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Minutes November 22, 1994232 CITY OF DENTON CITY COUNCIL MINUTES November 22, 1994 The Council convened into the Closed Meeting on Tuesday, November 22, 1994 at 5:15 p.m. in the Civil~ Defense Room. PRESENT: Mayor Castleberry; Mayor Pro Tem Brock; Council Members Chew, Cott, Perry, and Miller. ABSENT: 'Council Member Smith 1. The Council met in Closed Meeting to discuss the following items: A. Legal Matters -- Under TEX. GOV'T CODE Sec. 551.071 1. Considered action in Moore v. Jezo et. al. Considered action in Teresa Snell v. City of Denton, Denton Police Department and Art Kutcher. B. Real Estate -- Under TEX. GOV'T CODE Sec. 551.072 Personnel/Board Appointments -- Under TEX. GOV'T CODE Sec. 551.074 The Council convened into a Special Called Session on Tuesday, November 22, 1994 at 6:00 p.m. in the City Council Chambers. PRESENT: Mayor Castleberry; Mayor Pro Tem Brock; Council Members Chew, Cott, Perry, and Miller. ABSENT: Council Member Smith 1. Pledge of Allegiance The Council and members of the audience recited the Pledge of Allegiance. 2. The Council considered approval of a resolution of appreciation for the Eureka! Playground volunteers. The folio%ling resolution was presented: NO. RA94-014 RESOLUTION OF APPRECIATION OF THE FRIENDS OF SOUTH LAKES PARK Perry motioned, Chew seconded to approve the resolution, On roll vote, Brock "aye", Cott "aye", Miller "aye", Chew "aye", Perry "aye", and Mayor Castleberry "aye". Motion carried unanimously. 233 City of Denton City Council Minutes November 22, 1994 Page 2 3. The Council received a report, held a discussion and gave staff direction regarding various matters relating to TMPA. City Manager Harrell stated that as the Council had been previously briefed, TMPA was in the midst of a crucial and important matter concerning the future direction of the Agency. As a result, the TMPA Board had commissioned Burns and McDonnell to study various alternatives regarding the TMPA plant. Tom Harpool, TMPA Board of Directors, stated that in May 1994 TMPA authorized a study to determine definitive points' from which to make a decision on a future switch in a power supply. The study was presented to the Board at its November meeting. The Board decided to perform a test burn before making a final decision on a recommendation. He felt it was important for the Utility Board of Denton and the cities in TMPA to know and understand this process before a final decision was made. Bob Nelson, Executive Director for Utilities, presented an interim report to Council from TMPA. He stated that the reasons for TMPA's power supply ahalysis were (1) TMPA had to move to a different mining area at a cost of $15 million, (2) maintenance costs were high with Grimes County lignite, (3) other utilities had switched to western Wyoming coal to save money, and (4) new generating technologies and efficiencies coupled with low.cost natural gas made new plant costs as cheap as the operating and maintenance costs of the Gibbons Creek Power Plant.. TMPA was created in 1975 and served the cities of Denton, Bryan, Garland and Greenville. The purpose of the organization was to provide electric power and energy for these cities and provided 65% of Denton's power and energy. In 1975 the electric industry issues included (1) the federal/state government had mandated electric utilities stop using natural gas, (2) Texas lignite was the lowest cost of fuel, (3) western low sulphur coal costs were escalating, (4) railroad rates from Wyoming were volatile, (5) there was no Public Utility Commission so wholesale power contracts were higher than owning generation, and (6) the cities decided to use Texas lignite. In 1994 the electric utility issues included (1) the natural gas industry was deregulated and there was ample low cost gas available, (2) major technological advances in the efficiencies of gas powered electrical power plants, (3) western fuel costs were stable and excess mine capacity had resulted in low prices, (4) railroad transportation rates were stable, (5) the electric utility industry was deregulated, and (6) many independent power producers were entering the electrical production business. TMPA had the following facilities and contracts: (1). a 405,000 kilowatt power plant in Grimes County with a 20,000 acre lignite mine in Grimes County with leases for two draglines plus conveyor, (2) a contract 234 City of Denton City Council Minutes November 22, 1994 Page 3 with Navasota Mining to mine approximately two million tons per year, (3) transmission lines and interconnections to TU Electric and transmission contracts and (4) transmission lines and delivery point substations at the four cities. The consultant developed six narrative cases during its power supply analysis which included a BASE case which was to