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The Plainview City Council met on December 11, 2007 at 7:00 p.m. in the City Council
Chambers of the Plainview City Hall at 901 Broadway. The agenda for this meeting
was posted in City Hall at 4:45 p.m. on December 7, 2007. Mayor John C. Anderson
presided. Councilmembers present were: Kelvin Tipton-District 1, Cathy Waggoner-
District 2, Belinda Pena-District 3, John N. Bertsch-District 4, Ron Trusler-District 5,
Wendell Dunlap-District 6 and Roland Nash-District 7.
Staff members present were: Greg Ingham-City Manager, John Berry-Director of Public
Works, John Castro-Director of Community Services, Leslie Pearce-City Attorney, Will
Mull-Police Chief, Dale Simpson-Director of Civil Service, Eric Turner-Main Street
Coordinator, Arthur Wall-Street Superintendent and Belinda Hinojosa-City Secretary.
News Media Representative: Richard Orr-Plainview Daily Herald
Guests present: Rey Rosas, Vonceil Casey, Mary Jane Shanes, Stan DeMerritt, Isaac
Heinen, Sam DeMerritt, Travis Heinen, Ryan Bowen, Chris Iwin, John Speck, Bill
Orman, David Gary III, Leon Heinen, Casandra Gary, David C. Wall, Ricky Ray, Hailey
Travis, Dorothy Morton, Virginio Ortega, and Matthew Flores
Councilmember John N. Bertsch delivered the invocation.
Boy Scout Troop #253 led in the Pledge of Allegiance.
Councilmember Tipton moved to adopt the consent calendar. The motion was duly
seconded by Councilmember Trusler and carried by unanimous vote. Items approved
on the consent calendar included approval of the minutes of November 27, 2007
and December 6, 2007; the reappointment of Lynn Davis to the Planning and Zoning
Commission with said term to expire on January 1, 2010; and setting the next City
Council meeting date as December 20, 2007 at 11:30 a.m. at the Plainview
Convention Center.
Will Mull, Police Chief presented for consideration Ordinance No. 07-3493, an
Ordinance Creating Chapter 17, Article III, Juvenile Curfews of the Code of
Ordinances of the City of Plainview, Texas Defining Terms; Providing Curfew Hours for
Juveniles; Offenses and Defenses for Juveniles; Penalty for Violation of the Curfew
Ordinance by Juveniles, their Parents or Guardians, and Owners, Operators and
Employees of Business Establishments of a Fine Not to Exceed $500; Repealer;
Severability Clause; Cumulativeness Clause; Conflicts Clause; Effective Date; and
Providing for Publication and Enforcement of such Ordinance. The curfew was put in
place in 1994 and reviewed back in 1997 with the Council changing the time limits. In
2001 the curfew was reviewed once and failed on a vote of three to three. He stated it
is the City's goal to reduce juvenile crime and victimization while providing for the safety
and welfare of the community's youth. The curfew is a tool to be utilized by the
Plainview Police Department in controlling juvenile crime. It is also a tool for parents.
The curfew will apply to everyone from 10 years to under 17 years of age.
Enforcement of the curfew must fall under the guidelines of the Texas Racial Profiling
Law. The curfew should meet the needs of our community and be reviewed at regular
intervals. The curfew is not acure-all for every juvenile crime in Plainview. He
presented an outline showing that crime has increased in all categories.
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Leslie Pearce, City Attorney stated that she did a lot of research on the curfew and that
the Fifth Circuit states that there must be a compelling interest and be narrowly tailored.
She stated there are statistics to prove there is a juvenile crime problem and it is
narrowly tailored because there are eleven exceptions as follows:
(1) When the juvenile is accompanied by his parents, legal guardian or
authorized adult supervisor.
(2) When a juvenile is exercising First Amendment rights protected by the
United States Constitution, such as the free exercise of religion, freedom
of speech and the rights of assembly, whether parade or demonstration,
has been permitted by the City of Plainview pursuant to City of Plainview
Code of Ordinances, Chapter 24, Article XIII, Parades and Processions, or
other bona fide religious, social or school activities involving the rights to
assemble.
(3) When engaged in performing an errand or other legitimate business at
the direction of a parent, guardian or supervisory adult, including travel to
and from such location by a direct route.
