Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
Home
My WebLink
About
City Council-Agenda Packets-11/18/2008
;n~ .,~ City of Colleyville Agenda City Council City Hall 100 Main Street Colleyville, Texas 76034 817. 503.1000 www.colleyville.com Tuesday, November 18, 2008 CITY COUNCIL CHAMBERS PRE COUNCIL MEETING EXECUTIVE SESSION 5:30 P.M. EXECUTIVE CONFERENCE ROOM THIRD FLOOR PC-1 Discussion of the process for filling an unexpired term on the Senior Center Advisory Committee PC-2 Presentation of the Monthly Financial Report -October 2008 PC-3 Presentation of the Quarterly Investment Report PC-4 Discussion of the November 18, 2008 regular agenda items 1. EXECUTIVE SESSION - In accordance with Texas Government Code Chapter 551, Subchapter D Sec. 551.071 - Legal -Consultation with Attorney on Legal Issues Raised by Public Hearing or Action Items on the Agenda Sec. 551.071 - Legal - Discussion of pending litigation - Village Monticello Partners, Ltd. v. City of Colleyville Sec. 551.071 -Legal -Discussion of potential litigation -Barbara Turner v. City of Colleyville Sec. 551.071 -Legal -Discussion of pending litigation -Raul Rodriguez v. City of Colleyville (Bill Hudgins) Sec. 551.071 - Legal - Discussion of pending litigation - Rischon Development Corporation v. City of Colleyville Sec. 551.072 -Property -Deliberate the purchase, lease, exchange or value of real property Sec. 551.072 -Property -Deliberate the purchase, lease, exchange or value of real property (Mineral Rights) City of Colleyville Page 1 Printed on 11/14/2008 City Council Agenda November 18, 2008 Sec. 551.074 - Personnel -Deliberate the appointment, employment and duties of the City Manager Sec. 551.087 - Economic Development - Discuss and deliberate commercial and financial information received from business prospects the City seeks to have locate, stay or expand within the City RESUME REGULAR MEETING 7:30 P.M. COUNCIL CHAMBERS INVOCATION: Pastor Dale Smith, Colleyville Presbyterian Church PLEDGE OF ALLEGIANCE: City Attorney Matthew Boyle 2. EXECUTIVE SESSION: CONSIDER AND TAKE ANY ACTION(S) NECESSARY RELATIVE TO ITEMS DISCUSSED IN EXECUTIVE SESSION - Resolution R-08-3030 3. ANNOUNCEMENTS AND PRESENTATIONS Announcements of civic and charitable events Presentation of calendar events and updates Announcements of awards and recognition In recognition of the Colleyville Garden Club for a donation of bronze sculptures to be displayed at McPherson Park -Carol Wollin, President, Colleyville Garden Club 4. CONSENT: READING AND PUBLIC HEARING -Resolution R-08-3031 4a Approval of the minutes of the regular City Council meeting of November 5, 2008 4b Approval to adopt a supplemental sidewalk system map related to the "Colleyville Pathways Plan" 4c Approval of naming the trail at the Colleyville Nature Center, Mike Rambo Memorial Nature Trail City of Colleyville Page 2 Printed on 11/14/2008 City Council Agenda November 18, 2008 5. ORDINANCE(S): SECOND READING AND PUBLIC HEARING 5a 0-08-1699 Approval of a request to amend the Planned Unit Development of Lot 1 R, Block 1 of The Gardens Addition located at 7011 Colleyville Boulevard, Case Z-08-021 5b 0-08-1700 Approval of an electric power contract with Cities Aggregation Power Project, Inc. (CAPP) pursuant to a 24-year power purchase agreement (PPA) and authorizing the City Manager to execute the disclosure letter, agreements and member contract 6. ORDINANCE(S): FIRST READING AND PUBLIC HEARING 6a 0-08-1701 Approval of a franchise agreement between Atmos Energy Corporation and the City of Colleyville 7. RESOLUTION(S): READING AND PUBLIC HEARING 7a R-08-3032 Approval to pass through a water and sewer rate increase received by the City of Colleyville from the Trinity River Authority 8. TABLED ITEM AND PUBLIC HEARING 8a 0-08-1695 Approval of a request for a zoning change from R-20-Single Family Residential to CPO-Professional Office Commercial on Lot 3, Block 1 of the Sunrise Terrace Addition located at 1117 Glade Road, Case Z-08-017 9. CITIZEN COMMENTS/PRESENTATIONS REGARDING ITEMS NOT ON THE AGENDA 10. REPORTS: Planning and Zoning Commission Minutes -October 13, 2008 Sign Board of Appeals Minutes -October 14, 2008 Commuter Rail Committee Minutes -October 27, 2008 Commuter Rail Committee Minutes -November 4, 2008 11. ACTION/RESOLUTION: DISCUSSION AND CONSIDERATION OF A RESOLUTION RATIFYING COUNCIL AGENDA ACTION FOR THE MEETING OF NOVEMBER 18, 2008 -Reading and Public Hearing -Resolution R-08-3033 City of Colleyville Page 3 Printed on 11/14/2008 City Council Agenda November 18, 2008 12. ADJOURNMENT: I hereby certify the above agenda was November 14, 2008, b Cynthia Singleton, TRMC, C City Secretary on the bulletin boards at City Hall on Friday, Any matter on this agenda may, at the discretion of the governing body, be opened for public comment and discussion. If you plan to attend this public meeting and have a disability that requires special accommodations, please advise the City Secretary at least 48 hours in advance at 817.503.1133, and reasonable accommodations will be made to assist you. City of Colleyville Page 4 Printed on 11/14/2008 ~.'~.:Il'.~/ { ~'i r.•:.: City of Colleyville Agenda Briefing City Hall 100 Main Street Colleyville, Texas 76034 817. 503.1000 www.colleyville.com File Number: Version: 1 Requester: Office of the City Secretary File Type: Pre Council Agenda Date: 11/18/2008 Agenda No.: PC-1 Status: Pre Council Controlling Body: City Council Final Action: File Name: Discussion of the process for filling an unexpired term on the Senior Center Advisory Committee Attachments: Diane Kohsman Resignation Letter dated November 6, 2008.pdf Senior Center Advisory Committee roster .pdf History of Legislative File Version: Date: Acting Body: Action Text: 1 11/18/2008 City Council Title Discussion of the process for filling an unexpired term on the Senior Center Advisory Committee Explanation On November 11, 2008, Ms. Diane Kohsman, whose term expires September 2010, resigned from the Senior Center Advisory Committee. This item provides for City Council to determine the process for filling the vacant position. In accordance with the City Council Rules of Procedure, Section VII, Procedures for City Council Appointments, Section 7.2; In the event of a vacancy other than an expiring term, the City Council may fill the position by a majority vote of the City Council without advertising. The appointee shall serve the unexpired term. City Council may consider the following options for filling the position: • Consider the appointment at the December 2, 2008 City Council meeting without advertising • Advertise the position with those whose terms are expiring December 2008 and consider the appointment during the December 16, 2008 City Council meeting (13 days of advertising) • Advertise the position for thirty days and consider the appointment at the January 6, 2009 City Council meeting City of Colleyville Page 1 Printed on 11/13/2008 1. G' Nov z ~ 2QOP 1 ~~ -~ ~--cl---r~c.. -t~~/--C....% ~ _l..E! C•~:t._~••~..~.y"7c _ .-~Y,-~ •L ~ ~.''~.~~-E?ft...,~_.(! .. ~~. ~ // V _ ~..1 ~`_'..J L,.. ~--~~Y'."'7K..C,...... t.•-h..C..~ C_:!-.C..."L.~--'C,..~^fY".'~.../ ~..~!..•c.t~-~.•.'~.~b '~--4~"'_T'R.l..-7..41-/v",^"~--'c~J / . ~. ~..~ Senior Center Advisory Committee Meets Third Thursday of each month at 1:00 p.m. CHAIRMAN Debra Minea Michelle Appling 1007 Dogwood Court 5801 Highland Hills Lane Colleyville, TX 76034 Colleyville, TX 76034 H: 817.428.8335 W: 866.344.3087 M: 817.999.1077 H: 817.424.5690 d mig neat@tx.rr.com michelleapplinQCcDverizon.net TERM: September 2008 - 2010 TERM: September 2008 - 2010 Wanda Johnson Diane Kohsmann 5600 Valley View Drive West 4526 Shadywood Lane Colleyville, Texas 76034 Colleyville, TX 76034 W: 817.488.8770 H: 817.903.1399 H: 817.498.0996 dianeko .tx.rr.com F: 817.251.8578 TERM: September 2008 - 2010 TERM: September 2007 - 2009 Molly Skinner 309 Chestnut Bend Colleyville, TX 76034 H: 817.485.7354 M: 214.536.7219 mollyskinnCcDaol.com TERM: September 2008 - 2010 Anne Gifford 4706 Mill Springs Court Colleyville, TX 76034 H: 817.498.5660 F: 817.428.9417 giffordl CcDmindsprinq.com TERM: September 2008 - 2010 Dorothy Parker P.O. Box 821314 Fort Worth, Texas 76182 W: 817.366.2733 H: 817.498.1660 TERM: September 2007 - 2009 Updated 09-19-1008 ~_=-"`` City Hall ~'~ ~ '` ~ City of Colleyville 100 Main Street ~~ Colleyville, Texas 76034 ,:.;.~: Agenda Briefing 817.503.1000 www.colleyville.com File Number: File Type: Pre Council Status: Pre Council Version: 1 Agenda Date: 11/18/2008 Controlling Body: City Council Requester: Finance Department Agenda No.: PC-2 Final Action: File Name: Presentation of the Monthly Financial Report -October 2008 Attachments: October 2008 Monthly Financial Report.pdf History of Legislative File Version: Date: Acting Body: Action Text: 1 11/18/2008 City Council Title Presentation of the Monthly Financial Report -October 2008 Explanation The percentage of current year taxes collected is slightly ahead of the percentage collected for October 2007. Per governmental accounting rules, sales tax revenue received in October 2008 is recorded as FY 2008 revenue. Eleven residential building permits were issued in October, as compared to six issued in October 2007. The average amount expended by the departments at the end of October 2008 is 5.5%. Utility Fund Water usage increased slightly as compared to the amount sold in October 2007. The average amount expended by the Utility Fund at the end of October 2008 is 2.6%. City of Colleyville Page 1 Printed on 11/13/2008 MONTHLY FINANCIAL REPORT -OCTOBER 2008 GENERALFUND RECEIVED !PROJECTED RECEIVED FY 2009... AS O'F AS OF AS OF PERCENT REVENUE SOURCE BUDGET, 10/31/2008 10/31/2008 40/31/2007 CHANGE, Current Taxes $9,616,931 $197,966 $100,000 $103,478 91.31% Delinquent Taxes 55,000 8,999 $4,583 10,296 -12.60% Penalty & Interest 55,000 2,054 $2,000 2,237 -8.18% TOTAL AD VALOREM TAXES $9,726,931 $209,019 $106,583 $116,011 80.17%° TXU Electric $887,190 Tri-County Electric 119,000 TXU Gas 340,000 AT&T 126,100 Verizon/Others 51,250 Refuse/Recycling 135,050 Cable TV 192,900 TOTAL FRANCHISE TAXES $1;851,490 Sales Tax $2,561,375 Mixed Beverage Tax 87,000 TOTAL SALES TAX.. $2;648;375 Building Plumbing Mechanical Electrical City License Building Plan Review Fee New Business Animal Sign Permit Fence Permit Fire Permits TOTAL-LICENSES & PERMITS Fines Alarm Fees Library Fines TOTAL FINES. $864,473 88, 987 63,376 98, 911 58,247 162, 772 3, 079 1, 400 6, 050 7, 359 15, 000 $1, 369,654. $780, 000 45, 000 33, 600 $858,600 $0 0 0 0 48 5, 015 0 $0 0 0 0 5,750 3, 542 0 $5,063 $9,292' $0 $0 17,966 21,750 $17,966 $21,750 $55, 576 5,727 3, 324 2,977 2, 835 5, 489 94 186 845 325 2, 962 $80; 340 $67,091 2,725 1, 750 $71;566 $43, 750 7,416 5,281 8, 243 4, 854 13, 564 257 117 504 613 1, 250 $85, 848 $65, 000 1, 000 2,800 $68,800 $0 0 0 0 0 0 0 $0 0.00% 0.00% 0.00% 0.00% 100.00% 100.00% 0.00% 100.00% $0 0.00% 22,905 -21.56% $22,905 21..56% $47,829 4,651 5, 396 3, 506 5, 040 7, 566 97 54 875 400 1, 900 $77, 314 $56, 504 1,525 2,081 $60,11.0 16.20% 23.13% -38.40% -15.09% -43.75% -27.45% -3.09% 244.44% -3.43% -18.75% 55.89% 3.91 18.74% 78.69% -15.91 19.06%° MONTHLY FINANCIAL REPORT -OCTOBER 2008 REVENUE SOURCE FY 2009 BUDGET Re-zoning $13,201 Plat Fee/Site Plan 21,038 Board of Adjustment 2,040 Sale of Material 3,020 Weed Mowing 10,000 Animal Impoundment 3,250 Ambulance 250,000 Recreation Program 168,130 Non-Resident Fee Parks 20,050 Field Use Charge 17,700 Engineering & Inspection 100,000 Chgs & Reimbursements 2,000 Colleyville Center Rental 230,000 Lot Drainage Insp Fee 25,000 TOTAL CHARGES FOR SERVICE $865,429 DARE Officer Reimb $89,792 TOTAL INTERGOVERNMENTAL $89,792 Sale of Surplus Property Interest Income Miscellaneous Use of Available Cash Antenna Lease TOTAL MISCELLANEOUS $17,000 255,000 55,000 833,523 64, 000 $1,224;523 Transfer from Utility Fd $756,787 TOTAL TRANSFERS $756;787 RECEIVED PROJECTED AS OF AS OF 10/31/2008 10/31 /2008 $1,020 $1,100 0 1, 753 250 170 10 252 1,308 833 215 271 10,735 20,833 3,363 7,005 0 5,000 0 4,000 0 8,333 0 167 32,038 19,167 1,375 2,083 $50,314 $70,968 $0 $0 $0I $0 $0 $0 0 0 10,475 5,000 0 0 4, 912 1, 700 $.15,387 $6,700 $0 $0 $0 ~ $0 j RECEIVED AS OF 10/31/2007 $625 2,693 250 485 150 300 28,355 5, 379 9, 240 3, 740 35,379 1, 065 29,258 1, 000 $117,919 $0 $0 $0 0 626 0 4, 339 $4,965 $0 $0 PERCENT CHANGE 63.20% -100.00% 0.00% -97.94% 772.00% -28.33% -62.14% -37.48% -100.00% -100.00% 100.00% 100.00% 9.50% 37.50% 57.33% 0.00% -0.00% 0.00% 0.00% 1573.32% 0.00% 13.21 209.91 0.00% 0.00% TOTAL GENERALFUND REVENUES $19,391,581 $449,655 $369',941 $399,224 12.63% MONTHLY FINANCIAL REPORT -OCTOBER 2008 TOTAL PERCENT FY 2008 THROUGH THROUGH INCREASE INCREASE BUDGET 10/31/2008 10/31/2007 (DECREASE) (DECREASE) OF CURRENT TAX ROLL COLLECTED 99.0% 3.34% 2.16% 1.18% 54.63% RESIDENTIAL BLDG PERMITS 160 11 6 5 83.33% COMMERCIAL BLDG PERMITS 10 0 2 (2) 100.00% PLUMBING/MECHANICAL PERMITS 1200 102 118 (16) -13.56% ELECTRICAL PERMITS 400 39 38 1 2.63% CITATIONS ISSUED 9,700 923 795 128 16.10% CITATIONS APPEALED 550 105 44 61 138.64% GENERAL FUND EXPENSES EXPENDED YEAR-TO-DATE % EXPENDED FY2009 THROUGH ' AROJECTED 8.33% OF THE BUDGET '.BUDGET 10/31/2008 ,EXPENDITURES YEAR COMPLETED REMAINING City Council and Secretary $588,992 $67,541 $62,080 11.5% $521,451 City Manager 589,919 31,849 40,232 5.4% 558,070 Finance 489,945 38,525 44,726 7.9% 451,420 Legal 106,823 0 0 0.0% 106,823 Engineering 553,500 32,217 37,085 5.8% 521,283 Economic Development 265,724 1,356 13,000 0.5% 264,368 Building Inspection 488,822 22,837 32,153 4.7% 465,985 Community Development 248,480 11,555 17,394 4.7% 236,925 Fire 3,851,923 319,602 330,775 8.3% 3,532,321 Police 4,285,946 219,464 268,729 5.1% 4,066,482 Parks 1,593,531 58,288 78,083 3.7% 1,535,243 Recreation 338,918 21,263 21,182 6.3% 317,655 Streets & Drainage 2,703,322 40,963 67,313 1.5% 2,662,359 Library 723,607 31,099 36,180 4.3% 692,508 Communications 222,531 7,893 12,373 3.5% 214,638 Colleyville Center 385,151 19,502 21,838 5.1% 365,649 Human Resources 231,111 11,201 13,867 4.8% 219,910 Municipal Court 255,870 11,822 15,217 4.6% 244,048 Fleet Maintenance 211,963 10,768 16,321 5.1% 201,195 Building Services 244,691 62,832 63,000 25.7% 181,859 Information Services 451,788 48,893 49,500 10.8% 402,895 Capital Equipment Reserve 135,000 0 0 0.0% 135,000 Transfer to Art Fund 7,500 0 0 0.0% 7,500 Performance Pay 396,351 0 0 0.0% 396,351 TOTAL EXPENSES $19;371,408 $1,069,470 $1,241,047 5.5% $18,301,938 MONTHLY FINANCIAL REPORT -OCTOBER 2008 UTILITY FUND :RECEIVED .. .:PROJECTED. RECEIVED FY 2009 AS OF AS OF AS OF PERCENT REVENUE SOURCE BUDGET 10/31/2008 10/31/2008 10/31/2007 CHANGE Water Sales $7,341,404 $847,705 $844,261 $808,821 4.81% Sewer Sales 2,264,638 205,099 188,720 189,426 8.27% Sewer Installation 22,900 2,200 1,908 2,880 -23.61% Water Installation 48,000 3,220 4,000 3,400 -5.29% Sewer Tie-on Charges 5,000 0 417 0 0.00% Engineering Charges 35,000 0 2,917 13,221 -100.00% Penalties 168,106 22,460 14,009 20,109 11.69% Miscellaneous 15,000 1,557 1,250 1,285 21.17% TOTAL OPERATING INCOME $9,900,048 $1;082,241 $1.;057,482.: $1,039,142 4.15% Interest Income $350,000 $0 $0 $0 0.00% Use of Available Cash 100,000 0 0 0 0.00% TOTAL NON-OPERATING INCOME $450,000 $0 $0 $0 0.00%° TOTALJNCOME $1Q350,048 $1,082,241 $1,,057,482 $1,039,142 4.15% TOTAL PERCENT THROUGH THROUGH INCREASE INCREASE 10/31/2008 10/31/2007 (DECREASE) (DECREASE) GALLONS OF WATER SOLD 268,966,800 249,830,900 19,135,900 7.66% NUMBER OF WATER CUSTOMERS 8,912 8,736 176 2.01% UTILITY'FUND EXPENSES EXPENDED . .YEAR-TO-DATE % EXPENDED FY 2009' THROUGH PROJECTED 8.33% OF THE BUDGET BUDGET 10/31/2008 ,EXPENSES _ ,YEAR COMPLETED. .REMAINING Administration $214,836 $11,175 $14,578 5.2% $203,661 Billing 576,216 20,801 26,307 3.6% 555,415 Operations 7,459,221 187,794 339,395 2.5% 7,271,427 Debt Service 885,482 38,590 38,590 4.4% 846,892 Merit Adjustment 48,536 0 0 0.0% 48,536 Transfer to Art Fund 7,500 0 0 0.0% 7,500 Transfer to General Fund 756,787 0 0 0.0% 756,787 TOTAL EXPENSES $9,948,578 $258,360 $418;870 2.6°/v $9,690,218 i~ ~~r ~ 1 f~ City of Colleyville City Hall f 100 Main Street Colleyville, Texas 76034 ~~~~~~" Agenda Briefing 817.503.1000 www.colleyville.com File Number: File Type: Pre Council Status: Pre Council Version: 1 Agenda Date: 11/18/2008 Requester: Finance Department Agenda No.: PC-3 File Name: Presentation of the Quarterly Investment Report Attachments: Quarterly Investment Report.pdf History of Legislative File Controlling Body: City Council Final Action: Version: Date: Acting Body: Action Text: 11/18/2008 City Council Title Presentation of the Quarterly Investment Report Explanation During the period of July 1, 2008 through September 30, 2008, the City of Colleyville had an average of $36,080,236 invested on a daily basis, which earned $243,892, with an average yield of 2.68%. The average yield on investments for this quarter is down from the prior quarter's average of 3.02%. As of September 30, 2008, the City had $34,215,386 invested in the LOGIC Investment Pool and various debt instruments in the following percentages: LOGIC Investment Pool 58.96% FHLB Notes 18.62% Treasury Notes 12.54% FNMA Notes 4.02% FFCB Note 2.92% FHLB Discount Note 2.92% These percentages are within the guidelines for portfolio diversification in the City's investment policy. The market value of the City's investments on September 30, 2008 was $14,144,928 as compared to a purchase price of $14,239,557 (this excludes LOGIC Investment Pool). The Colleyville Economic Development Corporation currently holds a Treasury Bill ($550,000) with a market value of $544,038 and a purchase price of $538,624. Additionally, $1,029,754 was invested in the Corporation's name in the LOGIC Investment Pool. These funds earned interest of $9,270 for the quarter. This report was presented to the Audit Committee on November 12, 2008. City of Colleyville Page 1 Printed on 11/13/2008 QUARTERLY INVESTMENT REPORT vu i a i r~rvuuw uvvw i iwtrv s a r i acr i eiwotrr au, zuues PURCHASE PAR MARKET VALUE MATURITY YIELD ON PRICE VALUE ~ 9/30/08 DATE INVESTMENT FHLB NOTE $499,870 $500,000 $499,220 2/27/2009 2.700% TREASURY NOTE $1,276,328 $1,240,000 $1,258,699 3/31/2009 1.760% FHLB NOTE $1,597,792 $1,600,000 $1,591,504 4/3/2009 2.350% FFCB NOTE $1,010,800 $1,000,000 $1,001,560 4/15/2009 2.325% FHLB NOTE $1,049,179 $1,050,000 $1,045,412 5/28/2009 2.580% TREASURY NOTE $563,664 $550,000 $562,419 6/30/2009 2.347% FNMA NOTE $1,404,382 $1,375,000 $1,394,773 7/13/2009 3.040% TREASURY NOTE $1,351,797 $1,300,000 $1,345,396 8/15/2009 2.391% FHLB NOTE $1,219,297 $1,185,000 $1,198,331 8/14/2009 2.500% FHLB DISCOUNT $968,325 $1,000,000 $969,900 9/23/2009 3.272% FHLB NOTE $1,122,103 $1,115,000 $1,119,884 10/5/2009 3.100% TREASURY NOTE $1,232,472 $1,200,000 $1,218,564 10/15/2009 1.590% FHLB NOTE $943,563 $920,000 $939,265 12/11/2009 3.050% TOTAL OUTSTANDING INVESTMENTS $14,239,572 $14,035,000 $14,144,928 CITY OF COLLEYVILLE BALANCES AT SEPTEMBER 30, 2008 INVESTMENT PURCHASES $14,035,000 LOGIC INVESTMENT POOL $20,180,388 TOTAL CITY INVESTMENTS HELD AT SEPTEMBER 30, 2008 $34,215,386 COLLEYVILLE ECONOMIC DEVELOPMENT CORPORATION BALANCES AT SEPTEMBER 30, 2008 INVESTMENT PURCHASES LOGIC INVESTMENT POOL TOTAL CEDC INVESTMENTS HELD AT SEPTEMBER 30, 2008 $538,624 $1,029,754 $1,568,378 OTAL INVESTMENTS HELD BY CITY OF COLLEYVILLE ND COLIEYVILLE ECONOMIC DEVELOPMENT CORP AT SEPTEMBER 30, 2008 $35,783,764 INTEREST EARNINGS ON CITY OF COLLEYVILLE INVESTMENTS JULY 1 -SEPTEMBER 30, 2008 PURCHASE PAR MATURITY YIELD ON INTEREST PRICE VALUE DATE INVESTMENT EARNED FHLB NOTE $1,100,000 $1,100,000 7/9/2008 4.993% $1,204 FHLMC NOTE $912,456 $920,000 8/4/2008 5.085% $4,358 TREASURY NOTE $992,188 $1,000,000 8/15/2008 4.716% $5,814 FHLB NOTE $1,001,140 $1,000,000 8/31/2008 4.780% $7,988 TREASURY NOTE $977,813 $1,000,000 9/15/2008 4.724% $9,836 FHLB NOTE $499,870 $500,000 2/29/2009 2.700% $1,553 TREASURY NOTE $1,276,328 $1,240,000 3/31/2009 1.760% $5,501 FHLB NOTE $1,597,792 $1,600,000 4/3/2009 2.350% $9,477 FFCB NOTE $1,010,800 $1,000,000 4/15/2009 2.325% $5,860 FHLB NOTE $1,049,179 $1,050,000 5/28/2009 2.580% $6,828 TREASURY NOTE $563,664 $550,000 6/30/2008 2.347% $3,254 FNMA NOTE $1,404,382 $1,375,000 7/13/2009 3.040% $10,536 FHLB NOTE $1,219,297 $1,185,000 8/14/2009 2.500% $7,467 TREASURY NOTE $1,351,797 $1,300,000 8/15/2009 2.391% $7,835 FHLB DISCOUNT $968,325 $1,000,000 9/23/2009 3.272% $448 FHLB NOTE $1,122,103 $1,115,000 10/5/2009 3.100% $8,712 TREASURY NOTE $1,232,472 $1,200,000 10/15/2009 1.590% $4,809 FHLB NOTE $943,563 $920,000 12/11/2009 3.050% $4,459 TOTAL INTEREST EARNED ON CITY INVESTMENTS HELD 7-1-08 THROUGH 9-30-08 $105,940 ~ O T M ~ im ~ ~ O ~ 0 0 V ', _ O ~t ~ W Y f 7 J Q Q Q Q Q Q ~ N 69 ~ M dv ~ tf ~ ~ ~ ~ Q Q Q N Q Z~ Z Z Z Z Z Z ~ Z Z Z ~ ~ Q ~ C7 ~ i .-. o D ~ ° w N ~ M ~ co Q Q Q- Q Q Q Q Q Q Q Q Q Q Q Q Q Q Q W Z~ Z Z Z Z Z Z Z Z Z Z ~ ~ Z Z Z Z Z Z ~ ~ ~ ~ LL T ~ O N ~ O 0 O ~ M O f 0 LL7 O <O O ~ O r n f M ~ f0 N N N 0 N 0 W O O M W O u') 0 ~ tfI ' N 0 0 0 sf ~ w ~ O Q Q Q Q Q ~ ~ O N N 0 4'Y O O Y O r O M V M t0 O 69 M 0 69 0 sf Ef! f0 01 69 ~ J M . ~ Q Q ~ Z Z Z Z Z ~ d! fA V! (fl N~ fA to (fl ~ pp 11 > V ~ a O a = v ~ a Q z Q z Q z Q z Q z Q z `Q z Q z Q ~ Q z Q z Q z Q z Q z Q ~z ~ ~ ~ W ~ ~ M ~ 609- v N69 0 W J = Q 2.- ~ U O d °o O ~ ~ 00 O O 69 00 O O 69 °o_ O r 69 o O O 69 o W r 69 Q Z Q Z ~Q Z Q Z Q Z Q Z Q Z Q Z Q Z Q Z Q Z Q Z 0 '~ N ~ N OD to O <O <O _O 00 M 0 <p O ~ a0 O r M O LO O ~ N N (O Of er O O O OD 00 M ~ CO O h M 0 0 f~ ~ O ~ N V a Cp O M h r r 0 cD ~ w Y ~ Q w ~ > O O O' ~ G N ~ N O O 69 N O O 69 O O fH ~ O O 69 tC) O N 69 0 O N 69 fD N f9 N 0 O 69 O O O t9 ~O Y O 69 ~ N 69 O O ~ N9 O ~Y M 69 N CO O ~ N 7 O 69 0 9 V 0 M V) O ~O M N O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O O w O O O O O ~ O O O O O a u~ O O O C C ~ ~ N O O O O 0p ~ O O O O n O O N O O d J 0 O O ~ O ~ N N f0 O O ~ M M O 0 O O j ~ V- 64 69 69 69 fH 69 69 fH V3 69 69 69 69 f/4 f9 69 CO M h O O f~ CO N N 0 M N t0 V' M O O w ~ _ O O ~ 0 N r 0 O r O O 0 tD tD 1~ N ~ ~ OD .- O ~ N M ~ h CO ~ r M 1~ fD ~[) 00 M Q w N I~ N O 0 O N r O 0 N ~ M M 01 ao = U _ 1~ O~ O O I~ M 0 ~ N O u7 <O ~ 01 O U ~ 01 0 O1 ~ O N N N to O O ~ ~ M tf~ Of ~ 0 ~ d u> v, v- u i i i e i i v u s ffs vs ~ 69 s r s s s n s » s 3 r s as a o 0 0 0 o rn rn rn rn rn rn rn rn rn rn rn rn rn 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 ' 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Q ~ N N N N N N N N N ~V N N N N N N N N ~ Q Y ~ O Of ~ O f`7 N O ~ M ~ O r M Q ~ O r r r. ` r \ .- ~ r N C .- r M r N N Of 00 00 00 M O 'Q O h W f0 ~ N ~ w n r r n r o 0 0 0 0 0 0 o w oo ao ao ao 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 _ 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 ~ N N N N N N N N N N ~V N N N N N N (,) Q ~ N N ~ O N 0 ~ W O O ~ O O ~ O t0 ~ ~ ~ ~ ~ ~ ~! .- N M O ~ M ~ N M M O N N ~ N th N f~ M ~ <O f0 t0 f0 OD ~ a ~ ~ ~ ~ ~ ~ ~ z z z z z ~-- w z z z ~ w ~ } ~. w ~. w ~. } w w w w ~ w w ~ o y, } ~ Z j j O j O j j O O O O Z j j O O N U C n (n Z N Z y N Z Z Z Z N Z Z ~ N ~ ~ Q W W mJ W J W ~ m U m m ~ Q N~ m m m J Q Z = H H LL ~ = ~ W ~ LL LL = = Z Ll.~ W = = = F - - l 1. L t.. L L t 1. L L l 1 ~ ~ L l. L L L L O LISTING OF INVESTMENTS BY GENERAL LEDGER ACCOUNT NUMBER OUTSTANDING INVESTMENTS AT 9-30.08 INVESTMENT FHLB TREASURY TREASURY FHLB FFCB NOTE NOTE NOTE NOTE NOTE DATE AC.OUIRED 12-Feb-OB 29-Fab-08 31-Mer-08 05-May-08 OB-May-0B MATURITY DATE 14-Aug-09 31-Mar-09 15-Oc1-09 03-Apr-09 1SApr-09 28 WEEK T-BILL AUCTION DISCOUNTANEEK OF PURCHASE 2.250% 2.070% 1.550% 1.740% 1.740% YIELD TO MATURITY 2.500% 1.760% 1.590% 2.350% 2.325% ACCOUNT ALLOCATION OF INVESTMENT 001-1172 GENERAL FUND OPERATING 168,289.57 82,858.18 800,000.00 002-1168 UTILITY DEBT SERVICE RESERVE 295,385.80 332,627.96 002-1189 98 REVENUE BONDS 002-1172 UTILITY FUND OPERATING 381,425.80 817,441.22 207,092.88 131,811.90 475,250.48 002.1178 CUSTOMER DEPOSITS 002-1557 THE RESERVE LIFT STATION 003.1173 SERVICE AREA I -IMP FEES 1,672.38 178,630.79 003.1180 BEDFORD BRIDGE ESCROW 003-1188 TOWN CENTER/HWY28 35,114.52 003.1192. MCDONWELL WOODS EST ESCROW 10,829.42 003-1200 LONGWOOD-PARKING ESCROW 13,475.93 003-1203 SERVICE AREA II -IMP FEES 158,722.82 174,094.22 003.1204 BEOFORD LAKES/SOMERSET 229,812.71 003-1209 PECAN PARK II DRAINAGE ESCROW 3,823.88 003.1218 BOGARTlHIDDEN OAKS/SANDLIN 122,626.83 003.1228 PLEASANT RUN HARDAGE ESTATESIESC 003-1229 GLADE RD SUMMERBROOK 003.1231 LAKEWOOD ESCROW 26,290.79 003-1238 E. GLADE CRANBROOK ESCROW 118,838.55 003-1237 E. GLADE ASHMORE I ESCROW 52,912.88 003.1239 GLADE POINTS LANDSCAPE ESCROW 4,804.37 003-1247 GIADEIWAYSIDE ESCROW 42,724.11 003-1250 REATTA PLACE 95,177.25 003-1257 ASHMORE II A GLADE RD ESCROW 28,298.79 003.1268 MILL CREEK/ GLADE ESCROW 30,787.48 003.1271 ASHMORE III/ GLADE ESCROW 003-1278 GLADE RD/ASHMORE IIB ESCROW 38,248.32 003.1301 LAKEWOOD PH IV' 003.1304 VILLA3 DEL MAR 58,311.70 003-1307 SPRING GARDEN 003.1313 APPLEBEE'S 44,184.21 003-1319 REMINGTON PARK 003-1323 SHAIIMAR 70,190.94 003-1325 PECAN GARDENS 003.1330 REMINGTON PARK 003-1357 CITGOlLD LOCKETT 57,216.54 003-1360 REMINGTON PARK PH III 79,333.80 003-1392 CIAIRMONT-PH I 003-1404 TANGLEWOOD 28,298.48 003-1418 CLAIRMONT-PH II 003-1551 LA VACA TRAIL 005.1172 VOLUNTARY PARK FUND 011-1172 LIBRARY DONATIONS FUND 012.1172 PARK LAND DEDICATION FUND 82,878.58 017-1172 DRAINAGE FUND OPERATING 32,212.44 125,000.00 024-1172 CEDC OPERATING 028-1172 TIF OPERATING 908,838.12 PER GENERAL LEDGER 31,219,297.48 51,278,328.13 57,232,472.00 51,597,782.00 51,010,800.00 VALUE AT MATURITY 51,185,000.00 31,240,000.00 51,200,000.00 51,800,000.00 57,000,000.00 INTEREST RECEIVED AT MATURITY $44,949.41 524,198.10 529,938.84 534,279.11 $21,983.89 OUTSTANDING INVESTMENTB AT 9-30-08 INVESTMENT FHLB FHLB FMNA TREASURY TREASURY NOTE NOTE NOTE NOTE NOTE DATE ACQUIRED 30.Mey-08 10.Jun-OB 25,1un-08 30.Jun-OB 30Jun-OB MATURITY DATE 28-May-09 05.Od-09 13-Ju1.09 15-Au0.09 30Jun-09 28 WEEK T-BILL AUCTION DISCOUNTNVEEK OF PURCHASE 1.920% 1.997% 2.350% 2.255% 2.255% YIELD TO MATURITY 2.580% 3.100% 3.040% 2.391% 2.347% ACCOUNT ALLOCATION OF INVESTMENT 001-1172 GENERAL FUND OPERATING 002-1188 UTILITY DEBT SERVICE RESERVE 002.1189 98 REVENUE BONDS 002-1172 UTILITY FUND OPERATING 002-1178 CUSTOMER DEPOSITS 002-1557 THE RESERVE LIFT STATION 003.1173 SERVICE AREA I -IMP FEES 003-1180 BEDFORD BRIDGE ESCROW 003.1188 TOWN CENTER/HWY28 003.1192 MCDONWELL WOODS EST ESCROW 003.1200 LONGWOOD-PARKING ESCROW 003-1203 SERVICE AREA II -IMP FEES 003-1204 BEDFORD LAKES/SOMERSET 003-1209 PECAN PARK II DRAINAGE ESCROW 003.1216 BOGART/HIDDEN OAKS/SANDIIN 003.1228 PLEASANT RUN HARDAGE ESTATES/ESC 003.1229 GLADE RD SUMMERBROOK 003.1231 LAKEWOOD ESCROW 003.1238 E. GLADE CRANBROOK ESCROW 00&1237 E. GLADE ASHMORE I ESCROW 003-1238 GLADE POINTS LANDSCAPE ESCROW 003-1247 GLADEANAYSIDE ESCROW 003-1250 REATTA PLACE 003-1257 ASHMORE II A GLADE RD ESCROW 003.1288 MILL CREEK/ GLADE ESCROW 003.1271 A3HMORE III/ GLADE ESCROW 003-1278 GLADE RD/ASHMORE IIB ESCROW 003.1301 LAKEWOOD PH IV 003.1304 VILLAS DEl MAR 003.1307 SPRING GARDEN 003.1313 APPLEBEE'S 003.1319 REMINGTON PARK 003.1323 SHALIMAR 003-1325 PECAN GARDENS 003.1330 REMINGTON PARK 003.1357 GTGO/LD LOCKETT 003-1380 REMINGTON PARK PH III 003.1392 CLAIRMONT-PH I 003.1404 TANGLEWOOD 003-1418 CLAIRMONT-PH II 003-1551 LA VACA TRAIL 005.1172 VOLUNTARY PARK FUND 011.1172 LIBRARY DONATIONS FUND 012-1172 PARK LAND DEDICATION FUND 017.1172 DRAINAGE FUND OPERATING 024.1172 CEDC OPERATING 028.1172 TIF OPERATING PER GENERALLEDGER VALUE AT MATURITY INTEREST RECEIVED AT MATURITY 1,122,102.55 500,000.00 188,703.97 620,224.10 10,428.85 385,932.39 80,000.00 57,428.34 85,488.94 78,784.45 92,973.88 167,823.10 103,919.92 145,835.20 50,489.76 100,000.00 43,598.49 1,089,972.70 80,447.43 549,178.90 $1,049,178.90 51,122,102.55 $1,404,382.38 $1,351,798.88 5583,884.06 51,050,000.00 51,115,000.00 51,375,000.00 51,300,000.00 5550,000.00 528,810.56 546.012.17 548,129.82 538.080.28 $13,148.44 OUTSTANDING INVESTMENTS AT 9-30-08 INVESTMENT TREASURY FHLB FHLB FHLB BILL NOTE NOTE DISCOUNT DATE ACQUIRED 30Jun-08 04Aup-OB 20.AUg-OB 28•SepAB MATURITY DATE 04Jun-09 11-Deo-08 27-Feb09 23-Sep-09 28 WEEK T-BILL AUCTION DISCOUNTANEEK OF PURCHASE 2.255% 1.920% 2.020% 1.780% YIELD TO MATURITY 2.282% 3.050% 2.700% 3.272% ACCOUNT ALLOCATION OF INVESTMENT 001-1172 GENERAL FUND OPERATING 499,870.00 848,480.98 002-1188 UTILITY DEBT SERVICE RESERVE 15,241.43 002-1188 98 REVENUE BONDS 002.1172 UTILITY FUND OPERATING 002-1178 CUSTOMER DEPOSITS 29,822.81 002-1557 THE RESERVE LIFT STATION 003-1173 SERVICE AREA I -IMP FEES 19,875.79 00&1180 'BEDFORD BRIDGE ESCROW 35,948.57 003-1188 TOWN CENTERMWY28 003-1192 MCDONWELL WOODS EST ESCROW 003-1200 LONGWOO0.PARKING ESCROW 003-1203 SERVICE AREA II -IMP FEES 003-1204 BEDFORD LAKES/SOMERSET 003.1209 PECAN PARK II DRAINAGE ESCROW 003.1218 BOGART/HIDDEN OAKS/SANDLIN 003.1228 PLEASANT RUN HARDAGE ESTATES/ESC 48,812.04 0031229 GLADE RD SUMMERBROOK 003-1231 LAKEWOOD ESCROW 003-1238 E. GLADE CRANBROOK ESCROW 003-1237 E. GLADE ASHMORE I ESCROW 003-1239 GLADE POINTS LANDSCAPE ESCROW 003-1247 GLADENVAYSIDE ESCROW 003.1250 REATTA PLACE 003.1257 ASHMORE II A GLADE RD ESCROW 003.1288 MILL CREEK/ GLADE ESCROW 003-1271. ASHMORE IIU GLADE ESCROW 003-1278 GLADE RD/ASHMORE IIB ESCROW 003.1301 LAKEWOOD PH IV 0031304 VILLAS DEL MAR 003.1307 SPRING GARDEN 003-1313 APPLEBEE'S 003.1319 REMINGTON PARK 003-1323 SHALIMAR 003-1325 PECAN GARDENS 32,425.83 003-1330 REMINGTON PARK 81,180.32 003.1357 CITGO/LD LOCKETT 003.1380 REMINGTON PARK PH III 003-1392 CLAIRMONT-PH I 003.1404 TANGLEWOOD 003.1418 CLAIRMONT-PH II 003-1551 LA VACA TRAIL 005.1172 VOLUNTARY PARK FUND 199,853.43 175,000.00 011-1172 LIBRARY DONATIONS FUND 109,445.38 100,000.00 012-1172 PARK LAND DEDICATION FUND 348,721.97 017-1172 DRAINAGE FUND OPERATING 89,518.71 0241172 CEDC OPERATING 538,824.13 028.1172 TIF OPERATING PER GENERAL LE DGER $538,824.13 $943,583.04 $499,870.00 $988,325.00 VALUE AT MATURI TY $550,000.00 $920,000.00 $500,000.00 51,000,000.00 INTEREST RECEIVED AT MATURITY 511,375.87 $42,982.98 $7,048.44 $31,875.00 LOGIC INVESTMENT POOL ALLOCATION AND GENERAL INFORMATION LOCAL GOVERNMENT INVESTMENT COOPERATIVE / "LOGIC" ACCOUNT ALLOCATION AT SEPTEMBER 30, 2008 ACCT # DESCRIPTION BALANCE GENERAL FUND 001.1115 GENERAL OPERATING $5,568,405.71 UTILITY FUND 002.1115 UTILITY OPNS $4,496,473.34 002.1116 IMPACT FEES WATER $17,182.99 002.1130 UTILITY INTEREST & SINKING FUND $767,846.98 002.1294 IMPACT FEES SEWER $348,067.79 CAPITAL PROJECTS FUND 003.1113 IMPACT FEES/SA I $142,852.90 003.1396 2002 CERTIFICATES OF OBLIGATION $46,553.91 003.1508 STREET RESURFACING $405,732.17 003.15098 MICRO-RESURFACING $150,271.17 DEBT SERVICE FUND 004.1115 DEBT SERVICE OPERATING $983,289.75 TIF FUND 017.1115 DRAINAGE OPERATING $426,038.35 017.1159 DRAINAGE INT & SINKING FUND $136,931.33 017.1380 2001 DRAINAGE BONDS $251,841.39 TIF FUND 026.1115 TIF OPERATING $3,621,391.26 026.1383 2001 TIF BONDS $135,317.23 CCCPD FUND 027.1115 CCCPD OPERATING $726,110.01 027.1147 99 POLICE/COURT BLDG FUND $64,677.34 SALES TAX INCENTIVE AGREEMENT FUND 031.1115 SALES TAX INCENTIVE AGREEMENT OPERATING $1,183,616.26 CAPITAL EQUIPMENT REPLACEMENT FUND 032.1115 CAPITAL EQUIPMENT REPLACEMENT FUND $490,885.84 TOTAL LOGIC POOL BALANCE $19,963,485.72 LOGIC ..LOGIC Newsletter September 2008 As of September 30, 2008 Current Invested Balance $1,842,768,859.42 Weighted Average Maturity (1)* 31 Days Weighted Average Maturity (2)* 66 Days Net Asset Value 0.999254 Total Number of Participants 390 ` Management Fee on Invested Balance 0.0875°/o'' -'-' Interest Distributed $3,928,231.71.... Management Fee Collected $123,838.28' °,/° of Portfolio Invested Beyond 1 Year 1.95°/0 Standard & Poor's Current Rating ;,AAAm September Averages: Average Invested Balance $1,7') 8,836,634.06 Average Monthly Yield, on a simple basis 2.6931 Average Weighted Average Maturity (1 )"' 37 Days Average Weighted Average Maturity (2)* 75 Days +Dettnftiao of Wefglued AveragelMa[udty (lt at t~l (1) ThlsweigtitedaveragemetudtycalculationusesthdSEGRule2a-7definition ' for stated maturity for any fldatfng rate instrument held in the portfolio to determine the weighted average maturity for the pool. This Rule specifies that e variable rate instrument to be paid in 397 calendar days or less shall be deemed to have a maturity equal to the period remaining until the next readjustment of the interest rate. f2) This weighted average maturity calculation uses the fnel maturity of any floating rate instruments held in the portfolio to calculate the welghted average maturity for the pool Rates iefieci#iistvriuai ii>tvrtitatia~,and_are nvt an ii~urt:atian of fuLre p~rfOtmandE. Holiday Reminder In observance of the Columbus Day holiday, LOGIC will be closed on Monday, October 13, 2008. All ACH transactions initiated on Friday, October 10th will settle on Tuesday, October 13th. In addition, in observance of the Veterans Dayholiday, LOGIC will be closed on Tuesday, November 11, 2008. All ACH transactions initiated on Monday, November 10th, will settle on Wednesday, November 12th. These are Federal Reserve holidays and banks will be closed. Please plan accordingly for your liquidity needs. Conferences LOGIC representatives will be attending the following conferences in October. * Texas Association of County Auditors Conference October 14-17, Dallas ,k Texas. Municipal League Annual Conference, October 28-31, San Antonio The speed and force of the credit crisis impact accelerated in September, creating volatility, corporate events and government intervention. Weak conditions within many financial firms have aggravated investor concerns around their capitalization, leading the Treasury to place the government-sponsored entities Fannie Mae and Freddie Mac into conservatorship, Lehman Brothers to declare bankruptcy, Merrill Lynch to sell itself to Bank of America, and the Federal Reserve to facilitate a bailout of American International Group. The failure of Washington Mutual Bank and concerns that Wachovia would be next due to its weak ARM mortgage portfolio led to the takeover of WaMu by JP Morgan Chase, while Wachovia's fate is still undecided between Citigroup and Wells Fargo. Goldman Sachs and Morgan Stanley decided to become bank holding companies. These events were mirrored in Europe by bank failures and government intervention. Shortly after quarter end, a revised version of the Bush administration's Troubled Asset Relief Plan (TARP) was passed. Throughout this turmoil, credit markets have become more and more frozen as investors have lost confidence and the flight to quality has pushed to its limits in the short term markets. Central banks globally have responded by pouring enormous amounts of liquidity into the financial system. Economic data has weakened sharply preceding the sharp tightening in financial conditions over the last three weeks of the quarter. The decided weakness in consumer spending reflects a combination of labor market weakness, the fading boost from rebates, declining housing and equity wealth and tighter credit. The outlook going forward will be dependent on several financial conditions - (1) equity prices, for the wealth implications to households, (2) the corporate bond market, a primary source of funding for business expansion, and (3) consumer credit growth. The situation is clearly very fluid, including the outlook for monetary policy. Some easing by the Federal Reserve in the fourth quarter seems likely now, but the timing and magnitude will depend both on financial conditions and labor market developments. Portfo/io by Type of /nlvestment As of .September 30, 2008 1 to 7 days 47.58°~ 31 to 90 days 27.77% Commercial Paoer sF Repurchase Agreements 13.78% .,~ncies 18.02% POrtfO/IO by Maturity • ~ ~ • - As of September 30, 2008 Distribution of Participants by Type As of September 30, 2008 Other 4.87% School Distri 40.77% Historical Program Information Higher Education 2.82% County 11.03°k ~alth Care 1.80% Average Book Market Net Number of Month Rate Value Value Asset Value WAM (1)* WAM (2)* Participants Sep 08 2.6931% $ 1,842,768,859.42 $ 1,841,395,940.75 0.999254 37 75 390 Aug 08 2.5795% 1,694,895,892.95 1,694,463,300.94 .0.999684 41 76 390 Jul 08 2.5562% 1,968,322,569.65 1,968,063,025.42 0.999868 43 70 388 Jun 08 2.5390% 1,768,188,130.30 1,767,820,751.22 0.999792 45 68 387 May 08 2.5557% 1,808,683,438.47 1,808,946,922.73 1.000093 49 76 386 Apr 08 2.7531% 1,675,291,965.81 1,675,019,473.24 0.999837 42 68 386 Mar 08 3.1871% 1,778,824,386.38 1,779,062,369.97 1.000133 32 57 384 Feb 08 3.6259% 1,905,151,545.52 1,905,845,969.73 1.000262 23 45 383 Jan 08 4.4959% 1,774,368,545.12 1,775,758,264.68 1.000783 27 48 382 Dec 07 4.8750% 1,356,320,155.73 1,356,313,558.24 0.999916 37 65 382 Nov 07 4.9404% 1,245,526,894.36 1,245,129,317.19 0.999491 38 66 382 Oct 07 5.1701 % 1, 371, 571,180.34 1, 372, 352, 384.43 1.000569 36 70 382 Sep 07 5.3899% 1,173,302,441.25 1,173,166,627.60 0.999884 28 66 382 Portfolio Asset Summary as of September 30, 2008 Book Value Market Value Uninvested Balance $ ' 191.02.' $ ' 191:02 Accrual of interest Income 728;542.90 728,542.90 Interest and Management Fees Payable (3,974,067.01') (3,974,067:01} Payable for Investment Purchased 0.00 0.00 - Repurchase Agreements 254,339,000.00 ' 254,339,000.flO Cotnmer~i~l Paper 1,248,958,908,51' 1,247,803,888.34 Government Securities 342,716,284:00 342,498,385.50 Total $1,842,768,859.42 $1,841,395,940.75 Market value of collateral supporting the Repurchase Agreements is at least 102% of the Book Value. The portfolio is managed by J.P. Morgan Chase & Co. and the assets are sa ekept in a separate custodial account at the Federal Reserve Bank in the name of LOGIC. The only source of payment to the Participants are the assets of LOGIC. There is no secondary source of payment for the pool such as insurance or guarantee. Should you require a copy of the portfolio, please contact LOGIC Participant Services. Utility District City 9.74% 28.97°i6 8 to 30 days 16.39% 3.20 3.00 2.80 2.60 2.40 2.20 2.00 1.80 1.60 1.40 1.20 1.00 0.80 0.60 0.40 0.20 0.00 00 O~ O~ O~ O~ O~ O~ 00 00 O~ 00 O~ O~ O~ O~ 00 00 O~ h'~ ,~O'~ ,~h'~ O'~ h'~ ~'~ ,PJ ,PJ ,PJ ,PJ ,PJ ,PJ ~~ 5~ 5~Q 5eQ 5~Q 5eQ rl• rL ~ h ,~O ~h ~O ti~ 3~ h ,~O ,~h ~O ti~ ~O X90 Day T-Bill Rate LOGIC Rate This material is for information purposes only. This information does not represent an ofrerto buy or sell a security. The above rate information is obtained from souroes that are believed to be reliable; however, its accuracy or completeness may be subject fo change. The LOGIC management fee may be waived in full or in part at the discretion of the LOGIC co-administretorsamd the LOGIC rate for the period shown reflects waiver of fees. This table represents investment performance/retum to the customer, net of fees, and is not an indication of future performance. An investment in the security is not insured or guaranteed by the Federal Deposit Insurance Corporation or any other government agency Although the issuer seeks to preserve the value of an investment at $1.00 per share, it is possible to lose money by investing in the security. Information about these and other program detals are in the fund's Information Statement which should be read carefully before investing. The yield on the 90-Day Treasury BSI ("T--Bill reld`) is shown for comparative purposes only. When comparing the investment returns of the LOGIC pool to the T-BBI Yeld, you should know that the LOGIC pod consist of allocations of spedfic diversfied securities as detailed in the respedive Information Statements. The T-Bill Yeld is taken from Bloomberg Finance L.P. and represenffi the daily dosing yield on the then current 90-day T-Bill. Daily Summary for September 2008 Mny Mkt Fund Daily Allocation LOGIC Invested Market Value WAM WAM Date Equiv. [SEC Std.] Factor Balance Per Share Days (1 j* Days (2)* 1-Sep-08 2.6362% 0.000072224 1,694,895,892.95 0.999684 39 79 2-Sep-08 2.6023% 0.000071297 1,688,967,058.21 0.999858 39 78 3-Sep-08 2.5962% 0.000071129 1,677,252,746.71 0.999867 40 78 4-Sep-08 2.6208% 0.000071804 1,663,620,056.51 0.999857 41 81 5-Sep-08 2.6111% 0.000071538 1,685,466,800.73 0.999767 38 78 6-Sep-08 2.6111% 0.000071538 1,685,466,800.73 0.999767 38 78 7-Sep-08 2.6111% 0.000071538 1,685,466,800.73 0.999767 38 78 8-Sep-08 2.5761% 0.000070577 1,675,745,804.77 1.000120 37 78 9-Sep-08 2.5454% 0.000069737 1,744,481,338.96 1.000110 37 75 10-Sep-08 2.5361% 0.000069481 1,754,279,657.25 1.000103 36 75 11-Sep-08 2.5479% 0.000069806 1,778,383,420.66 1.000095 35 73 12-Sep-08 2.5851% 0.000070826 1,746,686,351.17 0.999999 34 73 13-Sep-08 2.5851% 0.000070826 1,746,686,351.17 0.999999 34 73 14-Sep-08 2.5851% 0.000070826 1,746,686,351.17 0.999999 34 73 15-Sep-08 2.6411% 0.000072360 1,721,620,307.65 1.000037 34 73 16-Sep-08 3.0718% 0.000084159 1,710,527,719.45 0.999942 37 76 17-Sep-08 2.9633% 0.000081186 1,708,984,147.72 0.999832 36 75 18-Sep-08 2.9279% 0.000080216 1,716,358,600.67 0.999643 35 74 19-Sep-08 2.9612% 0.000081130 1,684,755,082.56 0.999464 39 78 20-Sep-08 2.9612% 0.000081130 1,684,755,082.56 0.999464 39 78 21-Sep-08 2.9612% 0.000081130 1,684,755,082.56 0.999464 39 78 22-Sep-08 2.8226% 0.000077331 1,692,769,429.25 0.999556 38 77 23-Sep-08 2.6374% 0.000072258 1,668,867,910.58 0.999472 39 78 24-Sep-08 2.6504% 0.000072614 1,643,919,728.25 0.999429 39 78 25-Sep-08 2.4767% 0.000067855 1,777,558,938.02 0.999195 35 72 26-Sep-08 2.5378% 0.000069530 1,763,328,173.63 0.999135 34 70 27-Sep-08 2.5378% 0.000069530 1,763,328,173.63 0.999135 34 70 28-Sep-08 2.5378% 0.000069530 1,763,328,173.63 0.999135 34 70 29-Sep-08 .2.6974% 0.000073900 1,763,388,180.50 0.999241 33 69 30-Sep-08 3.1568% 0.000086489 1,842,768,859.42 0.999254 31 66 2.6931% 0.000073783 1,718,836,634.06 37 75 LOGIC versus 90-Day Treasury Bill I.OZSL Xl 'SEIIEQ 008 a~InS'~aaa~S InEd '~S 4~°N SZ£ •aul '~uawa$EUEw gassy ~saMy~noS ~s~l j o/° saainaaS;uedlal~aed ~I~OI ~IJO'I LOGIC Board Members Philip G. Roberson Arlington ISD Board President 1=red L. Werner City of Grapevine Board Vice;Presiderif Judd R. Sanderson North Texas Municipal Water District Board Treasurer/ Investment Officer Sandra Swinnea Tarrant Regional Water District Board Member. For more information contact LOGIC Participant Services ~* 1-800-895-6442 yk www.logic.org ~~' First SouthwestAsset Mana ement ' ~JPMorganChase ~~ 9 ;nw., <-'. r.::.: City of Colleyville Agenda Briefing City Hall 100 Main Street Colleyville, Texas 76034 817. 