continue the present operation; a WEIRCO case in which TMPA would take over the mine operations; a PRB case to convert the plant to-~burn Powder River Basin Wyoming coal; a PRB HI case which would increase cost and be an escalation of the PRB case; a Layup and Repower case in which the Gibbons Creek Plant would be laidup and combustion turbines added to the Garland and Bryan power plants; and the LAYUP and PURCHASE case which would layup the Gibbons Creek Plant and purchase power. Issues for the use of the Powder River Basin coal were the fuel heat value was 8500 BTU/point as opposed to 4500 BTU/ point which would require less fuel to handle and grind. The Wyoming fuel was low in sulphur which would not require a scrubber and save $2 million per year in limestone. It also had low ash which would make it easier to grind and less boiler wear and maintenance. No electricity would be needed with the Wyoming coal for draglines or conveyor belts which would gain 10-15% energy from the plant. The TMPA Board voted to do a several day test burn of PRB coal in late December at a cost of $500,000 and voted not to begin engineering of railroad and boiler improvements. It was anticipated that the Board would need to make a decision on a future option. There was a concern that TMPA's full requirement power contract still limited Denton's options. Mayor Pro Tem Brock asked Nelson to review who made these decisions and what role the four City Councils had regarding the issues. Nelson stated that each City Council appointed two board members to the Board. Those members were fully authorized to make decisions. Mayor Pro Tem Brock stated that it was then' up to each city to determine how much advice was given to the representatives. Nelson replied correct and that that varied from city to city. Mayor Pro Tem Brock stated that if College Station accepted TMPA's r~n~wal bid %ha% individual member cities of TMPA could opt out of that agreement. She asked what would happen if, for example, two cities decided not to participate. Nelson stated that the four cities who purchased power from TMPA had been selling all of the power to College Station for the last 3-4 years. That contract was up for renewal onJanuary 1, 1996. TMPA had asked for a year's information on what College Station was going to do. There was a combined proposal sent to College Station City of Denton City Council Minutes November 22, 1994 Page 4 235 which indicated that the four cities wanted to continue to sell power to College Station on the same basis. This was not a TMPA proposal but one from the four cities who got their power from TMPA. If College Station found that buying power from the cities was in its best interest, a contract would be done with each of the four cities. Council Member Miller asked for the time frame on the test burn. Nelson replied that TMPA was already working to get enough rail cars together to load and be at the site in mid-December. This would be a 7-8 day burn with cost of train being $975,000 and fuel value from not buying from the Gibbons Creek mine would be $480,000 with net cost of $500,000. Council Member Miller asked if the other contract would still be paid during the test burn. Nelson replied that TMPA would probably continue to mine but put it into inventory. If TMPA proceeded with the Power River Basis fuel the inventory could be used. City Manager Harrell stated that a key point to remember was that Denton's Public Utilities Board had indicated that it was their hope that as TMPA moved forward with a recommendation for a long term supply, that it would be coupled with a proposal which would allow the cities to be flexible. It was felt that this was the opportunity to make sure that that happened. Council Member Perry asked what Denton could do to increase the capacity of its plant and how would that play regarding costs. Nelson replied that currently a power supply study was being done which addressed those issues. The current concern was the 35% of the energy which Denton had to generate. Council Member Chew asked that the City Manager be kept informed about TMPA's decision and that Denton needed its TMPA representatives to work for a good promotion for the project in the City. Bill Giese, TMPA Board of Directors, stated that a final report would be completed in the next few weeks which would also look at other ways to give flexibility to the cities without declaring a project and going through that process. A long range consideration wa~ if TMPA wa~ a viabl~ o~gani~ation for the fu%ure. 236 City of Denton City Council Minutes November 22, 1994 Page 5 Council Member Chew stated that at the appropriate time he would like the Public Utilities Board to make a report to Council regarding TMPA. Bob Coplen, Public Utilities Board, stated that this was not an emergency decision. The Garland representatives took a stand on this proposal. TMPA wrote the interim report which he felt was slanted by TMPA. He felt that Denton had an opportunity for a wedge and a possibility for a merger with the other voting capacities to get relief from the 35% which was required from Denton. Some of the proposals had built in costs which needed to be removed from the proposals~ He urged the Council to not make a hasty decision regarding the issue. 