(4) When a juvenile is accompanied by an adult authorized by a parent of
that juvenile to take the parent's place in accompanying the juvenile for a
designated period of time and purpose within a specified area.
(5) When the juvenile is on the sidewalk at the place where such juvenile
resides, or on the sidewalk of either next door neighbor, when said
neighbors do not object to such presence.
(6) When engaged in employment activities, or going to or returning home
from an employment activity.
(7) When involved in an emergency.
(8) When the juvenile is in a motor vehicle involved in interstate travel;
(9) When the juvenile is attending an official school, religious, or other
recreational activity supervised by adults and sponsored by the City, a
civic organization, or another similar entity that has undertaken
responsibility for the minor, or going to or returning home from such
activity.
(10) With respect to subsection 17-42 of this chapter, it shall be an
exception that the offense occurred after the juvenile has graduated from
high school, received a high school equivalency certificate, or is or had
been married or emancipated by law.
(11) All of the above cited exceptions to the curfew ordinance include
travel to and from such activity by a direct route, and this division is in no
way to be construed as a limitation upon normal travel by a juvenile
engaged in interstate movement.
She stated that our goal in bringing this before you is we want to reduce the juvenile
crime and the victimization here in Plainview and promote juvenile safety and well
being. Our statistics show an increase that is directly affecting our citizens. The
greatest increase is in criminal mischief which covers graffiti and damaged property and
the other one is auto theft. These statistics show that the City's juvenile crime should
be addressed and the curfew ordinance would give our officers the tool they are looking
for. Without the curfew ordinance, officers can merely question those juveniles on the
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152
street but the juvenile does not have to respond and with this tool they will be required
to respond.
The penalty basically will be $500 fine for each separate offense. Three people can be
fined: the juvenile, the parent and the owner of any establishment that allows a juvenile
to stay on the premises beyond the necessary time that the juvenile needs to conduct
their business.
She stated we believe we are presenting what we believe is a constitutional ordinance
and ask that this be used as a tool for our community so that we can safeguard our kids
and reduce some of the crime that is going on.
The hours of the curfew would be from 12:00 midnight to 6:00 a.m.
Chief Mull added that he had visited with several judges around town and received
numerous calls from individuals that are pro-curfew. He also stated he had received
several negative calls also, however he feels the pro outweighs the negative at least 50
to 1.
Mayor Anderson asked for public comment.
John Speck of 1111 Itasca stated he was in favor of the curfew because graffiti and
vandalism is getting rampant in the community. Bill Orman of 1311 Yonkers stated that
graffiti has moved west of town and he is in favor of the curfew. Rey Rosas of 1212
Lexington stated he is very supportive of the curfew ordinance and as a member of
LULAC does not see any racial problem with the curfew. Dorothy Morton of 16th &
Zephyr stated that graffiti is a problem. Her property has been damaged four separate
times by graffiti. This last incident she was advised it would cost $1,750 to repaint her
concrete fence. David Walker of 17 Westridge Square stated this ordinance protects
the youth and gets them off the street and he is in favor of the ordinance. He did state
there was one exception that he was concerned with and that is the $500 fine on the
employer and that he was concerned that the employer cannot be everywhere.
Mayor Anderson asked if anyone was present to speak against the Ordinance. There
was no one present to speak against the Ordinance.
Councilmember Ron Truster moved to approve Ordinance No. 07-3493 on first reading.
The motion was duly seconded by Councilmember Waggoner.
Mayor Anderson asked for Council comment.
Councilmember Waggoner stated this is good for the City but she would like to see the
time change from 11:00 at night to 6.00 Sunday through Thursday and then have the
midnight curfew on Friday and Saturday. She also asked that this was in effect for 17 to
ten years old, but what about someone under 10? She was advised that anyone under
ten fell under the classification of a child and they fell under Child Protective Services.
Mayor Anderson asked for a response why 12:00 was proposed. Chief Mull stated that
from a policemen's standpoint they have no problem with either one however they do
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like the set time and it would be easier for everyone if there was a given time. 12 is fine
especially during the summer time.