503.1000 www.colleyville.com File Number: File Type: Pre Council Status: Pre Council Version: 1 Agenda Date: 11/18/2008 Controlling Body: City Council Requester: Office of the City Agenda No.: PC-4 Final Action: Secretary File Name: Discussion of the November 18, 2008 regular agenda items Attachments: History of Legislative File Version: Date: Acting Body: Action Text: 1 11/18/2008 City Council Title Discussion of the November 18, 2008 regular agenda items City of Colleyville Page 1 Printed on 11/13/2008 ~~ ~'I''~~~ ~ ~~ City of Colleyville City Hall 100 Main Street ,v- ~ Colleyville, Texas 76034 ~~~~~~ Agenda Briefing 817.503.1000 www.colleyville.com File Number: File Type: Executive Session Status: Executive Session Version: 1 Requester: Office of the City Secretary Agenda Date: 11/18/2008 Agenda No.: 1 File Name: Executive Session -November 18, 2008 Attachments: History of Legislative File Controlling Body: City Council Final Action: Version: Date: Acting Body: Action Text: 11/18/2008 City Council Title Sec. 551.071 -Legal -Consultation with Attorney on Legal Issues Raised by Public Hearing or Action Items on the Agenda Sec. 551.071 -Legal -Discussion of pending litigation -Village Monticello Partners, Ltd. v. City of Colleyville Sec. 551.071 -Legal -Discussion of potential litigation -Barbara Turner v. City of Colleyville Sec. 551.071 -Legal -Discussion of pending litigation -Raul Rodriguez v. City of Colleyville (Bill Hudgins) Sec. 551.071 -Legal -Discussion of pending litigation - Rischon Development Corporation v. City of Colleyville Sec. 551.072 -Property -Deliberate the purchase, lease, exchange or value of real property Sec. 551.072 -Property -Deliberate the purchase, lease, exchange or value of real property (Mineral Rights) Sec. 551.074 -Personnel -Deliberate the appointment, employment and duties of the City Manager Sec. 551.087 -Economic Development -Discuss and deliberate commercial and financial information received from business prospects the City seeks to have locate, stay or expand within the City City of Colleyville Page 1 Printed on 11/11/2008 RESOLUTION R-08-3030 A RESOLUTION APPROVING COUNCIL ACTION REGARDING EXECUTIVE SESSION ITEMS AT THE REGULAR CITY COUNCIL MEETING OF NOVEMBER 18, 2008 WHEREAS, following discussion in Executive Session, and in full accordance with the requirements of the Open Meetings Act, the City Council determines that the following action is in the best interests of the health, safety and welfare of the public. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF COLLEYVILLE, TEXAS: Sec. 1. THAT the following actions of the City Council are hereby adopted and approved: a. THAT AND IT IS SO RESOLVED. APPROVED BY A VOTE OF AYES, NAYS AND ABSTENTIONS ON THIS THE DAY OF 2008. ATTEST: Cynthia Singleton, TRMC, CMC City Secretary CITY OF COLLEYVILLE David Kelly Mayor -=_`-"~ ~ ~~, City Hall ( ~ !~ City of Colleyville 100 Main Street ~~' < ~`' Colleyville, Texas 76034 rr..~;;. Agenda Briefing 817.503.1000 vaww.col leyvil le.com File Number: File Type: Announcements and Status: Announcements Presentations and Presentations Version: 1 Agenda Date: 11/18/2008 Controlling Body: City Council Requester: Office of the City Agenda No.: 3 Final Action: Secretary File Name: Announcements and Presentations -November 18, 2008 Attachments: History of Legislative File Version: Date: Acting Body: Action Text: 1 11/18/2008 City Council Title Announcements of civic and charitable events Presentation of calendar events and updates Announcements of awards and recognition In recognition of the Colleyville Garden Club for a donation of bronze sculptures to be displayed at McPherson Park -Carol Wollin, President, Colleyville Garden Club City of Colleyville Page 1 Printed on 11/12/2008 RESOLUTION R-08-3031 A RESOLUTION APPROVING COUNCIL ACTION UNDER CONSENT ITEMS AT THE REGULAR COUNCIL MEETING OF NOVEMBER 18, 2008 WHEREAS, Council has taken action on certain items on the agenda under Consent Items. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF COLLEYVILLE, TEXAS: Sec. 1. THAT the agenda decisions approved by Council action under Consent Items as follows are hereby adopted: a. Approval of the minutes of the regular City Council meeting of November 5, 2008 b. Approval to adopt a supplemental sidewalk system map related to the "Colleyville Pathways Plan" c. Approval of naming the trail at the Colleyville Nature Center, Mike Rambo Memorial Nature Trail AND IT IS SO RESOLVED. APPROVED BY A VOTE OF AYES, NAYS AND ABSTENTIONS ON THIS THE DAY OF 2008. ATTEST: CITY OF COLLEYVILLE Cynthia Singleton, TRMC, CMC David Kelly City Secretary Mayor ~:~ ~. "''~-"' City of Colleyville ~~ ~ City Council Minutes -Draft ~, ~.... City Council City Hall 100 Main Street Colleyville, Texas 76034 817. 503.1000 www.colleyville.com Wednesday, November 5, 2008 CITY COUNCIL CHAMBERS The Pre Council meeting of the Colleyville City Council was called to order by Mayor David Kelly on November 5, 2008, at 5:33 p.m. Mayor Kelly introduced and welcomed Mayor for a Day Lauren Gregory. ROLL CALL: Councilmembers Carol Wollin, Tony Licata, Stan Hall, Tom Hart, Mike Taylor and Mayor Pro Tem Jon Ayers were present. Mayor David Kelly, Mayor for a Day Lauren Gregory, Interim City Manager Kelly Cooper, Interim Assistant City Manager Mike Johnston, Police Chief Tommy Ingram, Police Lieutenant Rodney Cunningham, Public Works Director Steve Chutchian, Engineer Jeremy Hutt, Finance Director Terry Leake, Community Development Manager Ron Ruthven, Communications Manager Mona Gandy, Parks and Recreation Director Monica Walsh, Management Assistant Christine Loven, Audio Visual Technician Lawrence Gise, City Attorney Matthew Boyle and City Secretary Cynthia Singleton were also present. PC-1 Discussion on the Trinity River Authority (TRA) pass through water and sewer rate increase Finance Director Terry Leake stated the Trinity River Authority is the sole provider of the City's treated water and wastewater, reviewed the current water and sewer rate structure and stated the TRA pass through rate increase per 1,000 gallons for treated water is $2.02 and the rate per 1,000 gallons for treated wastewater is $1.48. Ms. Leake further reported the current water and sewer rates do not meet the required coverage ratio of 1.20 or the coverage ratio needed for the recently approved Capital Improvement Program (CIP). When the coverage ratio is not met, the rating agencies can downgrade the ratings on existing revenue bonds and future bonds cannot be sold until the coverage ratio is met, therefore; a water rate adjustment of $0.22 per thousand and a sewer rate adjustment of $0.20 per thousand is needed. City of Colleyville Page 1 Printed on 11/13/2008 City Council City Council Minutes -Draft November 5, 2008 PC-2 Discussion on the adoption of a supplemental sidewalk system map related to the "Colleyville Pathways Plan" Public Works Director Steve Chutchian stated the Colleyville Pathways Plan was established to identify a planned trail network within various neighborhoods and to provide necessary connecting sidewalk links between neighborhood schools and trails throughout the community and the Colleyville Trails and Sidewalks Committee developed the proposed Supplemental Sidewalk System Map. Mr. Chutchian introduced Mr. David Klenzendorf and Ms. Gail Manion of the Colleyville Trails and Sidewalks Committee. Mr. Klenzendorf presented the proposed Supplemental Sidewalk System Map, which identifies locations for construction of sidewalks in areas that are not included in the Colleyville Pathways Plan and serves as a guide for advising developers in conjunction with all new developments. Mr. Klenzendorf also recommended a variance procedure for the construction of sidewalks. Ms. Manion presented information regarding the process for determining the need for sidewalks and answered questions of the City Council. Discussion ensued regarding the escrow of funds for the construction of sidewalks, the creation of a general sidewalk fund and the variance procedure. PC-3 Discussion of preliminary recommendations from Newman, Jackson, Bieberstein, Inc. (NJB) regarding the City Entryway and Wayfinding Study Community Development Manager Ron Ruthven stated the firm of Newman, Jackson, Bieberstein, Inc., was hired to identify entry points into the City for placement of entry markers and identify major City attractions and landmarks for placement of Wayfinding signs. Mr. Karl von Bierberstein, NJB, provided an overview of the preliminary analysis and recommendations of the City Entryway and Wayfinding Study, presented examples of entry markers and directional signage and answered questions of the City Council. City Council requested directional signs for the Justice Center and fire stations. City of Colleyville Page 2 Printed on 11/12/2008 City Council City Council Minutes -Draft November 5, 2008 Discussion ensued regarding the location of entry markers, design elements and landscaping. PC-4 1. Sec. 551.071 - Legal -Consultation with Attorney on Legal Issues Raised by Public Hearing or Action Items on the Agenda Sec. 551.071 - Legal - Discussion of pending litigation - Village Monticello Partners, Ltd. v. City of Colleyville Sec. 551.071 -Legal -Discussion of potential litigation -Barbara Turner v. City of Colleyville City Council determined Newman, Jackson, Bieberstein, Inc., will provide a final recommendation, which will include cost estimates, design elements and locations for the entry markers and wayfinding signs. Discussion of the November 5, 2008 regular agenda items There was discussion regarding the approval of Agenda Item 6b, the consideration of approval of the electric power contract with Cities Aggregation Power Project (CAPP), on the City's bond rating. There being no further discussion, Mayor Kelly adjourned the Pre Council meeting at 6:36 p.m. The regular meeting of the Colleyville City Council was called to order by Mayor David Kelly on November 5, 2008, at 6:36 p.m. ROLL CALL: Councilmembers Carol Wollin, Tony Licata, Stan Hall, Tom Hart, Mike Taylor and Mayor Pro Tem Jon Ayers were present. Mayor David Kelly, Mayor for Day Lauren Gregory, Interim City Manager Kelly Cooper, Interim Assistant City Manager Mike Johnston, Police Chief Tommy Ingram, Police Lieutenant Rodney Cunningham, Public Works Director Steve Chutchian, Engineer Jeremy Hutt, Finance Director Terry Leake, Community Development Manager Ron Ruthven, Planner Justin Bass, Communications Manager Mona Gandy, Parks and Recreation Director Monica Walsh, Recreation Supervisor Luke DeFilippis, Management Assistant Christine Loven, Audio Visual Technician Lawrence Gise, City Attorney Matthew Boyle and City Secretary Cynthia Singleton were also present. EXECUTIVE SESSION - In accordance with Texas Government Code Chapter 551, Subchapter D City of Colleyville Page 3 Printed on 11/12/2008 City Council City Council Minutes -Draft November 5, 2008 Sec. 551.071 -Legal -Discussion of pending litigation -Raul Rodriguez v. City of Colleyville (Bill Hudgins) Sec. 551.071 - Legal - Discussion of pending litigation - Rischon Development Corporation v. City of Colleyville Sec. 551.072 -Property -Deliberate the purchase, lease, exchange or value of real property Sec. 551.072 -Property -Deliberate the purchase, lease, exchange or value of real property (Mineral Rights) Sec. 551.072 -Property -Deliberate the purchase, lease, exchange or value of real property (Water Well Sites) Sec. 551.074 -Personnel -Deliberate the appointment, employment and duties of the City Manager Sec. 551.087 - Economic Development - Discuss and deliberate commercial and financial information received from business prospects the City seeks to have locate, stay or expand within the City Mayor Kelly explained that the Executive Session had been called in accordance with the Texas Government Code Chapter 551, Subchapter D, Section 551.071, Legal, Section 551.072, Property, Section 551.074, Personnel, and Section 551.087, Economic Development. He further explained that there would be no decisions made or action taken during this time. The meeting was recessed at 6:37 p.m. and reconvened at 7:32 p.m. INVOCATION: Pastor Carter Foster, Covenant Church PLEDGE OF ALLEGIANCE: City Attorney Matthew Boyle 2. OATH OF OFFICE -MAYOR FOR A DAY City Secretary Cynthia Singleton administered the Oath of Office to Mayor for a Day Lauren Gregory. 3. EXECUTIVE SESSION: CONSIDER AND TAKE ANY ACTION(S) NECESSARY RELATIVE TO ITEMS DISCUSSED IN EXECUTIVE SESSION - Resolution R-08-3027 This resolution was not needed. City of Colleyville Page 4 Printed on 11/1 Z/2008 City Council City Council Minutes -Draft November 5, 2008 4. ANNOUNCEMENTS, PROCLAMATIONS AND PRESENTATIONS Mayor Kelly presented a Proclamation and City mementos to Mayor for a Day Lauren Gregory. Mayor for a Day Lauren Gregory presented a Proclamation to Mr. David Kinney, Principal, O.C. Taylor Elementary School. Mr. Kinney congratulated Miss Gregory for representing O.C. Taylor Elementary School and serving as Mayor for a Day and expressed appreciation to the Mayor and City Council for supporting and recognizing students. Mayor Kelly presented the Texas Amateur Athletic Federation Bronze Member City Award to Recreation Supervisor Luke DeFilippis. Mr. DeFilippis expressed appreciation to City Council for their support and attendance of recreation program events. 5. CONSENT: READING AND PUBLIC HEARING -Resolution R-08-3028 5a Approval of the minutes of the regular City Council meeting of October 21, 2008 5b Approval of the McPherson Park Master Plan Final Phase 5c Approval of the Senior Center Open Space Master Plan 5d Approval to redirect Park Land Dedication monies into the Park Land Dedication Fund 5e Approval to redirect Voluntary Park Fund monies into the Voluntary Park Fund 5f Approval to renew an interlocal agreement with Tarrant County for the Bogart Drive Improvements, and authorize the City Manager to execute the agreement Mayor for a Day Gregory read Resolution R-08-3028 in its entirety. Mayor Kelly opened the public hearing. There was no one present wishing to speak concerning this item and Mayor Kelly closed the public hearing. City of Colleyville Page 5 Printed on 11/12/2008 City Council City Council Minutes -Draft November 5, 2008 Mayor Pro Tem Ayers moved to approve Resolution R-08-3028. Councilmember Hall seconded the motion. The motion carried by the following vote: Aye: 7 - David Kelly, Carol Wollin, Tony Licata, Stan Hall, Jon Ayers, Tom Hart, Mike Taylor Councilmember Taylor commended citizens for supporting the development of McPherson Park. 6. ORDINANCE(S): FIRST READING AND PUBLIC HEARING 6a 0-08-1699 Approval of a request to amend the Planned Unit Development of Lot 1 R, Block 1 of The Gardens Addition located at 7011 Colleyville Boulevard, Case Z-08-021 Mayor for a Day Gregory read the caption of Ordinance 0-08-1699. Community Development Manager Ron Ruthven stated the applicant submitted a site plan for approval, which is required before final approval of the proposed amendment to the Planned Unit Development of Lot 1 R, Block 1 of The Gardens Addition. Mayor Kelly opened the public hearing. Mr. Ty Thompson, 1501 Merrimac Circle, Fort Worth, Texas, applicant, was present to answer questions of the City Council. There was no one present wishing to speak concerning this item and Mayor Kelly closed the public hearing. 6b 0-08-1700 Approval of an electric power contract with Cities Aggregation Power Project, Inc. (CAPP) pursuant to a 24-year power purchase agreement (PPA) and authorizing the City Manager to execute the disclosure letter, agreements and member contract Mayor for a Day Gregory read the caption of Ordinance 0-08-1700. Management Assistant Christine Loven provided an overview of the proposed contract with Cities Aggregation Power Project, Inc. (CAPP) and answered questions of the City Council. Mayor Kelly opened the public hearing. City of Colleyville Page 6 Printed on 11/12/2008 City Council City Council Minutes -Draft November 5, 2008 There was no one present wishing to speak concerning this item and Mayor Kelly closed the public hearing. 7. TABLED ITEM AND PUBLIC HEARING 7a 0-08-1696 Approval of a request for a zoning change from RE-Residential Estate to PUDR-Planned Unit Development Residential on Lots 1A, 2, 3 and 4, Block 1 of the Wildwood Estates Addition located at 5500-5700 Pool Road, Case Z-08-018 Mayor for a Day Gregory read the caption of Ordinance 0-08-1696. Community Development Manager Ron Ruthven stated the applicant submitted a revised site plan, which includes reducing the total residential lots from 31 to 30, increasing the total residential open space from 25.7% to 26.6%, increasing the 20 foot rear building setback and landscape buffer for lots along the western boundary and increasing the space between two driveways serving the proposed offices. Mayor Kelly opened the public hearing. Mr. Curtis Young, 8003 Jefferson Circle, spoke regarding the revised site plan and requested the item be tabled and considered at the first meeting in December. Mr. Sean Lucart, 2504 Kings Court, spoke in opposition to the proposed ordinance and regarding two story residences, fences and screening and open space. Ms. Kathy Hadley, 204 Timberline North, spoke in opposition to the proposed ordinance and regarding school population and density. Mr. Andre' Wullaert, 2502 Kings Court, spoke in opposition to the proposed ordinance and regarding density, traffic concerns and property value. Mr. Frank Yin, 2501 Kings Court, spoke in opposition to the proposed ordinance. Ms. Agnes Yin, 2501 Kings Court, spoke in opposition to the proposed ordinance and regarding meetings with the developer. There were no others present wishing to speak concerning this item and Mayor Kelly closed the public hearing. City of Colleyville Page 7 Printed on 11/12/2008 City Council City Council Minutes -Draft November 5, 2008 Discussion ensued regarding the proposed zoning change and the Master Plan, density and transitional use of the proposed development. The City Council requested information regarding the establishment of the property as a residential estate. Mayor Pro Tem Ayers moved to table Ordinance 0-08-1696 and continue the public hearing to December 2, 2008. Councilmember Taylor seconded the motion. The motion carried by the following vote: Aye: 7 - David Kelly, Carol Wollin, Tony Licata, Stan Hall, Jon Ayers, Tom Hart, Mike Taylor 8. CITIZEN COMMENTS/PRESENTATIONS REGARDING ITEMS NOT ON THE AGENDA Mr. Toby Kubis, 2308 Norwalk Drive, representing the Summerbrook Homeowner's Association, spoke regarding the speed limit in the Summerbrook subdivision, the safety of children and requested the speed limit be reduced to twenty miles per hour in the subdivision. 9. REPORTS: Celebrate Colleyville Steering Committee Minutes -August 27, 2008 Historical Preservation Committee Minutes -September 11, 2008 Senior Center Advisory Committee Minutes -September 18, 2008 Celebrate Colleyville Steering Committee Minutes -September 24, 2008 Commuter Rail Committee Minutes -September 25, 2008 Commuter Rail Committee Minutes- October 13, 2008 There was no discussion of this item. 10. ACTION/RESOLUTION: DISCUSSION AND CONSIDERATION OF A RESOLUTION RATIFYING COUNCIL AGENDA ACTION FOR THE MEETING OF NOVEMBER 5, 2008 -Reading and Public Hearing -Resolution R-08-3029 This resolution was not needed. 11. ADJOURNMENT: There being no further business before the City Council, Councilmember Hall moved to adjourn. City of Colleyville Page 8 Printed on 11/12/2008 City Council City Council Minutes -Draft November 5, 2008 Councilmember Wotlin seconded the motion. Mayor Kelly adjourned the meeting at 8:43 p.m. APPROVED BY A VOTE OF AYES, NAYS AND ABSTENTIONS ON THIS THE DAY OF 2008. Minutes taken and prepared by: Cynthia Singleton, TRMC, CMC City Secretary City of Colleyville Page 9 Prinfed on 11/12/2008 SPEAKER CARD Date: ~/'/c'?~~G\~ I will speak In Support of this item. ~~--~" I will speak In Opposition to this item. I do not wish to speak, but please record my: ^ Support ^ Opposition Agenda Item Number: Cc- OrdinancelResolution Number: 'U ~ 3a3 Name: Address: ~ r City: v ~ L~ State: Zip Code: V ~0~ Telephone N tuber: ,~~ ~ " ~~.~ ( ~~ Representing: ~l organization/self 1 understand 1 am limited to speaking for five minutes. For business not listed on the agenda as a Public Hearing, City Council will not respond in accordance wit~e Texas Open M ting Law, Chapter 551 of the Texas Local Government Code. Signed: ~~i'~ y .G~``...~~i1~,_~' Thls information is a Public Record. SPEAKER CARD Date: I will speak In Support of this item. I will speak In Opposition to this item. I do not wish to sneak, but please record my: ^ Support ^ Opposition Agenda Item Number: OrdinancelResolution Number: Name: Address: City: /~q~~,y v State: Zip Code: 7~5~ Telephone Number: ~/7 ~1~~. ~',~'?~ Representing: ~p~~ organization/self 1 understand 1 am limited to speaking for five minutes. For business not listed on the agenda as a Public Hearing, City Council will not respond in accordance with the Texas Open Meeting Law, Chapter 551 of the Texas Local Government Code. Signed: /,~ _ This information is a Public Record. J SPEAKER CARD Date: ~/ ~~~~~ ~ I will speak In Support of this item. </~"~ I will speak In Opposition to this item. Agenda Item N Name: Address: I do not wish to speak, but please record my: ^ Support ~osition tuber: ~ JJ Ordinance/Resolution Number: ~_~ ,~"}`~_~ ~3 ~/ I lC~r^~ ~f r City: ~'~ State• ~ ~ L~ a Zip Code: ~(U3 Telephone Number: ~ _ ~Gj3 Representing: ~~ organization/self 1 understand 1 am limited to speaking for five minutes. For business not listed on the agenda as a Public Hearing, City Council will not respond in acgcordance with t~x ~ open Meeti ~a~ Chapter 551 of the Texas Local Government Code. Si ned: This inforffi~n is a Public Record. in' y~ ~~ ~~ ~_~ r`.•:.. City of Colleyville Agenda Briefing City Hall 100 Main Street Colleyville, Texas 76034 817. 503.1000 www.colleyville.com File Number: Version: 1 Requester: Engineering Department File Type: Resolution Agenda Date: 11/18/2008 Agenda No.: 4b Status: Consent Agenda Controlling Body: City Council Final Action: File Name: Approval to adopt a supplemental sidewalk system map related to the "Colleyville Pathways Plan" Attachments: Colleyville Trails and Sidewalks Committee Recommendations Supplemental Sidewalk System Map.pdf History of Legislative File Version: Date: Acting Body: Action Text: 11/18/2008 City Council Title Approval to adopt a supplemental sidewalk system map related to the "Colleyville Pathways Plan" Explanation Reading and Public Hearing The Colleyville Pathways Plan was established in September 2005, with the purpose of identifying a planned trail network within various neighborhoods and to provide necessary connecting sidewalk links between neighborhood schools and trails throughout the community. This plan specifically addresses proposed sidewalk and trail routes on major thoroughfares within the community, and it serves as a guide for advising developers in conjunction with all new developments. This will ensure the future availability of trail and sidewalk connections from residential neighborhoods to local schools, parks, and other key destinations, such as shopping areas, work centers, or recreational areas. The Land Development Code addresses sidewalk and trail construction requirements for new and redevelopment conditions. It requires that a sidewalk be constructed adjacent to and within public street right-of-way on every lot prior to completion of any primary structure. In addition, the sidewalk must be located within a public access easement in the absence of adequate right-of-way. The Code currently allows a developer to escrow an amount equal to the cost of construction of the sidewalk if it is determined by the City that construction should be deferred to a future date. Over the years, builders have been permitted to escrow the cost of new sidewalks in many areas of the community. This has created numerous missing links along existing residential and commercial roadways. It has been the desire of the Trails and Sidewalks Committee to pursue the construction of new sidewalk segments whenever a lot is subject to new or redevelopment. City of Colleyville Page 1 Printed on 11/13/2008 Agenda Briefing Continued The Trails and Sidewalks Committee worked with staff to develop a Supplemental Sidewalk System Map (attached) that clearly identifies locations for construction of sidewalks in areas that are not included in the September 2005 Colleyville Pathways Plan. This map identifies when a sidewalk is required, and indicates which side of the street it should be constructed. Some streets are not recommended for construction of sidewalks, such as existing neighborhoods subject to redevelopment. If adopted by City Council, this supplemental system map will assist staff in providing clear direction to developers. When a property is developed and is subject to inclusion of an adjacent sidewalk section, the developer will be required to construct the sidewalk to City standards regardless of existing terrain and other conditions. This item was discussed in the November 5, 2008 Pre Council meeting. Staff proposed that the current sidewalk waiver provisions in the Land Development Code be jointly re-evaluated by staff and the Trails and Sidewalks Committee, and subsequently submitted to City Council for consideration of adoption. At City Council's direction, staff and the committee will work with the City Attorney to establish escrow fund requirements and waiver procedures. The Trails and Sidewalks Committee met November 11, 2008 to begin discussions and the work plan. It is anticipated staff will incorporate proposed revisions to the Land Development Code and submit them to City Council for consideration in January 2009. Staff determined that approval of the Supplemental Sidewalk System Map will provide an effective guide for establishing sidewalk construction requirements at the time of permit submittal by developers throughout the community. Financial Impact It has been determined that there is no financial impact. Recommendation Approval City of Colleyville Page 2 Printed on 11/13/2008 Colleyville Trails and Sidewalks Committee Recommendations Addendum to Colleyville Pathways Plan: Sidewalks Master Map At the request of City Staff and due to concerns regarding consistent implementation of the Colleyville Pathways Plan and the existing sidewalk ordinance, particularly in regard to redevelopment of existing properties, the Trails & Sidewalks Committee has developed acity-wide Sidewalks Master Map. This would be an addendum to the Colleyville Pathways Plan, which does not specifically state where sidewalks must be constructed versus the possibility of being escrowed. The sidewalk ordinance requires that sidewalks be constructed wherever any kind of new development (or redevelopment) occurs. However, the enforcement of this policy by the City has varied over the years in regards to individual homes, frequently allowing escrow instead of requiring construction. The Sidewalks Master Map was thus created to serve as a guide for city staff in determining whether a sidewalk must be constructed, can be escrowed, or does not require construction on astreet-by-street and lot-by-lot basis. Factors The committee spent several work sessions to develop the map, looking at the entire city one neighborhood at a time. The following factors were considered in our decisions, in no particular order: Proximity to schools Proximity to parks and trails Connectivity to existing sidewalks Whether the street is a major collector or thoroughfare Potential for street reconstruction Potential for lot redevelopment The need for a sidewalk due to safety concerns Requirements of the Colleyville Pathways Plan In addition, quieter streets with little connectivity and older neighborhoods with no existing sidewalks and where construction of sidewalks might be problematic (due to trees, mailboxes, etc.) were generally exempted from requiring sidewalks to be built. Recommendations The Trails & Sidewalks Committee recommends that City Council adopt the proposed Sidewalks Master Map in its entirety and the following variance procedure: Any requests for variances from the Sidewalks Master Plan will be reviewed by the Trails & Sidewalks Committee. The committee will then forward its recommendation to City Council for its review and final decision. The Trails & Sidewalks Committee recommends, however, that variances be kept to a minimum. The committee plans to periodically review and update the plan to insure that it is consistent with the city's needs in the future and congruent with any future changes to other plans the city may have or enact, such as the Colleyville Master Plan and the Colleyville Pathways Plan. Respectfully submitted, Dave Klenzendorf Chairman Colleyville Trails & Sidewalks Committee -- __ _ ~, ~ ~ ~s _,~ ~.~ - -_ »...,, J O ~~ ~ b, ~ a~ o ~~ ~~ . -~ _ ~, __ ~ 4. ,: ~ ~ ~; ~: a ~. ~ ~\`~ w ,.., - _ --~ . ~ ~ ~ ~:- ,~ ~~ ~ r`., ~. ~ ~ \ ~ ~'~ ~ `\_^i~ jam' p ,~ ~^c. ~ 25 ,, ~:F .: nmm:t~. ~ \ II S ~ k \ ~N n ~ ~ ~.,..a ~ ~ ~, ~. ... ' M r .nW t~ ~ .. ._~ _ @g S _ . , J~ 1 ~ ~ e ~~ ~ F ~ ,a.. f 33 . ~ ~ ~ ~ ~7 ~ ~ ~ ~ ~ } ~ ~ . a ~ „j d ~ '.. ~ ~ y $ ~ (l , (~ $ M1 ~ i SPEAKER CARD Date: ~~~~0/ U~ j~ I will speak In Support of this item. I will speak In Opposition to this item. I do not wish to speak, but please record my: ^ Support ^ Opposition Agenda Item Number: ~ ~ Ordinance/Resolution Number: Name: ~~ / i e?'I ~~~/~~TT Address: ~~~',7 C/.~?ry~~D.~~f ~~~ - City: ~t.~~~'yv`~Le- State• ~~i~ Zip Code: ~lrU`3~ Telephone Number: ~7`~S °"7~~-~~ Representing: ~~~ ~~ ~~~~'~ organization/self 1 understand 1 am limited to speaking for five minutes. For business not listed on the agenda as a Public Hearing, City Council will not respond in accordance with th~Texas Own Meeting Law, Chapter 551 of the Texas Local Government Code. Signed: This information is a Public Record. ~_ 1~1~. ~..'! City of Colleyville 100 Main Street `~`'~ ~ Colleyville, Texas 76034 ~~~ ~ Agenda Briefing 817.503.1000 www.colleyville.com File Number: File Type: Resolution Status: Consent Agenda Version: 1 Agenda Date: 11/18/2008 Requester: Parks and Recreation Agenda No.: 4c Department Controlling Body: City Council Final Action: File Name: Approval of naming the trail at the Colleyville Nature Center, Mike Rambo Memorial Nature Trail Attachments: City of Colleyville Park/Facility Name Recommendation City of Colleyville Parks and Recreation Department Policy For Naming and Renaming Park Lands and Facilities History of Legislative File Version: Date: Acting Body: Action Text: 11/18/2008 City Council Title Approval of naming the trail at the Colleyville Nature Center, Mike Rambo Memorial Nature Trail Explanation Reading and Public Hearing On November 16, 2004, City Council approved Consent Resolution R-04-2470 establishing a policy for naming and renaming park lands and facilities. The policy states that the Chairman of the Colleyville Parks and Recreation Advisory Board shall name a committee that will be responsible for recommending a name for all park lands and facilities to the Board. Parks and Recreation Advisory Board Chairman Steve Dalri appointed the Parks and Recreation Advisory Board to serve as the committee and on November 3, 2008, the Parks and Recreation Advisory Board unanimously approved a motion to recommend City Council approval of naming the Colleyville Nature Center trail, the Mike Rambo Memorial Nature Trail. David Ball, Troop 28 Chaplain, wrote the following historical background: Mike Rambo a remarkable friend, father and public servant with a multitude of talents and gifts which he shared with all who had the honor to know him was killed in a tragic accident last year. As a Scoutmaster of Troop 28, Colleyville (First Methodist Church of Colleyville on Pleasant Run) Mike was the consummate Boy Scout; guiding young men in principles of leadership, personal responsibility, citizenship, stewardship of nature, and all the other ideals of the Scouting program which he lived in his own life. The City of Colleyville awarded their first Service Award to Troop 28 under Mike's leadership and planted a tree in the troop's honor City of Colleyville Page 1 Printed on 11/12/2008 Agenda Briefing Continued next to City Hall. Mike continued Troop 28's tradition of adopting and maintaining the grounds of the Colleyville Nature Center and sections of Glade Road which continues to this day. Mike led every Colleyville Clean Up Day with maintenance where needed for the City. Additionally, Mike secured participation of Troop 28 in the Celebrate Colleyville Annual Festival where Mayor Kelly honored the troop. Because of Mike's commitment and hard work to Scouting, Cubs, and youth, his love and dedication to his community and exhibiting that love through tireless service to our city, and his gift for teaching nature to young people, it is fitting that the trails at the Colleyville Nature Center be named after him in his rich memory. Financial Impact It has been determined that there is no financial impact. Recommendation Approval City of Colleyville Page 2 Printed on 11/12/2008 City of Colleyville P9RH/FHCILITY NAME RECOMMENDATTON Name: David Ball address: 705 Ruby Court city: Grapevine state: Texas zip code: 76051 telephone (business hrs): 817-343-5579 Considering the recommended guidelines for naming park lands and associated facilities as outlined, please answer the following Name proposed: Mike Rambo Memorial Nature Trail (at the Colleyville Nature Center) If you are not proposing a person's name, please attach the reasons for your recommendation. If you are proposing a person's name, please answer the following: • Is this individual a resident of Colleyville? Yes (now deceased) No • Did this individual provide any major donations of land or money to the City of Colleyville? Yes No If Yes please attach an explanation to include its value and intended use when donated to the City. • Please list and explain specific non-monetary/non-land contributions this individual has made to the City of Colleyville and/or the Colleyville community. ',~ ~1 ,,.- , .-,~ .., ,~s` A [IKE RAMBO Mike Rambo was a remarkable friend, father and public servant with a multitude of talents and gifts which he shared with all who had the honor to know him. His family still lives in Tara Village, Colleyville. As Scoutmaster of Troop 28, Colleyville (First Methodist Church of Colleyville on Pleasant Runt Mike was THE consummate Boy Scout; guiding young men in principles of leadership, personal responsibil- ity, citizenship, stewardship of nature, and all the other ideals of the Scouting program which he lived in his own life. The City of Colleyville awarded their very first Service Award to Troop 28 under Mike's lead- ershipand planted a tree in the troop's honor next to City Hall. Mike continued Troop 28's tradition of adopting and maintaining the grounds of the Colleyville Nature Center and sections of Glade Road which continues to this day. Several Eagle Scout projects have been conducted at the Nature Center as well as the Colleyville wooden playground ad- jacent to the Parks & Rec facility. Mike lead every Colleyville Clean Up Day with maintenance where needed for the city. Additionally, Mike secured participation of Troop 28 in the Celebrate Colleyville Annual Festival. Previous to his days as Scoutmaster of Boy Scouts, Mike was the local Colleyville Cubmaster. As well, Mike Rambo was a beloved soccer coach for 5 years in the Colleyville Community Youth League. Finally, he was also a band booster parent in the infamous LDBeII Marching Band. Because of Mike's commitment and hard work to Scouting, Cubs, and youth, his love and dedication to his community and exhibiting that love through tireless service to our city, and his gift for teaching nature to young people, it is fitting that the trails at the Colleyville Nature Cen- ter be named after him in his rich memory. David Ball, Troop 28 chaplain Diane Morrison, Troop 28 committee chair Scoutmaster • Troop 28 Colleyville • Texas CITY OF COLLEYVILLE PARKS AND RECREATION DEPARTMENT POLICY FOR NAMING AND RENAMING PARK LANDS AND FACILITIES A. PROCEDURE FOR NAMING AND RENAMING PARK LANDS AND FACILITIES 1. All requests for naming and renaming park land and facilities shall be made in writing to the Colleyville Parks and Recreation Advisory Board 2. The Chairman of the Coffeyville Parks and Recreation Advisory Board shall name a committee that will be responsible far recommending a name for all park lands and facilities to the Board. 3. The committee shall be responsible for research, study and recommendation of a proposed name to the Advisory Board. Rationale for the selection of the recommended name shall be given in writing. 4. The Parks and Recreation Advisory Board shall approve or disapprove of the name recommended by the committee. 5. If the committee's recommendation is disapproved by the Advisory Board, then the matter may be referred back to the committee for further action. 6. Upon approval, the recommended name will be forwarded to the City Council for their final consideration and action. B. GUIDELINES FOR NAMING OR RENAMING PARK LANDS AND FACILITIES 1. Park lands and facilities shall be named within sixty days after acquisition, construction completion or at the earliest possible time. 2. Park lands and facilities shall be named in the following manner: a. In honor of individuals who donate farad or funds for park space; b. In honor of historical events; c. In honor of deceased national or state heroes; d. In honor of deceased community leaders; e. In relation to predominant characteristics or physical features (lake, trees, stream, river) of the land; f. In relation to sub-divisions within the City; g. In relation to streets adjacent to the park; h. In recognition of an individual due to special circumstances or events. 3. Facilities that are a part of or lie within the boundaries of a park will normally bear the name of that park unless otherwise determined by the Parks and Recreation Advisory Board and/or City Council. ,„ ~~ City of Colleyville 100 Main Street Colleyville, Texas 76034 r~..~: Agenda Briefing 817.503.1000 www.colleyville.com File Number: 0-08-1699 File Number: 0-08-1699 Version: 1 Requester: Community Development Department File Type: Ordinance Agenda Date: 11/18/2008 Agenda No.: 5a Status: Second Reading Controlling Body: City Council Final Action: File Name: Approval of a request to amend Planned Unit Development of Lot 1 R, Block 1 of The Gardens Addition located at 7011 Colleyville Boulevard, Case Z-08-021 Attachments: Location and Zoning Map Notification List Site Plan Zoning Exhibit The Gardens Conceptual Site Plan Ordinance 0-08-1683 Ordinance 0-08-1699 History of Legislative File Version: Date: Acting Body: Action Text: 1 10/13/2008 Planning and Zoning Commission 1 11/05/2008 City Council 1 11/18/2008 City Council Title Approval of a request to amend the Planned Unit Development of Lot 1 R, Block 1 of The Gardens Addition located at 7011 Colleyville Boulevard, Case Z-08-021 Explanation Second Reading and Public Hearing There were no speakers regarding this request at the November 5, 2008 meeting. First Reading and Public Hearing The applicant has submitted a site plan for approval, as required by Ordinance 0-08-1683, passed by City Council on June 17, 2008. The property was originally considered for rezoning from AG-Agricultural to CC1-Village Retail by the Planning and Zoning Commission on May 12, 2008. The Planning and Zoning Commission recommended approval. However, the City Council approved the final request as aPUDC-Planned Unit Development Commercial on June 17, 2008. PUDC Ordinance 0-08-1683 requires this property act as a buffer between the existing Longwood Estates at Ross Downs additions and the future Gardens development, which contains the subject property. The property is to be primarily used for open space and aretention/detention pond but may have parking as an accessory use. City of Colleyville Page 1 Printed on 11/11/2008 Agenda Briefing Continued (0-08-1699) As part of Ordinance 0-08-1863, the applicant is required to submit the final site plan to City Council before final approval of the PUDC may be accepted. In addition to the required site plan for the subject property, a conceptual plan of the entire development is attached as well. Platting. The subject property was approved as part of the replat of Lot 1 R, Block 1, of The Gardens Addition, by the Planning and Zoning Commission on September 8, 2008. Landscaping and Open Space. As part of Ordinance 0-08-1683, there is no minimum open space requirement for this PUDC. However, the developer is required to maintain a 20 foot greenbelt between the eastern property line -adjacent to the Longwood at Ross Downs Addition -and the rest of the Gardens development. Also, as part of the approved ordinance, the developer must preserve all existing trees on the property. Drainage. The developer has submitted a preliminary drainage analysis of the site, which has been reviewed and accepted by the Colleyville Engineering Department. Construction plans for drainage improvements were submitted as part of the platting process. Fences. A ten (10) foot tall wood or masonry fence will be required to be built and maintained by the developer along the eastern property line adjacent to the Longwood at Ross Downs Addition. Public Notification. Staff notified 18 property owners within 200 feet of the subject property regarding this request. Notice was published in the Fort Worth Star-Telegram as required by state law and the Land Development Code. Staff has received no correspondence in regard to this request. Planning and Zoning Commission Recommendation. The Planning and Zoning Commission recommended approval of the request at the October 13, 2008 meeting by a vote of 5-0. Summary. This site plan meets all of the requirements of Ordinance 0-08-1683. Financial Impact It has been determined that there is no financial impact. Recommendation Approval City of Colleyville Page 2 Printed on 11/11/2008 Location and Zoning Map Notification List OWNER NAME OWNER ADDR OWNER CITY OWNER STATE OWNER ZIP SITUS ADDR Unique Landscaping Design 7111 Colleyville Blvd Colleyville TX 76034 7111 Colleyville Blvd Rtan-Rtan Enterprises Inc 4424 Young Dr Carrollton TX 75010 7109 Colleyville Blvd # B Unique Landscaping Design & 7111 Colle ville Blvd Colleyville TX 76034 7111 Colle ville Blvd Specially Pampered Automobiles 7101 Colleyville Blvd. Colleyville TX 76034 7101 Colleyville Blvd Rosado, Juan R Etux Marianela 2208 Danielle Dr Colleyville TX 76034 2208 Danielle Dr Kuhn, Alyce 2204 Danielle Dr Colleyville TX 76034 2204 Danielle Dr Hampton, Anthony C Etux Cather 2200 Danielle Dr Colleyville TX 76034 2200 Danielle Dr Hudson, Rocky 8~ Cynthia 7011 Colleyville Blvd Colleyville TX 76034 7011 Colleyville Blvd Gardens Comm Partners Ltd P.O. Box 69 Colleyville TX 76034 7013 Colleyville Blvd Gardens Comm Partners Ltd P.O. Box 69 Colleyville TX 76034 7013 Colleyville Blvd Hamraee, Farzin Etux Afsaneh 2209 Danielle Dr Colleyville TX 76034 2209 Danielle Dr Bates, Stephen L Etux Jana 2205 Danielle Dr Colleyville TX 76034 2205 Danielle Dr Devonshire, Patricia L 2201 Danielle Dr Colleyville TX 76034 2201 Danielle Dr Brown, Diana Marie 2302 Still Point Ln Colleyville TX 76034 2302 Still Point Ln Elborai, Adel M Etux Nadia M 2300 Still Point Ln Colleyville TX 76034 2300 Still Point Ln Ramsey, William A Etux Deena A 6918 Meade Dr Colleyville TX 76034 6918 Meade Dr West, Cheryl Ann & Diane Myers 7009 Colleyville Blvd Colleyville TX 76034 7009 Colleyville Blvd Olarte, Guillermo Etux Ligia 6916 Meade Dr Colleyville TX 76034 6916 Meade Dr Ty Thompson, applicant 1501 Merrimac Cr., Ste. 1 Ft. Worth TX 76137 7011 Colleyville Blvd Public hearing notices were mailed on Monday, Sept. 29th, 2008 by Amy Shelley. Signature aw...un»...