contractor.
4)Company will receive advance written notice prior to non-renewal or cancellation.
5)Certificates of insurance (COI) must show “Oncor Electric Delivery Company LLC and its
affiliates” as the certificate holder, and as an additional insured (including completed operations)
to the extent Contractor has agreed to indemnify any Indemnified Party or Parties pursuant to the
provision of indemnity in the Agreement. The additional insured requirement shall apply to all of
8
the required coverages except workers’ compensation.All of the required coverages must
provide a waiver of subrogation in favor of the certificate holder.
C.Limitation of Liability
The requirements contained herein as to the types and limits of all insurance to be maintained by
Contractor are not intended to and will not, in anymanner, limit or qualify the liabilities and obligations
assumed by Contractor under the Agreement.
D.Carrier/Agent to Provide Proof of Insurance
Prior to execution of the Agreement, and when requested by Company, Contractor will instruct its
insurance carrier/agent to submit directly to Company valid certificate(s) of insurance, evidencing the
coverage required herein.Valid certificates of insurance utilize ACORD 25 form dated 2010/05 or
later and other Texas Department of Insurance (TDI) approved forms which properly addresses each
requirement referenced in this document (as depicted in Company’s Sample COI, available on
request).If Contractor’s insurance carrier/agent provides to Company a certificate of insurance that
is not an ACORD 25 form dated 2010/05 or later, insurance carrier/agent must also submit sufficient
documentation directly to Company indicating that certificate is approved by TDI. Company's review
of certificates or policies will not be construed as accepting any deficiencies in Contractor’s insurance
or relieve Contractor of any obligations set forth herein.In addition, Contractor will require each of its
subcontractors to provide adequate insurance.Any deficiencies in the insurance provided by
subcontractors will be the responsibility of Contractor.
E.Description of Operations Language
The following language or language substantially in the form of such language mustbe included in
the Description of Operations section of the COI or otherwise indicated on the form:
Certificate holderis included as an additional insured (including completed operations) as
respects all of the required coverages except workers’ compensation.All of the required
coverages provide a waiver of subrogation in favor of the certificate holder.
F.Certificate Holder Detail
The certificate holder must be shown on the COI as follows:
Oncor Electric Delivery Company LLC and its affiliates
Attention:Joint Use Management
115 W. 7th Street, Suite 805
Fort Worth, TX76102
G.Reporting of Damage and Accidents
Contractor agrees to report to the manager of the claims department (address shown below) of the
Company in writing as soon as practical all instances of property damage (including, without
limitation, damage to any Equipment or Pole), and all accidents oroccurrences which may result in
injuries to any person, including death, arising out of or relating to this Agreement.
Oncor Electric Delivery Company LLC
Attention:Claims
1616 Woodall Rodgers Freeway
Dallas, TX75202
H.Maximum Limits of Insurance
If the insurance obligations required in the Agreement exceed the maximum limits permitted by law or
do not otherwise conform with any applicable law, then this Agreement will be deemed amended so
as to only require Contractor to provide insurance to the maximum extent allowed by law.
1
DISTRIBUTION POLE LICENSE AGREEMENT
BY AND BETWEEN
THE CITY OF UNIVERSITY PARK, TEXAS
AND
ONCOR ELECTRIC DELIVERY COMPANY LLC
DATED
SEPTEMBER 13, 2013
NO. CW 2084166
DocuSign Envelope ID: 939F6878-AFF5-4986-83E9-FBD94A688684
Agreement no. CW 2084166
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DISTRIBUTION POLE LICENSE AGREEMENT
September 13, 2013
EFFECTIVE DATE
WHEREAS, This DISTRIBUTION POLE LICENSE AGREEMENT (the
"Agreement") is made by and between ONCOR ELECTRIC
DELIVERY COMPANY LLC, a Delaware limited liability company
(“Company”), and The City of University Park, Texas, a municipality
organized under the laws of and existing within the State of Texas”
(“Licensee”); and
RECITALS
WHEREAS, Company is a public utility company transmitting and
distributing electric power to its customers, and owns or has acquired
the right to use certain rights of way and easements for the
construction and operation of its business, and has installed
distribution poles on portions of such rights of way and easements in
connection with the construction and operation of its business; and
WHEREAS, Licensee desires to attach to and thereafter maintain its
Equipment (as hereinafter defined) that is attached pursuant to this
Agreement on Poles (as hereinafter defined) solely for the purpose of
engaging in the Permitted Use; and
WHEREAS, Company is willing to allow Licensee, pursuant to the
terms and conditions of this Agreement, to attach to and thereafter
maintain its Equipment on Poles solely for the purpose of allowing
Licensee to engage in the Permitted Use;
NOW, THEREFORE, in consideration of the covenants, agreements
and undertakings set forth below, the Parties agree as follows:
The words and phrases listed in this Section, “Definitions” shall have
the meaning set forth in this Section wherever such words and
phrases appear in this Agreement (or the Attachments to it) with an
initial capital letter on each word. The meanings stated in this Section
shall control the meanings of all such words and phrases when so
capitalized, notwithstanding the context or associations in which such
words or phrases may appear in this Agreement (or the Attachments
to it). Words and phrases not listed in this Section and words and
phrases listed in this Section without an initial capital letter shall have
the meanings necessary to achieve the intentions of the Parties as
expressed in this Agreement.
SECTION 1. DEFINITIONS
This shall mean any other person or entity directly or indirectly
controlling or controlled by, or under the direct or indirect common
control with, a specified person or entity.
1.1 Affiliate
This word shall mean this Distribution Pole License Agreement. 1.2 Agreement
This phrase shall mean the individuals identified on Attachment A to
this Agreement and any replacements for them made pursuant to the
procedures prescribed in the Section entitled “Replacement of
Authorized Representatives”.
1.3 Authorized
Representatives
This shall mean any and all claims, losses, expenses, damages,
demands, judgments, attorneys' fees, causes of action, suits and
1.4 Claims
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DISTRIBUTION POLE LICENSE AGREEMENT
liability, in tort, warranty, contract, or any other basis, and of every
kind and character, including, without limitation, claims, losses,
expenses, damages, demands, judgments, causes of action, suits
and liability on account of personal injuries or death, damage to
property or economic loss.
This shall mean equipment, including appurtenances, attached by or
on behalf of Licensee to any Pole. Such Equipment shall include,
without limitation, the fiber optic or other cables (whether original or
overlashed), power supplies, amplifiers and drop wires, wires and
appliances, including Service Drops and bonding wires, together with
associated cable messengers, anchors, pedestals, guy wires, and
other appurtenances as well as cameras, radios, antennas and other
wireless equipment used by Licensee and approved by Company.
1.5 Equipment
This shall mean a public utility company, municipality or other person
or entity which has attachment privileges on any Pole.
1.6 Joint User
This word shall mean The City of University Park, Texas. 1.7 Licensee
This shall mean Licensee, any Affiliate of Licensee, any director,
officer, agent, servant, employee, independent contractor, supplier,
customer, advertiser, client, licensee or concessionaire of Licensee or
any Affiliate of it, or any director, officer, agent, servant, or employee
of the independent contractor, supplier, customer, advertiser, client,
licensee or concessionaire of Licensee or any Affiliate of it.
1.8 Licensee Party
This term shall have the meaning specified in section 4.1.3. 1.9 NJUNS
This word shall mean the practice of tying or connecting fiber optic
cable, conductors, or other telecommunications equipment, to
Equipment attached to Poles.
1.10 Overlashing
This word shall mean Company or Licensee; collectively Company
and Licensee shall be referred to as "Parties."
1.11 Party
This shall mean a written application in the form of the Permit
Application available for use at the website shown below:
http://www.oncor.com/EN/Pages/Joint-Use-Management.aspx
1.12 Permit
Application
This phrase shall mean the transmission and exchange of information
(including image and video signals) by means of the Equipment,
among and between Licensee’s facilities, solely in furtherance of
Licensee’s governmental services or purposes, and at no time for
commercial or profit-making activities or purposes.
1.13 Permitted Use
This shall mean distribution poles located within the boundaries of the
areas in which Company provides electric utility service, each of
which has a circuit with a nominal voltage of less than 69,000 volts,
which are owned solely by Company; such term does not mean or
include, without limitation, poles or other structures owned by
Company which are used for the transmission, rather than distribution,
of electric energy.
1.14 Poles
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DISTRIBUTION POLE LICENSE AGREEMENT
This phrase shall have the meaning specified in Section 4.1.2 1.15 Preparation
Costs
This phrase shall mean a service line or wire connection between a
Pole and a building or other structure, being served by other
Equipment.
1.16 Service Drops
This word shall have the meaning specified in Section 4.2 1.17 Standards
This phrase shall mean Oncor Electric Delivery Company LLC. 1.18 Company
This shall mean Company, its majority investor, Energy Future
Holdings Corp., and all subsidiaries and affiliates of Energy Future
Holdings Corp., and all officers, directors, shareholders, associates,
related firms and entities, employees, servants and agents of
Company and each such subsidiary or affiliate.
1.19 Company Group
This shall mean any space on the Poles normally and primarily
utilized by Company for the distribution of electric power, including the
space from the tops of the Poles down to and including the neutral
space.
1.20 Power Space
This shall mean any party retained by Licensee and acting for or on
behalf of Licensee, or in furtherance of Licensee’s obligations,
pursuant to or in connection with this Agreement that is approved to
perform certain installation, repair and maintenance functions on the
Equipment attached to the Poles in the Power Space.
1.21 Approved
Contractor
The singular of a word shall also refer to the plural and vice versa,
unless the context otherwise requires.
This shall mean Company Group, its present and future affiliates, and
its representatives, agents, officers and employees. For purposes of
this Agreement, the term shall also include any contractor, electric
utility or other entity authorized by Company to perform work on its
Poles on its behalf.
1.22 Singular and Plural
Words
1.23 Indemnified Party
(Parties)
Subject to the provisions of this Agreement, Licensee shall be
permitted to attach Equipment to, and thereafter maintain, replace,
relocate, repair, or modify its Equipment on, Poles, solely for the
purpose of engaging in the Permitted Use.