4. The Council received a report, held a discussion and gave staff direction regarding an emissions testing program. Jack Jarvis, Fleet Manager, stated that there were new laws and regulations regarding emissions controls of the city's vehicles. When the federal law was passed in 1990, 90 different metropolitan areas were selected to clean up their air. Since that time, the State of Texas had tried to determine solutions to help resolve those problems. The areas which were included were the Houston/Galveston area, Beaumont/Port Arthur area, E1 Paso, and the Dallas/Fort Worth areas which included Dallas, Collin, Denton and Tarrant counties. These were in non-a'ttainment areas due to the emissions from cars. All vehicles built since 1968 forward had to be tested for emissions. This was in addition to the state inspection which was currently required. If the vehicle passed the test, a certificate would be issued to allow the owner to get a license and/or a state inspection renewal. This would be in addition to what currently was being done. The testing would begin in January 1995. All vehicles of odd years would be the first ones tested and would have to be done every two years. To do this would cost the City approximatel~ $21 per vehicle. If a vehicle did not pass the inspection, it would have to be"repaired before receiving a certificate. Most of the repairs could be done at the City facility as opposed to having to go outside for repairs. A vehicle ~uld not rece£ve an inspe~tlon sticker or renew a license without the certificate from the emission center. An important factor to remember was that this was a program by the State of Texas and not the City of Denton. City Manger Harrell stated that one of reasons staff was briefing Council on this issue was that the City would receive complaints about the process. The citizens needed to understand that this was a state requirement and the City did not have anything to do with the establishment of the program. 237 City of Denton City Council Minutes November 22~ 1994 Page 6 5. The Council held a discussion and gave staff direction regarding rules for placing emergency Council items on an agenda. City Manager Harrell stated that this was a request from the Council specifically to review the rules and procedures to place items on an agenda and specifically an emergency item on an agenda. Three Council rules or state law provisions came into play on the timing of a request for an agenda. (1) Council rule 6.3 stated that any member of the Council could request that an item be placed on a future work session of the Council. The exact timing of that request was left to the discretion of staff and the Agenda Committee based upon the volume of matters before the Council on an agenda and/or the amount of minor research which had to be done on the item. If a specific date was requested for an item, every attempt was made to honor that request. (2) Council rule 6.1 dealt with emergency items which might occur. Normally the City Council Agenda Committee met at 9:00 a.m. the Thursday week prior to the Tuesday Council meeting. At that point in time, the Committee reviewed the agenda for the following meeting. Rule 6.1 stated that a Council Member who felt that he/she had an emergency item to place on the next meeting, needed the concurrence of two of the three members of the Committee to agree to place the item on the next agenda. (3) The last item dealt with the 72 hour State rule for posting notices under the Open Meetings Law. That rule stated that an item could not be posted after 72 hours before the start of the meeting unless it met the criteria of an emergency as defined by State law. Mike Bucek, Acting City Attorney, stated that under the Open Meetings Act, to post an emergency item it ~ust clearly identify the. necessity for calling the meeting and was limited to an imminent threat to public health and safety or a reasonably unforeseeable situation, requiring immediate action by the governmental body. The Attorney General opinions stated that if the situation could have been anticipated, it was not an emergency. If the situation was sudden or unexpected, it was not an emergency unless it had dire consequences. For example, an InCependent School District was trying to purchase property and the land owner indicated he would close the deal in the next 10 days and that would benefit the