~..m.ar~~.rry..,,.y.w~..a.rm.a..,rrn.q .a. w,.. xw....z ,n. • arn,..en .,, n. ,r ~......~. s.~~x; Site Plan Zoning Exhibit ~ . ~.,~ ~,. - - _- .m ~ ~ ' L_. ~,~'.~~. _~.~_ ~. ~ ! t f ~ ~ $ t ~ ~ r ~ d •~A '' ~t !'~ d 4 ra r ~~ -~'1 1y ~ ~ k S' ~g_ ~, ~ } ~ IN^~+ ' ~y 4 .+i ~. ' f~ f flit(." ` ~~ ' L ~ Q ~~ ^^^ ~'a„ ~6 ~ f ~ ~ ~ ~ "~ ~ ~ ~ ~ y 0 LI tA2 `~ ~` } 111 ~. .. ,.. 4 i 1 { ~` d . ~..a.t,f.~.~~ ~~ ~~ I € E • ( c ~ I p ~s j ;af~R il~i~ 1~~1~~ dt~~ ~~~k exi~ ~2~~; ~a~t Er4~~ ~ r~ti r' i 1 ~j f~#la ~ f~ ~t~E ~% ~ Ski ~{ ~[ ~~F #4 ~~,~ ~; ;~ I ne Gardens Conceptual Site Flan /(VM~Ia,~ azverma alvnu~rto~ ~ ~ mnwrr+oa iw e~rorve ru ~ E E ~.~. u~za ~iis . ; a i N p a and b i ° bI ~ ~' ~ e ~ ~ 7 ~ ~o yyS T ngC `k 3~€a r°J~~ & ~~^ d S 3 S ~ o .sa'L6Z U ~ i'~~ 3 80,SL00 N ,!, U Aga ~ ~ ~ ---- ---- ~ 8 ~~ =N~~ ~ U ~aa I ~ r ~~~~ ~ ~G ~~~ ~Oj ~° ~~~~ ~ ~X~ ~ "~ a~ y ~~ n~ i ~~ ~I L i _.... . .... ~ _. - b (~ `(` ~ - O i Q O Y; -._ i 4 ~ s wl T ~ J.a 4-! '~~ ~ ~ i-I .a l-~ yy'....n ~ _ [1_..__. 8 ~ i .NI ~- - - 1q1 -1 `!- b ~ b i -J e'- i I' O ~ _ ~ "~ _ - ~ i ~:, i.= ...,_ b l ~ ~ .-~__ ~ ~ ~ I ~v P ~~~ i -i--~ / I 1 S ~ S ~ 5 W ~;.C~ .. ~ ~ 1 ~r~ \~.\ 0~ ~'~ gKg ~ d 2 \\~\.~\ ~~1 •. i ~ 0 6 ~ ~ ~ ~ 4 ~ ~ ~ ~ 7 OC ~ ~ N Y C a~w ~~ ~~'t a= ~~~~ ~~ m 7 u i ~ 22C '~ d a ~ C Y a ~ a g ~ ~ ~ ~ ~ ~ ~ ~~ ~~ ~ ~ ~; ~ ~ r ~ ~ :yu~ gg } t ~~ oo©ooooo~®o®®©®®©®®~®®®®®®® .~~_~~ ~.~; ~a $ b~~O~it e~$~:~~ A~Ra~$ €Ru~~~~ r: i i i L m a. £7d'TTX8 - 3J.IZiMb3A0 - HOl - HOJR1 'Wd £T~TZ~T 8002/Oi/b'6nnp•ueid allS-LSZ90\S7aay5 ~o!d\s6u!n~e~O\6uu32u!6u3\LSZ900Z19002\~f1Pax!W\uol~npad\:~ ORDINANCE 0-08-1683 AN ORDINANCE OF THE CITY OF COLLEYVILLE, TEXAS, AMENDING THE COMPREHENSIVE ZONING ORDINANCE OF THE CITY OF COLLEYVILLE, TEXAS, AS HERETOFORE AMENDED; BY AMENDING THE OFFICIAL ZONING MAP AND CHANGING THE ZONING ON 0.6 ACRES ON TRACTS 3D1 AND 3E1, ABSTRACT 963 OF THE ABSALOM J. SURVEY, FROM THE AG-AGRICULTURAL ZONING DISTRICT TO PUDC-PLANNED UNIT DEVELOPMENT COMMERCIAL ZONING DISTRICT; PROVIDING A SAVINGS CLAUSE; PROVIDING FOR INJUNCTIVE RELIEF; PROVIDING A SEVERABILITY CLAUSE; PROVIDING A PENALTY OF FINE NOT TO EXCEED THE SUM OF TWO THOUSAND DOLLARS ($2,000.00) FOR EACH OFFENSE; AND PROVIDING AN EFFECTIVE DATE WHEREAS, the City of Colleyville has received an application for rezoning under Case No. Z-08-015; and WHEREAS, the City of Colleyville deems it necessary, for the purpose of promoting the health, safety, morals, or general welfare of the City to enact a new zoning ordinance; and WHEREAS, the City Council has appointed a Planning and Zoning Commission to recommend the boundaries of the various original zoning districts and appropriate regulations be enforced therein and to recommend a new zoning ordinance; and WHEREAS, the Planning and Zoning Commission has divided the City into districts and has prepared regulations pertaining to such districts in accordance with a comprehensive plan and designed to lessen congestion in the streets; to secure safety from fire, panic, and other dangers; to promote health, general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population; to facilitate the adequate provision of transportation, water, sewerage, schools, parks, and other public requirements; and WHEREAS, the Planning and Zoning Commission, has given reasonable consideration to, among other things, the character of the districts and their peculiar suitability for particular uses, with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout the City; and Ordinance 0-08-1683 Page 2 of 7 WHEREAS, the Planning and Zoning Commission of the City of Colleyville and the City of Colleyville City Council, in compliance with the Charter of the City of Colleyville, and State Law with reference to changes to zoning classifications under the Zoning Ordinance Regulations and Zoning Map, having given the requisite notices by publication and otherwise, and after holding due hearings and affording a full and fair hearing to all the property owners generally, and to the persons interested and situated in the affected area and in the vicinity thereof, the governing body of the City of Colleyville is of the opinion that said change in zoning should be made. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF COLLEYVILLE, TEXAS: Sec. 1. THAT all the foregoing premises and findings are found to be true and correct and are incorporated into the body of this ordinance as if copied in their entirety. Sec. 2. THAT the Comprehensive Zoning Ordinance of the City of Colleyville, Texas, be, and the same is hereby amended by changing the zoning of 0.6 acres on Tracts 3D1 and 3E1, Abstract 963 of the Absalom J. Surrey from the AG-Agricultural zoning district to the PUDC-Planned Unit Development Commercial zoning district, as depicted in the attached Exhibit "A", and described in the attached Exhibit "B". Sec. 3. THAT the Official Zoning Map of the City of Colleyville be amended to incorporate the zoning change approved herein. Sec. 4. THAT the above described tract of land shall be subject to the following conditions: 'I. GENERAL a. The purpose of this PUDC is for aretention/detention pond, private open space and the accessory use of a parking lot. b. This property is subject to all the regulations contained in the Colleyville Land Development Code, except where amended by this ordinance. 2. PERMITTED USES a. Retention/Detention Pond b. Private Open Space c. Parking as an accessory use Ordinance 0-08-1683 Page 3 of 7 3. SITE PLAN AND PLATTING a. Prior to development of this PUDC, a detailed Site Plan showing all proposed development on the property shall be submitted to the City Council for approval. The Site Plan shall, at a minimum, meet the requirements of Section 3.23 J, K(6) of the Land Development Code, be consistent with this Ordinance, and may also be required to show additional conditions provided in Section 3.23 M(b) of the Land Development Code. Further, such detailed site plan(s) shall be considered as a legislative approval, subject to the sole discretion of the City Council. b. The developer shall submit and receive approval from the City, a Replat that incorporates the subject property into the existing subdivision adjacent to the subject property called "The Gardens", in accordance with the requirements of the Land Development Code prior to development of this PUDC. 4. DEVELOPMENT REQUIREMENTS a. Prior to development of this PUDC, a tree survey, meeting all requirements of the Land Development Code, shall be submitted for the subject property. All trees identified on the tree survey shall be preserved in place on the subject property. The removal of any tree shown on the tree survey by anyone other than persons exempted by Chapter 5.6(B) and (C) of the Land Development Code shall be deemed to be a violation of this ordinance. b. Prior to City acceptance of final improvements to the subject property, a solid ten (10) foot wood, masonry, or combination thereof, screening fence shall be built and maintained by the builder, developer and/or property owner along the entire eastern property line of the subject property where it abuts residential uses. All supporting poles and beams used for the fence shall be located on the western side of the fence. c. A minimum 20 foot greenbelt shall be maintained along the entire eastern property of the subject property where it abuts residential uses. The greenbelt shall meet all requirements described in Section 4.6(3)j of the Land Development Code. The retention/detention pond allowed by this ordinance shall not encroach on the required greenbelt. d. There shall be no minimum open space requirement for this PUDC. Ordinance 0-08-1683 Page 4 of 7 e. Except where allowed by this ordinance, there shall be no structures erected on the subject property. f. There shall be no overhead lighting allowed on the subject property except where parking is allowed on the site plan to be submitted and approved by the City Council. Overhead lighting installed for parking shall be of a box can type and shall be directed away from all adjacent residential uses. Sec. 5. THAT the above described tract of land shall be used only in the manner and for the purposes provided by the Comprehensive Zoning Ordinance of the City of Colleyville as heretofore amended, and as amended herein. Sec. 6. THAT any person, firm or corporation violating any of the provisions or terms of this ordinance shall be subject to the same penalty as provided for in the Comprehensive Zoning Ordinance of the City of Colleyville, and upon conviction shall be punishable by a fine not to exceed the sum of Two Thousand Dollars ($2,000.00) for each offense. Sec. 7. THAT if any section, paragraph, subdivision, clause, phrase or provision of this ordinance shall be judged invalid or unconstitutional, the same shall not affect the validity of this ordinance as a whole or any portion thereof other than that portion so decided to be invalid or unconstitutional. Ordinance 0-08-1683 Page 5 of 7 AND IT IS SO ORDERED. The first reading and public hearing being conducted on the g~~De--day of 2008. The se and reading and public hearing being conducted on the ,y~ day of 2008. ATTEST: Cynthia Singleton, TRM , CMC City Secretary CITY OF COLLEYVILLE G-LAG-.ce=e./J David Kelly Mayor APPROVED AS TO FORM AND LEGALITY: ~~1 ~~ "'. Matthew C. G. Boyle City Attorney EXHIBIT "A"- Location and Zoning Map EXHIBIT "B"-Legal Description THE GARDENS AT COLLEYYILLE PROPERTY DESCRIPTION BEING a trail of land situated In the Absalom J. Lott Survey, Abstract No. 963, City of Colleyville, Tarrant County, Texas, being all of that certain trail of land as described by deed to Cynthia D. Hudson, recorded in Volume 11338, Page 812, Dsed Records, Tarrant County, Texas and being all of that certain tract of land as described by deed to Rodty Alan Hudson, retarded in Volume 10491, Page 714, Deed Records, Tarrant County, Texas, said trot! being more particuiarty described by metes and bounds as follows: BEGINNING at a 112" iron rod with orange cap stamped "Moak Surv Inc.' found for the northwest comer of said Hudson's trail, the northeast comer of that certain trail of land as described by deed to Gardens Commercal Partners, Ltd., recorded in County Clerk's Document No. D207153199, Oeed Records, Tarrant County, Texas, in the south line of L.ot 1 R2, Block 1, Tropicana Fuels Addition, an addition to the City of Colleyville, according to the plat retarded in Cabinet A, Slide 5398, Plat Records, Tarrant County, Texas; THENCE South 89'33'06" East (S 89°29' E Deed), with the north line of said Hudson's trod, with the south line of said Lot 1 R2, Block 1, Tropicana Fuels Addition, a passing distance of 80.89 feet to a 112" iron rood found for the southeast comer of said Lot 1 R2, Block 1, 7ropigna Fuels Addition, being the most westerly southwest comer of Lot 6, Block 9, Longwood Estates at Ross Oowns Phase V, an addition to the City of Colleyvllle, according to the pNat nscorded in Cabinet A, Slide 2704, Plat Records, Tarrant County, Texas, continuing wish north line of said Hudson's trail, with the a south line of said Lot 8, Block 9, Longwood Estates Addition for a total distance of 105.04 feet (105.00' Deed) to a 112" Iron rod found for a re-entrant corner of said Lat 6, Block 9 and being in a west line of said Longwood Estates Addition; THENCE South 00°55'08" West (S 01'47'40" W Deed), with the east line of said Hudson's trod, with a west line of said Longwood Estates Addition, a passing distance of 289.87 feet to the southwest comer of Lot 13, Block 8 of said Longwood Estates Addition, continuing with the east I'~ne of said Hudson's trail for a total distance of 291.65 feet (291.5' Deed) to an 1"pipe found for the southeast comer of said Hudson's trad,lhe northeast comer of that certain trail of land as described by deed to Cheryl Ann West, Diana West Myers and Douglas F. Myers, retarded in County Clerk's Document No. D206035360, Deed Records, Tarrant County, Texas; THENCE North 89'2739" West {N 88°31' W Deed) ,with the south line of said Hudson's trod, with the north line of sad Myers trail, a distance of 102.68 feet (10.5.00' Deed) to a 5/8" iron rod found for the southeast comer of aforementioned Gardens Commercial Partners tract and being the southwest comer of said Hudson's trail; THENCE North 00°2717" East {N 01'4740' E Deed), wish the west ine of said Hudson's trod and with the east Gne of said Gardens Commercial Partners trail, a distance of 291.48 feet (289.8' Deed) io the POINT OF BEGINNING and containing a calculated area of 30,280 square feet or 0.695 acres of land. ORDINANCE 0-08-1699 AN ORDINANCE AMENDING ORDINANCE 0-08-1683 BY APPROVING A DETAILED SITE PLAN; PROVIDING FOR THE VIOLATION OF THIS ORDINANCE; PROVIDING A SAVINGS CLAUSE; PROVIDING A PENALTY OF FINE NOT TO EXCEED THE SUM OF TWO THOUSAND DOLLARS ($2,000.00) FOR EACH OFFENSE; AND PROVIDING FOR AN EFFECTIVE DATE WHEREAS, the City Council approved Ordinance 0-08-1683 on June 17, 2008 to establish the zoning on 0.6 acres on Tracts 3D1 and 3E1, Abstract 963 of the Absalom J. Lott Survey, from the AG-Agricultural Zoning district to PUDC-Planned Unit Development Commercial zoning district; and WHEREAS, the applicant has requested an amendment to Ordinance 0-08-1683 to authorize the approval of a detailed site plan, as required by Ordinance O- 08-1683; and WHEREAS, the City of Colleyville deems it necessary, for the purpose of promoting the health, safety, morals, or general welfare of the City to enact a new zoning ordinance; and WHEREAS, the City Council has appointed a Planning and Zoning Commission to recommend the boundaries of the various original zoning districts and appropriate regulations be enforced therein and to recommend a new zoning ordinance; and WHEREAS, the Planning and Zoning Commission has divided the City into districts and has prepared regulations pertaining to such districts in accordance with a comprehensive plan and designed to lessen congestion in the streets; to secure safety from fire, panic and other dangers; to promote health, general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population; to facilitate the adequate provision of transportation, water, sewerage, schools, parks and other public requirements; and WHEREAS, the Planning and Zoning Commission, has given reasonable consideration to, among other things, the character of the districts and their peculiar suitability for particular uses, with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout the City; and Ordinance 0-08-1699 Page 2 of 3 WHEREAS, the Planning and Zoning Commission of the City of Colleyville and the City of Colleyville City Council, in compliance with the Charter of the City of Colleyville, and State Law with reference to changes to zoning classifications under the Zoning Ordinance Regulations and Zoning Map, having given the requisite notices by publication and otherwise, and after holding due hearings and affording a full and fair hearing to all the property owners generally, and to the persons interested and situated in the affected area and in the vicinity thereof, the governing body of the City of Colleyville is of the opinion that said change in zoning should be made. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF COLLEYVILLE, TEXAS: Sec. 1. THAT all the foregoing premises and findings are found to be true and correct and are incorporated into the body of this ordinance as if copied in their entirety. Sec. 2. THAT the Comprehensive Zoning Ordinance of the City of Colleyville, Texas, be, and the same is hereby amended by amending Ordinance 0-08- 1683 to authorize the approval of a detailed site plan, as required by Ordinance 0-08-1683. Sec. 3. THAT the Comprehensive Zoning Ordinance of the City of Colleyville, Texas, be, and the same is hereby amended by changing the zoning of 0.6 acres on Tracts 3D1 and 3E1, Abstract 963 of the Absalom J. Lott Survey, as described in attached Exhibit "A", to add a detailed site plan, attached as Exhibit "B". Sec. 4. THAT the above described tract of land shall be subject to the following conditions: 1. DETAILED SITE PLAN a. The development and layout of the property shall adhere to the detailed site plan, attached as Exhibit "B". Sec. 5. THAT the above described tract of land shall be used only in the manner and for the purposes provided by the Comprehensive Zoning Ordinance of the City of Colleyville as heretofore amended, and as amended herein. Sec. 6. THAT any person, firm or corporation violating any of the provisions or terms of this ordinance shall be subject to the same penalty as provided for in the Comprehensive Zoning Ordinance of the City of Colleyville, and upon conviction shall be punishable by a fine not to exceed the sum of Two Thousand Dollars ($2,000.00) for each offense. Ordinance 0-08-1699 Page 3 of 3 Sec. 7. THAT if any section, paragraph, subdivision, clause, phrase or provision of this ordinance shall be judged invalid or unconstitutional, the same shall not affect the validity of this ordinance as a whole or any portion thereof other than that portion so decided to be invalid or unconstitutional. Sec. 8. THAT in addition to and accumulative of all other penalties, the City shall have the right to seek injunctive relief for any and all violations of this ordinance. Sec. 9. THAT it has been found that there has been a change in conditions in the above described property, it is now necessary that it be given the above zoning classification in order to permit its proper development and in order to protect the public interest, comfort and general welfare, and requires that this ordinance shall take effect immediately from and after its passage. Sec. 10. THAT Ordinance 0-08-1683 shall remain in full force and effect, except where amended by this ordinance. AND IT IS SO ORDERED. The first reading and public hearing being conducted on the day of 2008. The second reading and public hearing being conducted on the day of 2008. ATTEST: Cynthia Singleton, TRMC, CMC City Secretary CITY OF COLLEYVILLE David Kelly Mayor APPROVED AS TO FORM AND LEGALITY: Matthew C. G. Boyle City Attorney EXHIBIT "A"- Legal Description THE GARDENS AT Gt]LLEWILLE PROPERTY DESCRIPTION BEING a tract of land situated in the Absalom J. Lott Survey, Abstract No. 963, City of Colleyviile, Tarrant County, Texas, being alt of tha# certain tract of land as described by deed to Cynthia D. Hudson, recorded in Volume 11338, Page 812, Deed Records, Tarrant County, Texas and being al! of that certain trail of tend as described by deed to Rocky Alan Hudson, recorded in Volume 10491, Page 714, Deed Records, Tarrant County, Texas, said tract being more particularly described by metes and bounds as foNaws: BEGINNING at a 1/2" iron rail with orange cap stamped "Moak Sure Inc.° found far the northwes# corner of said Hudson's trail, the northeast comer of that certain tract of land as described by deed to Gardens Corrsmercial Partners, Ltd., recorded in County Clerk's Document No. D207153199, Deed Records, Tarrant County, Texas, in the south line of Lat 1 R2, Black 1, Tropicana Fuels Addition, an addition to the City of Colleyvil(e, according to the plat retarded in Cabinet A, Slide 5398, Plat Records, Tarrant County, Texas; THENCE South 89°33'06" East (S 89°29' E Deed), with the north line of said Hudson's tract, with the south line of said Lat 1R2, Block 1, Tropicana Fuels Addition, a passing distance of 80.89 feet to a 1/2" iron rod found forthe southeast comer of said Lot 1 R2, Block 1, Tropicana Fuels Addition, being the mast westerly southwest comer of Lot 6, Block 9, Longwood Estates at Rass Downs Phase V, an addition to the City of Colleyville, according to the plat recorded in Cabinet A, Slkle 2704, Plat Records, Tarrant County, Texas, can6nuing with north line of said Hudson`s tract, with the a south line of said Lot 8, Block 9, Longwood Estates Addition for a total distance of 105.04 feet (105.00` Deed) to a 112" iron rod found for a re-entrant corner of said Lot 6, Block 9 and being in a west tine of sold Longwood Estates Addition; THENCE South 00°55'08" West (S 01 °47`40" W Deed), with the east line of said Hudson's tract, with a west line of said Longwood Estates Addition, a passing distance of 289.87 feet to the southwes# comer of Lot 13, Block 8 of saki Longwood Estates Addition, continuing with the east line of said Hudson's tract for a total distance of 291.65 feet (291.5` Deed) to an 1" pipe found for the southeast comer of said Hudson's tract, the northeast cx?rner of that certain tract of land as described by deed to Cheryl Ann West, Diana West Myers and Douglas F. Myers, reccxded in County Clerk's Document No. D206035360, Deed Records, Tarrant County, Texas; THENCE North 89°27'39" West (N 88°31' W Deed) ,with the south tine of said Hudson`s tract, with the north line of said Myers tract, a distance of 102.68 feet (105.00' Deed) to a 518" Iron rod found for the southeast comer of aforementioned Gardens Commercial Partners tract and being the southwest comer of said Hudson's tract; THENCE North QO°27'17" East {N Q1°47'40" E Deed), with the west line of said Hudson's tract and with the east line of said Gardens Commercial Partners tract, a distance of 291.48 feet {289.8' Deed) to the POINT OF BEGINNING and captaining a calculated area of 30,280 square feet or 0.695 acres of land. EXHIBIT "B"- Detailed Site Plan ~ ~ i w--- i ~~~.__ __..ti:._ a, ~` __.~_ ~ ~Z. ., ~I ~ :: ~~.~ ~ ~. ~~ ~~ V `~: , ig .,, , i t k R, o '.. F \ t „t ~ ! ~f 3~~~ ~~ I W ~ t ~ ~ : ~~ ...__ ~' ~~ ~' ~~ f ,~"~ b ~,,' i I ~ ~ ~ ~ ~~ ~ Q ~4,_ ~~ € .^. ,. { 2Cf d. ~ ._... i ~ I.. i ,. iq o~ __` .~ {~ r.~:., City of Colleyville Agenda Briefing City Hall 100 Main Street Colleyville, Texas 76034 817. 503.1000 www.colleyville.com File Number: 0-08-1700 File Number: 0-08-1700 Version: 1 Requester: Office of the City Manager File Type: Ordinance Agenda Date: 11/18/2008 Agenda No.: 5b Status: Second Reading Controlling Body: City Council Final Action: File Name: Approval of an electric power contract with Cities Aggregation Power Project, Inc. (CAPP) pursuant to a 24-year power purchase agreement (PPA) and authorizing the City Manager to execute the disclosure letter, agreements and member contract Attachments: Comparison of Texas Average Retail Rate vs. CAPP Negotiated Rate.pdf Wrap and Long Term Contract Comparison For Colleyville.pdf 24-Year Projection of Retail vs. CAPP 24-Year PPA Rate.pdf Ordinance 0-08-1700.pdf History of Legislative File Version: Date: Acting Body: Action Text: 1 11/05/2008 City Council 1 11/18/2008 City Council Title Approval of an electric power contract with Cities Aggregation Power Project, Inc. (CAPP) pursuant to a 24-year power purchase agreement (PPA) and authorizing the City Manager to execute the disclosure letter, agreements and member contract Explanation Second Reading and Public Hearing No one spoke regarding this item at the November 5, 2008 City Council meeting. First Reading and Public Hearing The City of Colleyville is a member of the Cities Aggregation Power Project (CAPP), a non-profit political subdivision corporation aggregator created in 2001 in anticipation of the deregulation of the Texas retail electric market. CAPP pools member's electric power needs to negotiate lower, more stable prices through bulk purchasing and is run by a voluntary 10 member Board of Directors, comprised entirely of city employees and city officials. CAPP and its sister political subdivision corporation aggregator, South Texas Aggregation Project, Inc. (STAP), have more than 150 political subdivision members who purchase in excess of one billion kWh annually. Together CAPP and STAP have member savings that have surpassed $100 million since the Texas electric market deregulated in 2002. City of Colleyville Page 1 Printed on 11/12/2008 Agenda Brietrng Continued (0-08-1700) In 2005, the CAPP Board authorized its consultants to find alternatives to purchasing the entirety of CAPP power requirements in a market that links the price of all energy to natural gas prices. To that end, CAPP has negotiated and is entering into a Power Purchase Agreement (PPA) with Luminant Generation Company LLC, Big Brown Power Company, LLC and Oak Grove Management Company, LLC (collectively, Luminant) for approximately 150 MW of baseload power from seven different units over a 24-year period. CAPP has entered into the contract on behalf of all CAPP and STAP members who are willing to be allocated a portion of approximately 150 MW, corresponding to each participating member's energy consumption as a percentage of all participating member's consumption. On April 28, 2008, the City of Colleyville forwarded a letter to Geoffrey Gay, General Council for CAPP, stating the City desired to preserve the option of participating in the long-term contract (which was being confidentially negotiated) for the purchase of power. CAPP and it consultants, believe contracting fora 24-year commitment of lignite/coal-fired capacity at a fixed price (with slight escalation over the term of the contract) will lower overall energy costs and provide an ability to more accurately predict and stabilize the impact of energy prices on annual budgets thus allowing, more fiscally responsible budgets. Since the financial crisis and the sudden volatility in the market, CAPP is focusing on capturing the best price for the current and future market, which may reduce immediate savings, but will provide long-term stability and eventual savings. Attached are three charts: Comparison of Texas Average Rate Price vs. CAPP Negotiated Rate from 2002 to 2008 as prepared by staff which indicates CAPP's negotiating and purchase success. The Wrap and Long Term Contract Comparison for Colleyville is a comparison of indicative rates for 2009-2013, prepared by Caitlin Bowdish, R.J. Covington Consulting, LLC, CAPP's consulting firm. The 24-Year Projection of Retail Rate vs. CAPP 24-Year PPA Rate chart averages the rate increase from 2002-2008 of 5% over the next 24 years and increases the CAPP rate by 3% beginning in 2014. Approval of the proposed ordinance commits the City to purchasing from CAPP, electric power to satisfy a portion of its annual energy needs (approximately 60%) through the CAPP PPA for up to 24 years. Further, capacity payments (debt service obligation) payable by the City will be public property finance contractual obligations pursuant to Texas Local Government Code Chapter 271, Subchapter A, secured by a pledge of such member's ad valorem taxes, which will be assigned to support debt issued by CAPP to pay the capacity costs of the PPA. City staff and City Attorney Cathy Cunningham have worked with CAPP and attended informational meetings regarding the PPA. The proposed Long Term Contract Pro-form Estimated Debts Costs and Savings was prepared by CAPP and estimates Colleyville's 2006-2007 average annual kWh usage to be 4,951,076, equaling an allocated portion of the total average annual load (to be purchased by CAPP) to be 0.29%. This equates to estimated not to exceed values of: allocated debt amount $1,666,000.00, estimated annual debt service: $144,000.00 and estimated maximum monthly debt service: $12,000.00. Initially, a deadline of November 5, 2008, was established for cities to respond regarding participation in the PPA. Due to the current turmoil in the credit markets and uncertainty as City of Colleyville Page 2 Printed on 11/10/2008 Agenda Briefing Continued (0-08-1700) to when CAPP can achieve approval of the 24-year PPA from the Attorney General, CAPP has determined the PPA will not close on December 23, 2008. Therefore, the new deadline for passage of the ordinance approving participation is December 17, 2008. Kristen Doyle, principal, Lloyd Gosselink Rochelle and Townsend, P.C., and CAPP Legal Counsel and Jay Doegey, City of Arlington and CAPP Board Chairman gave a presentation and answered questions of the City Council at the October 7, 2008 Pre Council meeting. On October 21, 2008, the City Council approved Resolution R-08-3025 which authorized CAPP to negotiate an electric supply agreement for delivery of electricity and related services for up to a five year period; January 1, 2009, through December 31, 2013, at a fixed average price, which is approximated to be between eight and eight and a half cents. Should the City move forward with the PPA, the back out portion of base load associated with the PPA is being arranged with FPL, which should be several cents less than the average price for 2008. Due to the volume, the Energy Sales Contract and Power Purchase Agreement which are subject to change, are not attached but available for review in the Office of the City Manager and Office of the City Secretary. Financial Impact It has been determined that participation in the long-term power purchase agreement will assist in stabilizing annual budget projections. Recommendation Approval City of Colleyville Page 3 Printed on 11/10/2008 ~~ ~~~/ LL ~ ~ it z U vi L i ~--r ~~~// LL L X .~ Q U - ~ ~- f6 I ~ N fQ ~ ~ _ ~ I, '+-~ ~ _ ~ ~ 3 ~ ~ Y Z ~ ~ ~ ~ . ~ ~ (6 (6 N L i ~ ~ a = x o ~ Y H U U ~ 0 0 N r 0 0 0 0 0 0 0 0 0 0 0 0 O d0 CO ~ N O r N s O T U C m m U .N .~ (6 ti r rn .N N N C O U o ~_ o °' N ~ ~ li ~ ~ U f~ Q O W N o f6 O ~ O 'c_ N i ~ Q Lf') ~ ~ O j ~ N E O C ~ T O o ~ O N N N ~ ~ 'I ~ W M ~ r N O N O N ~ .~ ~ cv a~ ~ N ~ -p O ~ N O w v N ~ N d -_ >, ~ I ~ ~ a~ O I ~ ~ ~ O ~ ~ lj N ~ ~ O ~ ~ `~ ~' ~ Q E o N ` O ~ ~ N !Z II N ~ * ~ ~ L ~~ 0 y ~L U ~~ ~..~ L ~•+ 0 V L ~~ 0 J L ~~ .~ U M ~ to 07 I~ I` N ~ r r ~' 00 a0 00 a0 Ef} N N O N ~ C N ~ N t C) . N 00 OO 00 00 r ~ N ~ N p l N 00 00 O~ OO O N -f~ ~ O C N O N 'd' N oO 00 Op OO O M ti O ~ N f~- I~ I~ t~ _Y ~- ~i N c 0 Q O m v ~L J J a 0 0 N 0 o_ _~ x W Z m ~_ as ~L C9 N d O N 0 N 0 2 otf N O z d ~. v ~ E +L•' C W U V ~ F- J .L• J ~ O 3 3 v Q ~. L ` ~' ~ ~ co ~ 00 ti o ti O ~ ~ ~ ~ ~ ~ Ef3 b/-3 O ~ C~fl N ~ O ti ~ LCD 69 Ei> O M 00 ~ O lf') O O M ~ jN(!}-- b4 rn C~fl N ti O O N ~ N ~ l,(7 ff> Ef3 O O ~ ~p 00 N ~ O ~ O ~ ~ ~ (~ ~ tL7 ~ O ~' - .~ ~' ~ d > > o O N ~ c ~ > .~ N N a) N W ~ W ._. ~ ~ L Q L ~ ~ ~ m C U o U ~ N J J as 3 3 ~ 2~ ~ (~ 7 •i L L ~ ~ N ~ ~ W ~ ~ N to ^Q I..L i I N ^~ I..L U vi ^~ W ~+ /~~~/ LL .~ t^`~ NNW L.L. O 0 U N .O ^L I..L L I N ~_ ~- ~ °' ~: ~ ~ ~ ~: c ~ . ~ ~< ~`, ~ ~ ~, ` . ~ ~ a = >, ~', ~ Y N ~~ ~' a~ ~~ ~' (L4 ~ U _ U C ~ Q = Q C '~ M O N 0 M O N N O N O N O N 0 N _O O N l I ~ I _~ I 1 1 0 ~ N O OO cfl ~ N O N j N ~ O ~ O 1 ~ ~_ 1 N ~ U L { (0 y-+ N ~ ~ 1 fB ` ^L` W 1 O i ~ 1 ~ 1 C N i N ~ ~ { ~ Q ORDINANCE 0-08-1700 AN ORDINANCE OF THE CITY OF COLLEYVILLE, TEXAS APPROVING AN ELECTRIC POWER CONTRACT WITH CITIES AGGREGATION POWER PROJECT, INC. (CAPP) FOR ELECTRIC CAPACITY AND ENERGY, PROVIDING CAPACITY PAYMENTS AS PUBLIC PROPERTY FINANCE CONTRACTUAL OBLIGATIONS OF THE CITY, PLEDGING AND LEVYING AN AD VALOREM TAX TO SUCH PAYMENTS, PROVIDING FOR ENERGY PAYMENTS FOR ELECTRIC ENERGY SUBJECT TO ANNUAL APPROPRIATION BY THE CITY, PROVIDING FOR THE ASSIGNMENT OF SUCH CAPACITY PAYMENTS TO SUPPORT DEBT ISSUED BY CAPP INCURRED TO ACQUIRE ELECTRIC CAPACITY RIGHTS FROM LUMINANT GENERATION COMPANY AND RELATED ENTITIES PURSUANT TO A 24-YEAR POWER PURCHASE AGREEMENT ("PPA"); AUTHORIZING THE CITY MANAGER TO EXECUTE AND DELIVER THE MEMBER CONTRACT; ACKNOWLEDGING THE MEMBER CONTRACT REQUIRES CERTAIN CAPACITY PAYMENTS PAYABLE BY THE CITY WILL BE PUBLIC PROPERTY FINANCE CONTRACTUAL OBLIGATIONS PURSUANT TO TEXAS LOCAL GOVERNMENT CODE CHAPTER 271, SUBCHAPTER A, ADOPTING A SAVINGS CLAUSE WHEREAS, the City of Colleyville must purchase electricity in order to perform its proprietary and governmental functions; and WHEREAS, the price of power sold in the deregulated retail market in Texas has been directly linked to the daily fluctuations for natural gas futures prices, regardless of the type of generation fuel; and WHEREAS, natural gas prices are extremely volatile, resulting in an upward cost trend and significant electric price instability; and WHEREAS, the City is a member of the non-profit political subdivision corporation Cities Aggregation Power Project, Inc. ("CAPP"), which has the legal authority to contract for the purchase of electricity on behalf of more than 100 political subdivision members; and WHEREAS, CAPP has endeavored to provide its members with the most favorable energy pricing available in the market, delivering more than $100 million in savings for its members since 2002; and WHEREAS, the CAPP Board of Directors is a voluntary ten-member board comprised entirely of city employees and city officials that directs the activities of CAPP's legal and energy advisors; and WHEREAS, the CAPP Board of Directors has investigated potential long-term contracting options to both lower and stabilize electric prices for member political subdivisions that must prepare annual budgets and require cost predictability for essential services like electricity; and Ordinance 0-08-1700 Page 2 of 5 WHEREAS, CAPP negotiated a Purchase Power Agreement ("PPA") with owners of non-gas fired generation for the long-term, fixed price supply of power, which will allow participating CAPP members to meet a portion of energy needs (approximately 60 percent) at a stable, known price fora 24-year period; and WHEREAS, the PPA calls for CAPP to contract with Luminant Generation Company LLC, Big Brown Power Company, LLC and Oak Grove Management Company, LLC (collectively, "Luminant") for approximately 150 MW of base load power supplied by seven different units over 24 years and pre-paying a portion of the capacity costs associated with power purchased pursuant to the long-term contract; and WHEREAS, the City wishes to acquire a portion of its future electric energy pursuant to the PPA between CAPP and Luminant; and WHEREAS, to acquire power pursuant to the PPA, the City must enter into an electric power contract, the Energy Sales Contract between CAPP and the City of Colleyville (the "Member Contract"), substantially in the form attached hereto; and WHEREAS, CAPP will issue general revenue bonds, with the bond proceeds used to pre-pay a portion of the 24-year capacity commitment pursuant to the PPA on behalf of the City and all participating CAPP members; and WHEREAS, bonds issued by CAPP will be backed by the individual Member Contracts of each participating CAPP city committing to pay a capacity payment equal to its proportionate amount of the debt service obligation associated with CAPP's prepayment of PPA capacity costs; and WHEREAS, the City's allocated total maximum capacity payment will not exceed $1,666,000.00 (total maximum monthly capacity payment is $12,000.00); and WHEREAS, the Member Contract requires that certain capacity payments payable by each participating CAPP member will be public property finance contractual obligations pursuant to Texas Local Government Code Chapter 271, Subchapter A, secured by a pledge of such member's ad valorem taxes, which will be assigned to support debt issued by CAPP to pay the capacity costs of the PPA; and WHEREAS, the fixed capacity component constitutes along-term, general obligation tax debt of each participating member that is secured by a pledge of the member's ad valorem taxes; and WHEREAS, CAPP must secure an additional "wrap" agreement to arrange for power deliveries when needed to meet the remaining portion of the City's energy needs in excess of the base load power provided under the Member Contract, with said wrap agreement needing ratification/approval of the City; and Ordinance 0-08-1700 Page 3 of 5 WHEREAS, the resulting power supply blend adds to both stability and savings for the City; and WHEREAS, the total capacity and energy to be purchased under the long-term PPA cannot be known until all CAPP members have acted on their opportunity to participate in the transaction; and WHEREAS, a change in total capacity and energy obligated under the PPA will change the cost of the transaction and may change the percentage of debt service obligation and energy assigned to participating CAPP members; and WHEREAS, the PPA is an effort, initiated by CAPP pursuant to direction and support of its participating members, including the City, to diversify fuel sources and minimize the risk associated with complete reliance upon electric pricing linked to natural gas costs that are influenced by unpredictable weather, geo-political and global economic factors, but nonetheless the PPA involves a number of somewhat unique risks and uncertainties; and WHEREAS, CAPP has prepared and distributed a Disclosure Statement dated September 10, 2008, in the form attached hereto that identifies and describes certain risks (but may not describe all risks) associated with the transactions contemplated by the Member Contract and the PPA; and WHEREAS, the Disclosure Statement is to be acknowledged, signed, and returned to CAPP, prior to pricing of CAPP's bonds, if the Member Contract is approved; and WHEREAS, it is hereby officially found and determined that the meeting at which this ordinance was passed was open to the public, and public notice of the time, place and purpose of said meeting was given, all as required by Chapter 551, Texas Government Code. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF COLLEYVILLE, TEXAS: Sec. 1. THAT the CAPP Member Contract, attached hereto as Exhibit "A" and incorporated herein for all purposes is deemed necessary and desirable for the City to meet its proprietary functions and basic governmental responsibilities and is hereby approved. Sec. 2. THAT the City acknowledges that the Member Contract requires that certain capacity payments payable by the City will be public property finance contractual obligations pursuant to Texas Local Government Code Chapter 271, Subchapter A, secured by a pledge of such member's ad valorem taxes, which will be assigned to support debt issued by CAPP to pay the capacity costs of the PPA; and the City further acknowledges that the fixed capacity component constitutes Ordinance 0-08-1700 Page 4 of 5 a long-term, general obligation tax debt of the City that is secured by a pledge of the City's ad valorem taxes. Sec. 3. The City of Colleyville hereby acknowledges that it has reviewed the Member Contract and the Disclosure Statement dated September 10, 2008, and the City Manager is authorized and directed to sign, date, and return by December 17, 2008, to CAPP both the Member Contract and such Disclosure Statement. Sec. 4. THAT the City Manager is authorized to approve modifications and corrections to the Member Contract that are necessary to conform to changes to the assigned cost in the PPA after all CAPP members have made decisions regarding participation in the long-term PPA, so long as no such changes increase the City's capacity payment obligations in any year from the amounts reflected in the Member Contract attached hereto. Sec. 5. THAT the City Manager is authorized to sign additional agreements arranged by CAPP for the provision of electricity during the period 2009-2011 that are necessary to meet the City's power needs that exceed the power arranged through the Member Contract with CAPP, with the understanding that any agreement for energy beyond 2009 is subject to the right of annual appropriation. Sec. 6. THAT the City Manager is hereby authorized, empowered and directed from time to time and at any time to do and perform all such acts and things and to execute, acknowledge and deliver in the name and under the corporate seal and on behalf of the City all such instruments, whether or not herein mentioned, as may be necessary or desirable in order to carry out the terms and provisions of this ordinance, the Member Contract and the Disclosure. Sec. 7. THAT the City Manager is hereby authorized and directed to approve any changes or corrections necessary to this ordinance, the Member Contract or any ancillary agreement, certificate or document, prior to the initial delivery of the Member Contract in order to (i) correct any ambiguity or mistake or properly or more completely document the transactions contemplated and approved by this ordinance, (ii) approve any changes to the Member Contract as contemplated in the recitals hereto and Section 3 hereto, or (iii) obtain the approval of the Member Contract (and the debt issued by CAPP relating to the PPA) by the Texas Attorney General's office. Sec. 8. THAT in case any officer of the City whose signature shall appear on the Member Contract shall cease to be such officer before the delivery of such Member Contract, such signature shall nevertheless be valid and sufficient for all purposes the same as if such officer had remained in office until such delivery. Sec. 9. THAT if any one or more sections or clauses of this ordinance is adjudged to be unconstitutional or invalid, such judgment shall not affect, impair or invalidate the Ordinance 0-08-1700 Page 5 of 5 remaining provisions of this ordinance and the remaining provisions of the ordinance shall be interpreted as if the offending section or clause never existed. Sec. 10. THAT the City hereby finds that the statements set forth in the recitals of this ordinance are true and correct, and the City hereby incorporates such recitals as apart of this ordinance. AND IT IS SO ORDERED. The first reading and public hearing being conducted on the 2008. The second reading and public hearing being conducted on the 2008. ATTEST: Cynthia Singleton, TRMC, CMC City Secretary APPROVED AS TO FORM AND LEGALITY: CITY OF COLLEYVILLE David Kelly Mayor day of day of Matthew C. G. Boyle City Attorney Exhibit "A" ENERGY SALES CONTRACT BETWEEN CITIES AGGREGATION POWER PROJECT AND CITY OF ,TEXAS ENERGY SALES CONTRACT BETWEEN CITIES AGGREGATION POWER PROJECT AND CITY OF ,TEXAS TABLE OF CONTENTS Table of Contents Page ARTICLE 1 DEFINITIONS AND PRINCIPLES OF INTERPRETATION ....................4 1.1 Definitions .......................................................................................................... .4 1.2 Principles of Interpretation ............................................................................... 11 ARTICLE 2 CAPP'S OBLIGATIONS CONTINGENT UPON PERFORMANCE BY FACILITY OWNERS UNDER THE PPA; ASSUMPTION BY MEMBER....... 12 2.1 Nature of CAPP's obligations to Member ......................................................... 12 2.2 CAPP's duty to exercise remedies under the PPA and Guaranty; power coupled with an interest .................................................................................... 12 2.3 Assumption of PPA by Member ....................................................................... l 2 ARTICLE 3 TERM OF CONTRACT AND DELIVERY OF PRODUC 1'S .................... 13 3.1 Term .................................................................................................................. 13 3.2 Delivery of Products ......................................................................................... 