SECTION 2. COMPANY’S
GRANT OF PRIVILEGE TO
LICENSEE TO ATTACH,
MAINTAIN, REPLACE,
RELOCATE, REPAIR AND
MODIFY EQUIPMENT ON
POLES
Licensee shall not attach Equipment on any Company equipment or
facilities other than Poles, including, without limitation, any portion of
2.1 Facilities to
Which License
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DISTRIBUTION POLE LICENSE AGREEMENT
Company's underground duct system. Applies
Licensee shall exercise its license under this Agreement solely to
engage in the Permitted Use, in accordance with the terms of this
Agreement and any applicable franchises and/or permits needed to
operate its Equipment and engage in the Permitted Use. Licensee
shall not lease or sublet the Equipment, including, without limitation,
dark fiber, to a third party, or otherwise allow a third party to attach its
equipment to Licensee’s Equipment; provided, however, that Licensee
may allow third parties to use the Equipment on Licensee’s behalf, but
only in furtherance of Licensee engaging in the Permitted Use.
Further, in the event that Licensee’s Equipment requires the supply or
provision of electric power, Licensee shall be solely responsible for
separately arranging for such power with its retail electric provider.
2.2 Use of
Equipment
Nothing in this Agreement shall be construed as requiring Company to
give Licensee permission to use any particular Pole or to allow
Licensee to continue to use any particular Pole after Licensee has
received Company's permission to do so. Company may refuse
Licensee permission to use any Pole, or may, as provided for in this
Agreement, require Licensee to replace, relocate, modify, remove or
perform other work with respect to Licensee's Equipment on any Pole.
2.3 Rights of Pole
Use
No use, however extended, of Poles under this Agreement shall
create or vest in Licensee any ownership or property right in them, but
Licensee's rights in such Poles shall be and remain a mere license
terminable at any time as provided herein. Nothing in this Agreement
shall be construed to compel Company to maintain any Pole for any
period of time.
2.4 No Ownership
of Poles
SECTION 3.
FRANCHISES, LICENSES
AND RIGHTS OF WAY
Licensee represents and warrants that: (a) it has obtained, or prior to
undertaking any construction or other work by which it contacts
Company's property it will obtain, all legally required franchises,
licenses, waivers, consents, approvals, easements, rights of way and
permits needed to construct and operate its Equipment and engage in
the Permitted Use; (b) it shall use its best efforts to maintain such
franchises, licenses, waivers, consents, approvals, easements, rights
of way and permits in full force and effect throughout the term of this
Agreement; (c) it shall comply with such franchises, licenses, waivers,
consents, approvals, easements, rights of way and permits in
connection with engaging in the Permitted Use; and (d) it shall
promptly notify Company in writing of any change in the status of such
franchises, licenses, waivers, consents, approvals, easements, rights
of way and permits. Upon Company's request, Licensee shall
promptly deliver to Company documentation satisfactory to Company,
evidencing that all such franchises, licenses, waivers, consents,
approvals, easements, rights of way and permits have been obtained.
3.1 Licensee's
Required
Approvals and
Rights of Way
Company shall not be required to obtain any additional license,
waiver, consent, easement, right of way or permit in connection with
this Agreement; provided, however, upon Licensee's request,
Company may provide such assistance as Company deems
appropriate to Licensee, in furtherance of obtaining any such license,
3.2 Additional
Approvals and
Rights of Way
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Agreement no. CW 2084166
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DISTRIBUTION POLE LICENSE AGREEMENT
waiver, consent, easement, right of way or permit, as Licensee may
need in order to engage in the Permitted Use. Licensee shall
reimburse Company for any expenses reasonably incurred by
Company in providing such assistance. All costs of obtaining such
additional licenses, waivers, consents, easements, rights of way or
permits needed by Licensee will be borne by Licensee.
COMPANY MAKES NO REPRESENTATION OR WARRANTY OF
ANY NATURE THAT ITS EXISTING OR FUTURE RIGHTS OF WAY,
EASEMENTS OR OTHER PROPERTY RIGHTS, PRIVATE OR
PUBLIC, WERE, ARE, OR WILL BE SUFFICIENT TO PERMIT THE
ATTACHMENT, MAINTENANCE, REPLACEMENT, RELOCATION,
REPAIR, MODIFICATION OR REMOVAL OF EQUIPMENT ON OR
BETWEEN ANY POLES. FURTHER, COMPANY MAKES NO
REPRESENTATION OR WARRANTY OF ANY NATURE WITH
RESPECT TO THE CONDITION OR FITNESS FOR A PARTICULAR
PURPOSE OR USE OF ANY POLE OR POLES OR ANY OF ITS
OTHER REAL OR PERSONAL PROPERTY WHICH LICENSEE
MAY USE. LICENSEE CONFIRMS THAT IT HAS NOT IN THE
PAST RELIED, IT IS NOT PRESENTLY RELYING, AND IT WILL
NOT IN THE FUTURE RELY, ON ANY REPRESENTATION OR
WARRANTY OF COMPANY CONCERNING: (A) COMPANY'S
EXISTING OR FUTURE RIGHTS OF WAY, EASEMENTS OR
OTHER PROPERTY RIGHTS, PUBLIC OR PRIVATE, OR (B) THE
CONDITION OR FITNESS FOR A PARTICULAR PURPOSE OR
USE OF ANY POLE OR POLES OR ANY OTHER REAL OR
PERSONAL PROPERTY OR PROPERTY RIGHT OF COMPANY.
3.3 NO
WARRANTIES
AS TO
COMPANY'S
RIGHTS OF
WAY
SECTION 4. ATTACHMENT,
REPLACEMENT,
RELOCATION AND
MODIFICATION OF
EQUIPMENT
Throughout the term of this Agreement, Licensee may designate a
Pole or Poles on which it desires to attach, replace, relocate or modify
any Equipment. For purposes of this requirement, modification of
Equipment shall include, without limitation, any Overlashing, on or
undertaken with respect to that Equipment or the equipment of any
third party. Each such designation shall be made by Licensee, by
submitting to Company or, as appropriate, an Company
Representative, at least thirty (30) days before the date when
Licensee desires to begin such work, a Permit Application, in such
number, manner, and format as prescribed by Company from time to
time, signed by any Authorized Representative of Licensee and
specifying, in the appropriate spaces thereon, the type of work
Licensee desires to perform and the Pole or Poles on which such
work is to be performed, and providing drawings, data and
specifications necessary to review and evaluate such Permit
Application
4.1 Permit
Applications for
the Attachment,
Replacement,
Relocation or
Modification of
Equipment
Notwithstanding the requirements of Section 4.1, Licensee may attach
a Service Drop to any Pole without first submitting a Permit
Application requesting such attachment; provided, however, that
Licensee shall notify Company within fifteen (15) days after Licensee
makes such attachment. Licensee shall thereafter notify Company
within fifteen (15) days after Licensee makes any change to a Service
4.1.1 Service Drops
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DISTRIBUTION POLE LICENSE AGREEMENT
Drop previously attached to any Pole, as more fully described in the
Permit Application. Within thirty (30) days of receiving any such
notice, Company may, at Licensee’s sole cost, inspect the Service
Drop, for the purpose of confirming that such attachment is in
compliance with the Standards. In the event that Company (or, as
appropriate, an Company Representative) determines that such
attachment is not in compliance with the Standards, Licensee shall, at
its sole cost, promptly correct any condition of such attachment, as
necessary to ensure that such attachment is in compliance with the
Standards.
Licensee acknowledges that Company or, as appropriate, an
Company Representative, shall incur various costs and expenses in
reviewing and responding to each Permit Application; such costs may
include, without limitation, costs incurred in connection with
inspection, design, construction, attachment or removal activities, and
related processes, pertaining to the Poles or Equipment identified or
described in the Permit Application (the “Preparation Costs”).
Company may, in its sole discretion, invoice Licensee for any
Preparation Costs, at any time after Company, or an Company
Representative, has either incurred such Preparation Costs, or has
provided to Licensee an estimate of such Preparation Costs to be
reasonably incurred. Section 10.8 notwithstanding, Licensee shall
pay the full amount of such Preparation Costs to Company within
thirty (30) days following its receipt of such invoice.
Licensee shall pay Preparation Costs, to the extent actually incurred
by Company or an Company Representative, notwithstanding
Licensee’s withdrawal, cancellation, or suspension of the related
Permit Applications, or Company’s disapproval of such Permit
Applications. In the event that Licensee fails to pay the full amount of
such Preparation Costs to Company within that thirty (30) day period,
Company may suspend further efforts, pertaining to its review of and
response to that Permit Application, until Licensee has paid the full
amount of such Preparation Costs.
4.1.2 Preparation
Costs Incurred
in Reviewing
and Responding
to Permit
Application
Company may, upon advance written notice of at least thirty (30)
days, direct Licensee to submit each Permit Application by means of
such formats and electronic procedures as Company may reasonably
specify, consistent with customary or accepted practices within the
utility industry. Such formats and electronic procedures may include,
without limitation, those prescribed by the National Joint Utilities
Notification System (“NJUNS”). Licensee will thereafter submit each
Permit Application by means of such formats and electronic
procedures. In addition, Licensee will, to the extent directed by
Company, make any other notifications or submittals, as required or
contemplated by this Section 4, or by other provisions of this
Agreement, by means of such formats and electronic procedures.
Licensee shall be responsible, at its sole cost and expense, for
obtaining the necessary resources and capabilities to enable it to use
such designated formats and electronic procedures in the manner
contemplated by this Agreement.
4.1.3 Applicable
Formats and
Electronic
Procedures
Company shall deny, approve or conditionally approve each Permit
Application for the attachment, replacement, relocation or modification
of Equipment by returning one copy of it to Licensee, reflecting
Company’s denial, approval or conditional approval in the appropriate
4.2 Company's
Response to
Permit
Applications
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DISTRIBUTION POLE LICENSE AGREEMENT
spaces thereon. All work undertaken by or on behalf of Licensee on
any Poles shall be performed in accordance with the following safety
and engineering standards: (a) the National Electrical Safety Code;
(b) the rules and regulations of the Occupational Safety & Health
Administration ("OSHA"); (c) other applicable laws or regulations of
any governing authority or regulatory body, having jurisdiction over
the subject matter of this Agreement; and (d) Company's standards
and procedures applicable to the Poles, as referred to or included in
the website referenced in Section 1.12, which are reasonably in
furtherance of and not expressly inconsistent with the other
engineering and safety standards referenced above. Such
engineering and safety laws, regulations, and standards, as described
in subsections (a) through (d) above, both as effective on the Effective
Date of this Agreement and as may be hereafter amended from time
to time, are hereinafter collectively referred to as the "Standards". No
approval or other response to a Permit Application shall constitute a
guarantee or representation that adequate space exists on the subject
Poles for the attachment of Equipment.
