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.
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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
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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.
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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.
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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
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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.
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City of Denton City Council Minutes
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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;
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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
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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:
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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
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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