13 ARTICLE 4 PAYMENT OF CAPACITY PREPAYMENT TO FACILITY OWNERS ............................................................................................................... 13 ARTICLE 5 DELIVERY OF CONTRACT ENERGY ..................................................... 13 5.1 Acquisition and Delivery of Product ................................................................ 13 5.2 Title and Risk of Loss ....................................................................................... 14 5.3 Member's Failure to Accept Product ................................................................ 14 5.4 Failure of Facility Owners to Schedule or Deliver Product to CAPP ............... 14 ARTICLE 6 PRICING OF AND PAYMENT FOR ENERGY ....................................... 14 6.1 Payment of Member's Monthly Aggregated Energy Payment ......................... 14 6.2 Payments through Retail Electric Provider and Designated Agent(s) .............. 17 6.3 Payments from Available Funds ....................................................................... 17 6.4 Intent to Continue Payments ............................................................................. 18 6.5 Failure to Appropriate Available Funds .................................... ... .................... 18 6.6 Assignment Upon Failure to Appropriate ......................................................... 18 6.7 Appropriated Energy Payments to be Unconditional ....................................... 19 6.8 CAPP as Third Party Beneficiary ..................................................................... 19 6.9 Member's Default of the Energy Payment Covenants and CAPP's Remedies ........................................................................................................... 19 ARTICLE 7 CAPACITY PREPAYMENT, MEMBER'S MONTHLY CAPACITY PAYMENT AND PLEDGE OF AD VALOREM TAXES BY MEMBER..........21 7.1 Capacity Prepayment ........................................................................................ 21 7.2 Capacity Payment ............................................................................................. 21 7.3 Interest and Sinking Fund; Tax Levy for Monthly Capacity Payments........... 22 7.4 Prepayments based upon Early Termination under the PPA ............................ 22 7.5 LAPP and Trustee as Third Party Beneficiaries ............................................... 22 7.7 Member's Default on Capacity Prepayment and CAPP's Remedies ............... 23 ARTICL E 8 BILLING AND PAYMENT ......................................................................... 24 8.1 Invoice and Payment Schedules ........................................................................ 24 8.2 Method of Payment ........................................................................................... 24 8.3 Netting ............................................................................................................... 25 8.4 Disputed Charges .............................................................................................. 25 8.5 Audits ................................................................................................................ 26 8.6 ERCO'1' Barred Issue ........................................................................................ 26 ARTICL E 9 DESIGNATION OF MEMBER'S DELIVERY POINTS ............................ 26 9.1 Designation of Member's Delivery Points ........................................................ 26 ARTICL F. 10 SECURITY ................................................................................................. 26 10.1 Security from Facilities Owners ....................................................................... 26 10.2 Collateral Assignment of the Contract to 't'rustee for Bonds ............................ 27 ARTICL E 11 DEFAULT ..................................................................................................27 11.1 Defaults by Facility Owners; Defaults by Participating Members ................... 27 11.2 Default by CAPP ............................................................................................... 27 11.3 Default by Member ........................................................................................... 27 11.4 Remedies of LAPP in the event of default by Member .................................... 28 11.5 Remedies of Member in the Event of Default by CAPP .................................. 29 11.6 No Waiver in Event of Default ......................................................................... 30 ARTICLE 12 INDEMNIFICATION; LIMITATION OF LIABILITY ............................30 12.1 Member's Indemnification of CAPP ................................................................ 30 12.2 Claims arising on Facility Owners side of the Facility Owners' Delivery Point .................................................................................................................. 3 0 12.3 Indemnified Claims ........................................................................................... 31 12.4 Limitation of Remedies, Liability and Damages .............................................. 31 ARTICLE 13 REPRESENTATIONS ............................................................................... .32 13.1 Mutual representations and warranties ............................................................. 32 ARTICLE 14 NOTICES ................................................................................................... .33 14.1 Notices .............................................................................................................. 33 ARTICLE 15 CONFIDENTIALITY ................................................................................ .34 15.1 Confidential lnformation .................................................................................. 34 ARTICLE 16 ASSIGNMENT .......................................................................................... .34 16.1 Assignment ....................................................................................................... 34 ARTICLE 17 CONTINUING DISCLOSURE ................................................................. .34 17.1 Continuing Disclosure Undertaking of Members ............................................. 34 17.2 Financial Statements ......................................................................................... 34 17.3 Change of Fiscal Year ....................................................................................... 35 17.4 Failure to Provide Continuing Disclosure ......................................................... 35 17.5 Amendment of Continuing Disclosure ............................................................. 35 ARTICLE 18TAX-EXEMPT BONDS ............................................................................ .36 18.1 Tax-Exempt Bonds ........................................................................................... 36 18.2 Agreement to Pay Beneficiary .......................................................................... 36 ii 18.3 Financing ...........................................................................................................37 ARTICLE 19 MISCELLANEOUS ...................................................................................37 19.1 Applicable I~aw ................................................................................................. 37 19.2 Counterparts ......................................................................................................37 19.3 Waiver ...............................................................................................................37 19.4 Modification ......................................................................................................37 19.5 Severability ....................................................................................................... 37 19.6 Requirements ....................................................................................................38 19.7 Entirety .............................................................................................................. 3 8 19.8 Captions, Titles and Headings .......................................................................... 38 19.9 Forward Contract .............................................................................................. 38 l 9.10 Further Assurances ............................................................................................ 38 19.11 Survival .............................................................................................................38 iii ENERGY SALES CONTRACT BETWEEN CITIES AGGREGATION POWER PROJECT AND CITY OF ,TEXAS This Energy Sales Contract ("Contract") is executed on the date set opposite each signature below, effective, however, on December , 2008 ("Effective Date"), by and between the Cities Aggregation Power Project, Inc. ("CAPP"), a political subdivision corporation incorporated in the State of Texas, and the City of ("Member"). CAPP and Member are collectively referred to herein as the "Parties", and individually as a "Party". RECITALS: Capitalized terms used herein not otherwise defined shall have the meanings set forth in Article 1 hereof. Member is a political subdivision of the State of Texas. Member is a member of CAPP. As the result of adoption of Senate Bi117, enacted as Chapter 405, Acts of the 76tH Legislature, Regular Session, 1999, municipalities now have the opportunity to competitively acquire electricity on more advantageous teams. This opportunity was the impetus for the creation of LAPP. CAPP was created to assist Member and the Participating Members in obtaining electricity used in such Members' own buildings and facilities by aggregating each Participating Member's electric load, and negotiating the best electric price based on the aggregated Load. Recognizing that all retail sales in the Texas deregulated electric market have been based on the price of natural gas on the Nymex Futures Market, Member desires to diversify the sources of its electric supplies in order to mitigate potential price volatility associated with a single fuel source supply of electric energy. Member has a need for reliable electric energy at favorable and stable rates to fiilfill its proprietary needs and govenunental responsibilities in said buildings and facilities. Member desires to increase its bargaining power in the deregulated market for Energy by relying upon and combining with other participating LAPP member cities ("Participating Me-nbers") to negotiate for future sources of electricity. The Participating Members are listed on Exhibit "A" attached hereto and incorporated by this reference herein for all purposes. Member has determined to utilize the LAPP aggregation method of electric energy procurement for meeting the electric energy needs of govermnental facilities that are located within its deregulated jurisdictional boundaries, as provided in this Contract. CAPP has identified a source of Energy from selected units in the Big Brown generating station in Freestone County, Texas ("Big Brown Facility"), Martin Lake generating station located in Rusk County, Texas ("Martin Lake Facility"), and Oak Grove generating station located in Robertson County, Texas ("Oak Grove Facility") that are owned, respectively, by Big Brown Power Company, LLC, Luminant Generation Company LLC and Oak Grove Management Company, LLC (collectively, the "Facility Owners"), and that CAPP believes will assist Member in (i) mitigating potential price volatility of Energy, and (ii) accessing a wholesale power supply to meet the base load requirements of Member and Participating Members for twenty-four (24) years, commencing on January l , 2009 at 12:00:00 a.m. CPT ("Service Commencement Date") and ending at one minute before 12:01 a.m. on January 1, 2033 unless the agreement for the procurement of such Energy is terminated sooner as therein provided ("Term"). The Big Brown Facility, Martin Lake Facility, and Oak Grove Facility are collectively called the "Facilities''. CAPP has entered into a Power Purchase Agreement with the Facility Owners in substantially the form attached hereto as Exhibit "B" and incorporated by this reference herein for all purposes ("PPA"), pursuant to which PPA, CAPP will contract to obtain 150 megawatts of Contract Capacity ("Contract Capacity") in the Facilities and access to wholesale power supplies to meet base load Energy needs of Member and Participating Members throughout the Term of the PPA. Certain obligations of the Facility Owners under the PPA have been partially guaranteed by Texas Competitive Electric Holdings Company, LLC ("TCEH") through execution of a Guaranty substantially in the form attached to the PPA, and TCEH and its subsidiaries have guaranteed the ot•iginal leveraged buyout ("LBO") documents and the PPA is a secured obligation under such LBO documents and as such is subject to the guaranty provided therein. Member desires to acquire its Member Contract Energy Allocation in the Project from CAPP ("Member Capacity"). All Participating Members, including Member, have collectively contracted for and reserved the full Contract Capacity in the Facilities from CAPP. The PPA provides the terms for CAPP's purchase of all Contract Capacity from the Facility Owners for the benefit and on behalf of Member and Participating Members. As a result of negotiations with the Facility Owners it has been determined that substantial savings in energy costs based upon today's energy market and current forecasts of future market prices can be realized by purchasing capacity rights in the Facilities from the Facility Owners as provided in the PPA on or before the Service Commencement Date. 2 CAPP has determined that it is in the best interests of Member and the Participating Members to prepay Facility Owners for Contract Capacity in the Facilities ("Capacity Prepayment") out of the proceeds of Bonds issued for such purpose by CAPP. Member and each of the other Participating Members in their respective Participant Contracts, agree to pay Member's Energy Allocation Percentage of the costs incurred by CAPP to issue the Bonds, pay the Capacity Prepayment to the Facility Owners, pay interest costs, establish a reserve, and pay all other costs, fees and charges that CAPP incurs under the Bonds directly to the Trustee, as hereinafter defined, until the Bonds are paid in full according to the payment schedule set forth in the Bonds. The Bonds shall be secured by the collateral assignment of this Contract and all Participant Contracts, as provided in this Contract, including all rights of collection thereon, to the Trustee. A copy of the payment schedule is attached hereto as Exhibit "C" and incorporated by this reference herein for all purposes. Member acknowledges that CAPP shall additionally provide to Member at Member's expense, through Designated Agent(s), all services required and necessary to deliver the Energy from the Facility Owners Delivery Point to Member's Delivery Points, including all costs of transmission, distribution, and including all necessary tariffs, and fees as provided herein. Member agrees to the terms of this Contract, and consents to the terms of the PPA. In reliance thereon, and in reliance upon the acceptance and agreement of all other Participating Members, CAPP (i) has entered or shall enter the PPA for the benefit of Member and Participating Members, (ii) shall cause the Bonds to be issued, and (iii) shall cause the Capacity Prepayment to be paid to the Facility Owners as provided in the PPA. Accordingly, CAPP and Member have determined that it is in their mutual best interests to enter into this Contract as the means of providing Member with the Member Contract Energy Allocation for its base load needs during the Delivery Period described in Section 3.2, below. Other Participating Members have respectively entered or have committed to enter into contracts with CAPP that, when aggregated with this Contract, collectively account for all Contract Energy associated with the Contract Capacity in the Facilities during the Delivery Period that has or will be acquired by CAPP for the benefit of all Participating Members under the PPA. The Public Property Finance Act, Subchapter A, Chapter 271, Local Government Code, as amended (the "Act"), authorizes Member to execute, perform and make payments under contracts with any person for the use, acquisition or purchase of personal property as described in the Act, including the electricity provided for in this Contract. The Act permits the governing body of Member to execute contracts in any form deemed appropriate by said governing body in connection with the use, acquisition or purchase of personal property. 3 Member desires to acquire electricity property pursuant to this Contract as described herein from LAPP, and such personal property is deemed by the governing body of Member to be necessary, useful, and/or appropriate for the purposes of Member as contemplated by Section 304.001, Government Code, as amended. In consideration of the mutual undertakings contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and confessed, the Parties agree as follows: ARTICLE 1 DEFINITIONS AND PRINCIPLES OF INTERPRETATION 1.1 Definitions. The following capitalized terms shall have the following meanings assigned to them under this Contract unless the context shall clearly indicate otherwise: "Aggregated Expenses" shall mean the sum of charges to LAPP that are payable under the PPA to the Facility Owners and under a Wrap Contract for: (a) adjustments to the Capacity Prepayment under Section 4.2(b) of the PPA, (b) sums charged to CAPP under Section 3.3 of the PPA, (c) the amount of Disputed Charges that are payable by CAPP under Section 8.3 of the PPA or as a result of an Audit under Section 8.4 of the PPA, (d) sums payable by CAPP under Article 10 of the PPA, (e) sums, if any, required for the indenuuty of the Facility Owners under Section 13.1 of the PPA, (f) Governmental Charges payable by CAPP pursuant to Section 20.1 of the PPA, (g) New Governmental Charges payable by CAPP pursuant to Section 20.2 of the PPA, (h) the cost of environmental improvements that are required to be paid by CAPP under the PPA, (i) any unforeseen non-recurring expenses approved by CAPP, and (j) the amount of any Seller Termination Payment due by CAPP to the Facility Owners pursuant to Article 12 of the PPA. The amount of Aggregated Expenses shall be reduced by (i) credits to the Capacity Prepayment under Section 4.2(a) of the PPA, (ii) credits under Section 3.4 of the PPA on account of the failure of the Facility Owners to deliver the Products to CAPP, and (iii) the amount of Disputed Charges that are payable by the Facility Owners to CAPP under Section 8.3 of the PPA or as a result of an Audit under Section 8.4 of the PPA. "Alternate Energy" has the meaning set forth in the PPA. "Appropriate", "Appropriated", and/or "Appropriation" means, with respect to any Energy Payment that Member is obligated to make under this Contract during a Fiscal Year, the adoption by the governing body of Member of a budget for such Fiscal Year that includes such payment. "Available Funds" means, when used to describe funds of Member, those funds of the Member which have been lawfully Appropriated, within the sole and 4 uncontestable discretion of the Member, from current revenues and which may be expended, during the Fiscal Year for which Appropriated, for the purpose expressed in such Appropriation. "Bankrupt" means a Party that: (i) files a petition or otherwise commences, authorizes or acquiesces in the commencement of a proceeding or cause of action under any bankruptcy, insolvency, reorganization or similar law, or has any such petition filed or commenced against it, (ii) makes an assignment or any general arrangement for the benefit of creditors, (iii) otherwise becomes bankrupt or insolvent (however evidenced and regardless of whether the bankruptcy or insolvency is voluntary or involuntary), (iv) has a liquidator, administrator, receiver, trustee, conservator or similar ofrcial appointed with respect to it or any substantial portion of its property or assets, or (v) is generally unable to pay its debts as they fall due. "Base Year" means an annual period determined by CAPP as of the Effective Date to be representative of the typical total current Energy requirements of a1i Participating Members. "Big Brown Facility" means Unit 1 and Unit 2 of the Big Brown generating station located in Freestone County, Texas, with an appropriate cumulative Net Rated Capacity of 1203 megawatts as of the Effective Date. "Bonds" shall mean all contract revenue bonds issued by CAPP for the purpose of prepaying and funding the Capacity Prepayment plus cost of issuance of and reserve funds required to be maintained under such contract revenue bonds, said bonds to be secured by the pledge and assignment by CAPP to a trustee, pursuant to a trust agreement between CAPP and such trustee of the Capacity Prepayment Component of each Participating Member's contract, it being stipulated and agreed that this Contract and each Participant Contract constitutes a contract under Subchapter A of Chapter 271, Local Government Code, State of Texas, as amended, payable from such respective Participating Member's ad valorem taxes within the limits prescribed by law. "Business Day" means any Day except a Saturday, Sunday, or a Federal Reserve Bank holiday. A Business Day shall open at 8:00 a.m. CPT and close at 5:00 p.m. CPT. "Capacity Prepayment" has the meaning set forth in Section 7.1, below. "CAPP" shall mean the Cities Aggregation Power Project, a political subdivision corporation in Texas organized pursuant to Local Government Code Chapter 304 for the purpose of contracting for electric power for Participating Members and for assisting in procurement of REP and QSE services for governmental electric accounts of Participating Members. "Code" means Texas Local Governnent Code, Title 7, Chapter 271, Subchapter 1, Sections 271.151 through 271.160. "Contract" shall mean this Energy Sales Contract and all related exhibits, as same may be amended from time to time by the mutual written agreement of the Parties. "Contract Capacity" means 150 megawatts, being the Contract Capacity acquired by CAPP in the Facilities under the PPA on behalf of Member and the Participating Members. "Contract Energy" has the meaning set forth in the PPA. Additionally, the Parties understand that if, in any Settlement Interval, the output of one or more of the Facilities is less than its Net Rated Capacity, due to a Planned Outage or Forced Outage as provided in the PPA, the Contract Energy may be reduced. In such an event, CAPP shall only receive a share of the output as provided in the PPA. In such event, the reduced amount of output received by CAPP will be delivered to and apportioned between Member and the other Participating Members based on their respective Member's Energy Allocation Percentages. "Contract Price" has the meaning set forth in Section 6.1. "CPT" means central prevailing time. "Day" means the consecutive twenty-four (24) hour period beginning at 12:00:00 a.m. CPT on any calendar day and ending at 12:00:00 p.m. CPT on such calendar day. "Default" has the meaning set forth in Article 11 hereof. "Defaulting Member" shall mean one or more Participating Members that default under a Participant Contract that has been collaterally assigned in whole or in part as security for the repayment of the Bonds. "Delivery Mouth" has the meaning set forth in the PPA. "Delivery Period" means that period of time in which Energy shall be delivered to CAPP as agent for Member as the Energy is delivered by the Facility Owners under the PPA, commencing on January 1, 2009 at 12:01:00 a.m. CPT and ending on the earlier of: (i) 12:01:00 a.m. CPT on January 1, 2033, (ii) the date and time that the PPA is terminated in accordance with its terms, or (iii) the date and time that this Contract is rightfully terminated in accordance with its terms. "Designated Agent(s)" means service providers such as, but not limited to, REPs, QSEs, and other market service product providers that are engaged from time-to- time by CAPP to act as agents for and representatives of CAPP, Member, andJor 6 Participating Members for the purposes o£ (i) receiving and accounting for Products delivered by Facility Owners under the PPA, and Energy that is delivered to Member and Participating Members under this Contract and Participant Contracts, (ii) remitting payments, including payments of ERGOT fees, transmission fees, congestion fees, QSE fees, REP charges, and tariffs, (iii) allocating costs between Member and Participating Members, and/or (iv) billing, netting, and collecting sums due under this Contract. "Effective Date" has the meaning set forth in the preamble of this Contract. "Energy" has the meaning set forth in the PPA. Energy PayntenP' means the product of the Energy Price times the number of megawatt hours delivered to Member . "Energy Price" has the meaning set forth in Section 6.1(a)(i). "ERGOT" shall mean the Electric Reliability Council of Texas, or its successor in function. "ERGOT Guides" means the then-current ERGOT Operating Guides, Market Guides, Protocols, Nodal Protocols, Transaction Guides, and/or ISO procedures, as they may be amended from time to time. "ESI-IDs" shall mean Electric Service Identifiers as defined in ERGOT Protocols, or their successor in function, same being the basic identifier assigned to each service delivery point used in the registration and settlement systems managed by ERGOT. "Facilities" means the Big Brown Facility, Martin Lake Facility, and upon COD of the Oak Grove Unit 1 and Oak Grove Unit 2, the Oak Grove Facility as defined and described in the PPA, including, with respect to each, the land, structures, fixtures, equipment, machinery, lignite, and related auxiliary equipment required to operate each such facility. "Facility Owner Delivery Points" means the point at a Facility at which Contract Energy is capable of being injected for the credit of LAPP into the ERGOT high voltage transmission system with Member and other Participating Members being fully responsible for reimbursing CAPP for any and all charges and assessments by ERGOT related to delivery of energy from the Facility Owner's Delivery Points into the ERGOT high voltage transmission system. "Facility Owners" shall mean Big Brown Power Company, LLC, Oak Grove Management Company, LLC, Luminant Generation Company, "LLC, and their respective successors and assigns. 7 "Fiscal Year" means the fiscal year of Member. "Forced Outage" has the meaning set forth in the PPA. "Governmental Authority" has the meaning set forth in the PPA. "Governmental Charges" has the meaning set forth in the PPA and which are charged to or payable by CAPP; including those Governmental Charges that survive the termination of the PPA. "Guarantor" shall mean Texas Competitive Electric Holdings Company, LLC, a Delaware limited liability company. "Guaranty" shall mean that certain Guaranty Agreement executed by Guarantor and delivered to CAPP at closing. "Interest and Sinking Fuzzd" means that a special fund or account designated as the "City of Electric Publr'c Property Finance Contractual Obligation Interest and Sizzking Fuzzd ", authorized, established and maintained in a depository bank of the Member, so long as the contractual obligation to make Monthly Capacity Payments hereunder are outstanding and unpaid. "kW 'means kilowatt(s). "Law" means (i) any law, legislation, statute, act, rule, ordinance, decree, treaty, regulation, order, judgment, or other similar legal requirement, and (ii) any legally binding announcement, directive or published practice or interpretation thereof, including but not limited to, ERCOT Guides, enacted, issued or promulgated by any Governmental Authority having jurisdiction over this Contract, the Facilities, and the delivery of Energy pursuant to this Contract. "Martizt Lake Facility" means Unit 1, Unit 2, and Unit 3 of the Martin Lake generating station located in Rusk County, Texas, with an approximate cumulative Net Rated Capacity of 2,345 megawatts as of the Effective Date of the PPA. "Member Contract Ezzergy Allocation" shall equal the product of the Member's Energy Allocation Percentage and the Contract Energy during each Delivery Month of the Delivery Period. "Member's Monthly Aggregated Energy Payment" has the meaning set forth in Section 6.1(a). "Member's Energy Allocation Percentage" is %, being calculated by multiplying 100 by a fraction, the numerator of which is Member estimated energy required during the Base Year, and the denominator of which is the 8 estimated total energy requirement of all Participating Members during the Base Year. "Member's Delivery Points" shall be all ESI-IDs accounts that Member has for receipt of energy to the revenue meters of such Member that are metered and the light fixtures for street/outdoor lights or other accounts of such Member that are not metered. "Member's Unique Delivery Costs" shall have the meaning set forth in Section 6.1(b) hereof. "Monthly Capacity Payment" shall have the meaning set forth in Article 7 below. "Monthly Energy Payment" means the product of the Monthly Energy Price times Member's Energy Allocation Percentage times the megawatt hours delivered to CAPP by the Facility Owners during the Delivery Month. "Monthly Energy Price" means the price per megawatt hour as set forth in the PPA. "MW 'means megawatt. "MW1a" means megawatt hour. "New Governmental Charges" means (i} any Governmental Charges enacted and effective after the Effective Date, including without limitation, that portion of any Governmental Charges or New Governmental Charges that constitutes an increase or that cause the Facility or Facilities to incur additional or new expenses less Governmental Charges enacted or imposed prior to the Effective Date that are replaced by the New Governmental Charge and that become payable by LAPP under the PPA, (ii) any Law or interpretation thereof, enacted and effective after the Effective Date resulting in a new or additional expense to the Facility or the Facilities or the application of any Governmental Charges to a new or different class of parties and that become payable by CAPP under the PPA. "Oak Grove Facility" means, when the first commercial operation date is reached, Oak Grove Unit 1 and Oak Grove Unit 2 of the lignite coal- fired power generation facility known as the Oak Grove Generating Station located in Robertson County, Texas. "Ordered Backdown" has the meaning set forth in Section 5.2 of the PPA. "Participant Contracts" means those individual contracts between LAPP and a Participating Member under which such Participating Member is acquiring a portion of the Contract Energy that LAPP is acquiring for the benefit of all 9 Members under the PPA. Such term has the same meaning as the terns "Member Output Contract" in the PPA. This Contract is one of the Participant Contracts. "Participating Members" shall mean those members of CAPP that enter into contracts with LAPP for the procurement of electric energy from the Facilities. A list of Participating Members is attached to this Contract as Exhibit "A" and incorporated by this reference herein for all purposes. Member is one of the Participating Members. "Person" means a natural person, corporation, electric cooperative, partnership, trust, association, joint venture, real estate investment trust or business trust (including any beneficiary thereof), unincorporated association, Governmental Authority, and any other form of business or legal entity. "Planned Outage" has the meaning set forth in Section 6.1 of the PPA. "PPA" shall mean that certain Power Purchase Agreement between CAPP and the Facility Owners, a copy of which is attached hereto as Exhibit "B" and incorporated by this reference herein for all purposes. "Product" or "Products" means Contract Capacity, Contract Energy and Alternate Energy, if any, received by CAPP from the Facility Owners under the PPA. "QSE" means the entity which is responsible for performing the responsibilities defined for a Qualified Scheduling Entity under the ERCOT Guides, or their successor in function. "Regulatory Authorities" has the meaning found in the Utilities Code Vernon's Texas Codes Annotated. "REP" means Retail Electric Provider, as defined in ERCOT Protocols. "REP Services" shall mean all services that a REP provides that are associated with the provision of electric service to a retail customer by a REP in ERCOT. "Replacement Price" has the meaning in the PPA. "Resale Price" has the meaning in the PPA. "Service Commencement Date" has the meaning set forth in Section 3.2 hereof and shall be one minute before 12:01 a.m. CPT on January 1, 2009. "Settlement IntervaP' has the meaning as set forth in the ERCOT Guides. "Term" has the meaning set forth in Section 3.1 hereof. 10 "Transmission Losses" means losses associated with the transmission of Energy under this Contract and under the PPA from resources used by (a) the Facility Owners to the Delivery Points for the respective Facility Owners, and (b) the Designated Agent(s) from the Facility Owners' Delivery Point to Member's Delivery Points as determined in accordance with the ERCOT Guides. "Transmission Service Provider" has the meaning found in the Utilities Code. "Trustee" means the trustee related to the Bonds pursuant to an indenture of trust with CAPP. "Unit" means each of the generating units at the Big Brown Facility, the Oak Grove Facility and the Martin Lake Facility that are then the subject of the PPA. "Unit Contingent Energy" means the Contract Energy supplied to CAPP for delivery to Participating Members from the Facilities under the terms of the PPA, for which non-delivery is excused if: (i) a Facility is unavailable as a result of a Forced Outage or a Planned Outage; (ii) LAPP fails to perform any of its obligations under the PPA; or (iii) an event of Force Majeure prevents delivery of such Energy to CAPP. "Wrap Contract" means any energy service contract executed by CAPP on behalf of Participating Members for electrical service requirements in addition to the PPA and other associated and ancillary services necessary to fulfill the full requirements for each of the Members electric power needs. 1.2 Principles of Interpretation. Unless the context requires otherwise, any reference in this Contract to any document means such document and all schedules, exhibits, and attachments thereto as amended and in effect from time to time. Unless otherwise stated, any reference in this Contract to any Person or Party includes its permitted successors and assigns and, in the case of any Governmental Authority, any Person succeeding to its functions and capacities. The words "hereof', "herein" and "hereunder" and words of similar import when used in this Contract, unless otherwise expressly specif ed, refers to this Contract as a whole and not to any particular provision of this Contract. The singular includes the plural, and the masculine includes the feminine and neuter genders. Whenever the term "including" is used herein in connection with a listing of items included within a prior reference, such listing shall be interpreted to be illustrative only, and shall not be interpreted as a limitation on or exclusive listing of the items included within the prior reference. The language used in this Contract is deemed to be the language chosen by the Parties to express their mutual intent, and no rule of strict construction shall be applied against any Party. All times set forth in this Contract shall be construed to be CPT. 11 ARTICLE 2 CAPP'S OBLIGATIONS CONTINGENT UPON PERFORMANCE BY FACILITY OWNERS UNDER THE PPA; ASSUMPTION BY MEMBER 2.1 Nature of CAPP's obligations to Member. Member agrees and understands that CAPP has entered or shall enter the PPA on behalf of Member and all Participant Members for the purpose of achieving the benefits set forth in the Recitals, above, including contracting for less than market prices for energy. Member understands that CAPP is not a power provider or power deliverer. Member agrees and understands that CAPP's obligation to perform its covenants under this Contract is absolutely contingent upon the performance of obligations of the Facility Owners and Guarantor to CAPP under the PPA, including, but not limited to, timely delivery of the Products in the quantities required under the PPA. 2.2 CAPP's duty to exercise remedies under the PPA and Guaranty; power coupled with an interest. In the event that the Facility Owners, without an excuse or right permitted under the PPA, fail to deliver the Products and/or fail to perform their obligations to LAPP as required under the PPA and Guaranty, then CAPP, on behalf of itself, Member, and the Participating Members, may exercise one or more of the remedies available to it under the PPA, the Guaranty, or both, as the Board of Directors of CAPP shall determine in its sole judgment and discretion. To the fullest extent necessary, Member hereby irrevocably appoints CAPP as its agent and attorney-in-fact to exercise such of the remedies available to CAPP under the PPA, that CAPP, in the sole judgment and discretion of its Board of Directors, believes to be the best interests of the Parties and Participating Members. Member agrees and understands that the power granted by it to LAPP in this Section 2.2 is and shall be construed to be a power coupled with an interest that cannot be revoked during the Term of this Contract. It is further agreed and understood that Member's obligation to pay the sums set forth in Article 6 and Article 7 on the dates set forth in Article 8, below, shall not be excused, offset, or mitigated on account of a default by Facility Owners under the PPA or by the failure of Facility Owners to deliver the Products. 2.3 Assumption of PPA by Member. Member agrees and understands that CAPP has entered or will enter into the PPA for the benefit of Member and Participating Members to the extent of their respective Member's Energy Allocation Percentages. For the consideration set forth in this Contract, Member assumes CAPP's obligations under the PPA, to the extent of Member's Energy Allocation Percentage, provided, however, that such rights and obligations shall be exercised on Member's behalf as the Board of Directors of CAPP shall determine in its sole and absolute discretion. 12 ARTICLE 3 TERM OF CONTRACT AND DELIVERY OF PRODUCTS 3.1 Term. The term ("Term") of this Contract shall commence on the Effective Date, and shall continue until the later of: (a) January 1, 2033 at 12:00:00 a.m., or (b) the date that the Bonds have been repaid in full and all covenants required to be performed and all interest and costs required to be paid by CAPP under the Bonds have been performed and paid in full by LAPP. 3.2 Delivery of Products. A Member's Contract Energy Allocation of the Products shall be provided by CAPP to Member as set forth herein at 12:00:00 a.m. CPT on January 1, 2009 (the "Service Commencement Date") provided that the Products are then conunenced to be delivered by Facility Owners to CAPP under the PPA. Thereafter, the Products shall be received by CAPP or its Designated Agent(s) for the benefit of and as .agent for Member as the Products are delivered by Facility Owners under the PPA until the earlier o£ (a) one second following 11:59:59 p.m. CPT on December 31, 2032, (b) the date that the PPA is terminated in accordance with its terms, or (c) the date that this Contract is terminated in accordance with its terms ("DeCivery Period'). In the event that the Facility Owners fail to deliver all of the Products they are required to deliver under the PPA, Member shall be entitled to receive only Member's Energy Allocation Percentage of the Products actually delivered to and received by LAPP, net of Transmission Losses ARTICLE 4 PAYMENT OF CAPACITY PREPAYMENT TO FACILITY OWNERS Provided that the PPA has not been terminated by CAPP or by the Facility Owners prior to the Service Commencement Date pursuant to Article 11 of the PPA, CAPP shall pay or cause the Capacity Prepayment to be paid to Facility Owners on or before the date described in said Section 4.1(b) of the PPA. LAPP and Member stipulate and agree that the Capacity Prepayment shall be paid to the Facility Owners as required by the PPA, in whole or in part, from the proceeds of the Bonds, interest earned while such Bond proceeds are escrowed, and, as CAPP may elect, funds paid to CAPP by Member and Participating Members. ARTICLE 5 DELIVERY OF CONTRACT ENERGY 5.1 Acquisition and Delivery of Product. Upon the Service Commencement Date, CAPP shall require (i) Facility Owners to provide and deliver the Contract Energy described in the PPA to the Designated Agent(s) at the Facility Owners' Delivery Point, and (ii) the Designated Agent(s) to deliver Energy to Member at the Member's Delivery Points, in both cases from Products generated from the Facilities or acquired by the 13 Facility Owners for delivery under the PPA as Alternate Energy pursuant to Section 5.3 of the PPA. 5.2 Title and Risk of Loss. Risk of loss of the Energy provided in accordance with this Contract shall transfer to CAPP as agent for Member and Participating Members at the Facility Owners' Delivery Points. Title to the Energy (subject to loss) shall be held by CAPP as agent for Member and Participating Members between the Facility Owners' Delivery Points and Member's Delivery Points. 5.3 Member's Failure to Accept Product. If Member fails to accept all or part of the Product under this Contract and such failure is not excused under the terms of this Contract or by failure of the Facility Owners to deliver same under the PPA, then Member shall pay to CAPF or to the Designated Agent(s) from time-to-time designated by CAPP, on the date payment would otherwise be due with respect to the month in which the failure occurred, an amount for each MWh of such deficiency equal to the positive difference, if any, obtained by subtracting the Resale Price from the Contract Price. The invoice for such amount shall include reasonable detail as to the calculation of such amount. 