Company may approve a Permit Application for the attachment,
replacement, relocation or modification of Equipment attached to
Poles, on the condition that Licensee modifies the Permit Application
in certain respects. In such event, Company or, as appropriate, an
Company Representative shall return one copy of the Permit
Application to Licensee, reflecting such conditional approval and
detailing the required modifications to the Permit Application and the
estimated costs of making any resulting or related modification or
rearrangement, whether of Equipment or existing attachments. If
Licensee is willing to assume all costs associated with such
modification or rearrangement, Licensee shall return that copy of the
Permit Application to Company within thirty (30) days of its receipt,
signed by an Authorized Representative of Licensee and reflecting
Licensee’s acceptance of such costs in the appropriate spaces
thereon. The copy of the Permit Application shall be accompanied by
payment (payable to Company) of the amount of the estimated cost of
making such modifications. Upon receipt by Company, or by an
Company Representative, of the modified Permit Application and the
accompanying payment, the Permit Application, as modified, shall be
deemed approved. Sections 4.2.2 and 4.2.3 are specific examples of
situations in which Company may conditionally approve a Permit
Application for the attachment, replacement, relocation, or
modification of Equipment. Those sections shall not be construed as
limiting Company’s right to conditionally approve Permit Applications
in other situations, or to impose other or additional conditions in the
future.
4.2.1 Approval
Conditioned
Upon
Modifications to
Permit
Application
If approval of a Permit Application for the attachment, replacement,
relocation or modification of Equipment will require a modification or
rearrangement of the attachments of Licensee, Company, any other
Company Group, or a Joint User on any Pole, Company may approve
the Permit Application on the condition that Licensee agrees to
assume all costs associated with such modification or rearrangement.
In such event, Company or, as appropriate, an Company
Representative shall return one copy of the Permit Application to
Licensee, reflecting such conditional approval and detailing the
attachments that must be modified or rearranged, and the estimated
cost of making the modification or rearrangement in the appropriate
4.2.2 Approval
Conditioned
Upon
Modification or
Rearrangement
of Existing
Attachments
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DISTRIBUTION POLE LICENSE AGREEMENT
spaces thereon. If Licensee is willing to assume all costs associated
with such modification or rearrangement, Licensee shall return that
copy of the Permit Application to Company, within thirty (30) days of
its receipt, signed by an Authorized Representative and reflecting
Licensee’s acceptance of such costs in the appropriate spaces
thereon. The copy of the Permit Application shall be accompanied by
payment (payable to Company) of the amount of the estimated cost of
making such modification or rearrangement. Upon receipt by
Company, or by an Company Representative, of the modified Permit
Application, the Permit Application, as modified, shall be deemed
approved.
If approval of a Permit Application for the attachment, replacement,
relocation or modification of Equipment will require the replacement of
one or more Poles to accommodate the attachments of Licensee, any
other Company Group, and any Joint Users, Company may approve
the Permit Application on the condition that Licensee agrees to
assume all costs associated with the replacement of the existing
Poles with new poles sufficient to accommodate the attachments of
Licensee, any other Company Group, and any Joint Users. In such
event, Company shall return a copy of the Permit Application to
Licensee, reflecting such conditional approval and specifying the
conditions for approval in the appropriate spaces thereon. If Licensee
is willing to assume all costs associated with such replacement,
Licensee shall return that copy of the Permit Application to Company,
within thirty (30) days of its receipt, signed by an Authorized
Representative and reflecting Licensee's acceptance of such costs in
the appropriate spaces thereon. The copy of the Permit Application
shall be accompanied by payment (payable to Company) of the
amount of the estimated cost of making such replacement. Upon
receipt by Company, or by an Company Representative, of the
modified Permit Application, and said payment, the Permit
Application, as modified, shall be deemed approved.
4.2.3 Approval
Conditioned
Upon
Replacement of
Poles
If Company conditionally approves a Permit Application applicable to
a Pole pursuant to the provisions of Sections 4.2.2 or 4.2.3, and at or
about the same time Company approves a request of a third party for
use of such Pole, requiring that such Pole be replaced, or that
attachments thereon be modified or rearranged to provide additional
space, to provide room for the attachments of Company, any other
Company Group, Licensee and the third party, Company shall pro
rate between Licensee and the third party the costs of such
modification, rearrangement or replacement. Such costs, as prorated
to Licensee, shall be deemed to be and considered part of the
Preparation Costs pertaining to that Permit Application. Company
shall notify Licensee of such pro ration, and such modification,
rearrangement or replacement shall take place as provided for in
Sections 4.2.2 or 4.2.3.
4.2.4 Proration of
Costs of
Replacing
Poles, or
Modifying or
Rearranging
Attachments
Any work undertaken on or in furtherance of Licensee’s use of the
Equipment, on or within any Power Space of a Pole, shall be
performed exclusively by an Approved Contractor. Work performed
on other portions of a Pole need not be performed by an Approved
Contractor. Licensee shall pay all costs and expenses incurred by
such Approved Contractor in performing such work, and, in addition,
shall reimburse Company for its costs reasonably incurred in
furtherance of: (a) providing any material or equipment to the
4.2.5 Work Within the
Power Space
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DISTRIBUTION POLE LICENSE AGREEMENT
Approved Contractor, for use or inclusion on a Pole as part of the
work; and (b) any required engineering assessment or other technical
support provided by Company. Licensee shall provide fifteen (15)
days prior written notice to Company of each occasion on which
Licensee shall perform any activity within the Power Space.
Licensee shall limit its submission of Permit Applications for the
attachment, replacement, relocation or modification of Equipment to
Company so as to allow Company to respond to them in an orderly
and timely fashion. In particular, and except as may be otherwise
expressly agreed to by Company, Licensee shall, within any thirty (30)
day period, submit no more than ten (10) Permit Applications,
collectively requesting a total of no more than one hundred twenty
(120) attachments to the Poles. Company shall use reasonable
efforts to respond to each Permit Application within thirty (30) days of
its submission. If Licensee submits more than one such Permit
Application at the same time or submits additional Permit Applications
during the pendency of another such Permit Application, Licensee
shall designate, in writing, an order of priority for their review by
Company. In the absence of such a designation, Company shall
review them in the order of their submission.
4.3 Number and
Priority of
Permit
Applications;
Time to
Respond
Licensee may, with Company's prior express, written consent, submit
Permit Applications that exceed the quantity limitations specified
above, for either Permit Applications or attachments. Company shall
not unreasonably withhold its consent to such submittals, provided
that the Parties shall first agree to a reasonable period of time, in
excess of thirty (30) days, during which Company may review and
respond to such submittals.
If Licensee desires to locate Equipment on any right of way, easement
or other property right of Company on which no Poles or an
insufficient number of Poles are located, Licensee shall so notify
Company. Within a reasonable time after Company’s receipt of such
notice, the Parties shall commence good faith negotiations to
determine the locations of Poles that will meet the present or
anticipated future service requirements of both Company and
Licensee. At its option, Company may install the necessary Poles,
and Licensee shall pay all of the costs associated with their
installation. Notwithstanding such payment, such Poles shall be
owned by Company and Licensee shall not acquire any ownership or
property interest in them.
4.4 Location of
Equipment on
Company Right
of Way That
Has Insufficient
Poles
Except as permitted by Sections 4.7 and 7.1, in the event Licensee
attaches, replaces, relocates or modifies Equipment on one or more
Poles without first obtaining Company's approval of a Permit
Application for such work, Licensee shall pay Company as a
processing charge, upon receipt of an invoice therefor and in addition
to any unpaid rental due for such Equipment (together with interest
applied to such unpaid rental, calculated in accordance with Section
10.8) and any other expenses or costs incurred by Company on
account of such work, fifty dollars ($50.00) for each such attachment,
replacement, relocation or modification. In the event that the time of
any such unauthorized work cannot be determined, such work shall
be deemed to have occurred on the date succeeding the day on
which the last physical inspection was made in accordance with
Section 10.6; provided, however, that, with respect to any such
4.5 Unauthorized
Work
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DISTRIBUTION POLE LICENSE AGREEMENT
unauthorized work, Licensee shall not be obligated to pay any unpaid
rental, or any such fifty dollars ($50.00) processing charge, for or
attributable to any period more than five (5) years prior to the date on
which Company notifies Licensee of such unauthorized work. At the
option of and upon notice from Company, Licensee, at its sole risk
and expense, shall either: (a) remove, replace, relocate or modify all
or any portion of such Equipment within the time period specified in
the notice; or (b) prepare and submit one or more Permit Applications
for such Equipment. Licensee shall notify Company of the
performance of such work within fifteen (15) days of its completion. If
Licensee fails to perform such work within the period specified in the
notice, Company may, without notice or demand to Licensee, and at
the sole expense of Licensee, either perform all or any portion of such
work or remove all or any portion of the Equipment from such Poles.
After the approval of a Permit Application for the attachment,
replacement, relocation or modification of Equipment and the
completion of all work required in connection with that Permit
Application (including work for which any Preparation Costs were paid
and other required engineering or make-ready construction work),
Licensee may, at its sole expense, consistent with that approval,
attach, replace, relocate or modify the Equipment identified in the
Permit Application on the Poles specified in that Permit Application,
during a period of ninety (90) days from the date of its approval, but
not thereafter unless a new Permit Application is submitted to, and
approved by, Company, pursuant to the procedures described in this
Section 4. Notwithstanding Licensee’s rights as provided for in the
preceding sentence, in the event that Licensee determines that the
locations, configuration, or other physical characteristics of equipment
attached to such Poles (including, without limitation, equipment
attached to such Poles by any third parties) are materially different
from those identified or depicted in that approved Permit Application,
or if Licensee otherwise determines that it cannot complete its work,
as contemplated by or approved in that Permit Application, in
accordance with the Standards, then Licensee shall promptly notify
Company, and shall not undertake any such work until such time as
Company has authorized such work. While performing any work
identified in and approved pursuant to a Permit Application, the
Licensee Party performing such work shall maintain a copy of that
Permit Application at the location where such work is being
performed. That copy of the Permit Application shall be made
available for inspection by Company, or by Company
Representatives, upon request.
4.6 Time to
Complete Work
After Approval
of a Permit
Application
Upon written notice from Company, Licensee shall, at its sole
expense and within the period specified in the notice, replace,
relocate or modify all or any portion of the Equipment on a Pole that
Company requests in such notice. Licensee, in the exercise of its
sole discretion and in accordance with the provisions of Sections 6.1,
6.5 and 8, may, instead of performing such work, remove all of the
Equipment on the Pole, within the time period specified in the notice,
and provided that such removal does not create a safety hazard or
otherwise result in a condition of non-compliance with the Standards.