ISD. That was not considered an emergency by the Attorney General. Council Member Miller stated that the issue he was interested in dealt with the Agenda Committee. He was concerned with a situation in which an issue might come up later in the week after the Agenda Committee Had met and if not acted on at the next meeting would be too late to do something about. He suggested that Council Members be alloWed to place an item on the agenda by 1:00 p.m. on the 238 City of Denton City Council Minutes November 22, 1994 Page 7 Friday before the meeting. This procedure would not be used frequently but would be helpful to Council. He suggested an additional provision that in the event of an emergency a Council Member be allowed, by 1:00 p.m. on the Friday before the meeting, to place an item on the next agenda. Mayor Pro Tem Brock stated that she was concerned with the definition of an emergency which would apply to Section 6.1. How would a local emergency be defined. Acting City Attorney Bucek stated that the Attorney General made a distinction between a 72 hour notice and a 2 hour notice. The procedure suggested by Council Member Miller would give the required 72 hour notice. There would be a need for a definition of an emergency for general use. Mayor Castleberry stated that as long as he had been on the Agenda Committee, there was only one item placed on the agenda after the Committee met. He felt that the current rule was working well and saw no reason to make a change. Miller motioned, Brock seconded to modify the Council rules to allow a Council Member to place an item on an agenda by 1:00 p.m. on the Friday before a meeting. On roll vote, Brock "aye", Cott "nay", Miller "aye", Chew "aye", Perry "nay", and Mayor Castleberry "nay". Motion failed with a 3-3 tie. Mayor Castleberry stated that the item would return to the next meeting due to the tie vote. 6. The Council received a report, held a discussion and gave staff direction regarding a comparison of 1992 Subdivision and Platting regulations and the current regulations. Acting City Attorney Bucek stated that there was some confusion regarding the variance issue. The normal variance concept usually dealt with the process of someone platting property and there was a reason that the petitioner did not want to fulfill an ordinance requirement. The difference in the situation with Hawk Valley was that they did not want to plat at all. Under the old law, if a public improvement was required, the property had to be platted. The only time that platting was not required under the old law was when the property was being subdivided and there were no improvements to be done..Under the new law, if the property were being subdivided into more than five acres, Dlatting was not required if public improvements were notrequired. Under either of these provisions, if a water line were to be installed, the property must be platted. If a developer were allowed to not plat City of Denton City Council Minutes November 22, 1994 Page 8 239 when making an improvement, another developer in the future could make that same request. City Manager Harrell stated that the process had two steps. With this particular property, a plat should be filed and in the process of filing the plat, there were requirements in the subdivision regulations which the petitioner felt he should not be required to meet, then a variance should be sought at that point in time. Council Member Miller felt that perhaps a method should be devised which would allow such a request to be granted if it were to the benefit of the City in the long term. Acting City Attorney Bucek stated that the problem was one of economies of development. If the tract was only 3-4 acres and had a small development with a rural setting, there would not be a problem. If it were a structured development, there would be the need for infrastructure and whoever did the development would have to plat. Council Member Perry felt that if too many variances were granted in the ETJ, nothing would meet the City's development plan process. He had a concern of trying to go around what was a well thought out plan. Mayor Castleberry expressed a concern that if such a variance were granted and the area later annexed by the City, there might be problems with the lines not matching, etc. and that would be costly to the City. 7. The Council received a report, held a discussion and gave staff direction regarding a request from the Fire Fighter's Association to increase employee contributions to the Fire Fighter Pension Fund. Rick Svehla, Deputy City Manager, stated that during the recent budget discussions, members of the Fire Pension Fund had asked about the possibility of increasing the retirement contributions. Staff indicated th-at if that were the desire, it would have to come from the members of the fund and