5.4 Failure of Facility Owners to Schedule or Deliver Product to LAPP. If one or more of the Facility Owners fail to schedule and/or deliver all or part of the Product as required by it under the PPA, and such failure is not excused under the terms of the PPA or by CAPP's failure to perform, then CAPP or the then-designated Designated Agent(s) shall, on behalf of all Participating Members, at the expense of and in the proportion of their respective Member's Energy Allocation Percentages, seek to collect sums from the Facility Owners that are recoverable pursuant to Section 3.4 of the PPA; provided, however, that any obligation by CAPP or by the Designated Agent(s), as the case may be, to pay Member in such event is limited to the amount that LAPP or the Designated Agent(s) actually collect from the Facility Owners and the Guarantor, net of costs of collection. For the avoidance of doubt, CAPP shall not be required to pay damages under this Section 5.4 when the failure to schedule and/or deliver is excused under the definition of Unit Contingent Energy. ARTICLE 6 PRICING OF AND PAYMENT FOR ENERGY 6.1 Payment of Member's Monthly Aggregated Energy Payment. In consideration for the Energy received by it under this Contract, Member shall pay Member's Monthly Aggregated Energy Payment to CAPP, or to the Designated Agent(s), as the case may be, on or before the dates for payment set forth in Article 8, below, and calculated as follows: 14 (a) Calculation of Member's Monthl Energy Pam Commencing on the Service Commencement Date, and continuing during each Delivery Month during the Term, but subject to annual appropriation therefore by Member during such Member's Fiscal Year, Member shall pay to CAPP, or to the Designated Agent(s) from time-to-time designated by it, the Member's Monthly Energy Payment, as computed monthly pursuant to the provisions of this Section 6.1(a). The Member's Monthly Energy Payment shall be the sum of (i) the Energy Component of Member's Energy Payment and (ii) the Aggregated Expenses Component of Member's Energy Payment, both determined as follows: (i) Enemy Component of Member's Monthly Energy Payment. The price of Energy deliverable to LAPP under the PPA at the Facility Owners' respective Delivery Points during the Delivery Month as provided in the PPA is set forth in the schedule attached hereto as Exhibit "D" and incorporated herein by reference herein for all purposes. The Parties recognize that the PPA calls for the Contract Energy to be delivered to LAPP at the Facility Owners' respective Delivery Points at which points the Energy Payment is measured and calculated pursuant to Section 4.1(a) of the PPA. The Wrap Contracts shall provide that the cost of energy delivered to Member will be measured at Member's Delivery Points. The price of energy deliverable to CAPP under the Wrap Contracts shall be at a price determined by negotiations at that time. Member recognizes that the Energy Component in the monthly invoices will reflect a blended rate per MWh taking into account the Energy provided to all Participating Members under all energy procurement contracts and shall include (1) the cost of Contract Energy; (2) ancillary services under Section 3.5 of the PPA; (3) the cost of engaging a QSE under Section 7.1 of the PPA or under any Wrap Contracts; (4) the cost of engaging a REP under the PPA or under any Wrap Contracts; (5) the cost of delivering the Contract Energy to the Delivery Points of all Participating Members from the Facility Owners' respective Delivery Points; and (6) the cost of energy and other expenses associated with one or more Wrap Contract. The Energy Component of Member's Monthly Energy Payment shall be computed as the product of such blended rate and the total Energy delivered to Member's Points of Delivery during the billing month. (ii) A~re~ated Expenses Component of Member's Monthly Energy Pa ent. The total Aggregated Expenses for each Delivery Month shall be allocated and apportioned between Member and each of the other Participating Members based upon each Member's Energy Allocation Percentage. The total amount so allocated to Member shall be billed to Member on a monthly basis by CAPP or its Designated Agent(s) as they shall determine appropriate. 15 (b) Member's Unique Delivery Costs. The Parties further recognize that Member and each of the Participating Members require delivery of the Energy by the Designated Agent(s) from the Facility Owners Delivery Point to their respective Member's Delivery Points, the cost of which may vary between Participating Members based on a number of factors, including, but not limited to, distance from the Facility Owners Point of Delivery, differing zones into which Energy shall be delivered, different tariffs that may change from time to time as ordered by Regulatory Authorities, loss of Energy during transmission, and differing contractual arrangements that must be made to effect the delivery of Energy to the required points of delivery. In this connection, CAPP shall, as agent for Participating Members (including Member) (i) enter into one or more contracts with Designated Agent(s) for delivery of the Products to all Participating Members from the Facility Owners Delivery Point to each of their respective Member's Delivery Points, and (ii) require the Designated Agent(s) to separately account to and bill each Participating Member for the unique costs that are associated with delivery of the Energy from the Facility Owners Point of Delivery. Commencing on the Service Commencement Date, and continuing during each Delivery Month during the Term, but subject to annual appropriation therefore by Member during such Member`s Fiscal Year, Member shall pay to CAPP or to the Designated Agents} from time-to-time designated by it the Member's Unique Delivery Costs. The Member's Unique Delivery Costs shall be due and payable at the same time that the Member's Aggregated Monthly Energy Payment is due. (c) Uovernmental Charges and New Governmental Charges. Member shall pay or cause to be paid all Governmental Charges on or with respect to the Product at and from the Facility Owners' Delivery Points. In the event CAPP and/or the Designated Agent(s) are required by Law to remit or pay Governmental Charges which are Member's responsibility hereunder, or in the event that CAPP must remit or pay to Facility Owners for Governmental Charges that it may pass through to CAPP for reimbursement under the PPA, CAPP shall notify Member of the amount of Governmental Charges owed, whether such payment is to Facility Owners or to the governmental entities that made such Governmental Charges, on Member's behalf. Such notice shall be provided in a commercially practicable manner and may be provided by a Designated Agent. Notwithstanding any other provision of this Contract to the contrary, if a New Governmental Charge (as defined in the PPA) is passed through to CAPP for reimbursement, including but not limited to New Governmental Charges imposed on all coal and lignite generating facilities in ERGOT, including the Product, and CAPP's share of any such New Governmental Charge is greater than the Materiality Threshold set forth in the PPA (after taking into account the application of any entitlements and the extent of old charges that are replaced by the New Governmental Charge), such charges shall be treated as though they were incurred by CAPP for the benefit of all Participating Members (including Member). All Governmental Charges and New Govemmental Charges shall be apportioned between Member and the Participating Members as an energy charge reflected on monthly bills from a Designated Agent. If, as, and when CAPP pays Governmental Charges and New Governmental Charges, it shall be deemed to have paid same on behalf of Member and all Participating Members in the proportion stated immediately above, and Member shall pay CAPP and/or the Designated Agent(s) 16 its proportionate share, subject, however, to Appropriation by Member during Member's Fiscal Year. The obligation to pay such Governmental Charges and New Governmental Charges shall continue until such time as reimbursement of Facility Owners therefore are no longer required by the PPA. (d) Adjustments. Section 4.2 of the PPA provides for monthly adjustments if the Equivalent Availability Factor for such month is greater or less than 90%. It is the intention of the Parties to this Contract that (i) such credits and supplemental payments shall be allocated and passed through to Member and each of the other Participating Members, on a pro rata basis, in the month payable or credited against the Energy Payment based on an energy basis and (ii} the Designated Agent responsible for billing shall net the adjustments under Section 4.2 of the PPA against other amounts owed. It is understood that Member's obligation to pay any adjustments under this Section 6.1(d), as part of an Energy Payment or Payments, is subject to appropriation by Member during Member's Fiscal Year. (e) Other Adjustments. In the event that inequities arise between Participating Members or between Member and Participating Members in energy based allocation of credits and supplemental charges under this or other energy contracts, the Board of Directors of CAPP, in its sole discretion, may direct further adjustments as necessary to preserve the integrity of the allocation process and relative economic position of Member and Participating Members; provided, however, no adjustments shall affect the obligation to make Capacity Payments under Article 7 of this Contract. 6.2 Payments through Retail Electric Provider and Designated Agent(s). LAPP reserves the right to bill and invoice Member and Participating Members for the Contract Price, collect sums due by Member and Participating Members under Article 6, pay sums to Facility Owners that CAPP is required to pay pursuant to the terms of the PPA, collect payments and credits due to CAPP by the Facility Owners, and allocate and distribute credits and payments received from Facility Owners and third parties to Member and Participating Members as their respective interests appear through a REP or through Designated Agent(s). Notwithstanding the foregoing, it is expressly agreed and understood that (a) the Capacity Payments required to be paid by Member pursuant to Section 7, below, must be paid by Member directly to CAPP or the Trustee, and (b) payments received by CAPP or by Member from the Facility Owners, Guarantor, or any of same as a result of Early Termination of the PPA as defined in and calculated under Article 12 of the PPA must be paid by the recipient of such payments directly to CAPP or the Trustee for application to the Bonds. 6.3 Payments from Available Funds. Notwithstanding any provision herein to the contrary, the obligations of Member under this Contract to make Energy Payments shall he payable solely from the Available Funds received in each Fiscal Year during the Term of this Contract. The obligation of the Member to make any Energy Payments pursuant to this Contract shall constitute a current expense of Member during each Fiscal Year and shall not constitute an indebtedness of Member within the meaning of the laws of the 17 State of Texas. Nothing in this Contract shall constitute a pledge by the Member of any taxes or other money, other than such funds so Appropriated and received in each Fiscal Year during the Term of this Contract and constituting Available Funds, to the payment of any Energy Payment due or to become due hereunder. 6.4 Intent to Continue Payments. Member presently intends to continue this Contract for the entire Term and to pay all Energy Payments required hereunder. Member presently intends to Appropriate, from lawfully Available Funds received in each Fiscal Year, money sufficient to pay the Energy Payments required hereunder. However, Member has no obligation to, and makes no representation that it will, Appropriate or seek to Appropriate in any Fiscal Year Available Funds for the payment of Energy Payments due pursuant to this Contract. 6.5 Failure to Appropriate Available Funds. If, for any Fiscal Year of the Member, the Member does not Appropriate Available Funds received during such Fiscal Year to pay the Energy Payments required under this Contract due and payable by Member during the succeeding Fiscal Year, and if the Member provides CAPP with written notice of such failure to Appropriate thirty (30) days prior to the expiration of Member's then-current Fiscal Year, the obligation to take electric Energy from CAPP under this Contract and make Energy Payments for such electric energy shall terminate and be canceled at the end of such current Fiscal Year for the period of the next Fiscal Year for which the Member has failed to Appropriate Available Funds. The written notice shall be accompanied by a statement as to whether or not Member has made an assignment to another Participating Member under Section 6.6 hereof. The Member may Appropriate Available Funds for any subsequent Fiscal Year for Energy Payments due during such subsequent Fiscal Year and then shall be entitled to receive electric Energy from CAPP under this Contract for such Fiscal Year. 6.6 Assignment Upon Failure to Appropriate. For any Fiscal Year which the Member has failed to Appropriate for Energy Payments (or portion thereof), the Member may assign to another Participating Member all or a portion of such non-appropriating Member's right to receive electric energy for such Fiscal Year provided the Participating Member certifies to CAPP that the assigned electric energy will be utilized by such Participating Member for its buildings and facilities, in compliance with the Local Government Code Chapter 304. The Energy Payments associated to such assigned right to such electric energy shall be calculated according to the terms of this Contract (assuming the Member was receiving such electric energy). At such time the Member provides written notice of its failure to Appropriate for Energy Payments for any Fiscal Year, the Member may also give written notice to CAPP of its assignment of all or a portion of its right to receive electric energy under this Contract, including a written agreement between the Member and the Participating Member reflecting the terms and conditions of such assignment. Prior to the beginning of the relevant Fiscal Year, the assuming Participating Member must provide CAPP written notice of (i) its Appropriation for the Energy Payments associated with the assumed electric energy for the period of the non-appropriating member's Fiscal Year which such non-appropriation is applicable (or portion thereof), (ii) certification that such assumed electric energy will 18 be utilized by such Participating Member for its buildings and facilities, in compliance with the Local Government Code Chapter 304 and (iii) a valid and binding assignment agreement between the Member and the Participating Member. If the Member failing to appropriate for Energy Payments does not assign the Energy to another Participating Member within 30 days following the failure to Appropriate, Member shall assign the Energy to CAPP, and CAPP shall have the right to assign to a Participating Member, or to otherwise dispose of the Energy in a commercially practicable marmer. 6.7 Appropriated Energy Payments to be Unconditional. Except as provided herein, including Section 6.3 hereof, the obligation of Member to make Energy Payments each Fiscal Year from funds that have been appropriated for such purpose when due shall be absolute and unconditional. Notwithstanding any dispute between Member and CAPP or any other Participating Member or person, the Member shall make all Energy Payments required hereunder when due and shall not withhold any such payments pending final resolution of such dispute, nor shall Member assert any right of set-off or counterclaim against its obligation to make such payments required under this Contract. Member's obligation to make Energy Payments during the Term shall not be abated because of accident or unforeseen circumstances. However, nothing herein shall be construed to release CAPP from the performance of its obligations hereunder; if CAPP should fail to perform any such obligation, Member may institute such legal action against CAPP as Member may deem necessary to compel the performance of such obligation. Notwithstanding anything to the contrary above, Member's obligation to pay Energy Payments shall not require it to pay Energy Payments from any source other than Available Funds specifically appropriated by Member for payment of the Energy Payments. 6.8 LAPP as Third Party Beneficiary. Member acknowledges that CAPP is an intended third party beneficiary of all Appropriations made by Member for sums described in this Article 6. As part of the consideration for this Contract, Member grants to LAPP and to any Designated Agent(s) appointed by CAPP all rights to enforce, by a mandamus action against Member and its governing body, such provisions for each Fiscal Year of Member for which there has been an Appropriation as contemplated in this Article. 6.9 Member's Default of the Energy Payment Covenants and CAPP's Remedies. (a) Events of Default. Each of the following occurrences or events for the purpose of this Contract is hereby declared to be a Default: (i) The failure to make payment of the Energy Payment when the same becomes due and payable; or (ii) Default in the performance or observance of any other covenant, agreement or obligation of the Member, the failure to perform which materially, adversely affects CAPP, including, but not limited to, its 19 prospect or ability to be repaid in accordance with this Contract, and the continuation thereof for a period of 30 days after notice of such default is given by CAPP or Trustee to the Member. (b) Remedies for Default. (i) Upon the occurrence of a Default, then and in every case, CAPP or an authorized representative thereof may proceed against the Member, or any official, officer or employee of the Member in their official capacity, for the purpose of protecting and enforcing the rights of CAPP under this Contract, by mandamus or other suit, action or special proceeding in equity or at law, in any court of competent jurisdiction, for any relief permitted by law, including the specific performance of any covenant or agreement contained herein, or thereby to enjoin any act or thing that may be unlawful or in violation of any right of CAPP hereunder or any combination of such remedies. (ii) It is provided that all such proceedings shall be instituted and maintained for the benefit of LAPP. (c) Remedies Not Exclusive. (i} No remedy herein conferred or reserved is intended to be exclusive of any other available remedy or remedies, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity; provided, however, that notwithstanding any other provision of this Contract, the right to accelerate the Energy Payments shall not be available as a remedy under this Contract. (ii) The exercise of any remedy herein conferred or reserved shall not be deemed a waiver of any other available remedy. The failure to exercise a remedy upon a Default shall not be deemed to be a waiver of the right to exercise such remedy in the future. (iii) By accepting the delivery of Energy Payment authorized under this Contract, CAPP agrees that the certifications required to effectuate any covenants or representations contained in this Contract do not and shall never constitute or give rise to a personal or pecuniary liability or charge against the officers, employees or trustees of the Member. (iv) No official or officer, agent, or employee of the Member, shall be charged personally by CAPP or the Trustee with any liability, or be held personally liable under any term or provision of this Contract, or because of a Default or Default under this Contract. 20 ARTICLE 7 CAPACITY PREPAYMENT, MEMBER'S MONTHLY CAPACITY PAYMENT AND PLEDGE OF All VALOREM TAXES BY MEMBER 7.1 Capacity Prepayment. In order to procure Energy at favorable rates produced in the Facilities by the Facility Owners under the PPA, CAPP, at the request of Member and the other Participating Members, sha]1 (i) prepay to Facility Owners the sum of $465,000,000.00 (the "Capacity Prepayznezzt'~ from the proceeds of the Bonds (ii) establish a reserve fund under the Bonds as may be required for issuance of the Bonds, and (iii) pay costs and charges associated with issuance of the Bonds, including legal fees, accounting fees, and consultant's fees engaged by the bond issuer, bond counsel, and CAPP. The Capacity Prepayment shall be paid to Facility Owners as provided in Section 4.1 hereof and as provided in Section 4.1(b) of the PPA. Once the actual amount of the Bonds and the interest rate established thereunder are known, this Contract shall be amended by CAPP and Member to reflect such facts, and to stipulate the amount of Member's Monthly Capacity Payment. It is the intention of the Parties that CAPP shall receive from Member and each Participating Member through the Monthly Capacity Payment set forth in Section 7.2(a), based upon the Member's Energy Allocation Percentage of each, the amount sufficient to pay: (i) CAPP's costs to issue the Bonds, (ii) the principal and redemption premium, if any, of and interest on the Bonds, (iii} trustee and other administrative fees, and (iv) other costs associated therewith. 7.2 Capacity Payment. (a) Member shall pay CAPP, its Designated Agent or the Trustee, as LAPP shall direct, upon the assignment of all or a portion of this Contract by CAPP to such trustee, a Monthly Capacity Payment for each Delivery Month throughout the remainder of the Term, or until such earlier date as such Monthly Capacity Payments have been prepaid or otherwise fully defeased as provided in Section 7.4 hereof, in an amount equal to the amount shown in Exhibit "E" times the Member Energy Allocation Percentage. (b) It is hereby certified and covenanted that the contractual obligation to make the Monthly Capacity Payments when due, as described. in subsection (a) above, has been duly and validly authorized and delivered; that all acts, conditions and things required or proper to be performed, exist and be done precedent to or in the authorization and delivery of this Contract have been performed, existed and been done in accordance with law; that the contractual obligation to make the Monthly Capacity Payments herein is a limited tax obligation of Member; and that annual ad valorem taxes, within the limits prescribed by law, sufficient to provide for the payment of the Monthly Capacity Payments, as such payments come due, have been levied and ordered to be levied against all taxable property in Member, and have been pledged from Member's annual ad valorem maintenance tax for such payment, within the limit prescribed by law. 21 (c) It is understood and agreed that all Monthly Capacity Payments payable by the Member under this Article 7 are assigned by CAPP to the Trustee for the benefit of the Owners of the Bonds. The Member assents to such assignment. 7.3 Interest and Sinking Fund; Tag Levy for Monthly Capacity Payments. The Interest and Sinking Fund shall be kept separate and apart from all other funds and accounts of Member, and shall be used only for paying the Monthly Capacity Payments when due. All ad valorem taxes levied and collected for and on account of the Monthly Capacity Payments shall be deposited, as collected, to the credit of the Interest and Sinking Fund. During each Fiscal Year while a Monthly Capacity Payment is outstanding and unpaid, the governing body of the Member shall compute and ascertain a rate and amount of ad valorem tax which together with any other lawfully available funds that are on deposit in the Interest and Sinking Fund at the time of such levy will be sufficient to provide and maintain a sinking fund adequate to pay the Monthly Capacity Payments as such payments become due (but never less than 2% of the original aggregate amount of the Monthly Capacity Payments as a sinking fund each year); and said tax shall be based on the latest approved tax rolls of the Member, with full allowance being made for tax delinquencies and the cost of tax collection. Said rate and amount of ad valorem tax is hereby levied and is hereby ordered to be levied, against all taxable property in the Member for each year while any of the Monthly Capacity Payments are outstanding and unpaid; and said tax shall be assessed and collected each such year and deposited to the credit of the aforesaid Interest and Sinking Fund. Said ad valorem taxes to be sufficient to provide for the payment of the Monthly Capacity Payments, as such payments come due, are hereby pledged for such payment, within the limit prescribed by law. 7.4 Prepayments based upon Early Termination under the PPA. In the event that CAPP shall receive a Buyer Termination Payment under Article 12 of the PPA, such amount shall be assigned and paid to the Trustee for payment on the Bonds with such payment to be applied to a prorata redemption of all outstanding maturities of such Bonds. Such prorata redemption on the Bonds shall similarly be applied prorata to reduce Member's Monthly Capacity Payments and the Monthly Capacity payments of other Participating Members. If any balance of the Bonds remains unpaid after application of the Buyer Termination Payment, then notwithstanding the obligation to pay the Monthly Capacity Payment under Section 7.2 above, Member shall pay Member's Energy Allocation Percentage of such balance within thirty (30} days following receipt of notice from CAPP. 7.5 CAPP and Trustee as Third Party Beneficiaries. Member acknowledges that CAPP and Trustee are intended third party beneficiaries of the obligation to pay Monthly Capacity Payments and to make provision for payment from ad valorem tax revenues. As part of the consideration for this Contract, Member grants to CAPP and to Trustee all rights to enforce, by a mandamus action against Member and its governing body, the provisions and obligations of this Article 7. 22 7.6 Monthly Capacity Payments to be Unconditional. Except as provided herein, including Section 6.3 hereof, the obligation of Member to make Monthly Capacity Payments when due shall be absolute and unconditional. Notwithstanding any dispute between Member and CAPP or any other Participating Member or person, the Member shall make all Monthly Capacity Payments required hereunder when due and shall not withhold any such payments pending final resolution of such dispute, nor shall Member assert any right of set-off or counterclaim against its obligation to make such payments required under this Contract. Member's obligation to make Monthly Capacity Payments during the Tenn shall not be abated because of accident or unforeseen circumstances. However, nothing herein shall be construed to release CAPP from the performance of its obligations hereunder; if CAPP should fail to perform any such obligation, Member may institute such legal action against CAPP as Member may deem necessary to compel the performance of such obligation. 7.7 Member's Default on Capacity Prepayment and CAPP's Remedies. (a) Events of Default. Each of the following occurrences or events for the purpose of this Contract is hereby declared to be a Default: (i) The failure to make payment of the Capacity Prepayment when the same becomes due and payable; or (ii) Default in the performance or observance of any other covenant, agreement or obligation of the Member, the failure to perform which adversely affects CAPP, including, but not limited to, its prospect or ability to be repaid in accordance with this Contract, and the continuation thereof for a period of 30 days after notice of such default is given by CAPP or Trustee to the Member. (b) Remedies for Default. (i) Upon the happening of a Default, then and in every case, CAPP or an authorized representative thereof, including, but not limited to, the Trustee, may proceed against the Member, or any official, officer or employee of the Member in their official capacity, for the purpose of protecting and enforcing the rights of CAPP under this Contract, by mandamus or other suit, action or special proceeding in equity or at law, in any court of competent jurisdiction, for any relief permitted by law, including the specific performance of any covenant or agreement contained herein, or thereby to enjoin any act or thing that may be unlawful or in violation of any right of CAPP hereunder or any combination of such remedies. (ii) It is provided that all such proceedings shall be instituted and maintained for the benefit of CAPP and/or owners of the Bonds. 23 (c) Remedies Not Exclusive. (i) No remedy herein conferred or reserved is intended to be exclusive of any other available remedy or remedies, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity; provided, however, that notwithstanding any other provision of this Contract, the right to accelerate the PPA Capacity Payments shall not be available as a remedy under this Contract. (ii) The exercise of any remedy herein conferred or reserved shall not be deemed a waiver of any other available remedy. The failure to exercise a remedy upon a Default shall not be deemed to be a waiver of the right to exercise such remedy in the future. (iii) By accepting the delivery of the Capacity Prepayment authorized under this Contract, CAPP agrees that the certifications required to effectuate any covenants or representations contained in this Contract do not and shall never constitute or give rise to a personal or pecuniary liability or charge against the officers, employees or trustees of the Member. (iv) No official or officer, agent, or employee of the Member, shall be charged personally by CAPP or the Trustee with any liability, or be held personally liable under any term or provision of this Contract, or because of a Default or Default under this Contract. ARTICLF, 8 BILLING AND PAYMENT 8.1 Invoice and Payment Schedules. CAPP shall cause the Designated Agent(s) to submit invoices to Member for the Contract Price. All such invoices under this Contract shall be due and payable in accordance with the invoice instructions of the Designated Agent(s) consistent with ERCOT protocols, Rules of the Public Utility Commission of Texas, and contractual agreements between CAPP and Designated Agents. CAPP will cause the Designated Agent(s) to render to Member a separate invoice for the Contract Price for each ESI-ID on a billing month basis. All Monthly Capacity Payment invoices under this Contract pursuant to Article 7, shall be separately due and payable directly to CAPP or the Trustee in accordance with the invoice instructions of CAPP, Trustee or Designated Agent. 8.2 Method of Payment. Each Party will make payments by electronic funds transfer, or by other mutually agreeable method(s), to the account designated by the other Party. Any amounts not paid by the due date will be deemed delinquent and will accrue 24 interest at the Interest Rate, such interest to be calculated from and including the due date, but excluding the date the delinquent amount is paid in full. Because certain charges are aggregated between Member and Participating Members, Member understands that a failure to timely pay an invoice may result in additional costs, interest charges, and damages that CAPP may be required to pay to Facility Owners under the PPA and that are disproportionate to the default by Member. Member agrees, in the event of its default, to reimburse CAPP for all costs, interest charges, and damages that it may be required to pay to Facility Owners that result from Member's default under this Contract. Except for Capacity Payments that are required to be paid by Member directly to CAPP or the Trustee, CAPP may require Member to pay all or any of the payments required to be paid by Member under this Contract to Designated Agent(s) appointed by CAPP. 8.3 Netting. Member understands that CAPP and Facility Owners have agreed to discharge mutual debts and payment obligations due and owing to each other on the same payment due date pursuant to the PPA through netting, so that only the excess amount remaining due shall be paid by the Party who owes such excess amount. All payment obligations of the Parties and all rights to receive payment under this Contract are subject to the netting provisions contained in the PPA. Additionally, it is understood that Designated Agents may net credits and supplemental payments in monthly invoices of the Contract Price. 8.4 Disputed Charges. A Party may, in good faith, dispute the correctness of any invoice or any adjustment to an invoice, rendered under this Contract or adjust any invoice for any aritlunetic or computational error within twenty-three (23) months of the date the invoice, or adjustment to an invoice, was rendered, except when a dispute is limited by ERCOT protocols, Rules of the Public Utility Commission or contracts between CAPP and Designated Agents. In the event an invoice or portion thereof, or any other claim or adjustment arising hereunder, is disputed, payment of the undisputed portion of the invoice shall be required to be made when due, with notice of the objection given to the other Party. Any invoice dispute or invoice adjustment shall be in writing and shall state the basis for the dispute or adjustment. Payment of the disputed amount shall not be required until the dispute is resolved unless CAPP is required to pay the disputed amount to Facility Owners under the PPA. Upon resolution of the dispute, any required payment shall be made within five (5) Business Days of such resolution (along with interest accrued, if any, on account thereof under the PPA). Inadvertent overpayments shall be returned upon request or deducted by the Party receiving such overpayment from subsequent payments, with interest accrued only to the extent it accrues under the PPA. Any dispute with respect to an invoice is waived unless the other Party is notified in accordance with this Section 8.4 within twenty-three (23) months or shorter period if required by ERCOT protocols, Rules of the Public Utility Commission or contracts between CAPP and Designated Agents after the invoice is rendered or any specific adjustment to the invoice is made. 25 8.5 Audits. Each Party has the right, at its sole expense and during normal working hours, to examine copies of the relevant portions of the records of the other Party to the extent reasonably necessary to verify the accuracy of any invoice, charge or calculation made pursuant to this Contract. If any such examination reveals any inaccuracy in any invoice or calculation, the necessary adjustments in such invoice or calculation, and the payment of any adjustment thereto, shall be paid, with interest at the Interest Rate calculated from the date the overpayment or underpayment was made until paid, by the responsible Party pursuant to the terms of the PPA, the Wrap Contract or the applicable contract between CAPP and Designated Agents. 8.6 ERGOT Barred Issue. It is recognized by the Parties that ERGOT has some established time periods for disputing certain matters and the Parties expressly desire to be bound by such periods in their performance under this Contract. Therefore, notwithstanding any provisions in Article 7 of this Contract to the contrary, in the event CAPP is barred from disputing and correcting or adjusting with ERGOT any matter of any nature whatsoever affecting any matter covered by this Contract (an "ERGOT Barred Issue"), then Member shall be barred for all purposes from disputing any portion of any statement, invoice, notice or other matter hereunder to the extent that CAPP is unable to receive adjustment from or dispute such matter with ERGOT because such statement, invoice, notice or other matter is an ERGOT Barred Issue, even if Member's notice is given within the twenty-three (23) months' period set forth in this Article 8. ARTICLE 9 DESIGNATION OF MEMBER'S DELIVERY POINTS 9.1 Designation of Member's Delivery Points. Member has designated its initial Member's Delivery Points by identifying the ESI-IDs and providing that information to CAPP's Designated Agent(s). Such Member's Delivery Points are all points of receipt for electric service that are subject to retail choice. Member shall have a continuing obligation to provide CAPP and Designated Agent(s) with an updated listing of ESI-IDs by location and profile type. ARTICLE 10 SECURITY 10.1 Security from Facilities Owners. The Facility Owners and Guarantor have agreed under Article 9 of the PPA to provide CAPP a first lien on certain collateral on a pari passu basis with other creditors. Member acknowledges that it has no direct right to enforce the lien, nor does it have any individual interest in the Facilities in the event of foreclosure of the first lien, nor may it exercise remedies available to CAPP under the PPA. To the extent that CAPP shall determine that it is in CAPP's interest to (i) agree to renewals, modifications, amendments, and refinancing of the first lien indebtedness described in the PPA, (ii) exercise or fail to exercise one or more remedies available to it under the PPA, or (iii) terminate or modify the PPA, Member irrevocably appoints the Board of Directors of CAPP as its agent and attorney in fact to enter into agreements 26 appropriate to the situation, including, but not limited to, agreements to substitute collateral, and agreements to release or partially release liens. The power herein granted to CAPP and its Board of Directors by Member is a power coupled with an interest that may not be revoked while all or any portion of the Bonds is unpaid. 10.2 Collateral Assignment of the Contract to Trustee for Bonds. This Contract and the Participant Contracts shall be collaterally assigned to the Trustee under the Bonds as security for the repayment of the Bonds to the extent of the Capacity Payment payable pursuant to Article 7 of this Contract and each of Participant Contracts. ARTICLE 11 DEFAULT 11.1 Defaults by Facility Owners; Defaults by Participating Members. In the event of default by Facility Owners under the PPA, or in the event of a default by Member or by a Participating Member under a Participant Contract, the Parties agree and stipulate that decisions as to the exercise or non-exercise of remedies upon such default shall be solely vested in CAPP, as its Board of Directors may determine from time to time. Member acknowledges that CAPP's rights to elect remedies may be subject and subordinate to rights granted to or reserved by the holders and owners of the Bonds or the Trustee thereof. 11.2 Default by CAPP. Except as otherwise excused under this Contract, the occurrence of any of the following shall constitute an event of default by CAPP: (a) Failure of CAPP to pay the Capacity Prepayment as required under the PPA; (b) Failure by CAPP to timely perform its covenants under the Bonds, including payments required by it, unless such failure is caused by the failure of Member under this Contract or of one or more Participating Members under the Participant Contracts to pay CAPP sums required under Article 6; or (c) CAPP breaches any material contractual obligation under this Contract and such breach continues for a period of thirty (30) Days after the date on which written notice thereof is received from Member by LAPP. 11.3 Default by Member. Except as otherwise excused under this Contract, the occurrence of any of the following shall constitute an event of default by Member: (a) Member fails to accept delivery of the Products, or any portion thereof from CAPP. In the event of such failure, CAPP may, in addition to other remedies available to it under this Contract, provide the unaccepted Products to another Participating Member or, if no Participating Member elects to accept such 27 Products, to a third party at such price as CAPP may negotiate in the marketplace. If the price obtained in the marketplace is less than the price Member would have been required to pay for such Products, Member shall pay CAPP and CAPP may recover from Member (i) the positive difference, if any, obtained by subtracting what was received from the Participating Member or third party from what would have been received from Member had Member accepted the full delivery of Products required of it; and (ii) all costs of collection incurred by CAPP, including reasonable attorney's fees; (b) Except for disputed charges arising under Section 8.4, Member fails to pay amounts due to CAPP as and when required under this Contract, which failure continues for a period of three (3) Business Days after the date on which written notice of a prospective Default is received by Member from CAPP; (c) Failure by Member to levy the rate and amount of ad valorem taxes out of the maintenance tax of Member, and failure by Member to establish and maintain a sinking fund for the Monthly Capacity Payments and CAPP fees as required under Section 7.3, above; (d) Failure by Member to pay to CAPP any sum of money required to be paid by Member under this Contract; (e) Member breaches any material contractual obligation under this Contract and such breach continues for a period of twenty-eight (28) Days after the date on which written notice thereof is received by the breaching Party; (f) Member becomes Bankrupt. 11.4 Remedies of CAPP in the event of default by Member. Unless otherwise limited by the terms of this Contract, in the event that Member shall default in the performance of its obligations under this Contract, CAPP may: (a) Suspend delivery of Products to Member, and provide such Products to one or more Participating Members or third parties until such default is cured; (b) Then and in every case, LAPP or an authorized representative thereof may proceed against the Member, or any official, officer or employee of the Member in their official capacity, for the purpose of protecting and enforcing the rights of CAPP under this Contract, by mandamus or other suit, action or special proceeding in equity or at law, in any court of competent jurisdiction, for any relief permitted by law, including the specific performance of any covenant or agreement contained herein, or thereby to enjoin any act or thing that may be unlawful or in violation of any right of LAPP hereunder or any combination of such remedies; 28 (c) Suspend performance of CAPP's obligations to Member under this Contract until the earlier of (i) the Day the Default has been cured in accordance with the terms of this Contract, except for Member's obligations to make Monthly Capacity payments under Article 7 hereof which shall not be affected by any such action; (d) Exercise any other remedy available to CAPP at law or in equity. In addition to all of the rights and remedies provided to CAPP by the laws of the State of Texas, and in addition to the remedies set forth above, the Member covenants and agrees that in the event of its default under this Contract, including failure to pay Monthly Capacity Payments and payments under Section 7.5 when due or F,nergy Payments when due after the Member has Appropriated for such payments, or, in the event it fails to make the payments required to be made into the Interest and Sinking Fund or defaults in the observance or performance of any other of the contracts, covenants, conditions or obligations set forth in this Contract, the following remedies shall also be available: (e) CAPP, the trustee if LAPP has assigned all or part of this Contract to a trustee for the benefit of bond owners, shall be entitled to a writ of mandamus issued by a court of competent jurisdiction compelling and requiring Member and the off cials thereof to observe and perform all agreements, covenants, obligations and conditions prescribed in this Contract; (f) Any delay or omission to exercise any right or power accruing upon any default shall not impair any such right or power nor be construed to be a waiver of any such default or acquiescence therein, and every such right and power may be exercised from time to time and as often as may be deemed expedient; and (g) Any other remedies available to LAPP at law or in equity. 