Licensee may perform such work without prior notice to Company and
without first submitting a Permit Application to Company; provided,
however, Licensee shall notify Company of the performance of such
work within fifteen (15) days of its completion. If Licensee fails to
4.7 Relocation,
Replacement or
Modification of
Equipment at
Company's
Request
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DISTRIBUTION POLE LICENSE AGREEMENT
perform such work within the period specified in the notice, Company
may, without notice or demand to Licensee and at the sole expense of
Licensee, either perform all or any portion of such work, or remove all
or any portion of the Equipment from that Pole.
Company, in the exercise of its sole discretion and in accordance with
the provisions of the Agreement, may transfer Licensee’s simple,
tangent attachments to a new Company Pole or relocate simple,
tangent attachments as needed on an existing Pole, provided that
such work does not create a safety hazard. The parties agree that,
notwithstanding 47 C.F.R. § 1.1403, Company may perform such
work without prior notice to Licensee, and shall notify Licensee of the
performance of such work within fifteen (15) days of its completion,
and request inspection by Licensee of said work for Standards
compliance. Company shall invoice Licensee seventy-five Dollars
($75.00) per transfer for all transfers performed on a monthly basis,
with payment due within thirty (30) days of receipt. At Company’s
discretion, Company may increase or decrease said transfer price
from time to time upon sixty (60) days’ notice to Licensee. For and
with respect to Equipment located within the Power Space, such work
shall continue to be performed exclusively by an Approved Power
Space Contractor.
Licensee may communicate in writing to Oncor that it does not wish to
participate in the transfer program described in the preceding
paragraph, or that it does not wish for Oncor to make a specific
category or type of transfer or relocation upon Licensee’s behalf.
Licensee shall notify Company before it begins any work authorized
by a Permit Application, approved by Company pursuant to the
procedures prescribed by this Section 4; such notice shall include,
without limitation, the date on which Licensee anticipates beginning
that work. Company may have a representative present during all or
any portion of such work. Licensee shall notify Company of the
attachment, replacement, relocation or modification of Equipment on
any Pole within fifteen (15) days of the completion of such work. The
notice shall identify the nature of the work and the Equipment and
Poles involved. Company may inspect all or any portion of such work
at any time after its completion, for the purpose of: (a) initially
evaluating the work, to determine if it was performed in accordance
with the Permit Application; and (b) subsequently evaluating any
follow-up or "punch list" work performed by Licensee, reasonably
determined to be necessary during the initial evaluation. Licensee
shall reimburse Company or, as appropriate, Company
Representatives, for all expenses incurred by Company or, as
appropriate, Company Representatives, in connection with such
entities' presence at or inspection of such work, or for all expenses
otherwise incurred by Company or Company Representatives in
completing the post-work evaluations described above.
4.8 Notice to
Company
Except as otherwise expressly authorized in writing by Company’s
designated representative, Licensee shall not attach any Equipment
to any portions of a Pole consisting of: (a) guy wires or anchor rods; or
(b) cross-arms or brackets. In addition, when making attachments to
any non-wood Poles, Licensee shall comply with any applicable
specialized attachment methods, as prescribed in the Standards or
otherwise specified by Company.
4.9 Guy Wires,
Anchor Rods,
Cross-arms And
Brackets/Non-
Wood Poles
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DISTRIBUTION POLE LICENSE AGREEMENT
At such time as any Equipment is attached to a Pole, Licensee shall
attach or otherwise securely affix to that Equipment an identification
tag, readable from ground level beneath the Pole that identifies such
Equipment as belonging to Licensee and contains an emergency
phone number at which Licensee’s Authorized Representative may be
contacted. The identification tag and required attachment hardware
shall be provided by the Licensee. Licensee shall not attach any other
identification tag to its Equipment, attached to any Pole, without the
prior written consent of Company’s designated representative.
Licensee shall attach or otherwise affix the identification tag to its
Equipment, attached to any Pole, as close to that Pole as is
practicable, consistent with the Standards. As part of its routine and
periodic maintenance of its Equipment, and throughout the term of
this Agreement, Licensee will ensure that the identification tags
remain securely attached or otherwise affixed to that Equipment,
including any Equipment which may have been previously attached to
a Pole without an identification tag. In the event that Licensee
determines that any of its Equipment, attached to any Pole, is no
longer tagged, Licensee shall thereafter promptly attach to that
Equipment a replacement identification tag. In addition to and apart
from the requirements provided for above in this Section 4.10,
Licensee shall, with respect to its Equipment, comply with any other
tagging, labeling, or other identification requirements, as may be
imposed by any governmental entities.
4.10. Identification of
Licensee’s
Equipment
SECTION 5.
MAINTENANCE AND
REPAIR OF EQUIPMENT
Licensee shall, at its sole expense, maintain all Equipment on Poles in
a safe condition and in thorough repair (including, without limitation, in
compliance with the Standards). Licensee may perform maintenance
and repair work on such Equipment without giving prior notice to, or
obtaining the prior approval of, Company. If Licensee fails to maintain
any such Equipment in a safe condition and in thorough repair,
Company may, in its sole discretion, without notice or demand to
Licensee and at the sole expense of Licensee, perform such repairs
or maintenance as it deems necessary to restore that Equipment to a
safe condition and in thorough repair. As part of its maintenance
work, Licensee shall promptly remove, from the vicinity of any Pole,
any debris (including, without limitation, wood chips or cut limbs)
resulting from Licensee’s maintenance or repair of its Equipment.
Licensee’s right to maintain and repair its Equipment, as provided for
in this Section 5.1, shall not extend to or include the attachment or
other positioning of new Equipment, or the placement of new facilities
to upgrade or increase the capacity of Licensee’s existing Equipment,
or any Overlashing, of or pertaining to existing Equipment.
5.1 Maintenance of
Equipment
At an interval no more frequent than once every twelve (12) months,
Company may inspect all or any portion of the Equipment on any
Pole, for the purpose of determining whether such Equipment is in a
safe condition and in thorough repair (including, without limitation, in
compliance with the Standards). Upon notice from Company,
Licensee shall, at its sole expense and within such reasonable period
as may be specified in the notice, perform any repair or maintenance
work, relating to the Equipment on any Pole specified in such notice,
5.2 Routine
Inspection of
Equipment by
Company
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DISTRIBUTION POLE LICENSE AGREEMENT
as necessary to ensure that such Equipment is in a safe condition and
in thorough repair. Licensee shall notify Company of the performance
of such work within fifteen (15) days of its completion. If Licensee
fails to perform such work, Company may, without notice or demand
to Licensee, and at the sole expense of Licensee, either perform all or
any portion of such necessary work, or remove all or any portion of
the Equipment from that Pole. Company’s actions and decisions in
either performing or choosing not to perform such inspections shall
not operate to relieve Licensee of any responsibility, obligation, or
liability Licensee may have pursuant to this Agreement.
In addition to the inspection rights provided for in Section 5.2, in the
event that Company should otherwise determine or discover that one
or more of Licensee’s attachments of Equipment to Poles is not in
compliance with the Standards or, in Company’s reasonable
judgment, otherwise presents a safety hazard, Company may, at
Licensee’s expense, inspect all or any portion of Licensee’s other
Equipment on any Pole, for the purpose of determining whether such
Equipment is in a safe condition and in thorough repair (including,
without limitation, in compliance with the Standards). Upon notice
from Company, Licensee shall, at its sole expense and within such
reasonable period as may be specified in the notice, perform any
repair or maintenance work, relating to the Equipment on any Pole
specified in such notice, as necessary to ensure that such Equipment
is in a safe condition and in thorough repair. Licensee shall notify
Company of the performance of such work within fifteen (15) days of
its completion. If Licensee fails to perform such work, Company may,
without notice or demand to Licensee, and at the sole expense of
Licensee, either perform all or any portion of such necessary work or
remove all or any portion of the Equipment from that Pole.
Company’s actions and decisions in either performing or choosing not
to perform such inspections shall not operate to relieve Licensee of
any responsibility, obligation, or liability Licensee may have pursuant
to this Agreement.
5.3 Special
Inspection of
Equipment by
Company
SECTION 6. REMOVAL OF
EQUIPMENT
Licensee, in the exercise of its sole discretion, may remove any
Equipment on any Pole, without prior notice to or the prior approval of
Company; provided, however, that Licensee shall submit a Permit
Application pertaining to such completed work, pursuant to Section
6.5. If Company determines that such removal or related work
performed by Licensee resulted in a safety hazard (including, without
limitation, a condition of non-compliance with the Standards) then
Licensee shall, at its sole expense and within such reasonable period
as may be specified in the notice, replace such Equipment or perform
any other corrective action, as necessary to correct that safety hazard
or other condition of non-compliance. Licensee shall notify Company
of the performance of such work within fifteen (15) days of its
completion. If Licensee fails to perform such work within the period
specified in the notice, Company may, without notice or demand to
Licensee and at the sole expense of Licensee, perform all or any
portion of such work.
6.1 Removal of
Equipment by
Licensee
In the event that Licensee either: (a) discontinues its use of any
Equipment for purposes of the Permitted Use; or (b) does not use any
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DISTRIBUTION POLE LICENSE AGREEMENT
Equipment, for purposes of the Permitted Use, for any consecutive
period of one-hundred eighty (180) days, then Licensee shall, at its
sole expense and within thirty (30) days of either such occurrence,
remove that Equipment from any Pole. The Overlashing of any
Equipment shall not constitute use of that Equipment, for purposes of
this paragraph.
Upon notice from Company, Licensee shall, at its sole expense,
remove all of the Equipment on any Pole, which Company is
abandoning, or otherwise discontinuing its use of for purposes of
providing electric utility service (including, without limitation,
discontinuance due to Company being required to relocate its facilities
to underground locations). Licensee shall remove all such Equipment
within thirty (30) days of receiving such notice.
6.2 Removal of
Equipment
Upon
Abandonment of
Pole, or
Discontinuance
of Utility Service
In the event that Company contracts to sell or sells a Pole on which
Equipment is attached, Company shall notify Licensee of such fact.
Unless Licensee obtains the permission of the new owner of the Pole
to maintain its Equipment on the Pole, Licensee shall, at its sole
expense, remove the Equipment from that Pole within the time period
specified in such notice.
6.3 Removal when
Company Sells
a Pole
Licensee shall, at its sole expense, remove all of the Equipment on all
Poles prior to the end of the term of this Agreement (as provided for in
Section 9) or within thirty (30) days of receiving notice of Company’s
intent to terminate this Agreement for other reasons, as expressly
provided for in this Agreement (including, without limitation, pursuant
to Section 11).