Councilmember Pena asked about the warning that would be issued and asked that on
the business owners who would be responsible? Ms. Pearce advised that the owner or
operator of the business establishment would have to allow the juvenile to remain on
the premises. In order to be prosecuted they would have to have knowledge of them
being present and let them hang out there. As a prosecutor she would have to prove
that he allowed them to stay on the business premises.
Chief Mull responded on the question of warnings. He advised that the first contact
would be a warning. After the first warning all contacts would be by a written citation.
After the warning and two citations are received then the parents would be cited for the
violation.
Councilmember Pena asked if the parents would be notified if their child received a
citation. Chief Mull stated the parents would be notified.
Councilmember Bertsch expressed concern about a business owner and asked if they
are in charge of policing their business. Ms. Pearce stated basically the owner would
have to know they were under age and allow them to stay there. This section is there
for a business owner that is basically allowing somebody to stay on the premises
knowing they are juveniles and allowing them to hang out at their establishment. This is
not for the business owner who takes care of his property and does not want a bunch of
juveniles to hang out at his property.
Councilmember Dunlap stated he felt everything about the curfew is really good and
feels we need to tighten the time during the school year and offered an amendment to
the original motion that where it says the curfew time is 12:00 to 6:00 add "except during
public school year the curfew will be from 11:00 p.m. to 6:00 a.m. from Sunday through
Thursday." The motion was duly seconded by Councilmember Waggoner.
Councilmember Trusler asked if this was a complication. Chief Mull stated this was not
a problem since this would mirror our last curfew. He stated we would need to do public
service notices every time it changed.
Councilmember Bertsch asked if this would be removed during Christmas vacation,
spring break etc. He was advised this was during the school year and it would stay the
same as during the school year.
Mayor Anderson asked for a vote on the amendment to the motion as follows that after
the curfew time from 12:00 to 6:00 it be added "except during public school year the
curfew will be from 11:00 p.m. to 6:00 a.m. from Sunday through Thursday."
Councilmember Pena, Waggoner and Dunlap voted "for" the amendment to the motion.
Mayor Anderson, Councilmembers Tipton, Bertsch, Trusler and Nash voted "against"
the motion. The amendment to the motion failed.
Mayor Anderson asked for a vote on the original motion to approve Ordinance No. 07-
3493 on first reading. The motion carried by a unanimous vote.
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154 Greg Ingham, City Manager presented for consideration upon second reading,
Ordinance No. 07-3489, an Ordinance amending Chapter 23, Taxation, of the City of
Plainview Code of Ordinances to tax tangible personal property in transit which would
otherwise be exempt pursuant to Texas Tax Code, Section 11.253; cumulativeness
clause; conflicts clause; severability clause; and effective date. He stated historically
the City of Plainview has taxed tangible personal property (inventory tax). The "Super
Freeport" is a property tax exemption for goods that reside temporarily in warehouses
within a city while awaiting shipment to other locations within or outside of Texas (as
contrasted with the current law Freeport exemptions, which covers only goods shipped
outside of Texas). This exemption was approved by Texas voters in 2001 as an
amendment to the Texas constitution, but only this year did the Texas Legislature enact
enabling legislation.
The super Freeport exemption is a local option property tax exemption of the "opt-out"
variety. The exemption will automatically apply unless the City holds a public hearing
allowing people to comment on the exemption and adopts an ordinance stating it wishes
to continue taxing Super Freeport goods. It is staff's recommendation that the City
Council consider adopting the Ordinance opting out of the Super Freeport exemption.
This means we will continue to tax tangible personal property on the same or similar
basis to what it is now.
Mayor Anderson moved to open the public hearing. The motion was duly seconded by
Councilmember Dunlap and carried by unanimous vote.
There was no comment from the public. Councilmember Truster moved to close the
public hearing. The motion was duly seconded by Councilmember Dunlap and carried
by unanimous vote.
The public hearing was closed at 7:53 p.m.
Councilmember Tipton moved to approve Ordinance No. 07-3489 on second reading.
The motion was duly seconded by Councilmember Nash and carried by unanimous
vote.