11.5 Remedies of Member in the Event of Default by CAPP. Unless otherwise limited by the terms of this Contract, in the event that CAPP shall default in the performance of its obligations under this Contract, Member may: (a) Then and in every case, Member may proceed against CAPP, or any official, officer or employee of CAPP in their official capacity, Sue for the purpose of protecting and enforcing the rights of Member under this Contract, by mandamus or other suit, action or special proceeding in equity or at law, in any court of competent jurisdiction, for any relief permitted by law, including the specific performance of any covenant or agreement contained herein, or thereby to enjoin any act or thing that may be unlawful or in violation of any right of Member hereunder or any combination of such remedies; 29 (b) Terminate this Contract, except for Member's obligations to make Monthly Capacity Payments under Article 7 hereof which shall survive any termination of this Contract; (c) Exercise any other remedies available to Member at law or in equity. 11.6 No Waiver in Event of Default. Pursuit by either Party of any remedy for default pursuant to Article 11 of this Contract shall not constitute a forfeiture or waiver of any amount due by the defaulting Party or of any damages occurring by reason of the violation of any terms, provisions, or conditions of this Contract, provided however, that in no event shall CAPP be required to return to Member any sums paid by Member to CAPP for Capacity Prepayment. No waiver of any default or breach of this Contract shall be deemed or construed to constitute a waiver of any other violation or breach of any of the terms, provisions, or conditions of this Contract. Forbearance to enforce one or more of the remedies available upon the occurrence of an event of default shall not constitute a waiver of that or any subsequent default or breach. ARTICLE 12 INDEMNIFICATION; LIMITATION OF LIABILITY 12.1 Member's Indemnification of CAPP. To the extent permitted by the Constitution and laws of the State of Texas, and with full reservation of all defenses and immunities available under the Law, Member agrees to and shall indemnify, defend, and hold harmless CAPP and all of CAPP's officers, directors, shareholders, representatives, and employees, from and against all Indemnified Claims, including Indemnified Claims for personal injury, death, or damages to property, occurring after the Facility Owners' Delivery Points, arising out of or related to the Products. Notwithstanding the foregoing, CAPP agrees and understands that Member cannot indemnify CAPP, Facility Owners, or any individual associated with either of them from and against their own gross negligence and willful misconduct. To the extent that CAPP has agreed to indemnify Facility Owners pursuant to Article 13 of the PPA, then Member agrees to and shall indemnify, defend, and hold harmless CAPP and all of CAPP's officers, directors, shareholders, representatives, and employees, from and against all Indemnified Claims that CAPP has made to Facility Owners, but only to the extent permitted by the Constitution and laws of the State of Texas, and with full reservation of all defenses and immunities available under the Law. 12.2 Claims arising on Facility Owners side of the Facility Owners' Delivery Point. To the extent that claims for personal injury, death, or damages to property: (a) occur at and/or before the Facility Owners' Delivery Point, (b) arise out of or are related to the Product and Products, and (c) are covered as an Indemnified Claim by Facility Owners for the benefit of CAPP, Member and Participating Members, and each of their respective officers, officials, directors, and employees, then CAPP, on behalf of itself, Member, and Participating members, agrees to enforce the indemnity and 30 duty of defense that Facility Owners have granted to CAPP and Member under Article 12 of the PPA. 12.3 Indemnified Claims. "Indemnified Claims", as used in Sections 12.1 and 12.2, above, means all third party claims or actions, threatened or filed and, whether groundless, false, fraudulent or otherwise, that directly or indirectly relate to the subject matter of an indemnity, and the resulting losses, damages, expenses, attorneys' fees and court costs, whether incurred by settlement or otherwise, and whether such claims or actions are threatened or filed prior to or after the termination of this Contract. 12.4 Limitation of Remedies, Liability and Damages. EXCEPT AS SET FORTH IN THIS AGREEMENT, THERE IS NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY AND ALL IMPLIED WARRANTIES ARE DISCLAIMED. THE PARTIES CONFIRM THAT THE EXPRESS REMEDIES AND MEASURES OF DAMAGES PROVIDED IN THIS AGREEMENT SATISFY THE ESSENTIAL PURPOSES HEREOF. FOR BREACH OF ANY PROVISION FOR WHICH AN EXPRESS REMEDY OR MEASURE OF DAMAGE IS PROVIDED, SUCH EXPRESS REMEDY OR MEASURE OF DAMAGES SHALL BE LIMITED AS SET FORTH IN SUCH PROVISION AND ALL OTHER REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE WAIVED EXCEPT AS SET FORTH IN ARTICLE Il OF THIS AGREEMENT. IF NO REMEDY OR MEASURE OF DAMAGES IS EXPRESSLY PROVIDED HEREIN, THE OBLIGOR'S LIABILITY SHALL BE LIMITED TO DIRECT ACTUAL DAMAGES ONLY, SUCH DIRECT ACTUAL DAMAGES SHALL BE THE SOLE AND EXCLUSIVE REMEDY AND ALL OTHER REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE WAIVED. UNLESS EXPRESSLY HEREIN PROVIDED, NEITHER PARTY SHALL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, LOST PROFITS OR OTHER BUSINESS INTERRUPTION DAMAGES, BY STATUTE, IN TORT OR CONTRACT, UNDER ANY INDEMNITY PROVISION OR OTHERWISE. IT IS THE INTENT OF THE PARTIES THAT THE LIMITATIONS HEREIN IMPOSED ON REMEDIES AND THE MEASURE OF DAMAGES BE WITHOUT REGARD TO THE CAUSE OR CAUSES RELATED THERETO, INCLUDING THE NEGLIGENCE OF ANY PARTY, WHETHER SUCH NEGLIGENCE IS SOLE, JOINT OR CONCURRENT, OR ACTIVE OR PASSIVE. TO THE EXTENT ANY DAMAGES REQUIRED TO BE PAID HEREUNDER ARE LIQUIDATED, THE PARTIES ACKNOWLEDGE THAT THE DAMAGES ARE DIFFICULT OR IMPOSSIBLE TO DETERMINE, OR OTHERWISE OBTAINING AN ADEQUATE REMEDY IS INCONVENIENT AND THE DAMAGES CALCULATED HEREUNDER CONSTITUTE A REASONABLE APPROXIMATION OF THE HARM OR LOSS. 31 ARTICLE 13 RF,PRESENTATIONS 13.1 Mutual representations and warranties. Each Party represents and warrants to the other Party that: (a) Such Party has the power and authority to execute, deliver and perform its obligations under this Contract. Such Party has authorized the execution and delivery of this Contract by the person(s) executing this Contract below. (b) No provision contained in Member's charter or enabling legislation, as the case may be, if any, prohibits Member from entering into this Contract and performing the obligations required of Member under this Contract. (c) This Contract constitutes a legal, valid and binding obligation of such Party, except as the enforceability of this Contract may be limited by the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditor's rights generally and by general principles of equity which permit the exercise of judicial discretion. (d) Neither the execution or delivery of this Contract results in any breach of or constitutes any default under any material agreement to which such Party is bound or causes such Party to be in violation of any Law, regulation, administrative or judicial order or process or decision to which such Party is a party or by which it or its properties are bound or affected. (e) It is not Bankrupt and there are no proceedings pending or being contemplated by it or, to its knowledge, threatened against it which would result in it being or becoming Bankrupt. (f) It is duly organized and validly existing under the laws of the jurisdiction of its organization or incorporation and, if relevant under such laws, in good standing. (g) All governmental and other authorizations, approvals, consents, notices and filings that are required to have been obtained or submitted by it with respect to this Contract or other document relating hereto or thereto to which it is a party have been obtained or submitted and are in full force and effect and all conditions of any such authorizations, approvals, consents, notices and filings have been complied with. (h) No Default with respect to it, or event which with notice and/or lapse of time would constitute such a Default, has occurred and is continuing and 32 no such event or circumstance would occur as a result of its entering into or performing its obligations under this Contract or other document relating hereto or thereto to which it is a party. There is not pending or, to its knowledge, threatened against it or any of its Affiliates any action, suit or proceeding at law or in equity or before any court, tribunal, governmental body, agency or official or any arbitrator that is likely to affect the legality, validity or enforceability against it of this Contract, or other document relating hereto or thereto to which it is a parry or its ability to perform its obligations undcr the same. ARTICLE 14 NOTICES 14.1 Notices. All notices and other communications required or permitted by this Contract or by Law to be served upon or given to a Party by the other Party shall be deemed duly served and given when received after being delivered by hand, or courier service, or sent by confirmed facsimile or certified mail, return receipt requested, postage prepaid, to the following address. To Member: Attention: Telephone: Facsimile: To CAPP: Attention: Telephone: Facsimile: Notices shall, unless otherwise specified herein, be in writing and may be delivered by hand delivery, United States mail, overnight courier service or facsimile. Notice by facsimile or hand delivery shall be effective at the close of business on the Day actually received, if received during business hours on a Business Day, and otherwise shall be effective at the close of business on the next Business Day. Notice by overnight 33 United States mail or courier shall be effective on the next Business Day after it was sent. A Party may change its addresses by providing notice of it in accordance herewith. ARTICLE 15 CONFIDENTIALITY 15.1 Confidential Information. Parties to this Contract acknowledge that they are obligated to protect the confidentiality of certain information provided by Luminant to CAPP in the course of negotiating the PPA pursuant to Article 17 of the PPA. Member agrees to be bound by the provisions of Article 17 of the PPA regarding any information that counsel to CAPP indicates in writing should be kept confidential and to promptly advise counsel to CAPP of any request for Public Information pursuant to Chapter 552 of the Texas Government Code for public revelation of confidential information provided to Member in its consideration of this Contract and related documents. ARTICLE 16 ASSIGNMENT 16.1 Assignment. 1/xcept as provided otherwise in this Contract, neither Party shall assign this Contract or its rights hereunder without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed; provided, however, that the assignee is at the time of assignment a Member of CAPP. In no event shall the assigning Party be relieved from liability under this Contract upon assignment. ARTICLE 17 CONTINUING DISCLOSURE 17.1 Continuing llisclosure Undertaking of Members. At such time that Member's aggregated unpaid Monthly Capacity Payments equals at least ten percent (10%) of the outstanding principal amount of the Bonds, Member agrees to provide annually to each Nationally Recognized Municipal Securities Information Depositories ("NRMSIR") and any State Information Depositories ("SID") financial information and operating data with respect to the Member of the general type hereinafter described. Subject to the foregoing sentence Member agrees to provide, within 195 days after the end of each Fiscal Year thereof ending in or after 2009, financial information and operating data with respect the Member. Any financial statements so to be provided shall be prepared in accordance with the accounting principles as Member may be required to employ from time to time pursuant to state law or regulation. 17.2 Financial Statements. If Member is required to file financial information pursuant to Section 17.1 and Member commissions an audit of such statements and the audit is completed within the period during which they must be provided, the financial statements to be provided shall be audited. If the audit of such financial statements is not complete within such period, then Participating Member shall provide unaudited financial statements and thereafter audited financial statements for the applicable fiscal year to 34 CAPP, each NRMSIR and any SID, when and if the audit report on such statements become available. 17.3 Change of Fiscal Year. If Member is required to file financial information pursuant to Section 17.1 and Member changes its Fiscal Year, it shall be the duty of such Member to notify each NRMSIR and any SID of the change (and of the date of the new Fiscal Year end) prior to the next date by which such Member otherwise would be required to provide financial information and operating data pursuant to this Article. The financial information and operating data to be provided pursuant to this Article may be set forth in full in one or more documents or may be provided pursuant to this Article may be set forth in full in one or more documents or may be included by specific reference to any document (including an official statement or other offering document, if it is available from the Municipal Securities Rulemaking Board ("MSRB") that theretofore has been provided to each NRMSIR and any SID or filed with the SEC. 17.4 Failure to Provide Continuing Disclosure. Member shall notify LAPP, any SID and either each NRMSIR or the MSRB , in a timely manner, of any failure of such Member to provide financial information or operating data in accordance with this Article by the time required thereby and hereby. No default by Member in observing or performing its obligations as described in this Article shall constitute a breach of or default under this Contract for purposes of any other provision of this Contract. Nothing in this Article is intended or shall act to disclaim, waive, or otherwise limit the duties of any Member under federal and state securities laws. If Member fails to provide such continuing disclosure required under this Article, LAPP shall use its best efforts to obtain relevant financial information and operating data with respect to any such Participating Member and to provide the same annually to each NRMSIR and any SID within 195 days after the end of each Fiscal Year of any such Member. 17.5 Amendment of Continuing Disclosure. Member's undertaking under this Article may be amended by Member, with the consent of LAPP, from time to time to adapt to changed circumstances that arise from a change in legal requirements, a change in law, or a change in the identity, nature, status, or type of operations of any Member, but only if (1) the undertaking, as so amended, would have permitted an underwriter to purchase or sell Bonds in the primary offering of such Bonds in compliance with the Rule, taking into account any amendments or interpretations of the Rule since such offering as well as such changed circumstances and (2) either (a) the holders of a majority in aggregate principal amount of the outstanding Bonds consent to such amendment or (b) a person that is unaffiliated with Member (such as nationally recognized bond counsel) determined that such amendment will not materially impair the interest of the holders and beneficial owners of the Bonds. If Member amends its undertaking herein, it shall include with any amended financial information or operating data next provided in accordance with this Article an explanation, in narrative form, of the reason for the amendment and of the impact of any change in the type of financial information or operating data so provided. 35 Member shall be obligated to observe and perform the covenants specified in tlus Article for so long as, but only for so Iong as, Member remains an "obligated person" with respect to the Bonds within the meaning of the Rule. The provisions of this Article are for the sole benefit of the holders and beneficial owners of the Bonds, and nothing in this Article, express or implied, shall give any benefit or any legal or equitable right, remedy, or claim hereunder to any other person. ARTICLE 18 TAX-EXEMPT BOl!'DS 18.1 Tax-Exempt Bonds. The Parties understand and agree that CAPP will use commercially reasonable efforts to provide for, but will not be liable for a failure to produce, the lowest overall debt service cost for the Bonds. In comlection therewith, the parties intend that CAPP may, with the approval of the Member, issue refunding bonds to refund the Bonds, if possible, the interest on which is excludable from the gross income of the owners thereof for federal income tax purposes. The Parties acknowledge that, under current federal tax laws, such tax-exempt financing of the Capacity Prepayment is not permitted. The Parties further acknowledge their understanding that the federal income tax laws impose certain restrictions on the use and investment of proceeds of tax- exempt bonds and on the use of the property financed therewith and the output produced therefrom. Accordingly, the Parties agree and covenant that if any refunding bonds are offered to investors with the understanding that the interest thereon will be exempt from federal income taxation, then the Parties, their assigns and agents, will take such action to assure, and refrain from such action which will adversely affect, the treatment of such refunding bonds as obligations described in Section 103 of the Internal Revenue Code of 1986. Should either Party fail to comply with such covenant, the effect of which being that such refunding bonds no longer qualify as obligations described in the Internal Revenue Code of 1986, such defaulting party shall be liable for all costs resulting from the loss of the tax-exempt status of such bonds. The Parties hereby agree and covenant to comply with all of the representations and covenants relating to such exemption which are set out in any relevant trust indenture or bond resolution. The Parties further agree and covenant that in the event any refunding bonds issued are to be tax-exempt, they will modify such agreements, make such filings, restrict the yield on investments, and take such other action necessary to fulfill the applicable provisions of the Internal Revenue Code of 1986. For these purposes, the Parties may rely on the respective opinion of any firm of bond attorneys selected by CAPP. 18.2 Agreement to Pay Beneficiary. In the event that tax-exempt refunding bonds are issued with the consent of the Members as provided in the immediately preceding paragraph above, Member hereby covenants and agrees to pay its proportionate share of any deficiency to CAPP for deposit into the appropriate rebate fund at the times and as described in the indenture of trust related to the Bonds to comply with the provisions of Section 148(f)(2) of the Internal Revenue Code of 1986. 36 18.3 Financing. Member agrees to cooperate with CAPP in connection with the issuance of the Bonds. Without limiting the foregoing, CAPP and Member acknowledge that this Contract may be an integral part of the documentation securing the Bonds. At CAPP's request, Member shall agree to amend this Contract to include any provision which may reasonably be requested by the issuer of the Bonds, and to include any provision that may be required to correspond to an amendment of the PPA; provided, however, that no such amendment shall increase the burdens or obligations of Member hereunder with respect to the price and purchase obligations set forth herein. Upon the request of CAPP, Member agrees to negotiate in good faith and shall execute additional documents, opinions and instruments reasonably requested by the proposed issuer of the Bonds including (i) a consent and agreement that provides an additional reasonable period of time to remedy any Default, and (ii) a legal opinion of counsel for Member affirn~ing the enforceability of this Contract against Member and other matters reasonably requested, subject to customary exceptions and qualifications. ARTICLE 19 MISCELLANEOUS 19.1 Applicable Law. This Contract is governed by and shall be construed under the Laws of the State of Texas excluding any conflict of laws rules. The Parties submit to the exclusive jurisdiction of the state and federal courts in Dallas County, Texas in connection with any litigation arising hereunder. 19.2 Counterparts. 'T'his Contract may be executed in more than one counterpart, each of which shall be deemed to be an original, but all of which together shall constitute one and the same document. 19.3 Waiver. No waiver of any breach of the terms of this Contract shall be effective unless such waiver is in writing and signed by the Party against whom such waiver is claimed. No waiver of any breach shall be deemed to be a waiver of any subsequent breach. 19.4 Modification. The provisions of this Contract, including any exhibits, may only be modified by written agreement duly executed by each Party. 19.5 Severability If any provision of this Contract shall be determined to be unenforceable, void or otherwise contrary to Law, such condition shall in no manner operate to render any other provision of this Contract unenforceable, void or contrary to Law, and this Contract shall continue in force in accordance with the remaining terms and provisions hereof, unless such condition invalidates the purpose or intent of this Contract. In the event that any of the provisions, or portions or applications thereof, of this Contract are held unenforceable or invalid by any court of competent jurisdiction, Buyer and Seller shall negotiate in good faith to attempt to implement an equitable adjustment in the provisions of this Contract with a view toward effecting the purposes of this Contract by replacing the provision that is unenforceable, void, or contrary to Law 37 with a valid provision the economic effect of which comes as close as possible to that of the provision that has been found to he unenforceable, void, or contrary to Law. 19.6 Requirements. Each Party shall timely comply with all then-current PUCT and ERCOT requirements (including, without limitation, the ERCOT Guides) that are applicable to it and shall reasonably cooperate upon reasonable notice with the other Parry to the extent necessary for the other Party to timely comply with then-current PUCT and ERCOT requirements (including, without limitation, the ERCOT Guides) that are applicable to it. 19.7 Entirety. It is the intention of the Parties that this Contract shall contain all terms, conditions, and protections in any way related to, or arising out of, the sale and purchase of the Products as contemplated herein, and supersedes all priox agreements regarding the subject matter hereof, whether written or oral. 19.8 Captions, Titles and Headings. Captions, titles and headings used in this Contract are for ease of reference only and do not constitute a part of this Contract. 19.9 Forward Contract. The Parties acknowledge and agree that this Contract constitutes a "forward contract" within the meaning of the United States Bankruptcy Code. 19.10 Further Assurances. Each Party shall, from time to time, upon the written request of any other Party, execute and deliver such further instruments and documents as shall be necessary to perfoiTn its obligations hereunder. 19.11 Survival. The confidentiality and audit provisions, indemnities, releases from liability, and limitations on liability or damages expressed in this Contract shall, unless otherwise provided herein, survive without limitation the termination, cancellation or expiration of this Contract, and shall apply whether in contract, equity, or otherwise. Notwithstanding the foregoing, the statute of limitations for bringing any action with respect to this Contract or either Party's performance hereunder is not extended by the provisions of this Section 19.11. 38 IN WITNESS WHEREOF, the Parties have caused this Contract to be executed in their respective names by their duly authorized officers. MEMBER: Date ATTEST: CITY OF By: Printed name: Its: 39 CAPP: CITIES AGGREGATION POWER PROJECT By: Date ATTEST: Printed name: Its: 40 R ~~/ ~ ~" ~ City of Colleyville 100 MIainStreet ' Colleyville, Texas 76034 ~~~~~~~~ Agenda Briefing 817.503.1000 www.colleyville.com File Number: 0-08-1701 Version: 1 Requester: Office of the City Manager File Number: 0-08-1701 File Type: Ordinance Agenda Date: 11 /18/2008 Agenda No.: 6a Status: First Reading Controlling Body: City Council Final Action: File Name: Approval of a franchise agreement between Atmos Energy Corporation and the City of Colleyville Attachments: Ordinance 0-08-1701 History of Legislative File Version: Date: Acting Body: Action Text: 11/18/2008 City Council Title Approval of a franchise agreement between Atmos Energy Corporation and the City of Colleyville Explanation First Reading and Public Hearing On April 26, 1988, the City Council approved Ordinance 0-88-673 granting a 20-year franchise agreement to Lone Star Gas and its successors and assigns to furnish and supply gas to the general public in the City of Colleyville. The ordinance stipulated the franchise fee payable to the City would be equivalent to two percent (2%) of the gross receipts (from the sale of gas to domestic and commercial consumers, excluding sales to governmental and industrial users and consumers) up to April 20, 1988. At the conclusion of the 1988 calendar year, the franchise fee increased to 4%, payable on all gross receipts in the domestic, commercial and industrial categories within the City. Ordinance 0-88-673 further stipulated the payments would be made annually on the first day of April, with the last payment being made on April 1, 2009. Ordinance 0-03-1401, approved by City Council on April 15, 2003, expanded the franchise fee revenue base to include transportation, third party value of gas, service charges and contribution in aid of construction categories. Excluded from the revenue base were residential, commercial and industrial governmental users. The ordinance also contained a most favored nation clause, which stipulated that if the company, at any time after the ordinance effective date, agreed to, or renewed a new municipal franchise ordinance with another municipality, which was higher than the 4%, the company would increase the fee paid to the City to be equal. On June 3, 2008, the City Council denied Ordinance 0-08-1682, which would have City of Colleyville Page 1 Printed on 11/13/2008 i Agenda Brietinp Continued (0-08-1701) amended the franchise to invoke the most favored nation clause, created when several cities worked with Atmos on a rate case, which included an increased 1 % franchise fee. Had the City Council opted to adopt the ordinance, the 1 % increase was estimated to increase City revenues by approximately $84,700.00 annually and would increase the average residential customer bill by $0.20 monthly. Atmos, staff and City assigned attorney Cathy Cunningham, Boyle and Lowry, LLP, have reviewed the proposed franchise ordinance. The franchise fee remains at 4%, should the City Council wish to increase the franchise fee, Atmos is willing to accept an increase, however, the proposed franchise ordinance will require the change before approval. Highlights of the proposed franchise ordinance include: • The term is for fifteen (15) years, effective January 1, 2009, ending December 31, 2023 • The 4% franchise fee is payable based on gross revenues to include all revenue from the sale of gas to all classes of customers (excluding gas sold to another gas utility in the City for resale within City) Payments will be made quarterly, on or before the forty-fifth (45th) day following the end of each calendar quarter. The initial payment provided under this franchise will be due on or before May 15, 2009, for the period January 1 through March 31, 2009, based on the preceding calendar quarter. Subsequent payments shall be made on August 15, November 15, February 15, and May 15 of each year during the term of the franchise and final payment will be due on or before February 15, 2024 and will be for the calendar quarter October 1 through December 31, 2023. Payments due prior to the beginning of the franchise will be paid pursuant to previous franchise terms Contains the most favored nations clause which would allow the City Council to invoke a higher franchise fee rate, based on other cities municipal franchise ordinance fees • Atmos has sixty (60) days from and after the passage and approval of this ordinance to file its written acceptance thereof with the City Secretary, if Atmos does not file written acceptance, the franchise ordinance will be rendered null and void. Financial Impact It has been determined that there will be no additional financial impact to City revenues as the franchise fee remains 4%. Recommendation Approval City of Colleyville Page 2 Printed on 11/13/2008 ORDINANCE 0-08-1701 AN ORDINANCE GRANTING TO ATMOS ENERGY CORPORATION, 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 COLLEYVILLE, TARRANT 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; PROVIDING A MOST FAVORED NATIONS CLAUSE, AND A SEVERABILITY CLAUSE; AND PROVIDING AN EFFECTIVE DATE WHEREAS, the City of Colleyville is the owner of valuable rights of way which have been utilized by Atmos Energy Corporation and its predecessors pursuant to a franchise issued by the City; and WHEREAS, the City of Colleyville is legally authorized to regulate and franchise the use of City owned rights-of-way; and WHEREAS, all legal prerequisites for the passage of this ordinance have been met, including but not limited to the requirements of the Texas Open Meetings Act and the City Charter; and WHEREAS, City Council has found that the passage of this ordinance serves the best interests of the health, safety and welfare of the public. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF COLLEYVILLE, TEXAS: Sec. 1. THAT all matters stated herein are found to be true and correct and are incorporated herein by reference as if copied in their entirety. Sec. 2. Grant of Authority/Length of Franchise/Term and Conditions (A) Grant of Authority. The City of Colleyville, Texas, herein after called "City," hereby grants to Atmos Energy Corporation, hereinafter called "Atmos Energy" or "Company," its successors and assigns, consent to use and occupy the present and future public rights-of- way of the City for the purpose of laying, maintaining, constructing, protecting, operating, and replacing the system needed and necessary to deliver, transport and distribute gas in, out of, and through City and to sell gas to persons, firms, and corporations, including all the general public, within the City's corporate limits. Ordinance 0-08-1701 Page 2 of 19 (B) Length of Franchise. Said privilege and license being granted by this ordinance is for a term ending December 31, 2023. (C) Terms and Conditions. The provisions set forth in this ordinance represent the terms and conditions under which the Company shall construct, operate, and maintain the system within the City, hereinafter sometimes referred to as the "franchise." In granting this franchise, the City does not in any manner surrender or waive its regulatory or other rights and powers under and by virtue of the Constitution and statutes of the State of Texas as the same may be amended, nor any of its rights and powers under or by virtue of present or future generally applicable ordinances of the City. Company, by its acceptance of this franchise, agrees that all such lawful regulatory powers and rights as the same may be from time to time vested in the City shall be in full force and effect and subject to the exercise thereof by the City at any time. Sec. 3. Definitions For the purposes of this ordinance, the following terms, phrases, words and their derivations shall have the meanings given herein. When not inconsistent with the context, words in the present tense include the future, words in the plural number include the singular number and words in the singular number include the plural number. The word "shall" is always mandatory and not merely directory. (A) "City" shall mean the City of Colleyville, Texas. (B) "Company" shall mean Atmos Energy Corporation, its successors and assigns, but does not include an affiliate, which shall have no right or privilege granted hereunder except through succession or assignment in accordance with Section 6 entitled "No Third Party Beneficiaries." (C) "City Manager" means City's manager, or designee. (D) "Gross Revenues" shall mean all revenue derived or received, directly or indirectly, from the sale of gas to all classes of customers (excluding gas sold to another gas utility in City for resale to its customers within City) within the corporate limits of City. Ordinance 0-08-1701 Page 3 of 19 (1) "Gross revenues" shall include: (a) revenues derived from the following `miscellaneous charges': i. charges to connect, disconnect, or reconnect gas within the City; ii. charges to handle returned checks from consumers within the City; iii. such other service charges and charges as may, from time to time, be authorized in the rates and charges on file with the City; and iv. contributions in aid of construction ("CIAC"). (b) revenues billed but not ultimately collected or received by the Company; (c) gross receipts fees; (d) all revenues derived by Company from the transportation of gas through the system of Company within the City to customers located within the City (excluding any gas transported to another gas utility in City for resale to its customers within City); and (e) the value of gas transported by Company for transport customers through the system of Company located in the City's public rights-of-way ("Third Party Sales") (excluding the value of any gas transported to another gas utility in City for resale to its customers within City), with the value of such gas to be established by utilizing Company's monthly weighted average cost of gas charged to industrial customers in the Mid-Tex division, as reasonably near the time that the transportation service is performed. (2) "Gross revenues" shall not include: (a) the revenue of any person including, without limitation, an affiliate, to the extent that such revenue is also included in gross revenues of the Company; and (b) sales taxes; and (c) any interest income earned by the Company; and Ordinance 0-08-1701 Page 4 of 19 (d) all monies received from the lease or sale of real or personal property, provided, however, that this exclusion does not apply to the lease of facilities within the City's public right-of way (E) "Person" shall mean any natural person, or any association, firm, partnership, joint venture, corporation, or other legally recognized entity, whether for-profit or not-for-profit, but shall not, unless the context clearly intends otherwise, include the City or any employee, agent, servant, representative or official of the City. (F) "Public Right-of-Way" shall mean public streets, alleys, highways, bridges, public easements, public places, public thoroughfares, grounds, and sidewalks of the City, as they now exist or may be hereafter constructed, opened, laid out or extended within the present limits of the City, or in such territory as may hereafter be added to, consolidated or annexed to the City. (G) "System" or "System Facilities" shall mean all of the Company's pipes, pipelines, gas mains, laterals, feeders, regulators, meters, fixtures, connections, and all other appurtenant equipment used in or incident to providing delivery, transportation, distribution, supply and sales of natural gas for heating, lighting, and power, located in the public right-of-way within the corporate limits of the City. (H) "Affiliate" shall mean in relation to the Company, a person that controls, is controlled by, or is under common control with the Company. As used in this definition, the term "control" means, with respect to a person that is a corporation, the ownership, directly or indirectly, of more than 50% of the voting securities of such person or, with respect to a person that is not a corporation, the power to direct the management or policies of such person, whether by operation of law, by contract or otherwise. (I) "Transport Customer" shall mean any person for which Company transports gas through the system of Company within the City's public rights-of-way for delivery within the City (excluding other gas utilities in City who resell gas to their customers within the City) . Ordinance 0-08-1701 Page 5 of 19 Sec. 4. Effect of Other Municipal Franchise Ordinance Fees Accepted and Paid by Company (A) If Company should at any time after the effective date of this ordinance agree to a new municipal franchise ordinance, or renew an existing municipal franchise ordinance, with another municipality in the Mid-Tex Division, which municipal franchise ordinance determines the franchise fee owed to that municipality for the use of its public rights-of-way in a manner that, if applied to the City, would result in a franchise fee greater than the amount otherwise due City under this ordinance, then the franchise fee to be paid by Company to City pursuant to this ordinance may, at the election of the City, be increased so that the amount due and to be paid is equal to the amount that would be due and payable to City were the franchise fee provisions of that other franchise ordinance applied to City. The City acknowledges that the exercise of this right is conditioned upon the City's acceptance of all terms and conditions of the other municipal franchise in toto. The City may request waiver of certain terms, and the Company may choose to agree with the waiver. Sec. 5. Acceptance of Terms of Franchise (A) The Company shall have sixty (60) days from and after the passage and approval of this ordinance to file its written acceptance thereof with the City Secretary. If the Company does not file such written acceptance of this franchise ordinance, the franchise ordinance shall be rendered null and void. The effective date shall be determined in accordance with the requirements of Section 28, "Effective Date." (B) At 11:59 P.M. on December 31, 2023, ALL rights, franchises and privileges herein granted, unless they have already at that time ceased or been forfeited or extended by mutual agreement while a new franchise is being negotiated, shall at once cease and terminate. Sec. 6. No Third Party Beneficiaries This franchise is made for the exclusive benefit of the City and the Company, and nothing herein is intended to, or shall confer any right, claim, or benefit in favor of any third party. Sec. 7. Successors and Assigns No assignment or transfer of this franchise shall be made, in whole or in part, except in the case of assignment or transfer to an affiliate without Ordinance 0-08-1701 Page 6 of 19 approval of the City Council of the City. Written notice of said transfer or assignment to an affiliate shall be provided to the City Manager. The City will grant such approval unless withheld for good cause, such as: (1) the failure of the proposed assignee or transferee to agree to comply with all provisions of this ordinance and such additional conditions as the City Council may prescribe in order to remedy existing conditions of non-compliance, or (2) the failure of the proposed assignee or transferee to provide assurances reasonably satisfactory to the City Council of its qualifications, character, the effect of the transfer and such other matters as the City Council deems relevant. Upon approval, the rights, privileges and franchise herein granted to Company shall extend to and include its successors and assigns. The terms, conditions, provisions, requirements and agreements contained in this franchise shall be binding upon the successors and assigns of the Company. Sec. 8. Compliance With Laws, Charter and Ordinances This franchise is granted subject to the laws of the United States of America and its regulatory agencies and commissions and the laws of the State of Texas, the Colleyville City Charter, as amended, and all other generally applicable ordinances of the City of Colleyville, not inconsistent herewith, including, but not limited to, ordinances regulating the use of public rights-of-way. Sec. 9. Previous ordinances When this franchise becomes effective, all gas franchise ordinances and parts of franchise ordinances applicable to the Company or its predecessors in interest granted by the City of Colleyville, Texas, are hereby repealed. Sec. 10. Notices Any notices required or desired to be given from one party to the other party to this ordinance shall be in writing and shall be given and shall be deemed to have been served and received if: (1) delivered in person to the address set forth below: (2) deposited in an official depository under the regular care and custody of the United States Postal Service located within the Ordinance 0-08-1701 Page 7 of 19 confines of the United States of America and sent by certified mail, return receipt requested, and addressed to such party at the address hereinafter specified; or (3) delivered to such party by courier receipted delivery. Either party may designate another address within the confines of the continental United States of America for notice, but until written notice of such change is actually received by the other party, the last address of such party designated for notice shall remain such party's address for notice. CITY City Manager City of Colleyville 100 Main Street Colleyville, Texas 76244 C:(~MPANY Manager of Public Affairs Atmos Energy Corp., Mid-Tex Division 800 E. Border Street Arlington, Texas 76010 With a copy to: Matthew Boyle City Attorney Boyle and Lowry, LLP 4201 Wingren, Suite 108 Irving, Texas 75062 Sec. 11. Paragraph Headings, Construction The paragraph headings contained in this ordinance are for convenience only and shall in no way enlarge or limit the scope or meaning of the various and several paragraphs hereof. Both parties have participated in the preparation of this ordinance and this ordinance shall not be construed either more or less strongly against or for either party. Sec. 12. Conditions of Occupancy (A) All construction and the work done by Company, and the operation of its business, under and by virtue of this ordinance, shall be in conformance with the ordinances, rules and regulations now in force and that may hereafter be