6.4 Removal Upon
Termination of
this Agreement
Whenever Licensee removes any Equipment from a Pole, it shall
submit to Company, within fifteen (15) days thereafter, a Permit
Application, signed by an appropriate Authorized Representative and
identifying, in the appropriate spaces thereon, the Equipment
removed and the Pole from which it was removed.
6.5 Submission of a
Permit
Application
Following the
Removal of
Equipment on a
Pole
In the event that Licensee fails to remove all or any portion of the
Equipment on any Pole within the time period required by the
provisions of this Section 6 or by other applicable provisions of this
Agreement, Company may, without notice or demand to Licensee,
remove such Equipment. Such removal shall be at the sole expense
of Licensee and Licensee shall pay Company, upon receipt of an
invoice therefor and in addition to any expenses incurred by Company
in connection with such removal, as a processing charge, fifty dollars
($50) for each Pole from which Equipment is removed.
6.6 Licensee's
Failure to
Timely Remove
Equipment
SECTION 7.
EMERGENCIES
In the event of an emergency pertaining to a Pole, Licensee shall, at
its sole risk and expense, have the right to attach, replace, relocate or
modify Equipment on any Pole without first obtaining Company's
approval of a Permit Application for such work; provided, however,
that before performing such work, an Authorized Representative shall
obtain the oral approval of Company’s designated representative, and
provided further that such work is performed within the time period
7.1 Licensee's
Rights in an
Emergency
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DISTRIBUTION POLE LICENSE AGREEMENT
and under such conditions as may be reasonably specified by such
representative of Company. Any such oral approval shall be
confirmed, within five (5) days of the performance of the work, by
Licensee to Company in writing, identifying both the work performed
and the Poles affected. If Company determines that such emergency
attachment, replacement, relocation or modification resulted in a
safety hazard (including, without limitation, a condition of non-
compliance with the Standards), and Company provides Licensee
with a written notice of such determination, then Licensee shall, at its
sole expense and within such reasonable period as may be specified
in the notice, remove, replace, relocate or modify all or any portion of
such Equipment, as necessary to correct that safety hazard or other
condition of non-compliance. Licensee shall notify Company of the
performance of such work within fifteen (15) days of its completion. If
Licensee fails to perform such work, Company may, without notice or
demand to Licensee and at the sole expense of Licensee, either
perform all or any portion of such work or remove the Equipment from
the Pole.
In the event of an emergency, Company may, without prior notice to
Licensee and at Licensee's sole expense, permanently or temporarily
replace, relocate, modify, remove or perform any other work in
connection with the Equipment on any Pole. In such event, Company
shall notify Licensee of both the work performed and the Pole affected
by such work within a reasonable time after its performance.
7.2 Company's
Rights in an
Emergency
SECTION 8. DISCHARGE
OF LIENS; PERFORMANCE
OF WORK
Licensee agrees that it will not, directly or indirectly, create, incur,
assume or suffer to exist any lien (whether mechanics, materialman or
other) or other encumbrances on the Equipment attached to any Pole,
or to any property, real or personal, owned or controlled by an
Company Group, resulting from or arising out of any work performed
by or on behalf of Licensee (including, without limitation, by any
Licensee Party) pursuant to this Agreement. Licensee will, at its sole
expense, promptly take any action as may be necessary to discharge
any such lien or encumbrance.
8.1 Discharge of
Liens or other
Encumbrances
All work performed by any Licensee Party, pursuant to or within the
scope of this Agreement, shall be undertaken and completed in a
safe, good and workmanlike manner (including, without limitation, in
compliance with the Standards) and shall not interfere with the use of
any equipment of any Company Group or any Joint User. Licensee
shall ensure that any Licensee Party, performing any such work, is
properly trained with respect to, and otherwise familiar with, all
applicable safety procedures and requirements (including, without
limitation, those pertaining to the risks associated with making contact
with electrical conductors, and prohibitions against coming into closer
proximity to the electrical conductors of Company than is permitted by
the Standards).
8.2 Licensee's
Performance of
Work
This Agreement, if not terminated earlier in accordance with the
provisions of Section 11, shall continue in effect for a term of one (1)
year and thereafter until terminated as provided herein. This
Agreement may be terminated in its entirety or with respect to any one
SECTION 9. TERM
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DISTRIBUTION POLE LICENSE AGREEMENT
or more of the Poles, or with respect to one or more designated areas
in which Company provides utility service, at the end of the initial one
year term, or at any time thereafter, by either Party giving to the other
Party at least sixty (60) days' written notice. Upon termination of this
Agreement for any reason, all obligations of the Parties pursuant to
this Agreement shall terminate, except for those which, by their sense
and context, are intended to survive such termination, including,
without limitation, obligations pertaining to indemnification.
SECTION 10. RENTAL AND
OTHER PAYMENTS
In each calendar year during the term of this Agreement, Licensee
shall make an advance rental payment to Company. During the first
calendar quarter of each year, Company shall submit to Licensee an
invoice designating the advance rental payment due for that calendar
year; further, Company shall make a reasonable effort to submit that
invoice to Licensee during the month of January of each year. That
invoice shall be paid in accordance with the provisions of Sections
10.8 and 10.9.
10.1 Advance Rental
Payment
The advance rental payment shall be equal to the rental payment
specified in Section 10.3 times the sum of the individual Poles on
which Equipment is attached, on January 1 of the calendar year for
which the advance rental payment is being paid, as determined from
the perpetual inventories maintained by the Parties pursuant to
Section 10.6
10.2 Computation of
the Advance
Rental Payment
The rental rate for attachments of Equipment to each Pole shall be in
the amount specified in Attachment B.
10.3 Rental Rate
The rental rate will be adjusted each calendar year by the amount of
any increase in the Consumer Price Index (published by the Bureau of
Labor Statistics of the U.S. Department of Labor), for the twelve
month period ending September 30 of the year immediately preceding
the year with respect to which the rate adjustment is being made.
10.4 Adjustments to
Rental Rate
The advance rental payment may be adjusted, at Company’s
discretion, for all additional Poles on which Equipment is attached
during any calendar year. If invoiced by Company, Licensee shall
make payments to Company reflective of additional Poles on which
Equipment is attached at any time during such calendar year.
10.5 Adjustment to
the Advance
Rental Payment
Company shall maintain a perpetual compilation of the Permit
Applications and notices submitted to it by Licensee pursuant to this
Agreement. Licensee and Company shall maintain perpetual
inventories of the Equipment attachments on Poles and the Poles on
which Equipment is attached. Such inventories shall be based on the
physical inspections specified in this Section 10.6, together with the
Permit Applications and notices pertaining to attachments of
Equipment required by this Agreement. The Parties will conduct, or
will cause to have conducted, a physical inspection of the Equipment
attached to Poles every five (5) years, at a time designated by
Company. Such inspection will be conducted either: (a) by joint
physical inspection, utilizing both Licensee and Company employees;
or (b) when Company and Licensee employees are not available to
perform the inspection, by a contractor selected by Company, in its
10.6 Compilation of
Permit
Applications and
Notices;
Perpetual
Inventories;
Physical
Inspection
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DISTRIBUTION POLE LICENSE AGREEMENT
reasonable judgment. In the event that the inspection is performed by
a contractor, Company will, from time to time during the course of that
inspection, review the contractor's work to assess whether the
inspection is being performed accurately. Company shall use
reasonable efforts to have the physical inspection conducted in
cooperation with Joint Users (including, as appropriate, having the
inspection performed with respect to all attachments on Poles, rather
than with respect to just the Licensee’s attachments), and the costs of
any joint physical inspection, undertaken in cooperation with Joint
Users, shall be borne pro rata by the Licensee and Joint Users.
Nevertheless, Licensee will otherwise be charged for and shall pay all
costs for, or incurred in connection with, the inspection, regardless of
the method utilized. Such costs will include, but are not limited to,
costs of materials employees, and contractors, transportation costs,
and any miscellaneous charges necessary for conducting the
inspection.
Licensee acknowledges that Company may, in its discretion, contract
with or otherwise arrange for one or more agents or contractors to act
for or on behalf of Company, or in furtherance of Company’s rights,
pursuant to or in connection with this Agreement (collectively,
“Company Representatives”). Licensee agrees that Company
Representatives may invoice Licensee for all costs and expenses
incurred by them in furtherance of such actions. Further, Licensee
agrees that Company Representatives shall be third party
beneficiaries to the extent necessary for them to enforce Licensee’s
payment obligations hereunder. Company Representatives shall
invoice Licensee for all costs and expenses incurred by them
pursuant, but not limited to, Section 3, 4, 5, 6, 7 and 10, from time to
time.
10.7 Licensee's
Payment of
Costs and
Expenses
Incurred by
Company or
Company
Representatives
Subject to Section 4.1.2 pertaining to Preparation Costs, Licensee
shall pay each invoice submitted to it by Company or, as appropriate,
by an Company Representative, within thirty (30) days of its receipt of
that invoice and will remit payment to the address indicated on each
invoice, as Company or Company Representatives may designate
from time to time. Any portion of an invoice not paid when due shall
bear interest at a rate of one and one-half percent (1.5%) per month
or the maximum rate allowed by law, whichever is less, unless such
amount is disputed and is paid into escrow pursuant to Section 10.9.
10.8 Payment of
Invoices
Unless otherwise agreed to by the Parties, whenever Licensee in
good faith disputes a payment, it shall deposit the amount in dispute
in an interest bearing escrow account acceptable to Company within
the time period provided by Section 10.8. Any amount so deposited
shall remain in such escrow account until the dispute is resolved.
Upon resolution of the dispute, the amount so deposited, plus interest
earned on that amount, shall be paid to the Party determined to be
entitled to the amount in the escrow account.
10.9 Disputed
Invoices or
Adjustments
SECTION 11. DEFAULT
AND TERMINATION
If Licensee: 11.1 Default by
Licensee
(a) fails to pay fully or deposit in escrow all monies due Company
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DISTRIBUTION POLE LICENSE AGREEMENT
or Company Representatives on the date that the payment is due,
pursuant to the provisions of Section 10, and such failure shall
continue, in whole or in part, for a period of more than thirty (30) days;
or
(b) fails to comply with any term, condition or covenant of this
Agreement, other than any provision providing for the payment of
monies due Company or Company Representatives, and such failure
remains uncured for a period of thirty (30) days following Licensee's
receipt of written notice of the kind, character and nature of the failure
by Licensee (or if such non-compliance cannot reasonably be cured
within thirty (30) days of such notice, Licensee has not commenced to
cure and satisfy the failure within thirty (30) days and shall not
thereafter proceed to cure such failure with reasonable diligence and
good faith); then, in any such event, Licensee shall pay all monies
owed to Company or Company Representatives under this
Agreement in accordance with the provisions of Section 10, and
Company may pursue any one or more of the following remedies, and
Company Representatives may pursue the remedies contained in
subsection (iii) below, without any notice or demand whatsoever to
Licensee:
(i) cancel and terminate this Agreement in its entirety, or with
respect to one or more designated areas in which Company provides
utility service, or with respect to any one or more of the Poles; or
(ii) revoke Licensee's permission to use any Poles involved in
such default or non-compliance; or
(iii) institute suit or other adjudicatory proceedings.