from an increase in the fire fighters wages, and not an item from the budget. The members held an election in September with a majority voting to approve the increase of 1% to the contribution. The provision in the State law required'Council to pass an brdinance approving that contribution. Council would be considering such an ordinance at its next meeting. Of the 87 positions eligible to vote on the increase, 60 votes were cast with 47 voting yes. 24O City of Denton City Council Minutes November 22, 1994 Page 9 City Manager Harrell stated that when the Council approved the ordinance regarding this item, the additional 1% would be withdrawn from all members of the fund regardless of whether they voted in favor or in opposition to the increase. Mayor Castleberry indicated that this was a request from the Fire Fighter's Pension Fund Committee. Brock motioned, Chew seconded to have an ordinance prepared for Council consideration. On roll vote, Brock "aye", Cott "aye", Miller "aye", Chew "aye", Perry "aye", and Mayor Castleberry "aye". Motion carried unanimously. 8. Consent Agenda Perry motioned, Brock seconded to approve the Consent Agenda as presented. On roll vote, Brock "aye", Cott "aye", Miller "aye", Chew "aye", Perry "aye", and Mayor Castleberry "aye". Motion carried unanimously. ae Bids and Purchase Orders: 1. Bid #1677 - Land Compactor 2. Bid #1682 - Watthour Testing Board System 3. Bid #1683 - 69KV Circuit Breakers 4. P.O. #51153 - Southwest Fluid Products 9. Ordinances Council considered the Consent Agenda ordinances A.-B. Perry motioned, Chew seconded to adopt Consent Agenda Ordinances A.- B. On roll vote, Brock "aye", Cott "aye", Miller "aye", Chew "aye", Perry "aye", and Mayor Castleberry "aye". Motion carried unanimously. A. NO. 94-215 AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING A CONTRACT FOR THE PURCHASE OF MATERIALS, EQUIPMENT, SUPPLIES OR SERVICES; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE. (2.A.1 - Bid #1677, 2.A.2. - Bid #1682, 2.A.3. - Bid ~1683) B. NO. 94-216 AN ORDINANCE PROVIDING FOR THE EXPENDITURE OF FUNDS FOR PURCHASES OF MATERIALS OR EQUIPMENT WHICH ARE AVAILABLE FROM ONE SOURCE IN ACCORDANCE WITH THE PROVISIONS OF STATE LAW EXEMPTING SUCH PURCHASES FROM REQUIREMENT OF COMPETITIVE BIDS; 241 City of Denton City Council Minutes November 22, 1994 Page 10 AND PROVIDING AN EFFECTIVE DATE. (2.A.4. - P.O. #51153) 10. Resolutions A. The Council considered approval of a resolution giving General Telephone of the Southwest, thirty days notice to produce records previously requested of GTE by the City Manager in his letter of February 10, 1994 relating to an audit of GTE's franchise fee payments to the City. City Manager Harrell stated that this resolution had been prepared in accordance with Council's directions. It put GTE on notice and formally gave the company 30 days to produce the records previously requested by the City. The records were ones requested by the auditor employed by the Council to make a determination as to the adequacy of GTE's franchise payments to the City. The auditor felt these records were necessary in order for the firm to produce a reliable report to Council. GTE had taken the position that several of the records were not to go to the City and were immaterial to the audit. Because of that stance, the auditor used his best estimates for some of the numbers which were certified as possible underpayments made by GTE. This request was a more formal manner to request the records needed by the auditor to make a firm determination to the Council. Acting City Attorney Bucek stated that the main concern developed in the resolution was the point that the first review was looking at the franchise agreement of 1983 and the resolution restated the fact that there was a charter provision regarding franchise fees. That provision indicated that the franchise fees, if collected, would be no less than 2% of the gross receipts of the franchise holder providing services within the City. That terminology was much broader than the terminology in the franchise agreement. The Charter gave City staff the ability to examine the records of the franchise holder regarding its compliance with the franchise requirements. If GTE failed to supply the requested records within 30 days, staff was to prepare a noticE~ of default for Council consideration. Council Member Cott stated that the City had signed a contract with GTE at a point.in time when they had unique equipment and a unique ability to deliver and when the City had a unique ability to need it. That contract had continued until today then many Texas cities had been hiring lawyers to try and break their contracts with GTE. The City had integrity at stake. If the City prepared another contract with another producing company, and took time to break the this contract, it might