adopted by the City relating to the use of its public rights-of-way. This franchise ordinance shall in no way affect or impair the rights, obligations or remedies of the parties under the Texas Utilities Code, or other state or federal law. (B) If the City believes that Company has failed to comply with any operational or maintenance standards as required by this franchise Ordinance 0-08-1701 Page 8 of 19 ordinance, City shall give the Company written notice of such failure to comply. Company shall have the opportunity to cure such failure during a period not to exceed five (5) working days from receipt of the written notice. If the Company fails to cure the alleged failure to comply within the prescribed time period, the Company's alleged failure to comply shall be heard at a public meeting of the City Council. The Company shall be given written notice of the public meeting no later than five (5) working days prior to the posting date of the agenda for the City Council meeting at which such alleged failure is scheduled to be considered by the City Council. The notice to the Company shall include a list of the failures complained of. Company shall have an opportunity to address the City Council at such public meeting. Commencing five (5) calendar days following the adoption of a resolution or an ordinance of the City that finds and determines a failure of Company to comply with operational or maintenance standards as required by this franchise ordinance, Company may be subject to termination as outlined in Section 24. Sec. 13. Relocation of Company Equipment (A) Whenever by reason of widening or straightening of streets, water or sewer line projects, or any other public works projects in which beautification is not the primary purpose of the project (e.g., installing or improving storm drains, water lines, sewer lines, etc.), it shall be deemed necessary by City to remove, alter, change, adapt, or conform the underground or aboveground system facilities of Company to another part of the public rights-of-way, such alterations shall be made by Company at Company's expense in accordance with ordinances of the City of Colleyville. (B) If City abandons any public right-of-way in which Company has facilities, such abandonment shall be conditioned on Company's right to maintain its use of the former public right-of-way and on the obligation of the party to whom the public right-of-way is abandoned to reimburse Company for all removal or relocation expenses if Company agrees to the removal or relocation of its facilities following abandonment of the public right-of-way. If the party to whom the public right-of-way is abandoned requests the Company to remove or relocate its facilities and Company agrees to such removal or relocation, such removal or relocation shall be done within a reasonable time at the expense of the party requesting the removal or relocation. If relocation cannot practically be made to Ordinance 0-08-1701 Page 9 of 19 another public right-of-way, the expense of any right-of-way acquisition shall be considered a relocation expense to be reimbursed by the party requesting the relocation. Sec. 14. Laying of Lines in Advance of Public Improvements (A) Whenever the City shall decide to make any public improvements in any public right-of-way in which mains and pipes already exist or in which Company may propose to lay its mains or pipes, the Company will be provided the opportunity, at no expense to the City, in advance of such public improvements, to repair or replace such mains or pipes, if defective or inadequate in size, and to lay service lines, or renew same, if inadequate in size or defective, to the property lines where buildings are already located. (B) The Company shall be given written notice of the intention of the City to make public improvements in any such public right-of-way. Within one hundred twenty (120) days from receipt of such notice, the Company, if it has determined a need, shall initiate work and thereafter proceed in a workmanlike manner to completion of the necessary work. If the Company should fail to so proceed, and such street or alley is thereupon paved, except in an emergency or in response to a request for initiation of new service, the Company shall for two (2) years thereafter not be allowed to cut such pavement or excavate in such paved street or alley for any purpose. All pavement cuts or excavations within the two (2) year period, except in response to an emergency, shall be performed only upon written permission of the Director of Public Works under such terms and conditions as the Director of Public Works may prescribe. Company shall give notice to the City of emergency work as soon as possible after the commencement of such work. Notice shall be given by contacting the City personnel designated by the City for this purpose. Sec. 15. Installation of Meters If a meter is to be installed in or near the public rights-of-way, Company agrees to discuss with the Public Works Director or his/her delegate the aesthetics of the meter placement. If the City requires a meter upgrade, the Company will comply so long as the City reimburses the Company for the reasonable costs incurred by the Company in changing meters; provided, however, that in no event shall underground meters be required. Ordinance 0-08-1701 Page 10 of 19 Sec. 16. Extensions for Customers Company shall extend distribution mains in any street up to one hundred (100) feet for any one residential or commercial customer so long as the customer at a minimum uses gas for unsupplemented space heating and water heating. Company shall not be required to extend transmission mains in any public rights-of-way within City or to make a tap on any transmission main within City unless Company agrees to such extension by a written agreement between Company and a customer. Sec. 17. Duty to Serve The Company hereby agrees that it will not arbitrarily refuse to provide service to any person that it is economically feasible for the Company to serve. In the event that a person is refused service, said person may request a hearing before the City Council of the City or its designee, said hearing to be held within forty-five days from the date of the request for hearing. The City Council may order the Company to provide service or take any other action necessary to bring the Company into compliance with the intent of the City Council in granting this franchise. The City Council may render its opinion at its next regular meeting but in no event shall the City Council be required to act in less than seven (7) days. Sec. 18. Rates Company shall furnish reasonably adequate service to the public at reasonable rates and charges therefore, and Company shall maintain its system in good order and condition. Such rates shall be established in accordance with all applicable statutes and ordinances. Company shall maintain on file with the City copies of its current tariffs, schedules or rates and charges, customer service provisions and line extension policies. The rates and charges collected from its customers in the City shall be subject to revision and change by either the City or Company in the manner provided by law. Sec. 19. Payments to the City (A) In consideration of the privilege and license granted by City to Company to use and occupy the public rights-of-way in the City for the conduct of its business, Company, its successors and assigns, agrees to pay and City agrees to accept such franchise fees in the amount and manner described herein. Except as provided for in subsection (B) of this section, such payments shall be made on a quarterly basis, on or before the forty-fifth (45th) day following the end of each calendar quarter. The franchise fee shall be a sum of money that shall be equivalent to four percent (4%) of the gross Ordinance 0-08-1701 Page 11 of 19 revenues, as defined in the definition section of this franchise, for the preceding calendar quarter. The initial payment provided under this franchise shall be due on or before May 15, 2009, for the period January 1 through March 31, 2009, based on the preceding calendar quarter. Subsequent payments shall be made on August 15, November 15, February 15, and May 15 of each year during the term of the franchise. The final payment under this franchise will be due on or before February 15, 2024 and will be for the calendar quarter October 1 through December 31, 2023. Payments due prior to the beginning of the franchise will be paid pursuant to previous franchise terms. (B) The franchise fee amounts based on "Contributions in Aid of Construction" ("CIAC") shall be calculated on an annual calendar year basis, i.e., from January 1 through December 31 of each calendar year. The franchise fee amounts that are due based on CIAC shall be paid at least once annually on or before April 30 each year based on the total CIAC recorded during the preceding calendar year. The initial CIAC franchise fee payment will be due on or before April 30, 2009, and will be based on the calendar year January 1 through December 31, 2008. The final payment of franchise fee amounts based on CIAC will be April 30, 2024, based on the calendar year ending December 31, 2023. (C) It is also expressly agreed that the franchise fee payments shall be in lieu of any and all other and additional occupation taxes, easement, franchise taxes or charges (whether levied as a special or other character of tax or charge), municipal license, permit, and inspection fees, bonds, street taxes, and street or alley rentals or charges, and all other and additional municipal taxes, charges, levies, fees, and rentals of whatsoever kind and character that City may now impose or hereafter levy and collect from Company or Company's agents, excepting only the usual general or special ad valorem taxes that City is authorized to levy and impose upon real and personal property. Should City not have the legal power to agree that the payment of the foregoing sums of money shall be in lieu of occupation taxes, licenses, fees, street or alley rentals or charges, easements or franchise taxes, then City agrees that it will apply so much of said sums of money paid as may be necessary to satisfy Company's obligations, if any, to pay such occupation taxes, licenses, charges, fees or rentals. Ordinance 0-08-1701 Page 12 of 19 (D) If the Company fails to pay when due any payment provided for in this section, Company shall pay such amount plus interest at the current prime rate per annum from such due date until payment is received by City. (E) Company may file with the City a tariff or tariff amendment(s) to provide for the recovery of the franchise fee under this Agreement. City agrees that: (1) as a regulatory authority, it will adopt and approve the ordinance, rates, or tariff which provide for 100% recovery of such franchise fees as part of Company's rates; (2) if City intervenes in any regulatory proceeding before a federal or state agency in which the recovery of Company's franchise fees is an issue, City will take an affirmative position supporting 100% recovery of such franchise fees by Company; and (3) in the event of an appeal of any such regulatory proceeding in which City has intervened, City will take an affirmative position in any such appeals in support of the 100% recovery of such franchise fees by Company. City further agrees that it will take no action, nor cause any other person or entity to take any action, to prohibit the recovery of such franchise fees by Company. (F) Lease of facilities Within City's Rights-of-Way. Company shall have the right to lease, license or otherwise grant to a party other than Company the use of its facilities within the City's public rights-of- way provided: (1) Company first notifies the City of the name of the lessee, licensee or user, the type of service(s) intended to be provided through the facilities, and the name and telephone number of a contact person associated with such lessee, licensee or user; and (2) Company makes the franchise fee payment due on the revenues from such lease pursuant to the Section titled "Payments to the City" of this ordinance. This authority to lease facilities within City's rights-of-way shall not affect Ordinance 0-08-1701 Page 13 of 19 any such lessee, licensee or user's obligation, if any, to pay franchise fees, access line fees, or similar public right-of-way user fees. (G) City shall within thirty (30) days of final approval, give Company notice of annexations and disannexations of territory by the City, which notice shall include a map and addresses, if known. Upon receipt of said notice, Company shall promptly initiate a process to reclassify affected customers into the city limits no later than sixty (60) days after receipt of notice from the City. The annexed areas added to the city limits will be included in future franchise fee payments in accordance with the effective date of the annexation if notice was timely received from City. Upon request from City, Company will provide documentation to verify that affected customers were appropriately reclassified and included for purposes of calculating franchise fee payments. Sec. 20. Books and Records (A) Company agrees that at the time of each quarterly payment, Company shall also submit to the City a statement showing its gross revenues for the preceding calendar quarter as defined in the definition section of this franchise. City shall be entitled to treat such statement as though it were sworn and signed by an officer of Company. (B) City may, if it sees fit, upon reasonable notice to the Company, have the books and records of Company examined by a representative of City to ascertain the correctness of the reports agreed to be filed herein. The Company shall make available to the auditor such personnel and records as the City may in its reasonable discretion request in order to complete such audit, and shall make no charge to the City therefore. The Company shall assist the City in its review by providing all requested information no later than fifteen (15) days after receipt of a request. The cost of the audit shall be borne by the City unless the audit discloses that the Company has underpaid the franchise fee by 10% or more, in which case the reasonable costs of the audit shall be reimbursed to the City by the Company. If such an examination reveals that Company has underpaid the City, then upon receipt of written notification from City regarding the existence of such underpayment, Company shall undertake a review of the City's claim and if said underpayment is confirmed, remit the amount of Ordinance 0-08-1701 Page 14 of 19 underpayment to City, including any interest calculated in accordance with the section titled "Payments to the City" subsection (D). Should Company determine through examination of its books and records that City has been overpaid, upon receipt of written notification from Company regarding the existence of such overpayment, City shall review Company's claim and if said overpayment is confirmed, remit the amount of overpayment to Company. (C) If, after receiving reasonable notice from the City of the City's intent to perform an audit as provided herein, the Company fails to provide data, documents, reports, or information required to be furnished hereunder to the City, or fails to reasonably cooperate with the City during an audit conducted under the terms hereunder, the Company shall be liable for payment of a fee as set forth herein. The City shall give the Company written notice of its intent to impose a fee and shall provide Company with a period to cure its failure, such period not to exceed five (5) working days. If the Company fails to cure the alleged failure within the prescribed time period, the Company's alleged failure to comply shall be heard at a public meeting of the City Council. The Company shall be given written notice of the public meeting no later than five (5) working days prior to the posting date of the agenda for the City Council meeting at which such failure is scheduled to be considered by the City Council. The notice to the Company shall include a list of the failures complained of. Company shall have an opportunity to address the City Council at such public meeting. Commencing five (5) calendar days following the adoption of a resolution or an ordinance of the City that finds and determines a failure of Company to comply with the requirements of this Section, Company may be subject to termination as outlined in Section 24 entitled "Termination." Sec. 21. Reservation of Rights: General (A) The City reserves to itself the right and power at all times to exercise, in the interest of the public and in accordance with state law, regulation and control of Company's use of the public rights-of- way to ensure the rendering of efficient public service, and the maintenance of Company's system in good repair throughout the term of this franchise. Ordinance 0-08-1701 Page 15 of 19 (B) The rights, privileges, and franchise granted by this ordinance are not to be considered exclusive, and City hereby expressly reserves the right to grant, at any time, like privileges, rights, and franchises as it may see fit to any other person for the purpose of furnishing gas for light, heat, and power for City and the inhabitants thereof. (C) City expressly reserves the right to own and/or operate its own system for the purpose of transporting, delivering, distributing, or selling gas to and for the City and inhabitants thereof. (D) Nothing herein shall impair the right of the City to fix, within constitutional and statutory limits, a reasonable price to be charged for natural gas, or to provide and fix a scale of prices for natural gas, and other charges, to be charged by Company to residential consumers, commercial consumers, industrial consumers, or to any combination of such consumers, within the territorial limits of the City as same now exists or as such limits may be extended from time to time hereafter. Sec. 22. Right to Indemnification, Legal Defense and to be Held Harmless (A) In consideration of the granting of this franchise, Company agrees to indemnify, defend and hold harmless the City, its officers, agents, and employees (City and such other persons and entities being collectively referred to herein as "Indemnitees"), from and against all suits, actions or claims of injury to any person or persons, or damages to any property brought or made for or on account of any death, injuries to, or damages received or sustained by any person or persons or for damage to or loss of property arising out of, or occasioned by Company's intentional and/or negligent acts or omissions in connection with Company's operations. (B) The Company's obligation to indemnify indemnitees under this franchise ordinance shall not extend to claims, losses, and other matters covered hereunder that are caused or contributed to by the negligence of one or more indemnitees. In such case the obligation to indemnify shall be reduced in proportion to the negligence of the indemnitees. By entering into this franchise ordinance, City does not consent to suit, waive any governmental immunity available to the City under Texas law or waive any of the defenses of the parties under Texas law. Ordinance 0-08-1701 Page 16 of 19 (C) Except for instances of the City's own negligence, City shall not at any time be required to pay from its own funds for injury or damage occurring to any person or property from any cause whatsoever arising out of Company's construction, reconstruction, maintenance, repair, use, operation or dismantling of system or Company's provision of service. (D) In the event any action or proceeding shall be brought against the indemnitees by reason of any matter for which the indemnitees are indemnified hereunder, Company shall, upon notice from any of the indemnitees, at Company's sole cost and expense, resist and defend the same with legal counsel selected by Company; provided, however, that Company shall not admit liability in any such matter on behalf of the indemnitees without their written consent and provided further that indemnitees shall not admit liability for, nor enter into any compromise or settlement of, any claim for which they are indemnified hereunder, without the prior written consent of Company. Company's obligation to defend shall apply regardless of whether City is solely or concurrently negligent. The indemnitees shall give Company prompt notice of the making of any claim or the commencement of any action, suit or other proceeding covered by the provisions of this Section. Nothing herein shall be deemed to prevent the indemnitees at their election and at their own expense from cooperating with Company and participating in the defense of any litigation by their own counsel. If Company fails to retain defense counsel within seven (7) business days after receipt of Indemnitee's written notice that Indemnitee is invoking its right to indemnification under this franchise, indemnitees shall have the right to retain defense counsel on their own behalf, and Company shall be liable for all reasonable and necessary defense costs incurred by indemnitees. Sec. 23. Insurance The Company will maintain an appropriate level of insurance in consideration of the Company's obligations and risks undertaken pursuant to this franchise, unless a specific amount is required by the City's right-of- way management ordinance, in which case said ordinance shall prevail. Such insurance may be in the form of self-insurance to the extent permitted by applicable law, under an approved formal plan of self- insurance maintained by Company in accordance with sound accounting and risk-management practices. A certificate of insurance shall be provided to the City. The Company will require its self-insurance to Ordinance 0-08-1701 Page 17 of 19 respond to the same extent as if an insurance policy had been purchased naming the City as an additional insured, and any excess coverage will name the City as an additional insured up to the amounts required by the City's right-of-way management ordinance. Sec. 24. Termination (A) Right to Terminate. In addition to any rights set out elsewhere in this franchise ordinance, the City reserves the right to terminate the franchise and all rights and privileges pertaining thereto, in the event that the Company violates any material provision of the franchise. (B) Procedures for Termination. (1) The City may, at any time, terminate this franchise for a continuing material violation by the Company of any of the substantial terms hereof. In such event, the City shall give to Company written notice, specifying all grounds on which termination or forfeiture is claimed, by certified mail, addressed and delivered to the Company at the address set forth in the Section titled "Notices" hereof. The Company shall have sixty (60) days after the receipt of such notice within which to cease such violation and comply with the terms and provisions hereof. In the event Company fails to cease such violation or otherwise comply with the terms hereof, then Company's franchise is subject to termination under the following provisions. Provided, however, that, if the Company commences work or other efforts to cure such violations within thirty (30) days after receipt of written notice and shall thereafter prosecute such curative work with reasonable diligence until such curative work is completed, then such violations shall cease to exist, and the franchise will not be terminated. (2) Termination shall be declared only by written decision of the City Council after an appropriate public proceeding whereby the Company is afforded the full opportunity to be heard and to respond to any such notice of violation or failure to comply. The Company shall be provided notice in writing at least fifteen (15) working days prior to any public hearing concerning the termination of the franchise. In addition, ten (10) days notice by publication Ordinance 0-08-1701 Page 18 of 19 shall be given of the date, time and place of any public hearing to interested members of the public, which notice shall be paid for by the Company. (3) The City, after full public hearing, and upon finding material violation or failure to comply, may terminate the franchise or excuse the violation or failure to comply, upon a showing by the Company of mitigating circumstances or upon a showing of good cause of said violation or failure to comply as may be determined by the City Council. (4) Nothing herein stated shall preclude Company from appealing the final decision of the City Council to a court or regulatory authority having jurisdiction. (5) Nothing herein stated shall prevent the City from seeking to compel compliance by suit in any court of competent jurisdiction if the Company fails to comply with the terms of this franchise after due notice and the providing of adequate time for Company to comply with said terms. Sec. 25. Renegotiation If either City or Company requests renegotiation of any term of this ordinance, Company and City agree to renegotiate in good faith revisions to any and all terms of this ordinance. If the parties cannot come to agreement upon any provisions being renegotiated, then the existing provisions of this ordinance will continue in effect for the remaining term of the franchise. Sec. 26. Severability This ordinance and every provision hereof, shall be considered severable, and the invalidity or unconstitutionality of any section, clause, provision, or portion of this ordinance shall not affect the validity or constitutionality of any other portion of this ordinance. If any term or provision of this ordinance is held to be illegal, invalid or unenforceable, the legality, validity or unenforceability of the remaining terms or provisions of this ordinance shall not be affected thereby. Sec. 27. No Waiver Either City or the Company shall have the right to waive any requirement contained in this ordinance, which is intended for the waiving party's Ordinance 0-08-1701 Page 19 of 19 benefit, but, except as otherwise provided herein, such waiver shall be effective only if in writing executed by the party for whose benefit such requirement is intended. No waiver of any breach or violation of any term of this ordinance shall be deemed or construed to constitute a waiver of any other breach or violation, whether concurrent or subsequent, and whether of the same or a different type of breach or violation. Sec. 28. Effective Date This franchise shall be effective on January 1, 2009, if Company has filed its acceptance as provided by the Section 5 titled "Acceptance of Terms of Franchise" herein. AND IT IS SO ORDERED. The first reading and public hearing being conducted on the 2008. The second reading and public hearing being conducted on the 2008. ATTEST: Cynthia Singleton, TRMC, CMC City Secretary APPROVED AS TO FORM AND LEGALITY: CITY OF COLLEYVILLE David Kelly Mayor day of day of Matthew C. G. Boyle City Attorney SPEAKER CARD ~~~%~ Date: ,.4•will speak In Support of this item. ~" ~,~ I will speak In Opposition to this item. I do not wish to speak, but please record my: ^ Support'Opposition Agenda Ite Number: ~/~.. OrdinancelResolution Number: Name: ~ ~ Address: nl~ ~~--..... ~ ~ ~`,~•~ -~ . Zi Code: City: ~ ~~~~ State: p _ ~ [ ~~ Telephone Number: Representing: organizationlself 1 understand 1 am limited to speaking for five minutes. For business not li ed on the agenda as a Public Hearing, City Council will not respond in accordance with the exas 0 en M ing Law, Chapter 551 of the Texas Local Government Code. Signed: ~- : ~ ~'~..: - --------- ~~, -~ --- This information is a Public Record. "~n- °(_ Cit of Colle ville City Hall ~~ ~ ?'~~ Y Y 100 Main Street ` Colleyville, Texas 76034 ~~~= Agenda Briefing 817.503.1000 www.colleyville.com File Number: R-08-3032 File Number: R-08-3032 Version: 1 File Type: Resolution Agenda Date: 11/18/2008 Requester: Finance Department Agenda No.: 7a Final Action: File Name: Approval to pass through a water and sewer rate increase received by the City of Colleyville from the Trinity River Authority Attachments: Five Year Projection of Utility Fund Expenses Coverage FY 2009 - FY 2013 Current Rates.pdf Five Year Projection of Utility Fund Coverage FY 2009- FY 2013 Proposed Rates.pdf Water and Sewer Rate Comparison of Surrounding Cities.pdf Resolution R-08-3034.pdf History of Legislative File Status: Resolution Controlling Body: City Council Version: Date: Acting Body: Action Text: 11/18/2008 City Council Title Approval to pass through a water and sewer rate increase received by the City of Colleyville from the Trinity River Authority Explanation Reading and Public Hearing Trinity River Authority (TRA) is the sole provider of the City's treated water and wastewater. TRA's Fiscal Year 2009 (FY 2009) budget will go into effect on December 1, 2008. The TRA rate per 1,000 gallons for treated water is $2.02 and the rate per 1,000 gallons for treated wastewater is $1.48. The TRA rates for FY 2008 were $2.02 for water and $1.27 for wastewater. The increases in the rates are due to greater costs for chemicals and debt service for recent TRA debt issuances. The City's current water and sewer rate structure is based upon the FY 2007 TRA rates: water at $1.80 per 1,000 gallons and wastewater at $1.10 per 1,000 gallons. As the City's FY 2008 budget was adopted two months before the FY 2008 TRA budget, the FY 2008 TRA rates were not passed through for the FY 2008 budget. As a part of the FY 2009 budget discussion, staff informed the City Council a rate increase would be necessary in the event TRA's FY 2009 rates were greater than those in the City's current rate structure of $1.80 for water and $1.10 for sewer. Exhibit "A" is a five year projection of utility fund expenses and coverage for FY 2009-2013 under the current rate structure. Due to the TRA rate increases, the current water and sewer rates do not meet the required coverage ratio of 1.20 or the coverage ratio needed for the recently approved Capital Improvement Program (CIP). For FY 2009, the projected coverage ratio is .86 and does not meet the 1.20 ratio required by the bond covenants. City of Colleyville Page 1 Printed on 11/12/2008 Aaenda Briefina Continued (R-08-3032) When the coverage ratio is not met, the rating agencies can downgrade the ratings on existing revenue bonds and future bonds cannot be sold until the coverage ratio is met. In order to meet the required coverage ratio and the CIP ratio, a water rate adjustment of $0.22 per thousand and a sewer rate adjustment of $0.20 per thousand is needed. Exhibit "B" is a five year projection of utility fund expenses and coverage for FY 2009-2013 under the proposed rate structure. The water rate adjustment of $0.22 replicates the TRA increase. The $0.20 rate increase is less than the $0.38 rate increase, as sewer impact fees can be used to pay for the TRA debt service and are included in the impact fee calculation. For the FY 2009 budget, Bedford, Euless and Hurst have increased their water and sewer rates and Keller is proposing a 6% water and sewer rate increase in January 2009. Exhibit "C" is a water and sewer rate comparison of surrounding cities. The rates shown on "Exhibit "C" do not reflect the proposed Keller rate increase. Under the proposed water rate increase, Colleyville citizens would pay $3.71 less than the average of the surrounding cities for 15,000 gallons of water. For 10,000 gallons of sewer, Colleyville citizens would pay $8.01 less than the average of the surrounding cities. The monthly increase in the combined bill for 15,000 gallons of water and 10,000 gallons of sewer would be $4.46. This information was presented to the City Council on November 5, 2008 at the Pre Council meeting. Ordinance 0-89-741 allows a direct pass through of rate increases for treated water and sewer by Trinity River Authority to be adopted by resolution. Resolution R-08-3034 proposes the pass through water rate increase of $.22 and the sewer rate increase of $.20 to be effective December 1, 2008. Financial Impact This rate increase will generate sufficient revenue to offset the increase in TRA rates for treated water and wastewater. Recommendation Approval City of Colleyville Page 2 Printed on 11/12/2008 FIVE YEAR PROJECTION OF UTILITY FUND EXPENSESICOVERAGE FY 2009 - FY 2013 EXHIBIT A CURRENT RATES ASSUMPTIONS 130 NEW WATER/SEWER CUSTOMERS ANNUALLY FISCAL YEAR 2009 2010 2011 2012 2013 AVERAGE ANNUAL WATER CUSTOMERS 8,945 9,075 9,205 9,335 9,465 AVERAGE MONTHLY USAGE 21,168 21,168 21,168 21,168 21,168 AMOUNT DERIVED FROM MINIMUM BILL $1,288,080 $1,306,800 $1,325,520 $1,344,240 $1,362,960 AMOUNT DERIVED FROM VOLUME CHARGE $6,203,393 $6,293,549 $6,383,704 $6,473,860 $6,564,015 AVERAGE ANNUAL SEWER CUSTOMERS 8,173 8,303 8,433 8,563 8,693 AVERAGE MONTHLY USAGE 10,100 10,100 10,100 10,100 10,100 AMOUNT DERIVED FROM MINIMUM BILL $843,454 $856,870 $870,286 $883,702 $897,118 AMOUNT DERIVED FROM VOLUME CHARGE $1,445,836 $1,468,834 $1,491,831 $1,514,829 $1,537,826 OPERATING REVENUE WATER SALES $7,491,473 $7,600,349 $7,709,224 $7,818,100 $7,926,975 SEWER CHARGES $2,289,290 $2,325,704 $2,362,117 $2,398,531 $2,434,944 WATER INSTALLATION $42,000 $42,000 $42,000 $42,000 $42,000 SEWER INSTALLATION $15,000 $15,000 $15,000 $15,000 $15,000 ENGINEERING AND DEVELOPMENT $35,000 $35,000 $35,000 $35,000 $35,000 PENALTY $163,092 $167,985 $173,024 $178,215 $183,561 SEWER TIE ON REVENUE $5,000 $5,000 $5,000 $5,000 $5,000 MISC REVENUE $12,000 $12,000 $12,000 $12,000 $12,000 TOTAL OPERATING REVENUE $10,052,855 $10,203,037 $10,353,366 $10,503,845 $10,654,481 OPERATING EXPENSES: ADMINISTRATION $214,839 $221,284 $227,923 $234,760 $241,803 BILLING $476,216 $490,502 $505,218 $520,374 $535,985 OPERATIONS $2,060,136 $2,152,636 $2,152,636 $2,152,636 $2,152,636 TRA WATER $4,589,501 $4,656,201 $4,722,901 $4,789,602 $4,856,302 TRA SEWER $1,421,663 $1,444,276 $1,466,889 $1,489,502 $1,512,115 OPERATING TRANSFER $770,838 $782,461 $794,084 $805,707 $817,330 TOTAL OPERATING EXPENSES $9,533,192 $9,747,360 $9,869,650 $9,992,581 $10,116,172 OPERATING INCOME $519,663 $455,677 $483,715 $511,264 $538,309 PLUS NON-OPERATING REVENUE (INT INC) $245,000 $245,000 $245,000 $245,000 $245,000 NET INCOME $764,663 $700,677 $728,715 $756,264 $783,309 CALCULATION OF AMOUNT AVAILABLE FOR DEBT COVERAGE: ANNUAL DEBT SERVICE 1996 SERIES $202,842 $205,885 $203,390 $205,340 $206,660 1998 SERIES $213,295 $217,099 $215,498 $218,483 $220,890 2002 REFUNDING SERIES $267,138 $270,093 $272,268 $273,868 $274,863 2004 REFUNDING SERIES $202,206 $205,866 $199,338 $202,624 $195,723 ANNUAL DEBT SERVICE $885,481 $898,943 $890,494 $900,315 $898,136 AMOUNT AVAILABLE FOR DEBT COVERAGE $764,663 $700,677 $728,715 $756,264 $783,309 AMOUNT NEEDED FOR COVERAGE RATIO $1,062,577 $1,078,732 $1,068,593 $1,080,378 $1,077,763 TARGET COVERAGE RATIO-CIP PROGRAM $1,335,481 $1,348,943 $1,340,494 $1,350,315 $1,348,136 -$570,818 -$648,266 -$611,779 -$594,051 -$564,827 TARGET COVERAGE RATIO 1.50 1.50 1.50 1.50 1.50 ACTUAL COVERAGE RATIO 0.86 0.78 0.82 0.84 0.87 FIVE YEAR PROJECTION OF UTILITY FUND EXPENSES/COVERAGE FY 2009 - FY 2013 EXHIBIT B PROPOSED RATES ASSUMPTIONS 130 NEW WATER/SEWER CUSTOMERS ANNUALLY FISCAL YEAR 2009 2010 2011 2012 2013 AVERAGE ANNUAL WATER CUSTOMERS 8,945 9,075 9,205 9,335 9,465 AVERAGE MONTHLY USAGE 21,168 21,168 21,168 21,168 21,168 AMOUNT DERIVED FROM MINIMUM BILL $1,288,080 $1,306,800 $1,325,520 $1,344,240 $1,362,960 AMOUNT DERIVED FROM VOLUME CHARGE $6,203,393 $6,293,549 $6,383,704 $6,473,860 $6,564,015 AVERAGE ANNUAL SEWER CUSTOMERS 8,173 8,303 8,433 8,563 8,693 AVERAGE MONTHLY USAGE 10,100 10,100 10,100 10,100 10,100 AMOUNT DERIVED FROM MINIMUM BILL $843,454 $856,870 $870,286 $883,702 $897,118 AMOUNT DERIVED FROM VOLUME CHARGE $1,445,836 $1,468,834 $1,491,831 $1,514,829 $1,537,826 OPERATING REVENUE: WATER SALES INCREASE WATER VOLUME CHARGE SEWER CHARGES INCREASE SEWER VOLUME CHARGE WATER INSTALLATION SEWER INSTALLATION ENGINEERING AND DEVELOPMENT PENALTY SEWER TIE ON REVENUE MISC REVENUE $7,491,473 $7,600,349 $460,489 $467,181 $2,289,290 $2,325,704 $158,883 $161,410 $42,000 $42,000 $15,000 $15,000 $35,000 $35,000 $163,092 $167,985 $5,000 $5,000 $12,000 $12,000 $7,709,224 $473,873 $2,362,117 $163,938 $42,000 $15,000 $35,000 $173,024 $5,000 $12,000 $7,818,100 $7,926,975 $480,566 $487,258 $2,398,531 $2,434,944 $166,465 $168,992 $42,000 $42,000 $15,000 $15,000 $35,000 $35,000 $178,215 $183,561 $5,000 $5,000 $12,000 $12,000 TOTAL OPERATING REVENUE OPERATING EXPENSES: $10,672,227 $10,831,626 $10,991,176 $11,150,876 $11,310,731 ADMINISTRATION $214,839 $221,284 $227,923 $234,760 $241,803 BILLING $476,216 $490,502 $505,218 $520,374 $535,985 OPERATIONS $2,060,136 $2,152,636 $2,152,636 $2,152,636 $2,152,636 TRA WATER $4,589,501 $4,656,201 $4,722,901 $4,789,602 $4,856,302 TRA SEWER $1,421,663 $1,444,276 $1,466,889 $1,489,502 $1,512,115 OPERATING TRANSFER $770,838 $832,011 $844,371 $858,732 $869,093 TOTAL OPERATING EXPENSES $9,533,192 $9,796,910 $9,919,938 $10,043,606 $10,167,934 OPERATING INCOME $1,139,035 $1,034,718 $1,071,239 $1,107,270 $1,142,797 PLUS NON-OPERATING REVENUE (INT INC) $245,000 $245,000 $245,000 $245,000 $245,000 NET INCOME $1,384,035 $1,279,718 $1,316,239 $1,352,270 $1,387,797 CALCULATION OF AMOUNT AVAILABLE FOR DEBT COVERAGE : ANNUAL DEBT SERVICE 1996 SERIES $202,842 $205,885 $203,390 $205,340 $206,660 1998 SERIES $213,295 $217,099 $215,498 $218,483 $220,890 2002 REFUNDING SERIES $267,138 $270,093 $272,268 $273,868 $274,863 2004 REFUNDING SERIES $202,206 $205,866 $199,338 $202,624 $195,723 ANNUAL DEBT SERVICE $885,481 $898,943 $890,494 $900,315 $898,136 AMOUNT AVAILABLE FOR DEBT COVERAGE $1,364,035 $1,279,718 $1,316,239 $1,352,270 $1,387,797 AMOUNT NEEDED FOR COVERAGE RATIO $1,062,577 $1,078,732 $1,068,593 $1,080,378 $1,077,763 TARGET COVERAGE RATIO-CIP PROGRAM $1,335,481 $1,348,943 $1,340,494 $1,350,315 $1,348,136 $48,554 -$69,225 -$24,255 $1,955 $39,661 TARGET COVERAGE RATIO 1.50 1.50 1.50 1.50 1.50 ACTUAL COVERAGE RATIO 1.56 1.42 1.48 1.50 1.55 RATE INCREASES NEEDED TO FUND TRA RATE WATER INCREASE $0.22 SEWER INCREASE S0.20 WATER AND SEWER RATE COMPARISON OF SURROUNDING CITIE; EXHIBIT C WATER RATE COMPARISON OF SURROUNDING CITIES MINIMUM # OF GALLONS BILL FOR RATE PER CUSTOMER CUSTOMER CUSTOMER CITY BILL IN MINIMUM 2,000 GALS 1,000 GALS BILL BILL BILL 10,000 GALS 15,000 GALS 20,000 GALS BEDFORD $13.20 0 $17.76 $2.28 $36.00 $47.40 $58.80 EULESS $7.25 0 $13.47 $3.11 $38.35 $53.90 $69.45 GRAPEVINE $9.75 2,000 $9.75 $2.74 $31.67 $45.37 $59.07 HURST $12.15 2,000 $12.15 $4.89 $51.27 $75.72 $100.17 KELLER ** $20.26 2,000 $20.21 $2.86 $43.14 $59.04 $74.94 NORTH RICHLAND HILLS $9.30 0 $15.56 $3.25 $41.80 $58.05 $74.30 SOUTHLAKE ** $26.16 2,000 $26.16 $2.75 $48.16 $64.41 $80.66 AVERAGE $14.01 $16.44 $3.13 $41.48 $57.70 $73.91 COLLEYVILLE CURRENT $12.00 2,000 $12.00 $3.01 $34.96 $49.31 $63.66 VARIANCE IN RATES ($2.01) ($4.44) ($0.12) ($6.52) ($8.39) ($10.25) AVERAGE $14.01 $16.44 $3.13 $41.48 $57.70 $73.91 COLLEYVILLE PROPOSED $12.00 2,000 $12.00 $3.23 $37.84 $53.99 $70.14 VARIANCE IN RATES ($2.01) ($4..44) $0.10 x$3.64) ' ($3.71) ($3:77) ** KELLER'S WATER RATE IS $2.86 FOR 2,000 TO 10,000 GALLONS, $3.18 FOR 10,001 TO 20,000 GALLONS, $3.61 FOR 20,001 TO 25,000 GALLONS, $4.72 FOR 25,000 TO 40,000 GALLONS, AND $5.15 FOR ALL USAGE ABOVE 40,000 GALLON; ** SOUTHLAKE'S WATER RATE IS $2.75 FOR 2,000 TO 10,000 GALLONS, $3.25 FOR 10,001 TO 25,000 GALLONS AND $3.50 FOR 25,000 TO 40,000, AND $4.00 FOR ALL USAGE ABOVE 40,000 GALLON; SEWER RATE COMPARISON OF SURROUNDING CITIES CITY MINIMUM # OF GALS BILL FOR RATE PER WINTER CUSTOMER BILL IN MINIMUM 2,000 GALS 1,000 GALS AVERAGE BILL BILL BILLED 10,000 GALS BEDFORD $8.75 0 $10.87 $1.06 Y $19.35 EULESS $5.50 0 $10.36 $2.43 N $29.80 GRAPEVINE $7.80 2,000 $7.80 $3.26 Y $33.88 HURST $8.79 0 $14.43 $2.82 Y $36.99 KELLER $11.85 2,000 $11.85 $2.69 Y $33.37 N RICHLAND HILLS $7.22 0 $10.26 $1.86 Y $25.82 SOUTHLAKE $26.16 2,000 $26.16 $3.00 N $50.16 AVERAGE $10.87 $13.10 $2.45 Y $32.77 COLLEYVILLE CURRENT $8.60 2,000 $8.60 $1.82 Y $22.68 VARIANCE IN RATES ($2.27) ($4.50) ($0.63) ($10.09) AVERAGE $12.40 $14.65 $2.90 Y $37.92 COLLEYVILLE PROPOSED $8.60 2,000 $8.60 $2.02 Y $24.76 VARIANCE IN RATES ($2.27) ($4.50) ' ($0.43) - ($8.01) RESOLUTION R-08-3034 A RESOLUTION PASSING THROUGH A WATER AND SEWER RATE INCREASE RECEIVED BY THE CITY OF COLLEYVILLE FROM THE TRINITY RIVER AUTHORITY WHEREAS, in Fiscal Year 2009 the Trinity River Authority has increased the cost per thousand gallons of treated water by $.22 and increased the cost per thousand gallons of treated wastewater by $.38 to the City of Colleyville; and WHEREAS, under Ordinance 0-89-741, the City Council may by Resolution increase rates proportionately to pass through direct increases by Trinity River Authority for water delivery charges or sewer treatment charges. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF COLLEYVILLE, TEXAS: Sec. 1. THAT for all customer classes, the rate per thousand gallons of water for all usage greater than 2,000 shall increase from $3.01 to $3.23 effective December 1, 2008. Sec. 2. THAT for all customer classes, the rate per thousand gallons of wastewater for all usage greater than 2,000 shall increase from $1.82 to $2.02 effective December 1, 2008 and that per the impact fee plan sewer impact fees allocated to pay for Trinity River Authority debt service may be used for that purpose. AND IT IS SO RESOLVED. APPROVED BY A VOTE OF AYES, NAYS AND ABSTENTIONS ON THIS THE DAY OF 2008. ATTEST: Cynthia Singleton, TRMC, CMC City Secretary CITY OF COLLEYVILLE David Kelly Mayor SPEAKER CARD Date: ~o~/G-», bta" 1 ~ Z.oQ~ _ I will speak In Support of this item. I will speak In Opposition to this item. I do not wish to speak, but please record my: ^ Support ^ Opposition Agenda Item Number: g c3 OrdinancelResolution Number: d - og"' ~~ 9~ Name: wzl-~~..~ ~ .-Ti.~.c-~~ --- Address: l'f S`o H..~..~,cS ,2QL~e S ~-c..