Licensee shall pay all of the costs and expenses, including, without
limitation, reasonable attorneys' fees, incurred by Company or, as
appropriate, Company Representatives, by reason of the foregoing
events of default, and in seeking any remedy for, or relief from, such
events of default. Company's, or Company Representatives', pursuit
of any of the respective remedies available to them pursuant to this
Section 11.1, shall not preclude Company or Company
Representatives from pursuing any other remedies provided for in this
Agreement or otherwise provided by law, nor shall Company's, or
Company Representatives', pursuit of any remedy provided in this
Agreement constitute a forfeiture or waiver of any payment of monies
due to Company or Company Representatives under this Agreement,
or of any damages accruing to Company or Company
Representatives by reason of Licensee's failure to comply with any of
the terms, conditions or covenants of this Agreement.
In the event any lawfully required franchise, license, permit, waiver,
consent or easement held by Licensee, and required for or in
furtherance of Licensee’s use of any Equipment attached to Poles, is
revoked or denied to Licensee for any reason, in whole or in part,
Licensee's rights under this Agreement shall immediately terminate to
such extent, and Licensee shall, within thirty (30) days, remove such
Equipment from Poles as may be required to comply with such
revocation or denial of authority.
11.2 Termination
Upon
Licensee's Loss
of its Franchise
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DISTRIBUTION POLE LICENSE AGREEMENT
SECTION 12.
INDEMNIFICATION,
CONSEQUENTIAL
DAMAGES AND TEXAS
DECEPTIVE TRADE
PRACTICES-CONSUMER
PROTECTION ACT
(a) Licensee shall indemnify, defend, protect and hold harmless
the Indemnified Parties from and against all claims, demands,
actions, judgments, loss, costs and expenses, including
attorneys’ fees, (collectively, “Claims”) arising or claimed to
have arisen by, through or as a result of any of Licensee’s
Equipment, or as a result of the acts or omissions of any of
Licensee or its employees, agents or contractors, in respect
to, without limitation, the following:
i. damage to or loss of property (including, without
limitation, property of Company or Licensee);
ii. injuries or death to persons, including payments made
under any Worker’s Compensation Law or under any
plan for employees’ disability and death benefits;
iii. any condition of the Poles and/or Licensee’s
Equipment;
iv. separate operations being conducted on the
premises;
v. Licensee’s breach of this Agreement;
vi. damages or injures to Licensee’s Equipment.
However, Company shall be responsible for the lesser
of the cost of repairing or replacing any of Licensee’s
Equipment that is damaged as a result of the gross
negligence or willful misconduct of the Indemnified
Parties;
vii. any termination or disruption of any Service;
viii. the proximity of Licensee’s Equipment;
ix. any interference with the television or radio reception
of, or with the transmission or receipt of
telecommunications by, any person which may be
occasioned by the installation or operation of
Licensee’s Equipment;
x. additional compensation for use of Company’s
distribution rights-of-way for an additional use; or
12.1 Licensee's Obligation to
Indemnify
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DISTRIBUTION POLE LICENSE AGREEMENT
xi. the imperfection, whether latent or patent, of any
Pole, material or equipment furnished by an
Indemnified Party.
(b) IT IS THE EXPRESS INTENT OF THE PARTIES THAT
LICENSEE'S OBLIGATION TO INDEMNIFY, DEFEND,
PROTECT, AND HOLD HARMLESS, INCLUDING
ATTORNEYS’ FEES, SHALL INCLUDE, WITHOUT
LIMITATION, CLAIMS ARISING OR CLAIMED TO HAVE
ARISEN BY, THROUGH OR AS A RESULT OF ANY
INDEMNIFIED PARTY’S SOLE OR CONCURRENT:
i. NEGLIGENCE;
ii. STRICT LIABILITY IN TORT;
iii. BREACH OF WARRANTY, EXPRESS OR IMPLIED;
OR
iv. OTHER FAULT OF ANY NATURE.
(c) Section 12.1(a) notwithstanding, in any action, suit, or
proceeding involving Claims arising out of or incident to,
directly or indirectly, this Agreement, in which both Licensee
and any Indemnified Party are made parties and where the
Court, in such action, suit, or proceeding, permits a
submission to the finder of fact as to the comparative fault or
responsibility of Licensee and any Indemnified Party in
relation to each other, and in relation to other parties to such
action, suit, or proceeding, Licensee and the Indemnified
Parties hereby agree that they will have their respective
measures of comparative fault or responsibility submitted to
the finder of fact. Licensee shall not be required to indemnify
any Indemnified Party for the liability of any Indemnified Party,
as to such Claims for or with respect to any percentage of
fault or responsibility found by the finder of fact to be
attributable to any Indemnified Party. Further, after such
finding is made, Company shall promptly reimburse Licensee
for that portion of costs or expenses incurred by Licensee, in
defending or responding to such Claims, allocable to the
percentage of fault or responsibility found to be attributable to
any Indemnified Party.
(d) Section 12.1(a) notwithstanding, with regard to any action
described in Section 11.1(c) in which the Court, in such
action, suit, or proceeding, fails or refuses to permit a
consideration by the finder of fact as to the comparative fault
or responsibility of Licensee and any Indemnified Party in
relation to each other, and in relation to other parties to such
action, suit, or proceeding, and where, upon final adjudication
of the action, suit, or proceeding, either an Indemnified Party
or Licensee is found to be liable to the party or entity initiating
such action, suit or proceeding; or upon final settlement and
release of Claims, under circumstances in which no such
finder of fact has made a determination as to such
comparative fault or responsibility, Licensee and the
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DISTRIBUTION POLE LICENSE AGREEMENT
Indemnified Parties agree to submit to mediation the issue of
comparative fault or responsibility (whether arising from
common law, statute, or this Agreement), as between any
Indemnified Party and Licensee. In the event that Licensee
and the Indemnified Parties are unable to agree upon their
comparative fault or responsibility through that mediation
process, then Licensee and the Indemnified Parties agree to
submit to arbitration, in accordance with the then prevailing
rules of the American Arbitration Association, the issue of
comparative fault or responsibility (whether arising from
common law, statute, or this Agreement), as between the
Indemnified Parties and Licensee. In determining the
percentage of such responsibility as between the Indemnified
Parties and Licensee, the arbitrator shall consider the
percentage attributable to each party with respect to causing
in any way, whether by negligent act or omission or otherwise,
the personal injury, property damage, death or other harm out
of which such Claims arose. With respect to the arbitrator’s
findings as to the comparative fault or responsibility of the
parties, Licensee shall not be required to indemnify any
Indemnified Party for the liability of any Indemnified Party as
to such Claims for or with respect to any percentage of fault or
responsibility found by the arbitrator to be attributable to any
Indemnified Party. Further, after such finding is made,
Company shall promptly reimburse Licensee for that portion
of costs or expenses incurred by Licensee, in defending,
responding to, or settling such Claims, allocable to the
percentage of fault or responsibility found to be attributable to
any Indemnified Party.
Under no circumstances whatsoever shall any Company Group be
liable to any Licensee Party in contract, in tort (INCLUDING SOLE OR
CONCURRENT, ACTUAL OR IMPUTED, NEGLIGENCE, OR
STRICT LIABILITY), under any warranty, or otherwise for any special,
indirect, incidental, or consequential loss or damage of any nature,
including, without limitation, for the cost of capital, loss of profits or
revenues or the loss of use thereof, attorneys' fees (except as
otherwise expressly provided for in this Agreement) or the cost of
purchased or replacement services, or claims of Licensee's users,
licensees, concessionaires, or any other person, firm or entity in such
regard, and Licensee agrees to indemnify and hold each Company
Group harmless from and against such losses or damages.
12.2 Licensee's Waiver of
Consequential Damages
No Company Group shall have any liability to any Licensee Party for
any expense, damage or loss caused, in whole or in part, by the
action of any Company Group that damages or injures any Equipment
except to the extent directly attributable to the gross negligence or
willful misconduct of any Company Group.
12.3 No Liability for Damage
to Equipment
To the extent that the Texas Deceptive Trade Practices -
Consumer Protection Act, Texas Bus. & Comm. Code
Section 17.41, et. seq., may be applicable to any Claim that
Licensee may have against any Company Group in any way
arising out of, related to, caused by or incident to this
Agreement, Licensee waives the applicability of such Act to the
maximum extent that it can now or in the future be waived.
Notwithstanding the foregoing, nothing in this Agreement shall
12.4 Licensee's Waiver of
Rights and Remedies
Under the Texas Deceptive
Trade Practices-
Consumer Protection Act
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DISTRIBUTION POLE LICENSE AGREEMENT
be construed as an admission by any Party that Licensee is a
"consumer" as defined in such Act or that such Act is otherwise
applicable to any Company Group, any Licensee Party or this
Agreement.
Within a reasonable period after receiving or becoming aware of the
assertion of any Claim within the scope of Section 12.1, Company
shall notify Licensee of the assertion of such Claim. Company's
failure to provide such notice shall not, however, alter or, in any
manner, impair Licensee's obligations of indemnity, as provided for in
Section 12.1.
12.5 Notice Of Claim To
Licensee
SECTION 13. INSURANCE
Licensee shall, at its sole expense and during the term of this
Agreement, purchase and maintain insurance in accordance with the
requirements of Attachment C, Licensee’s Insurance Requirements.
However, notwithstanding the foregoing insurance requirements, if an
entity is exempt by law from the provision of insurance or has
otherwise been granted by law the ability to self-insure, a cite to the
applicable law or regulation creating such exemption, or other
verifiable evidence of any exemption from the provision of insurance
is required. Such evidence shall be provided to Company prior to the
execution of this Agreement and shall be made an attachment hereto.
13.1 Proof of
Coverage
Licensee will notify the Company manager of claims per the
requirements in Attachment C as soon as practical of any accidents or
occurrences resulting in injuries to any person, including death, or any
property damage (including, without limitation, damage to any
Equipment or Pole), arising out of or relating to this Agreement.