no~ be the best delivery service in terms of the type of company the City might get. It had been suggested 242 City of Denton City Council Minutes November 22, 1994 Page 11 that the City could get several million dollars if it broke this contract. He asked to the Council to turn down the attack on GTE. Council Member Miller stated that in the previous discussion relative to TMPA, the future of what happened with TMPA was important and Council wanted to know all the ramifications of that issue. This was a very complex issue with the franchise agreement. He felt that there was a dispute as to what went into gross revenues. As rate payers, the citizens of Denton were paying 2% on something which he could not determine what that number was. He felt that more dialog was needed with GTE in order to know what the citizens were paying on. Council had asked for a breakdown of the franchise fees over the last 10-11 years. He felt that breakdown raised some questions on how GTE was calculating its franchise agreement. As the Council did not have enough information regarding the issue, there might be ways to talk about this rather than going a legal route. He felt that something needed to be done but felt that there might be a better way to look at the records as opposed to the legal route. Council Member Perry felt that there was a clear requirement in the Charter that the corporation reveal such figures as were necessary and that it was in order for the City to ask for those figures. Over a period of time, through the City Manager, the Council had asked for those necessary figures. He did not wish to break a contract but felt it was important to have GTE comply with the Charter requirements. Council Member Chew stated that the City had been working on this issue since February of this year and that it was time to get off dead center on the issue. Melvin Willis, GTE, stated that he had information to share with Council and could present it in a work session if desired. GTE had never been given the opportunity to go before the Council in a work session to discuss the issue and he would like that opportunity. He asked that the Council table the proposed resolution and meet ~n a work session within the next 30 days. It was very difficult, with the changing times and the. changes in communications, to keep up with a varied rate. That was one of the reasons GTE wanted to go to a flat rate. In 1989, GTE took a rate decrease from the Public Utilities Commission and thus the franchise fee would decrease also. The following resolution was considered: 243 City of Denton City Council Minutes November 22, 1994 Page 12 NO. R94-071 A RESOLUTION GIVING GENERAL TELEPHONE OF THE SOUTHWEST, THIRTY (30) DAYS NOTICE TO PRODUCE RECORDS PREVIOUSLY REQUESTED OF GTE BY THE CITY MANAGER IN HIS LETTER OF FEBRUARY 10, 1994 RELATING TO AN AUDIT OF GTE'S FRANCHISE FEE PAYMENTS TO THE CITY; AND PROVIDING AN EFFECTIVE DATE. Chew motioned, Perry seconded to approve the resolution. Miller motioned, Cott seconded to postpone the resolution until a date certain and set a date to meet with GTE in a work session. On roll vote, Brock "aye", Cott "aye", Miller "aye", Chew "nay", Perry "nay", and Mayor Castleberry "nay". Motion failed with a 3-3 tie vote. On roll vote of the main motion, Brock "aye", Cott "nay", Miller "nay", Chew "aye" Perry "aye", and Mayor Castleberry "aye" Motion carried with a 4-2 vote. 11. Miscellaneous matters from the City Manager. City Manager Harrell stated that video tapes of the impact group presentations would be showing on Dec 14-27 from 6-8 p.m. on the government channel. 12. There was no official action taken on Closed Meeting items discussed during the Work Session. 13. New Business The following items of New Business were suggested by Council Members for future agendas: A. Council Member Miller requested a work session with GTE within the next 30 days. He asked for Council approval to have this be the major portion of the work session. City Manager Harrell reminded Council that there would be a regular Council meeting on December 6th, the December 13th meeting would be City Council employee evaluations. The first work session available would be the 27th of December. Consensus of the Council was to place the item on the agenda of December 6th. B. Council Member Miller asked 'that staff look into the situation with the Police Athletic League having to pay the $25 an 244 City of Denton City Council Minutes November 22, 1994 Page 13 i i hour fee for use of the gyms. C. Mayor Castleberry requested that staff look into a possible ordinance which would take care of noise exception requests which occurred on an annual basis. 14. The Council did not meet in a Closed Meeting during the Regular Session. With no further business, the meeting was adjourn 8:50 p.m. ~TY O!~DENTON, TEXAS ACC0022D