Mr. Ingham presented for consideration on first reading Ordinance No. 07-3494, an
Ordinance of the City Council of the City of Plainview, Texas, ("City") Approving A
Settlement Agreement Between the City and Atmos Energy Corp., West Texas
Division ("Atmos West Texas" or "The Company") With Regard to the Company's
Proposal to Implement Interim GRIP Rate Adjustments For Gas Utility Investment in
2006 Filed on July 27, 2007; Adopting a Tariff That Reflects an Interim GRIP Rate
Adjustment Consistent With the Settlement Agreement; Adopting a Savings Clause;
Determining That This Ordinance Was Passed in Accordance With the Requirements of
the Texas Open Meetings Act; Declaring An Effective Date; And Requiring Delivery of
This Ordinance to the Company and Legal Counsel. Mr. Ingham stated that Atmos
West Texas made filings with the City and the Railroad Commission in mid July of 2007,
to implement a GRIP rate increase pursuant to Texas Utilities Code on all customers
served by Atmos West Texas. In September 2007, the City of Plainview suspended
their implementation of the GRIP filing. Since that time, the City has worked with other
cities through the Steering Committee of Cities Served by Atmos West Texas to study
the information supporting the Company's GRIP rate increase request and to explore
City Council Minutes December 11, 2007 Page 5 of 8
settlement options. Based upon the work of the Steering Committee, the Company has
agreed to reduce the requested GRIP surcharge rate increase by ten percent which we
felt was a good thing. The Company agreed to reimburse the Steering Committee for
outstanding legal expenses associated with the GRIP review (over $70,000 that Atmos
agreed not to recover through a rate adjustment) and the pending show cause actions
(up to $28,000 not already reimbursed -will be recoverable as rate case expenses).
Another thing included in the Settlement Agreement is the Cities and Atmos agree to sit
down at a table and look at what is called a Rate Review Mechanism to look at all
aspects of cost of service rather than just invested capital. Mr. Ingham stated it is his
recommendation that this ordinance be adopted approving the Settlement Agreement.
Mayor Anderson asked for public comment. There was no public comment.
Councilmember Dunlap moved to approve Ordinance No. 07-3494 on first reading. The
motion was duly seconded by Councilmember Pena and carried by unanimous vote.
Mr. Ingham presented for consideration upon first reading Ordinance No. 07-3495, an
Ordinance Granting to Atmos Energy Corporation, West Texas Division, a Texas and
Virginia Corporation, its Successors and Assigns, a Franchise to Furnish, Transport
and Supply Gas to the General Public in the City of Plainview, Hale County, Texas, For
the Transporting, Delivery, Sale, and Distribution of Gas In, Out Of, and Through Said
Municipality for all Purposes; Providing for the Payment of a Fee or Charge for the Use
of the Streets, Alleys, and Public Ways; Repealing all Previous Atmos Energy Gas
Franchise Ordinances; Providing That it Shall be in Lieu of Other Fees and Charges,
Excepting Ad Valorem Taxes; Prescribing the Terms, Conditions, Obligations and
Limitations Under Which Such Franchise Shall be Exercised; a Most Favored Nations
Clause, and a Severability Clause; and Providing an Effective Date. He stated this is
the ordinance that will approve a new franchise agreement between the City of
Plainview and Atmos Energy. The franchise agreement is basically the agreement
between the City and the utility company that regulates the company's use of our right-
of-ways. The company pays a franchise fee for the use of our right-of-ways. The
franchise also spells out the responsibilities of the company, what they do within our
right-of-ways, and how it relates to their use. It explains the process and end reaction of
the City with the company as far what is done in the use of the right-of-way and certain
operating standards that are in place and it also sets out the compensation that the
company pays in the use of these right-of-ways. This is the basic frame work of this
important part of the relationship between the City and Atmos Energy.
On this particular franchise we used the Amarillo franchise as a base model. We used
outside legal counsel to assist us and our City Attorney used this information to put
together a franchise that we felt fit the City of Plainview. After that we negotiated with
Atmos on some points and we have reached an agreement that we feel is best for the
City of Plainview. Basically, the current document is a ten year franchise and we raised
the franchise fee from 3% to 5%. This document spells out things in more detail. We
feel it will work to the benefit of everyone in our community. We feel we have a fair
agreement.
Mayor Anderson asked for public comment. There was no public comment.