Nothing in this Section 13, or the provision of any insurance required
by this Section 13, shall affect, limit or otherwise reduce the indemnity
obligations provided for in Section 12.
13.2 Notification of
Accident, Injury,
or Damage
13.3 Enhancement of
Indemnification
SECTION 14. NON-
EXCLUSIVITY OF THIS
AGREEMENT
The license granted to Licensee hereunder with respect to any Pole
shall be non-exclusive, in that Company reserves the right to use any
or all of such Pole for any lawful purpose or business, or to lease or
otherwise permit any other person or entity the right to lease or use
any or all of such Pole for any lawful purpose.
14.1 Company
Licensee has and retains whatever rights it may have to install and
construct its Equipment, separate and apart from this Agreement;
provided, however, that in no event shall Licensee make any use of
Poles, or any other facilities or equipment of Company, except in
accordance with, and subject to, the terms and conditions of this
Agreement; and provided further, however, that Licensee shall not
locate poles, guys, or other facilities where they will (a) interfere with
14.2 Licensee
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DISTRIBUTION POLE LICENSE AGREEMENT
access to Poles or the operation of Company's electric system; or (b)
result in or cause a condition of non-compliance with any provision of
the Standards.
SECTION 15.
ASSIGNMENTS
In addition to the limitations provided for in, and without limiting
Licensee's responsibilities under, Section 2.2, Licensee shall not,
without the prior written consent of Company, transfer, assign,
delegate or sublet any of its rights or obligations under this
Agreement.
15.1 Assignment by
Licensee
Except to the extent expressly consented to by Company (such
consent not to be unreasonably withheld), no permitted transfer,
assignment, delegation or subletting by Licensee shall release or
relieve Licensee, or Licensee’s successor-in-interest, of any of its
obligations under this Agreement, and Licensee, or Licensee’s
successor-in-interest, shall remain fully obligated and liable to
Company under this Agreement, notwithstanding any such permitted
transfer, assignment, delegation or subletting.
15.2 Non-Release
Company may transfer, assign or delegate any of its rights or
obligations under this Agreement at any time, without the consent of
or prior notice to Licensee. Company shall notify Licensee of any
such transfer, assignment or delegation within thirty (30) days thereof.
15.3 Assignment by
Company
This Agreement shall be binding upon and inure to the benefit of the
Parties and their respective successors and assigns, where
assignment is permitted by this Agreement.
15.4 Successors and
Assigns
Licensee shall pay, in the normal course of its business and before
they become delinquent, all taxes, assessments, fees and other
governmental charges of any kind whatsoever properly levied or
assessed against it, or against the Equipment or otherwise pertaining
to the Permitted Use, including, without limitation, all franchise,
license, permit, and other fees due to any cities or other governmental
bodies in connection with Licensee engaging in the Permitted Use.
SECTION 16. LICENSEE'S
PAYMENT OF TAXES,
ASSESSMENTS, FEES
AND OTHER
GOVERNMENTAL
CHARGES
THIS AGREEMENT IS GOVERNED BY AND WILL BE CONSTRUED
IN ACCORDANCE WITH LAWS OF THE STATE OF TEXAS
WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF
LAW PROVISION OR RULE (WHETHER OF THE STATE OF TEXAS
OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE
APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER
THAN THE STATE OF TEXAS. THE PARTIES MUTUALLY
CONSENT TO THE EXCLUSIVE JURISDICTION OF THE FEDERAL
AND STATE COURTS IN TARRANT COUNTY, TEXAS AND AGREE
THAT ANY ACTION, SUIT OR PROCEEDING CONCERNING,
RELATED TO OR ARISING OUT OF THIS AGREEMENT AND THE
NEGOTIATION OF THIS AGREEMENT WILL BE BROUGHT ONLY
IN A FEDERAL OR STATE COURT IN TARRANT COUNTY, TEXAS
AND THE PARTIES AGREE THAT THEY WILL NOT RAISE ANY
DEFENSE OR OBJECTION OR FILE ANY MOTION BASED ON
LACK OF PERSONAL JURISDICTION, IMPROPER VENUE,
INCONVENIENCE OF THE FORUM OR THE LIKE IN ANY CASE
FILED IN A FEDERAL OR STATE COURT IN TARRANT COUNTY,
SECTION 17. CHOICE OF
LAW
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DISTRIBUTION POLE LICENSE AGREEMENT
TEXAS. THE PARTIES MUTUALLY AGREE THAT THIS
AGREEMENT IS A “MAJOR TRANSACTION” WITHIN THE
MEANING OF THE TEXAS CIVIL PRACTICE AND REMEDIES
CODE § 15.020 AND AS SUCH AGREE THAT ANY ACTION OR
SUIT ARISING FROM THIS AGREEMENT WILL BE BROUGHT IN
TARRANT COUNTY, TEXAS, AND VENUE WILL BE IN TARRANT
COUNTY, FORT WORTH, TEXAS.
This Agreement and all Attachments attached hereto shall constitute
the entire, complete and final agreement of the Parties with respect to
the subject matter hereof, and all prior negotiations, undertakings,
understandings, representations, statements and agreements
between the Parties with respect to the subject matter hereof are
merged into this Agreement.
SECTION 18. COMPLETE
AGREEMENT
SECTION 19. NOTICES
Any notice, other than Permit Applications, required to be given or
made in connection with this Agreement shall be in writing and shall
be deemed properly or sufficiently given or made if: (a) delivered in
person with receipt acknowledged in writing by the person specified
below; (b) sent by registered or certified mail, return receipt
requested, to the person and address specified below; (c) sent by
confirmed telephonic document transfer to the person and fax number
specified below; (d) sent electronically to the recipient’s designated e-
mail address; provided that the recipient acknowledges receipt of that
notice; or (e) sent or delivered by such other method as will ensure
evidence of its receipt by the person specified below:
19.1 Method of
Notice
(a) If to Licensee(Contracts Administrator):
The City of University Park Texas
3800 University Blvd
University Park TX, 75025-1711
Attn: Mr. Bob Livingston
Telephone Number: 214-987-5300
Email: city-manager@uptexas.org
(b) If to Company:
Oncor Electric Delivery Company LLC
Attention: Contracts Administrator
115 W. 7th Street, Suite 805
Fort Worth, TX 76102
Attn: Alan Quam
Telephone Number: 817-215-6755
Fax Number: 817-215-6152
Email: alan.quam@oncor.com
Notices given or made pursuant to or in connection with this
Agreement shall be effective as of the time of delivery to or receipt by
the Party to whom such notice is addressed; provided, however, that
no notice shall be effective unless it is given or made in compliance
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DISTRIBUTION POLE LICENSE AGREEMENT
with this Section 19.1.
The person, address, fax number, or Email address of any Party, to
which notice shall be given pursuant to Section 19.1, may be changed
at any time, upon written notice given pursuant to Section 19.1 to the
other Party.
19.2 Change in
Person's
Address and
Fax Number
SECTION 20. COMPLIANCE
WITH LAWS
Licensee shall, at its own cost, operate, attach, replace, relocate,
repair, modify and remove its Equipment on or from Poles in
compliance with the Standards, and all other applicable constitutions,
statutes, ordinances, rules, regulations, codes, orders, decisions,
ordinances and decrees of all governmental bodies with jurisdiction
over the Licensee or subject matter of this Agreement. Where a
difference in any of the foregoing specifications may exist, the more
stringent shall apply.
20.1 Licensee's
Compliance
If any portion of this Agreement becomes or is determined by a
governmental body with jurisdiction to be void, unenforceable, invalid
or illegal, Licensee and Company shall modify, to the extent they are
able to do so, such portion in a manner which preserves the intent
and effect both of such portion and the remainder of this Agreement,
to the maximum extent which is effective, enforceable, valid and legal.
A void, unenforceable, invalid or illegal portion of this Agreement shall
not affect the effectiveness, enforceability, validity or legality of the
remainder of this Agreement.
20.2 Severability
Licensee may replace any or all of its Authorized Representatives, at
any time or from time to time, by delivering to Company a written
notice specifying: (a) the name of the new Authorized Representative;
(b) if not an employee of Licensee, the employer and relationship to
Licensee; (c) title; (d) business address; (e) business telephone
number; (f) fax number; (g) Email address; (h) the name of the
Authorized Representative being replaced; and (i) the date when the
change becomes effective. Unless otherwise specified in the notice,
the new Authorized Representative shall have the same authority as
the Authorized Representative being replaced. Upon good cause
shown by Company: (i) Licensee shall increase or decrease the
number of Authorized Representatives or replace any or all of them;
and (ii) Company may reject any replacement for an Authorized
Representative
SECTION 21.
REPLACEMENT OF
AUTHORIZED
REPRESENTATIVES
SECTION 22.
AMENDMENTS AND
WAIVERS
Only written amendments of this Agreement duly authorized and
signed by the Parties shall be effective, and no writing shall constitute
an amendment of this Agreement unless such writing is expressly
identified as an amendment, with specific reference to the provisions
of this Agreement to be amended. No amendment shall be effective
prior to the date such amendment is signed by the Parties, unless
such amendment expressly so provides. Notwithstanding the
requirements of this Section 22.1, Licensee may replace any or all of
its Authorized Representatives by delivering written notice to
22.1 Amendments
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DISTRIBUTION POLE LICENSE AGREEMENT
Company in accordance with Section 21, without any requirement that
such notice be identified as, or be deemed to be, an amendment to
this Agreement.
No rights or duties under this Agreement shall be waived except as
expressly provided in this Agreement, or unless the Party having the
right expressly waives such rights or duties in a written instrument
identified as a waiver. Failure to enforce or insist upon compliance
with any of the terms or conditions of this Agreement shall not
constitute a general waiver or relinquishment of any such terms or
conditions, but the same shall be and remain at all times in full force
and effect.
22.2 Waiver
Except as specifically provided herein (and in particular, but without
limitation, for or with respect to Company Representatives), this
Agreement is entered into for the sole benefit of Company and
Licensee and, where permitted, their respective successors and
assigns. Nothing in this Agreement or in any approved Permit
Application shall be construed as giving any benefits, rights, remedies
or claims to any other person, firm, corporation or other entity,
including, without limitation, Licensee's or Company's customers,
concessionaires and licensees.