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Councilmember Nash moved to adopt Ordinance No. 07-3495 on first reading. The
motion was duly seconded by Councilmember Tipton and carried by unanimous vote.
Mr. Ingham presented for consideration and to take necessary action regarding
participation in the Texas Forestry Service Helping Hands Program. He stated the
Helping Hands Program is a program that the State of Texas implemented so that larger
Texas cities can give fire equipment to smaller cities as we take things out of service.
Texas cities have done this for several years; however several years ago we reached
the point where a small city got something that they deemed defective and it didn't work
out real well so the larger cities eliminated the transfer of such equipment. The State of
Texas realized this was a problem so they set up a program through the Texas Forestry
Service whereby the City of Plainview will give equipment to the Texas Forestry Service
who will then in turn give the equipment to a smaller Texas City. The program works
well and we are asking for authorization to participate and asking for authorization to
contribute 40 joints of hose to this program with these ultimately winding up in Kress.
Mayor Anderson asked for public comment. There was no public comment.
Councilmember Truster moved that we approve entering into the Texas Forestry
Service Helping Hands Program. The motion was duly seconded by Councilmember
Bertsch.
Councilmember Bertsch asked if we are basically trying to give our product that we
have no further use of without carrying any liability in the event that it fails. Mr. Ingham
stated that the City of Plainview would be held harmless.
Mr. Ingham also stated that in the future we would get council authorization for any
specific equipment. The City wanted to get it of record in the minutes that we are
participating in this program. In the future we would just ask for authorization to get rid
of that specific equipment.
Mayor Anderson asked for a vote on the motion. The motion carried unanimously.
Arthur Wall, Street Superintendent presented for consideration the Award of bids for
Street Department for one new 2008 %2 ton pickup with extended cab and one new
2008 %Z ton pickup with long wheel base. He stated one bid was received from Bill
Wells Chevrolet for the %2 ton pickup extended cab pickup in the amount of $18,638.
The HGAC price is $18,761. The budgeted amount is $22,000. One bid was also
received for the %2 ton LWB red cab pickup in the amount of $15,358. The HGAC price
is $14,368. He also noted that the HGAC price also needs to have a $600 flat fee per
vehicle added and there are transportation costs from Houston that make this price
about the same or slightly higher than the Bill Wells bid which is local. The budgeted
amount is $15,000. It is recommended that the bids be awarded to Bill Wells Chevrolet.
Mayor Anderson asked for public comment. There was no public comment.
Councilmember Truster moved to award the bids to Bill Wells Chevrolet. The motion
was duly seconded by Councilmember Bertsch and carried by unanimous vote.
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157
Mr. Wall presented for consideration the award of bids for a street sweeper. He stated
two bids were received as follows: Kinloch Equipment - $176,762 and Equipment
Southwest in the amount of $162,000. He stated it is his recommendation that the bid
be awarded to Equipment Southwest in the amount of $162,000. The life expectancy
for sweepers is eight to nine years.
Councilmember Nash moved to award the bid to Equipment Southwest in the amount of
$162,000. The motion was duly seconded by Councilmember Waggoner and carried by
unanimous vote.
William Mull, Police Chief presented for consideration the award of bids for Police
Department for seven 2008 Police Sedan Vehicles. He stated one bid was received
from Bill Wells Chevrolet in the amount of $19,860 for each five patrol vehicles for a
total of $99,300 and $19,864 for each two unmarked vehicles for a total of $39,728 with
the total bid for the seven vehicles in the amount of $139,028. The budgeted amount is
$147,000. The HGAC state bid for Chevrolet vehicles is $19,923 which does not
include the fee and transportation costs. It is staff's recommendation the bid be
awarded to Bill Wells Chevrolet in the amount of $139,028.
Mayor Anderson asked for public comment. There was no public comment.
Councilmember Bertsch moved to award the bids to Bill Wells Chevrolet. The motion
was duly seconded by Councilmember Pena and carried by unanimous vote.
Mayor Anderson reminded everyone that the next meeting would be on December 20,
2007 at 11:30 a.m. at the Plainview Convention Center.
There being no further business, Mayor Anderson adjourned the meeting at 8:23 p.m.
~l ~ ~ ~~~~ ~ G.J
Belinda Hinojosa
City Secretary
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