SECTION 23. AGREEMENT
FOR THE SOLE BENEFIT
OF LICENSEE AND
Company
Nothing in this Agreement shall be deemed or construed by the
Parties, or by any third party, as creating the relationship of principal
and agent, partners or joint ventures between the Parties, it being
understood and agreed that no such provision, or any acts of the
Parties, shall be deemed to create any relationship between the
Parties other than the relationship of licensor and licensee.
SECTION 24.
RELATIONSHIPS OF THE
PARTIES
SECTION 25. EXISTING
CONTRACTS
SUPERSEDED
Except for and as provided in any applicable franchise granted by
Licensee to Company or its predecessor-in-interest, any existing
agreements between the Parties or their predecessors, regarding the
attachment of Equipment to Poles, are by mutual consent of the
Parties hereby abrogated and superseded by this Agreement.
25.1 Existing
Contracts
Notwithstanding anything to the contrary in this Agreement, the
Parties from time to time may prepare and implement such
supplemental operating routines or working practices as they mutually
agree in writing to be necessary or desirable to effectively administer
the provisions of this Agreement.
25.2 Operating
Routines and
Working
Practices
Section and subsection headings are inserted in this Agreement for
convenience of reference only and shall in no way modify or restrict
any of the terms and provisions of this Agreement.
SECTION 26. HEADINGS
This Agreement may be simultaneously executed in several
counterparts. All such counterparts, when executed and delivered,
each as an original, shall constitute but one and the same instrument.
SECTION 27. EXECUTION
IN COUNTERPARTS
No provision of this Agreement shall be construed against or
interpreted to the disadvantage of either Party by any court or other
governmental or judicial authority, by reason of such Party having or
SECTION 28.
INTERPRETATION
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DISTRIBUTION POLE LICENSE AGREEMENT
being deemed to have prepared, structured or dictated such provision.
As used in this Agreement, the term “Force Majeure” means acts of
God, strikes, lockouts or other industrial disturbances, acts of public
enemies, wars, blockades, insurrections, riots, epidemics,
earthquakes, fires, restraints or prohibitions by any court, board,
department, commission or agency of the United States or of any
State, any arrests and restraints, civil disturbances, explosions,
adverse weather conditions (including, without limitation, rain, snow,
or ice), and inability despite reasonable diligence to obtain materials
essential to the obligations to be performed under the Agreement.
SECTION 29. FORCE
MAJEURE
Should either Party be rendered unable, either wholly or in part, by an
event of Force Majeure, the occurrence of which is beyond the
affected Party’s reasonable control, to fulfill its obligations under the
Agreement, the obligation(s) affected by such event of Force Majeure
shall be suspended only during the continuance of such inability. The
Party so affected shall give notice of the existence, extent and nature
of such event of Force Majeure, in writing, to the other Party within
forty-eight (48) hours after the occurrence. The Party so affected
shall remedy such inability with all reasonable dispatch and shall use
due diligence in this regard.
The following are attached to and hereby made a part of this order:
Attachment A, Authorized Representatives
Attachment B, Rental Rate Schedule
Attachment C, Licensee’s Insurance Requirements
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the EFFECTIVE
DATE first written above.
THE CITY OF UNIVERSITY PARK, TEXAS ONCOR ELECTRIC DELIVERY COMPANY LLC
Signature: Signature:
Name: Bob Livingston Name: Karen Flewharty
Title: City Manager Title: Manager, Joint Use Management Group
Date: Date:
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ATTACHMENT A
AUTHORIZED REPRESENTATIVES
Contracts Administrator
Name Bob Livingston Title : City Manager
Company City of University Park, Texas
Mailing Address 3800 University Blvd City/State/Zip : University Park, Texas 75205-1711
Phone 214-987-5300
Email city-manager@uptexas.org
Accounts Receivable
Name Bob Livingston Title : City Manager
Accounts Payable
Name Bob Livingston Title : City Manager
Construction
Name Harry Shearouse Title : Infrastructure Maintenance Superintendant
Company City of University Park, Texas
Mailing Address 3800 University Blvd City/State/Zip University Park, Texas 75205-1711
Phone 214-987-5465
Email hshearouse@uptexas.org
Engineering
Name Gene R Smallwood P. E. Title : Director of Public Works
Company City of University Park, Texas
Mailing Address 3800 University Blvd City/State/Zip University Park, Texas 75205-1711
Phone (214) 987-5400
Email bsmallwood@uptexas.org
Operations
Name Harry Shearouse Title : Infrastructure Maintenance Superintendant
Emergency
Name Harry Shearouse Title : Infrastructure Maintenance Superintendant
Claims Representative
Name Bob Livingston Title : City Manager
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ATTACHMENT B
RENTAL RATE SCHEDULE
During calendar year 2013, the rental rate for each Pole to which one or more attachments of Equipment is made
shall be:
$27.15
The rental rate specified herein is subject to, and shall be determined in accordance with, Section 10.4 of the
Agreement.
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ATTACHMENT C
LICENSEE’S INSURANCE REQUIREMENTS
A. Coverage Requirements
Licensee will, at its own expense, maintain in force throughout the period of the Agreement, or as otherwise specified, and
until released by Company the following minimum insurance coverages, with insurers acceptable to Company.
1) Commercial General Liability Insurance including bodily injury and property damage, personal and advertising injury,
contractual liability, and including products and completed operations, with minimum limits of one million dollars
($1,000,000) per occurrence for bodily injury, including death and property damage.
2) Automobile Liability Insurance for coverage of owned, non-owned and hired autos, trailers or semi-trailers with a
minimum combined single limit of one million dollars ($1,000,000) per accident for bodily injury, including death, and
property damage.
3) Excess Liability Insurance over and above the employers’ liability, commercial general liability and automobile
liability insurance coverage, with a minimum limit of two million dollars ($2,000,000) per occurrence. Coverage must
replace exhausted aggregate limits under Commercial General Liability and Workers’ Compensation (Employers
Liability) insurance coverages referenced herein.
4) Workers' Compensation and Employers’ Liability Insurance providing statutory benefits in accordance with the laws
and regulations of the State of Texas or state of jurisdiction as applicable. The minimum limits for the employers’
liability insurance will be five hundred thousand dollars ($500,000) bodily injury each accident, five hundred
thousand dollars ($500,000) each employee bodily injury by disease, five hundred thousand dollars ($500,000)
policy limit bodily injury by disease.
Note: The required limits of insurance can be satisfied by any combination of primary and excess coverage.
B. Additional Requirements
1) Each of the policies in section A., above, except workers’ compensation and employers’ liability insurance, will
contain provisions that specify that the policies are primary and will apply without consideration for other policies
separately carried and will state each insured is provided coverage as though a separate policy had been issued to
each, except with respects to limits of insurance, and that only one deductible will apply per occurrence regardless
of the number of insureds involved in the occurrence. Licensee will be responsible for any deductibles or retentions.
2) Each of the policies in section A., above, except workers’ compensation and employers’ liability insurance, if written
on a claims-made basis, will be maintained in full force and effect for two (2) years after final acceptance or
completion of the Work, whichever is later.
3) All policies must be issued by carriers having an A.M. Best’s rating of “A-” or better, and an A.M. Best’s financial size
category of “VIII”, or better. If requested in writing by Company, Licensee will make available to Company a certified
copy of any or all insurance policies or endorsements required of Licensee.
4) Company will receive advance written notice prior to non-renewal or cancellation.
5) Certificates of insurance (COI) must show “Oncor Electric Delivery Company LLC and its affiliates” as the certificate
holder, and as an additional insured (including completed operations) to the extent Licensee has agreed to
indemnify any Indemnified Party or Parties pursuant to the provision of indemnity therein. The additional insured
requirement shall apply to all of the required coverages except workers’ compensation. All of the required
coverages must provide a waiver of subrogation in favor of the certificate holder.
C. Limitation of Liability
The requirements contained herein as to the types and limits of all insurance to be maintained by
Licensee are not intended to and will not, in any manner, limit or qualify the liabilities and obligations
assumed by Licensee under the Agreement.
D. Carrier/Agent to Provide Proof of Insurance
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Prior to execution of the Agreement, and when requested by Company, Licensee will instruct its insurance
carrier/agent to submit directly to Company valid certificate(s) of insurance, evidencing the coverage required herein.
Valid certificates of insurance utilize ACORD 25 form dated 2010/05 or later and other Texas Department of
Insurance (TDI) approved forms which properly addresses each requirement referenced in this document (as
depicted in Company’s Sample COI, available on request). If Licensee’s insurance carrier/agent provides to
Company a certificate of insurance that is not an ACORD 25 form dated 2010/05 or later, insurance carrier/agent
must also submit sufficient documentation directly to Company indicating that certificate is approved by TDI.
Company's review of certificates or policies will not be construed as accepting any deficiencies in Licensee’s
insurance or relieve Licensee of any obligations set forth herein. In addition, Licensee will require each of its
subcontractors to provide adequate insurance. Any deficiencies in the insurance provided by subcontractors will be
the responsibility of Licensee.
E. Description of Operations Language
The following language or language substantially in the form of such language must be included in the Description of
Operations section of the COI or otherwise indicated on the form:
Certificate holder is included as an additional insured (including completed operations) as respects all of the
required coverages except workers’ compensation. All of the required coverages provide a waiver of
subrogation in favor of the certificate holder.
F. Certificate Holder Detail
The certificate holder must be shown on the COI as follows:
Oncor Electric Delivery Company LLC and its affiliates
Attention: Joint Use Management
115 W. 7th Street, Suite 805
Fort Worth, TX 76102
G. Reporting of Damage and Accidents
Licensee agrees to report to the manager of the claims department (address shown below) of the Company in writing
as soon as practical all instances of property damage (including, without limitation, damage to any Equipment or
Pole), and all accidents or occurrences which may result in injuries to any person, including death, arising out of or
relating to this Agreement.
Oncor Electric Delivery Company LLC
Attention: Claims
1616 Woodall Rodgers Freeway
Dallas, TX 75202
H. Maximum Limits of Insurance
If the insurance obligations required in the Agreement exceed the maximum limits permitted by law or do not
otherwise conform with any applicable law, then this Agreement will be deemed amended so as to only require
Licensee to provide insurance to the maximum extent allowed by law.
I. Notice for Legislatively Created Entities
Notwithstanding the foregoing insurance requirements, if an entity is exempt by law from the provision of insurance or
has otherwise been granted by law the ability to self-insure, a cite to the applicable law or regulation creating such
exemption, or other verifiable evidence of any exemption from the provision of insurance is required. Such evidence
shall be provided to Company prior to the execution of this Agreement and shall be made an attachment hereto.
Licensee Requirements (Minimum Standard) 3-27-2013
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