~-c ~o City: ~ /`LPe-'t~e- State: ~ Zip Code: ~ 6 oS`~~ Telephone Number: gl~ .4~i"Zb2.6 Representing: ,~o,p ~'~~-~ organization/self 1 understand 1 am limited to speaking for five minutes. For business not listed on the agenda as a Public Hearing, City Council will not respond in accordance with the Texas Open IV~eeting Law, Chapter 551 of the Texas Local Government Code. Signed: This information is a Public Record. ~~~-~~ City Hall tiu~ ~ T ~ City of Colleyville 100 Main Street l~ Colleyville, Texas 76034 ~~~~°~~ Agenda Briefing 817.503.1000 vvww. co I I eyv i l l e. co m File Number: 0-08-1695 File Number: 0-08-1695 Version: 1 Requester: Community Development Department File Type: Ordinance Agenda Date: 11 /18/2008 Agenda No.: 8a Status: Tabled Controlling Body: City Council Final Action: File Name: Approval of a request for a zoning change from R20-Single Family Residential to CPO-Professional Office Commercial on Lot 3, Block 1 of the Sunrise Terrace Addition located at 1117 Glade Road, Case Z-08-017 Attachments: November 14, 2008 Request to Postpone.pdf Applicant's Request to Postpone Location and Zoning Map Notification List Future Land Use Plan Information Received By Applicant Petition of Opposition Existing Property Layout • Zoning Exhibit Ordinance 0-08-1695 History of Legislative File Version: Date: Acting Body: Action Text: 1 08/25/2008 Planning and Zoning Commission 1 09/16/2008 City Council 1 10/07/2008 City Council 1 10/21/2008 City Council 1 11/18/2008 City Council Title Approval of a request fora zoning change from R-20-Single Family Residential to CPO-Professional Office Commercial on Lot 3, Block 1 of the Sunrise Terrace Addition located at 1117 Glade Road, Case Z-08-017 Explanation Update This item is a continuation from the October 21, 2008 City Council meeting and must receive a supermajority vote by the City Council in order to be approved. The applicant is requesting that this item be tabled until the December 2, 2008 meeting. Reading and Public Hearing There were two people who spoke in opposition to the request at the October 7, 2008 meeting. City of Colleyville Page 1 Printed on 11/14/2008 Agenda Briefing Continued (0-08-1695) The applicant has requested this item to be postponed until the November 18, 2008 meeting. The applicant's request is attached to this briefing. Second Reading and Public Hearing One person spoke in opposition to this request at the September 16, 2008 meeting. The City Council requested that the applicant provide building elevations of the proposed office. Staff has contacted that applicant and he stated that he would provide the proposed building designs at the October 7, 2008 City Council meeting. The applicant also stated that he met with surrounding property owners on Wednesday, October 1, 2008 to discuss concerns about the rezoning request. At the September 16, 2008 City Council meeting, staff was requested to review the feasibility of a scenario that involves rezoning the five existing Glade Road properties (including the subject property) located between Bedford Road and Riverwalk Drive along the south side of the road from the R20-Single Family Residential district to the CPO-Professional Office Commercial district. Staff has performed an analysis of this scenario and has identified the issues as follows: The setbacks would change from: 30' front, 10' side, 25' rear; ~,to: 40' front, 25' side (if adjacent to residential, otherwise 15'), 25' rear (if adjacent to resiaential,'otherwise 15'). The maximum building height would remain at 35 feet. A 20 foot landscaped greenbelt would be required to be maintained along adjacent residential properties. Additionally, a minimum eight (8) foot wood or masonry fence would be required along lot lines where adjacent to residential. Any trash receptacles would be required to be screened by a minimum six (6) foot wood or masonry fence. In order to comply with the Land Development Code, mutual access easements would be required for contiguous commercial properties at the time of platting as the minimum separation required between commercial driveways along Glade Road is 250 feet. Additionally, ingress/egress will be required for emergency access, which may include a 24 foot fire lane, two points of access or a "hammerhead" fire turn-around. As this rezoning scenario involves a "straight" rezoning from R20 to CPO, all base Land Development Code requirements, including those stated above, would apply with no possibility of waivers or conditions as part of the rezoning approval. When rezoning from a residential to a commercial use on these properties, the following potential impacts may apply: There may be an increase in traffic along Glade Road as commercial uses generate more traffic than residential uses. For example, a 5,000 square foot general office building will typically generate 60 vehicle trips per day, whereas a single family home wilt generate about ten vehicle trips per day. There may also be an increase in lighting due to the business placing lights for security and parking lot lighting. Finally, there is typically an increase in noise due to more vehicles starting, accelerating onto the street and vehicle doors closing, larger and more numerous air conditioning units, and large garbage trucks emptying City of Colleyville Page 2 Printed on 11/14/2008 Agenda Briefing Continued (0-08-1695) dumpsters, which are required for commercial properties. As to whether any of these impacts affect adjacent residential property values, it is very difficult to determine a correlation between decreased property values in single family properties as a result of adjacent commercial development. In researching Tarrant Appraisal District records from 2000 to 2007, staff could find no such correlations. The development trend along Glade Road between SH26 and Bedford Road has been from residential to light retail and office on both sides of of the road. More recently, the north side of Glade Road between Bedford Road and Riverwalk Drive has seen a transition from residential to office uses. The most recent property to be rezoned from residential to commercial was the property located at 1100 Glade Road, which was rezoned from R20 to PUDC-Planned Unit Development Commercial in October, 2007 to allow an existing single family home to convert to a professional office building. Staff has received approximately ten inquiries in the past year from various realtors and developers regarding rezoning the five properties mentioned above from a residential to an office use. The request by the applicant is the first rezoning request to commercial from residential on any of the properties located along the south side of Glade Road between Bedford Road and Riverwalk Drive. First Reading and Public Hearing Walter James III submitted a request to rezone 0.64 acres of land located at 1117 Glade Road. The applicant is requesting to rezone the property from R20-Single Family Residential to CPO-Professional Office Commercial in order to construct a single tenant office building on the lot. Existing Conditions. The property is currently developed as a single residential lot that contains an existing home. Replat Requirements. Upon approval of the rezoning request, the applicant would be required to make application for a replat per the requirements of the Land Development Code. Upon approval of a subsequent replat, the applicant states the existing home would be demolished and a single tenant office building would be built on the property. Lot Size. The applicant has submitted an exhibit illustrating the existing property boundaries. The CPO zoning district requires a minimum lot area of 7,200 square feet, lot width of 100 feet and lot depth of 120 feet. The property complies with the CPO lot configuration standards of the Land Development Code. Master Plan. The Colleyville Master Plan designates the future use of this area for single family residential type uses. The proposed rezoning request is not in conformance with the Master Plan. Surrounding Development Trends. The property to the north is zoned PUDR-Planned Unit Development Residential and is developed for single family uses with office uses along Glade Road. The properties to the south, east, and west are zoned R20-Single Family City of Colleyville Page 3 Printed on 11/14/2008 Agenda Briefing Continued (0-08-1695) Residential and are developed as single family residences. Public Notification. Staff mailed notices to 12 adjacent property owners regarding this request. Notice was published in the Fort Worth Star-Telegram as required by state law and the Land Development Code. Staff has received a petition with 15 signatures opposing the request. Supermajority Vote Requirement. Since the opposition within 200 feet of the subject property exceeds 20%, the request can only be approved by a supermajority vote by the City Council. This request must receive at least six (6) affirmative votes in order to be approved. Planning and Zoning Commission Recommendation. The Planning and Zoning Commission recommended approval of the request at the August 25, 2008 meeting by a vote of 5-2. Summary. The proposed zoning request does not comply with the Colleyville Master Plan, which recommends office uses for the northern side of Glade Road only. Financial Impact It has been determined that there is no financial impact. Recommendation Denial City of Colleyville Page 4 Printed on 11/14/2008 November 14, 2008 Request to Postpone PREMIER OFFICE EQUITIES 1450 HUGHES ROAD SUITE 101 GRAPEVINE, TX 76051 TELEPHONE: (817) 481-2626 TELEFACSIMILE: (817) 481-2623 November l4, 2008 Ron Ruthven Justin D. Bass City of Colleyville Community Development 100 Main Street Colleyville, TX 76034 RE: 1117 Glade Road Rezoning/Case Z-08-017 Gentlemen: Please accept this letter as Premier Office Equities request th~~t th ;{bove•~referen=•:; case be tabled for the November 18, 2008, meeting for documentation purposes. Should you have any questions, please feel to give me a call. Sincerely, Walter D. James III Cc: Jerry Beane Roger Beavans Mike Cory Applicant's Request to Postpone PREMIER OFFICE EQUITIES 1450 HUGx~S Roan SUITE 101 GRaPEVXNE, TX 76051 TELEPHONE: (817) 481-2626 TELEFACSIMILE: (817) 481-2623 Walter D. James III October 13, 2008 Ron Ruthven Justin D. Bass City of Colleyville Community Development 100 Main Street Colleyville, TX 76034 RE: 1117 Glade Road Rezoning/Case Z-0$-017 Gentlemen: Please accept this letter as Premier Office Equities request that the above-referenced case be tabled for the October 21, 2008, meeting for documentation purposes. Should you have any questions, please feel to give me a call. Si cerel ._.~. Walter D. James III Cc: Jerry Beane Roger Beavans Mike Cory Location and Zoning Map ~~ - 1904 ~ 1106 1112 1115 1120. 5101.. 1~ RI~,'ER' LK __ 91b6 5712 JJ13 11~ itt}~1113 1117 1171 12CM 5013' 1164, 1908 1172 1196 112U 5~5 ~~0a ~ 'A05 9x47 111ft!" 'B~ E. i ~ ~~~ ~110~~ '7109 1113 1117... 1121 - ;G l ^~ ~~~~ y_~Ua 1100 1104 112 1115 1 20 .112$ 1132 ~ S ~te PUDC GLADE RD ~~ 1209 1105 1117 1201 ~ 1fils. 1105 + ~ %~¢ ~- ~~~ ,~~~ ,~,- ~' ~ ti p6 ,96+1 11fj8 ~.~ i ,,,E ~, 2~ 126s 12x1 ~, 1117 -~-----___ ~~~ ~ t } 11 a1 1165 91 oa "~ ~~ Notification List OWNER NAME OWNER ADDR OWNER CITY OWNER STATE OWNER ZIP SITUS ADDR Horak, Jo L PO Box 395 Colle ville TX 76034 1104 Glade Rd Rc Glade Road Ltd 32 Village Ln Ste 200 Colle ville TX 76034 1120 Glade Rd Eckert, Lar & Linda 5225 Fontaine St San Die o CA 92120 1116 Glade Rd Adler, Keith 1112 Glade Rd Colle ville TX 76034 1112 Glade Rd Grisso, Terance R Etux Candice 1205 Glade Rd Colle ville TX 76034 1205 Glade Rd Rika, Sennear Etvir Ton 1201 Glade Rd Colle ville TX 76034 1201 Glade Rd Lockwood, Dale Etux Katherine 3305 Ashmore Ln Gra evine TX 76051 1117 Glade Rd Robert Salter Famil L 209 W 2Nd St # 377 Fort Worth TX 76102 1105 Glade Rd Ed ell, Keith A Etux Am Beth 1116 Jo Carol St Colle ville TX 76034 1116 Jo Carol Ln Li ett, Ronald Etux Debra 1112 Jo Carol St Colle ville TX 76034 1112 Jo Carol Ln Trachier, Steve Etux Connie M 1108 Jo Carol St Colle ville TX 76034 1108 Jo Carol Ln Peterson, Barbara Lisa 1104 Jo Carol St Colle ville TX 76034 1104 Jo Carol Ln Walter, James III 1450 Glade Rd. Suite 101 Gra evine TX 76051 a licant Public hearing notices were mailed on Monday, Aug. 11, 2008 by Amy Shelley. Future Land Use Plan ~: ;w" ~: ti ~7 r ,~ ~;.. ~t <~~ - „~~ ~ , ik ~ p ~ z ~_ Site a ice„, ~€ ~ r....... E E b. _ , ~~ ~~ ~~. w»y~+ ~ ~~: e ~_ ~ ~- ~ ~.ri. x~ ~_. ..,. . ., ~r Y"~+y. ~ ~t ___~ -•-.~. .R ~-- { ~ __ g i ~ ~~ ~, •~~ ~. ~. - ~ f f (- C L.C~ACI Single Family !Multi-Family G~eoe € ~.' Retail Institutional Industrial iRoadway ~" ~ ^ utilities ~.n Parks 'Private Gpen S~ce ~~' Water INFORMATION RECEIVED BY APPLICANT .~ N a~ 0 n 0 ^L LL 0 N c~ C~ ti ~~~~-~~~ ~ ~ ~ ~ -~ 0 L Uo ~ L ~ .r ~ .... ~ - N ~3 U ~ moo. ~~ ~^^U > ..~f O V ~ ^ ~~ ~ "~ C Z ~~ y O `~ ~ U ~'~ .=N ~o ~ ~~ c~ ^ ~1 Q ~ c ~ >`. O ~' ~N _ `~' c c°, ~~ ~ ~~ O~~~o ~ O ~ o a'~~ .~ N ~ ~ fl. ~ ~ N O N ~ L ~'mcv ^~ O ~ O,a p ~~ N o~ ~ ~ ac A~~ ~ ~ ~~ N \r ' L O 4~ ~ O O c ~~ ~ ~ ~ ~ ~~ •..j~ ~ ON ~~oo~ ~ ~ o ~c ~ = ` ca .~ ~ 0 +• 0 ~+~+ ~ o ~ Q~ ~ .~..r c~ ~ ~' Rf ~~ ~ ~ o ~ C O .., m .~ ~ N ~ N "~ E ~~' m £ ~ ~ ~ .N O.0 ~~ C Q U -O~•~s s ~j ~ (~ o td E o " ~ ~ ~N ~- .,.. t ~ "N~~ ~ ~ ~ ~^ Q1 o q ~ _'° ~ ~ ~' a '~n ~Cja~i~cma ~ .x LN ONE=3v,~y N ~ OC fly .E w E o ~ o ~ ~ _ `~- O O O ~~ C N ~> V ~ fO ~ -~ .NVZ~~~o~ ~ cad yN., ~ ~'y 3N~.3N N U Y ~= _,V ~ NpC~c U U L,_ Ul d ~ C O "' (~ O O ~,~ ~Ul C ~C ~ N~ ~ ~ ~ 0 ~~~ .C ~ C ~ vNm..c.OV f6C ,~,},~ 4- ~: ~ coim`_° ~~ W vii .Nw V.r. U C ~ ~-Csm~' ~~ ~~ ~O ~~.Q c c a> > O "~ N •: ~ rv~°~~~~~ O N P V C r~ ~•~~Z~~ ~r~~ca E~ N ~.n N._ c ~ m~m~~ o~'XN ~ N ~ ~ NC9FL-~v,f-w ~~ ~co ,~ 't7 ~ N o ao °-~ •~~ ~ .C ~ ~ ~~ I~-a t~ N O ~ N ~ ~ ~ .N I I I ~ ~ ~ ~L o ._ - ~ ~ ~ OC ~ ~ -~ - ~ ~ ~ ~ , ~ ~, ~ ._ ~ -~ ~ ._ ~ ~ ~ _ ~ ~ ~ Q. ~ .~ ~ O ~ ~ ~ U N ~~ Q -~ ~~,~ ~'~ °~ ~' U ._ O ~~ > j t/) 43 Cif N -~ > c~ W L -1~-+ 4- ~ ~ o -- ~ ~~~ ._ .~ ~~ ~o~ ~ ~ ~ ~ ~ ~ ., O ~ ~ ~ ~ . ~ ~ ~_ ~ ~ ~ ~X ~C~ ~a~ ~'~"'^ -E..r ~ ~ 0 ~ 0 ~ ~ ~ ~ L 1..~ U CCS . -~, Q ca 0 a~ ca y- a~ 0 z c O ~L U N N D m rn a~ J ui U Q W H W Z O 0 m C~ O J 4~ ~1~ r ~ U a~ O 0 ._ Q Ct~ W Z O z 0 U W v~ c~ X 0 U Ca L a.~ O U W w o ~ >~ ~ o .~ U ~ ~ ~ ~ ~ ~ o- ~~ a~ ~ CCS Cv ~ o ~ ~~ ._ ~~ s... M o U 00 U 00 C~ C'7 c~ X F-- 0 U c~ f- ~1 a~ U c a~ E 0 a~ a~ D .~ O N ~ O c~ d ~ U ~ 4- O lam. T o ~ o Q .O =~_~ Q- ~ .U ~' U ~ ~ N ~ O Q.. i.~ U cn o~ O ~ N N ti ~ ~ N C6 o U '~ O IL • .~ ~ o ~ U ~ .} ~_ ~ O m V _ a~ O U •~ N O ~ U A U C U o O U p L Q~ ~ U U =C N ~ U a~ ~ Q..~ O ~ U O , , , , 0 0 N N 47 0 d7 o ~ r L L N N ~ ~ ~ ~ ~ N ~ ~ ~ ~ a i Q ~ ~ ~ • • • Q L O rr ~~~. nVr W ~~ W W V O ^~ a~ L D -#-+ ^~ W ^L.. P1 • ~L W ^~ W .~ •^ ~V'',( L ~ V n, ~/ a~ ~ ~ ~ ~. •• ^^~ ^V, W ..~ ~~ W W V 0 nL' W .~~ a~ ^L. I.J.. ^~ W • ^L W ^~ W .~ •^ •/~ V J Sv, n ' x ~ a~ ~ ~'- ~ L 3 a~ c cv L ~--+ .~ 4~ W ~~ U CCU ~'J ~/ / • ~(^, `J w ^~ U N Q W N U .~ N i N lA'~+J W C~ 3 .. U .~ 4J W •f~ V~ W ~~ O ~`J ~/ ^~ O (L its CCS i CCU a--+ 0 U .~ O O U W 0 ^ ~ ~~ 0 ~~-- .. O O -~ ~ O ~ Q O O U~ C ~ ~~ L ~ C ~•~ ~ ~ o C7 Z ~ O N O Q ~~ ~~ N~ ~~ ~.~ ~ Q•U ~ U U ~o~ a c >,- tt3 U ~ ~ Q ~ - Q U .~ '~ ~ •U (~ O ~ N • ~ > +r N N ,~ ~ O cA ~ c ~ _ °~ ~_ ~ .~ = a? V ~ 'Q ~ . N O ~ V _ yy ,,.. ~ ~i- ~~ "O ~ C N L O -Q N ~ 'N ~ ~ • ~ ~~ O~ ~ ~o .~ ~ cA O O ~ Q N O ~ ~° o ~o ~ ~ O ~ N . ~ ~ ~ o ~ ~ N ~ ~ ~ N . O N~ ~ NO ~ ~ o ~ •~ .~ ~ ~ ~ o ~~ ~ U C V ~ j Q ~ ~ i- ~ v o es ~ Q F - I • • .~.+ V O N ~ N N ~ -~ -p ca ~ O ~ O ~• _ ~~ NON ~:+=.- " N.~ NcA> ~O NUN ~~ ~-QO U NU ~.~ ~ ~ ~ N~ ~ . i ~ ~ ~ o ~• O ~ V V ~ S N ~~ N N ~ N cQ a-' ~ O O c v •"_' 3 ~-°~ °~~ ~ ,~ U .~ U~•N N~ ^ ~ ~ ~ ~ .N Q ~~ ~~ NLN N. ~ N ~ ~ ~•-- Oo ~~,~ cnNto ~N N N ~ ~~ N ~ ~~ ~ Rf~O ~~ ~ _ ~ ,. ~> ° ~, ~ ~ . ~o = a i f1,N o~~ o~a~ • d. ~ «f d .c cn .~ Q U (0 Q U to 0 a~ .~ a~ U y-- 0 N F- a~ .~ 0 a~ U_ O c~ .o 0 CCS 0 a~ 4-- L o cu a~ ~ ~ ~ c~ ~ ~- ~ .~ ~~ a~ ~ V ._ ~ V .~ ~ ~ ~. ~ ~ ~ ~~ ~ ~ -- O Ct3 > ~ _~ .~ ~, Z'3 ~ .a~ o ~~ ~ U ~ ._ U -~ O ~ c~ c~ O ~~ .~ a~ CCU w~ 4-- 0 0 .~ ._ U_ CCU -r a~ O a~ ~--- .~ ~~ 0 0 a~ a~ U X 0 0 .~ .~ a~ 0 CC5 .L ~~ U_ 0 0 0 r-- .~ c~ CCS U ._ .U CCS ._ .~- L 09/11/2008 10:43 6196456902 PAGE 01 Sep 09 08 06:12p Quinfera Petition of Opposition 882325405q p.2 We, t4~e undersigned, property owners in the immediate vicinity of 3.117 Glade Road. Colleyville, are opposed to the re~-zoning ort ],717 Glade Road from d designat;p-~ of Residerrtial to Commerc'sl, Prtlfessionat. Office (CIAO). The property at 1117 Glade Road is directly adpaertt tv resides-tial properties on J o Carol Street and wee begewe such a r:e- xarung wil'I signff, i~a~ly aKeCt bpth'the aualtiy of ftfis of rESide~rts and praperCy vatuesfor the small re5ide~lal neighborExood that inchldes.la Carol Lane and +SatYy Lynne Orhr>•. She CPQ des'~gnatian wiU allow owners of the 2317 Glade Road t+o build up to 35 feet and therebyr•{yave direct visual accesstp a{lfournfthe d'u+ectly adjacent residential properties. The impact.on these ptoper~ie~ privacyand safety will certainly result i1t devay~iation of these directly adjacent properties a1>rJ, as a result afthe comparative analysis used fi valuing and appraising properties, the surrounding properties an the south side of Jo Caru4 Larse and on Garry Lynne brrve. In addition to the devalt]atidn ofthe surrounding residential properties, we believe thatthe propaserl re-zoning of 111 Glade will significantly impact bath noise artd txaffic ievel5 experienced on Glade Road and in the surrounding neighborhood. Given recent commercial developments nn the north side of Gbde Read between Oar ~imher Court and Bluebonnet 1)rnr~, there is signiFii~ant available affce space in the immediate area and curre~ly na need fur adtfitional office space. tt is our understan+ding that adjacent properties on Glade lived have also inquired about potential r+e-zoning anr!(, should 17.17 Glade iioad be approved tnr a CPO designation, these propertieswidlikelyseek to re-zvn a to CPO. If this should occur, the entirE black of Glade Road that is directly adjacent Lo the north side aF ]a Carpi cane will be developed as commernia! property, further increasing the risk of detrd{uatbn too current horneovmers, and further increasing the trafFac aad rwisethat effects our neighborhood and quality of life . W e resp~ertfugy askthatthe Colle~y+rille ~Y Council deny therequest fnr r>:-zoning of 1*i7 Glade Rgad. ~ ~~- '~~ Name ,odd erne Nam Address Address ,, 1 ~ U~ . .a [3 C,4~0~ SAL 1C'±.~V: ~ , (,x Name Address Page ~ To TNILaTE,pp DHIS:54ao FnpM C81D:6829256D5o Page 2 d 3 kCw ON oaur~o08 8:11:37 PhI icanaa~ p~ypyht Tlme) on saver HOSFAX uraupn 01.29 To TMILSTF.AD DNIS;~400 From CSID;6191i436902 Page 1 of 2 RCVD ON 9111100812;42;53 PM (Central Daylight Timed an Server HOSFAX duration 01.13 09/11/2008 10:43 6196456902 PAGE 02 Sep 09 08 06:12p Quintero 6823254050 p,3 Name ~~~1~~~ N~~ - ~1 ~~ Name ~ _ ~ ~~_ Nerve {', f~~ ' ~ f N~~i ~` - Name v ~ U ~ { ~ f l !., Ka me ~.. ~ Andress Addracc Address _ ~ ~ ~ (~ `moo ~,~ ro ~ ~.~ ~_ .-- Address Address . f ~~ Address Addmss ~~ ~~ ~~~ v _ ....~ Nano Address Name Name 1~ddress address ~, 111 ~al,t_'oG ~~~~~ Page 2 To TMILSTEAp pHIS:5A00 From Cs1o:eSa7254oSaPtige 3 of 9 RCYD ON W9t~ogg 6:Yi:27 PM (Central oayQpht Ttm+~ on Server 110SFAx gvratlon 01.23 To TMILSTEAD DNIS;400 From GSID;6196456902 Page 2 of 2 RGYD ON 9l11l200812;42;3ti PM Central Daylight Timed on Server HOSFAX duration 01.13 Existin Pro ert La ou SURVEY PLAT , Tllla i+ to ealitty tart I hero mach a wetul and Dceuroty /utvey. on the ptaund, °t pmpaAy IDCdted et wz,s}1N11Ntasarl~ Lat S, tnoca t, m NWiNINC 7IIgRACO. tICC110p OtW, /n AddNlen to tM ~Ity o! t:diay+llta, Tpm+l Cwrr,ry, raaax, ecenrlt nt1 to 1t1a pr.t ra6ald+d ID Yofum+ ~tN1.7Y, Pape 0/, Yepfptat R+eerda, Torranl County. T+aae. Accerdlnp to Cnmatu,rNyPanol N0. 4pA7NC tl1pNM of the Federal gmatpaeey hlempenent Apaaey FtoDd Irtauraeca Nola tADp Dr Fl++d HuaW pDUndery Idep pelad Aupnel 1. t99N tlra prapaAy ahowa haeoe b not Ivulad M 2oav 'A' (Ana o1 tt~ Year Ftaod lNsln). Tars prap/rty h Ia Zwre'7C'. tfoTE: Ts pre dept of /ay Yeawleepe end Le11et the soeslaenra recorded In Yot. TTSN,Pp. ~O7B 6 Vd. 1i79,Pq. X70. A.P.RT.C T. dD HOT phy/IcaNy ap~at thla Prapady Thla sunray rvo performed erlclwMly /ar the carpe" M conneCtlDn with Iho R.f, pwntler ehewn aen+n and la Neanaed t°r • dnN1D Dee, Thle survey tamatas pre prapeAy of tho Lurveyor. UnaWhorlad rCllse h rynl petMlp+tl wlilrout Ins aapmued Nrltton pormlaalrrn v( the Nutvvyva Thla a4rvay I/ an vdNa.~l tmrt proteetat Ay Unttee stutaa Capyrtpht low and Internatlanel trW UcJ. AN rlphtr laeewee. d° n°tmaMe tllepet e°ptn, GLADE ROAD -- i>yugtcc w~xr-of-wn~ p ~ ~ EAST 175.00' (PLAT) •`~ ores-se~te e rave. taatr~o trx lar• ~~• 1. •' Lt1'U'iilJlYcu.rr.p~'(} . ~. I ~'P~~ 3p•7~ ••IN.a~ ~ta.c .;:r 25'BllILDING ~ I uNE Pu '` tJNa= (pU171 I ~. `S ~ 8alcle ~e:slur~lc~ a :'• I I I~ . r I I ~ ]7,t' I I a a h r~'~ .~y... = ttlQ 87.4' ' I •t ,~ I ~, . •. •- •~ m ~ ~• I x x ~ 27,013 SG.FEET I I ~ LO'f 2 0 ~ LOT3 o.c~n al=aMpcaE , { ~ z ---.-. BLOCK ~ , I I F' ,11.t1' a MtfiAl, 5t1Cfl I I d I I ~~ ~ .~• Lora ~ ~ Itr tm~17Y ~shl I .r ~ I pt7Hl:1t NNtE (r'I.ATI ~ I ~~ ~ ad• FIiAh1ESNE!) d ( ~;rr utF ~ ~ _ ~ N Q9°01'04" W ~ 175.03' (PLAT)1 _ _ ..... _ _ _ _ .., ~ ~ ti~ LOT 7 l,QT 6 LFC7ENiD - -- ~ tD•wr°ueD ~] R~'OITiD ~a unrrrreu _rrw-caaln,nlmtntrl+a~f _ ~~ a,a ,celccr ~ react O LurtM aCrn1 Garcon wl.l3al xvt?•rlvu: ~ tert:etu ~ rKru~rovra Q atrnca -..,p4-eloarerrc ....... ~ rrvsacw ~~ ~ uor~rtat O 1Nru4iit fal a¢-AO ~--tr-Cnt"tlxa.eucC ~aanw• wxvtaa. f" N,lllh aNa(I[an iWa bear exaY N coeNethn wAh Me Henuipa N.~W~ 1M (lr Ma.U3N.Db0D730. te• yrxl •M•f1i tM,cxx 4 a wnxG xnf ^cCenw rr/lee•elxdN cal Ih• /aNnr,lkex ~a0 eMrx*HMl an Merx; axe taILCN1 AS tMOWD, eV lmarxvx,eenlx xr. 1-rxl•e wrrhln e,x Irex"+r/Mx M•,uNRCar /WlaeMe. a!!a DXr ar•t A7 DNDYY II, rhNx •h, xM allpM xe/ +//a,eal ana•o•wr.. xaanaeRar enU ^. /o1,Yx(xw. cal Il,e /rexxe, SCALE i"+ 3U' Dat2?12008 ~ ~r,C4 '---~»,. GATE ~ y r,.,rw,,.; ecurrr" M arryrerlrareDrRArnarwt JOS 180. 08-10('iG vlv-,so".~ rswxN. urm aoar+s !~r -'^"'~'-'~~ ~";;° , ;°y°,,, A 1L W 8UilVEYOFts, I~NL~. ~a° P.O.OOX N7trp79, fAt!SCUITZ; T%•7518T i ry BRAWN by Q02 µHO-1F: (/7a) Der.ra'rs pw~c rorlt dtl1•~95A #"( WyWyAy(„tptlltY.COM Per • ......... No. 449222 Field Notes Description for Lot 3, Block 1, SUNRISE TERRACE, Section One, an addition to the City of Colleyville, Tarrant County, Texas, according to the plat recorded in Volume 388-31, Page 66, Plat Records, Tarrant County, Texas, and being described by metes and bounds as follows: BEGINNING in the south line of Glade Road at the northeast corner of Lot 3; THENCE SOUTH a distance of 161.0 feet to the southeast corner of Lot 3; THENCE North 89 degrees 01 minutes West a distance of 175.0 feet to the southwest corner of Lot 3; THENCE NORTH a distance of 158.0 feet to the south line of Glade Road and to the northwest corner of Lot 3; THENCE EAST a distance of 175.0 feet along the south line of Glade Road to the POINT OF BEGINNING. Bearings based on plat of record. Field Notes compiled by Roger W. Hart, R.P. L.S. 4464 from public records. This does not represent an on the ground survey. c:lprojecLVM49221zorpnp field notes.doc "~ ~ ~ ~` ~ ~ _ AREA SURVEYING, INC. ~! ~ ~ ~ ~ Registered Professional Land Surveyors Page 1 of 1 - ~ 135 Sheffield Drive Voice: 817.293.5684 ~y Fort Worth, TX 76134 Fax: 817.764.2328 i"~~ rrr»ras.w«sawa www.areasurveying.com Zoning Exhibit i i .. .. ....~~....~.. . , > . .. ...W.m.....~.. ..,.,... Glade Road Prop, Walk :Z~--~-. O I _ 25, i O 0 ~ ~--- L___ 40 0 40 Scale: 1' = 40' 10~ U_E___I`~' '---' I~arkinq 40' B.L. u ~ ~ ~ wl ~'rop, Off,131dq, ~ ~ ~I 125.0 I ir)~ 25'__8.1 - ~- 20' Greenbelt C 1~~{p,) prop,~een~ll ~ i i. 5' U.E. ~ S 89° ,1 E 175.0 O c •, °c c ~ ._ •- ~~ ~ - m ., ., ZONING ~XNIf31T X01? ZONING CNANG~ I~OL~ST TOM p20 TO Cp0 Lot 3,131ock I, SUNp15~ 1~ppAC~ Section One according to the plat recorded in Volume 38831, f age 66, flat records, Tarrant CourTty, Tess, Cit,~ of Colleyville, Tarrant Ca,r~{, Texas. prepared O'// 24/ C8 ~ 'p pevised 0fi8p/ 0~8T/'0[~8~{7~ ~ ('''~ .sa .t'~.1, i.~. S V 1.1 V L 1..~J.V ~~ ~~~t. i~ ~ ~~ ~;: ;tc:;,~<~ I~r~f~s~icn~xi ~arr:cl S~1r~r~sZcr ~` 135 5h `tit~sd Rrive • f'~rk ~es~orth, TX 76'43-~Bt3 I~F ~ Vaee:~97.2~3.55'S~ ~ Fax:81T.Tfi4.2328 • 11~eb.ar~~surreying.eom ORDINANCE 0-08-1695 AN ORDINANCE OF THE CITY OF COLLEYVILLE, TEXAS, AMENDING THE COMPREHENSIVE ZONING ORDINANCE OF THE CITY OF COLLEYVILLE, TEXAS, AS HERETOFORE AMENDED; BY AMENDING THE OFFICIAL ZONING MAP AND CHANGING THE ZONING ON 0.64 ACRES ON LOT 3, BLOCK 1, OF THE SUNRISE TERRACE ADDITION, FROM THE R20-SINGLE FAMILY RESIDENTIAL ZONING DISTRICT TO THE CPO-PROFESSIONAL OFFICE COMMERCIAL ZONING DISTRICT; PROVIDING A SAVINGS CLAUSE; PROVIDING FOR INJUNCTIVE RELIEF; PROVIDING A SEVERABILITY CLAUSE; PROVIDING A PENALTY OF FINE NOT TO EXCEED THE SUM OF TWO THOUSAND DOLLARS ($2,000.00) FOR EACH OFFENSE; AND PROVIDING AN EFFECTIVE DATE WHEREAS, the City of Colleyville has received an application for rezoning under Case No. Z-08-017; and WHEREAS, the City of Colleyville deems it necessary, for the purpose of promoting the health, safety, morals, or general welfare of the City to enact a new zoning ordinance; and WHEREAS, the City Council has appointed a Planning and Zoning Commission to recommend the boundaries of the various original zoning districts and appropriate regulations be enforced therein and to recommend a new zoning ordinance; and WHEREAS, the Planning and Zoning Commission has divided the City into districts and has prepared regulations pertaining to such districts in accordance with a comprehensive plan, designed to lessen congestion in the streets; to secure safety from fire, panic, and other dangers; to promote health, general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population; to facilitate the adequate provision of transportation, water, sewerage, schools, parks and other public requirements; and WHEREAS, the Planning and Zoning Commission, has given reasonable consideration to, among other things, the character of the districts and their peculiar suitability for particular uses, with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout the City; and WHEREAS, the Planning and Zoning Commission of the City of Colleyville and the City of Colleyville City Council, in compliance with the Charter of the City of Colleyville, and State Law with reference to changes to zoning classifications under the Zoning Ordinance Regulations and Zoning Map, having given the requisite notices by publication and otherwise, and after holding due hearings and affording a full and fair hearing to all the property owners generally, and to the persons interested and situated in Ordinance 0-08-1695 Page 2 of 3 the affected area and in the vicinity thereof, the governing body of the City of Colleyville is of the opinion that said change in zoning should be made. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF COLLEYVILLE, TEXAS: Sec. 1. THAT all the foregoing premises and findings are found to be true and correct and are incorporated into the body of this ordinance as if copied in their entirety. Sec. 2. THAT the Comprehensive Zoning Ordinance of the City of Colleyville, Texas, be, and the same is hereby amended by changing the zoning of .64 acres on Lot 3, Block 1, of the Sunrise Terrace Addition, from the R20- Single Family Residential zoning district to the CPO-Professional Office Commercial district, as depicted in the attached Exhibit "A". Sec. 3. THAT the above described tract of land shall be used only in the manner and for the purposes provided by the Comprehensive Zoning Ordinance of the City of Colleyville as heretofore amended, and as amended herein. Sec. 4. THAT any person, firm or corporation violating any of the provisions or terms of this ordinance shall be subject to the same penalty as provided for in the Comprehensive Zoning Ordinance of the City of Colleyville, and upon conviction shall be punishable by a fine not to exceed the sum of Two Thousand Dollars ($2,000.00) for each offense. Sec. 5. THAT if any section, paragraph, subdivision, clause, phrase or provision of this ordinance shall be judged invalid or unconstitutional, the same shall not affect the validity of this ordinance as a whole or any portion thereof other than that portion so decided to be invalid or unconstitutional. Sec. 6. THAT in addition to and accumulative of all other penalties, the City shall have the right to seek injunctive relief for any and all violations of this ordinance. Sec. 7. THAT it has been found that there has been a change in conditions in the above described property, it is now necessary that it be given the above zoning classification in order to permit its proper development and in order to protect the public interest, comfort and general welfare, and requires that this ordinance shall take effect immediately from and after its passage. Ordinance 0-08-1695 Page 3 of 3 AND IT IS SO ORDERED. The first reading and public hearing being conducted on the day of 2008. The second reading and public hearing being conducted on the day of 2008. ATTEST: CITY OF COLLEYVILLE Cynthia Singleton, TRMC, CMC David Kelly City Secretary Mayor APPROVED AS TO FORM AND LEGALITY: Matthew C. G. Boyle City Attorney EXHIBIT "A"- Location and Zoning Map s~oa sus s~o~ ~ 1 110T 11f1~ 1193 1412 9129 !w f ~~~~ ~~oo ~ m stop 1164 . 992 1915 1 1124 2f! 9925 1932 PUDC Site ~~AaE Ra ~ 1 _ itu9 11 Q5 1105 1117 12Q1 ~ 12i1p - ~., ~ R ~ , ~, ,, ~ 1112 ~ y~i ~~r~o '11L~4 11Qr3 1116 ~__'"- ~,_, 7-r~tR ~ LN 12p3" 1117 11 Ct9 1'113 1101 '~ 1 >75 ~~~ „ .., (~ ~.~ ~ " ~ City of Colleyville 100 Main Street `~~ Colleyville, Texas 76034 ~~~~~~~ Agenda Briefing 817.503.1000 www.colleyville.com File Number: File Type: Report Version: 1 Agenda Date: 11/18/2008 Requester: Office of the City Agenda No.: 10 Secretary File Name: Reports -November 18, 2008 Status: Reports Controlling Body: City Council Final Action: Attachments: Planning and Zoning Commission Minutes -October 13, 2008 Sign Board of Appeals Minutes -October 14, 2008 Commuter Rail Committee Minutes -October 27, 2008.pdf Commuter Rail Committee Minutes -November 4, 2008.pdf History of Legislative File Version: Date: Acting Body: Action Text: 1 11/18/2008 City Council Title Planning and Zoning Commission Minutes -October 13, 2008 Sign Board of Appeals Minutes -October 14, 2008 Commuter Rail Committee Minutes -October 27, 2008 Commuter Rail Committee Minutes -November 4, 2008 City of Colleyville Page 1 Printed on 11/13/2008 City of Colleyville ~~ r. _ ~~' ~ Minutes -Final a,:.-, Planning and Zoning Commission City Hall 100 Main Street Colleyville, Texas 76034 817. 503.1000 www.colleyville.com Monday, October 13, 2008 6:15 PM City Council Chambers 6:15 P.M.- PRE-COMMISSION WORKSHOP EXECUTIVE CONFERENCE ROOM, THIRD FLOOR LEGAL BRIEFING BY CITY ATTORNEY REGARDING PLANNING, ZONING, PLATTING, AND LAND USE REVIEW OF REGULAR AGENDA ITEMS DISCUSSION OF PREVIOUS MEETING MINUTES 7:00 P.M. REGULAR MEETING 1. CALL TO ORDER The Planning and Zoning Commission meeting of the City of Colleyville was called to order by Chairman Byerly on October 13, 2008 at 7:00 p. m. 2. ROLL CALL Present: Commissioners Dave Dudziak, Michael Clardy, David Phelps and Jeff Byerly Absent: Commissioners Larry Knox, Scott Redfearn and Denis Duffy Staff Present: Ron Ruthven, Justin Bass, Jeremy Hutt, Rob McKeown and Amy Shelley 3. INVOCATION The invocation was given by Commissioner Byerly. 4. PLEDGE OF ALLEGIANCE 5. APPROVAL OF MINUTES Commissioner Dudziak moved to approve the September 8, 2008 meeting minutes as written. Commissioner Phelps seconded. Commissioner Dudziak moved to approve the September 8, 2008 meeting minutes with correction on page 3 with the removal of the word Cify of Colleyville Page i Printed on 11/11/2008 Planning and Zoning Commission Minutes -Final October 13, 2008 "if' in the third paragraph. Commissioner Phelps seconded. The motion carried by the following vote: Aye: 4 -Dudziak, Clardy, Phelps, Byerly Absent: 3 -Knox, Redfearn, Duffy 6. RECOGNITION OF OUTGOING MEMBERS Commissioners Byerly, Phelps and Dudziak all thanked Commissioner Duffy for his service on the Planning and Zoning Commission and stated they would miss him. 7. SWEARING IN OF NEWLY APPOINTED MEMBERS Amy Shelley administered the Oath of Office to the newly appointed members. A new roll call was taken. Present: Commissioners Dave Dudziak, Michael Clardy, David Phelps, Ron Rotthaus and Jeff Byerly. Absent: Commissioners Larry Knox and Scott Redfearn 8. ELECTION OF OFFICERS Commissioner Phelps nominated Commissioner Byerly to Chairman. Commissioner Clardy seconded. All accepted the nomination. Commissioner Byerly nominated Commissioner Dudziak to Vice Chairman. Commissioner Phelps seconded. All accepted the nomination. Commissioner Byerly nominated Amy Shelley to Recording Secretary. Commissioner Dudziak seconded. All accepted the nomination. 9. APPOINTMENTS TO THE PARK LAND DEDICATION COMMITTEE Commissioner Byerly nominated Commissioners Dudziak and Clardy to the Park Land Dedication Committee. Commissioner Phelps seconded. All accepted the nomination. City of Colleyville Page 2 Printed on 11/11/2008 Planning and Zoning Commission Minutes -Final October 13, 2008 10. CITIZEN COMMENTS REGARDING ITEMS NOT ON THE AGENDA None 11. REGULAR AGENDA ITEMS 11a Approval of a request for a minor plat for Lot 1, Block 1 of the Gleason Estates Addition on 0.9 acres being Tracts 3D2A and 3D1 B of Abstract 1346 of the J. Riley Survey located at 114 Quail Run Road, Case P-08-032 Justin Bass presented the case and briefed the Commissioners. Commissioner Dudziak questioned staff if the accessory building is set back from the property line 10 feet? Justin Bass replied yes. Commissioner Byerly moved to approve case P-08-032. Commissioner Dudziak seconded. Commissioner Phelps questioned staff if the existing structure would be removed? Justin Bass replied the existing structure would be removed and if something were to happen to the existing accessory structure, the building would have to be brought up to city standards. Commissioner Phelps questioned staff if this plat would be comparable to the existing neighborhood zoning districts with the same side setbacks? Justin Bass replied yes. Commissioner Dudziak questioned staff if the accessory structures to the far right property line, are they on a foundation or are they on stilts and is it a structure that is safe? Justin Bass referred to the applicant to answer the question. Erich Haas, the applicant, came forward to answer Commissioner Dudziak's question. He stated the accessory structure is on a foundation, concrete slab. The motion carried by the following vote: Aye: 5 -Dudziak, Clardy, Phelps, Rotthaus, Byerly Absent: 2 -Knox, Redfearn 12. PUBLIC HEARING AGENDA ITEMS 12a Approval of a request to amend the Planned Unit Development of Lot 1 R, Block 1 of The Gardens Addition located at 7011 Colleyville Boulevard, Case Z-08-021 Justin Bass presented the case and briefed the Commissioners. City of Colleyville Page 3 Prinfed on 17H1/2008 Planning and Zoning Commission Minutes -Final October 13, 2008 Commissioner Byerly opened the public hearing at 7:15 p.m. Ty Thompson, the applicant's engineer, came forward to answer any questions from the Commissioners. Commissioner Phelps questioned Mr. Thompson regarding how deep is the detention pond and is it going to have water in it permanently? Mr. Thompson stated it would hold water for irrigation purposes in the future. There will have to be retaining walls constructed to hold the water. He stated all construction efforts would be coordinated through the Engineering department. He stated it will be a functional drainage structure. Commissioner Dudziak questioned Mr. Thompson regarding the building of the structure? Mr. Thompson stated the structure would be four feet on the northern end and then slope back to the existing grade. Commissioner Dudziak questioned Mr. Thompson if there would be any flooding of the residents? He stated there would be no chance of flooding of the residents. There being no one wishing to speak, the public hearing was closed at 7:20 p. m. Commissioner Phelps moved to approve case Z-08-021. Commissioner Clardy seconded. The motion carried by the following vote: Aye: 5 -Dudziak, Clardy, Phelps, Rotthaus, Byerly Absent: 2 -Knox, Redfearn 13. 14. 15. STAFF COMMENTS, REPORTS AND DISCUSSION ITEMS None COMMISSIONERS' COMMENTS AND REPORTS None ADJOURNMENT The meeting adjourned at 7:21 p.m. I hereby certify the above agenda was posted on the bulletin boards at City Hall on Thursday, October 9, 2008 by 5:00 p.m. City of Colleyville Page 4 Printed on 11/11/2008 Planning and Zoning Commission Minutes -Final October 13, 2008 Amy Shelley, Planning and Zoning Assistant The meeting minutes were approved on November 10, 2008. City of Colleyville Page 5 Printed on 11/11/2008 •-~'-~~ City of Colleyville City Hall <~._. - 100 Main Street { ~ ~ Colleyville, Texas 76034 Minutes -Final 817.503.1000 +~ ~ www.colleyville.com Sign Board of Appeals Tuesday, October 14, 2008 7:15 PM City Council Chambers 1. CALL TO ORDER The Sign Board of Appeals meeting of the City of Colleyville was called to order by Chairman McNosky on October 14, 2008 at 7:45 p.m. 2. ROLL CALL Present: Board members Skip Reynolds, Ed Moore, Dee McNosky and Bruce Mayhew (Alternate 2) Absent: Board members Rich Munson, Jim Gotcher and Kevin Sams (Alternate 1) Staff Present: Ron Ruthven 3. PLEDGE OF ALLEGIANCE 4. APPROVAL OF MINUTES Board member Reynolds moved to approve the April 29, 2008 meeting minutes as written. Board member Moore seconded. The motion carried by the following vote: Aye: 4 -Reynolds, Moore, McNosky, Mayhew, Alt. 2 Absent: 3 -Gotcher, Munson, Sams, Alt. 1 5. AGENDA ITEMS 5a Case A-08-009- Request for a variance from the regulations of the Colleyville Land Development Code regarding sign requirements on Lot 1, Block 1 of the Northstar Bank Addition located at 6118 Colleyville Boulevard Ron Ruthven presented the case and briefed the Board members. Chairman McNosky opened the public hearing at 7:47 p.m. Rhonda Berry, the applicant, came forward to present and brief the Board members. Board member Reynolds questioned Ms. Berry regarding if the property City of Colleyville Page 1 Printed on 11/12/2008 Sign Board of Appeals Minutes -Final October 14, 2008 owner is aware of this request? Ms. Berry replied yes, the property owner has given her permission to represent her at the meeting. Board member Moore questioned staff regarding if this request meets all of the setback requirements with the expansion of SH26? Ron Ruthven replied yes. He stated the only variance request is for the side yard setback. Board member Reynolds questioned staff regarding the SH26 widening, will there be any safety hazards with the placement of this sign? Ron Ruthven replied the right of way for the current expansion of SH26 has already been acquired. He stated this sign will not block the visibility triangle. Ms. Berry stated this sign will actually set back further than the other two signs on the property. Board member Moore stated he would like an amendment that if the sign has to be removed because of the expansion of SH26, the expense will be the responsibility of the property owner, not of the City. Ron Ruthven stated that would be the case and an amendment would not be necessary. There being no one wishing to speak, the public hearing was closed at 7:57 p.m. Board member Reynolds moved to approve case A-08-009. Board member Mayhew seconded. The motion carried by the following vote: Aye: 4 -Reynolds, Moore, McNosky, Mayhew, Alt. 2 Absent: 3 - Gotcher, Munson, Sams, Alt. 1 6. REPORTS AND COMMENTS Board member Moore stated he would like for staff to make sure the documents are in place for all variance requests. Board member Reynolds stated staff has the ability to enforce the variance requests as approved. 7. ADJOURNMENT The meeting adjourned at 8:00 p.m. City of Colleyville Page 2 Printed on 11/12/2008 Sign Board of Appeals Minutes -Final October 14, 2008 I hereby certify the above agenda was posted on the bulletin boards at City Hall on Thursday, October 9, 2008 by 5:00 p.m. Amy Shelley, Planning and Zoning Assistant The meeting minutes were approved on November 11, 2008. City of Colleyville Page 3 Printed on 11/12/2008 COMMUTER RAIL COMMITTEE MINUTES October 27, 2008 1. Call to Order Chairman John Gooding called the meeting to order at 6:07 p.m. Present: John Gooding, Paul Vigiletti, Fred Mills, Linda Baker, Joyce Hammill, John Leeper, Urmesh Shah, David Grimes, Roger Nelson, John Paul Burnett, Keath Hance, Bartley Butler, Michael Muhm, John Day, Kristian O'Regan Absent: Clif Davis, Rich Hendler Staff: Mike Johnston, Joyceinne Williams Citizens: Chris Whitaker, Orlando Alaniz, Kale & Bill Phillips, Beverly Sonneborn, Tammy & Yuki Nakamura 2. Approval of Minutes: October 13, 2008 John Leeper made a motion to approve the October 13, 2008 minutes. John Day seconded the motion, the motion carried. 3. Committee Discussion John Gooding gave a brief synopsis of the Environmental Impact Study that was received this week. He suggested that more understanding is needed on some important information that is not fully addressed in the report. After listening and viewing the report, several committee members had questions that were not answered in the report: Why the bus system that was, included in the report, was not previously addressed? How many bus bays will there be? Where is it indicated in the report, which houses are included in the noise impact study? What is the property zoning for the location around the proposed? Station (retail/multi-residential)? Is location of bike trails included in the report? It was agreed that Joyce Hammill, John Gooding, and Fred Mills would work together to summarize the questions that need to be addressed from the Environmental Impact Statement. John Gooding stated that a short brochure was mailed out by the Southwest-to-Northeast Rail Corridor which includes information about public hearings to be held on the DEIS. The brochure indicated that following completion of the formal public hearings, the DEIS study team will prepare responses to comments received on the document and incorporate edits into the DEIS where appropriate. This information was e-mailed to all committee members. Committee Members Recommendations Each committee member voiced their pros and cons in preparation for the final report to be submitted to the City Council. It was agreed by everyone that each committee member had valid points for consideration. The vote was taken and there were 10 "For" and 6 "Against" the rail station. (This included Clif Davis comments that were sent in.) A motion was made by Bartley Butler that two groups be formed to summarize an opinion for a station stop and an opinion opposing a station stop in Colleyville. Motion was seconded by Kristen O'Regan and approved by the Committee. The committee decided that each group would choose several representatives that would meet prior to the next meeting, to write a final submittal to the committee. The group representatives "For" are: John Gooding Fred Mills The group representatives "Against" are: Urmesh Shah Bartley Butler Roger Nelson The approval of the group representation was motioned by John Gooding and seconded by Bartley Butler. Citizen Comments There were five comments presented: Chris Whitaker -After reviewing EIS report, his determination was that it included misstated facts, flawed conclusions on environmental impace, and revealed poor economic investment to citizens. He was also concerned about burdensome impact on traffic and knowledge of freight transport. Orlando Alaniz - Need a clear understanding of noise, traffic impact, and overall cost/benefit comparisons as it is related to Co{leyville. Kate Phillips -Indicated that she was disappointed because knowledge of rail committee meetings were not known by the citizens. Their concern of the noise, traffic, odor, and trash will affect Colleyville. Also, safety, cost and tree issues were never addressed from the August meeting. Beverly Sonneborn - Why 8 bus bays? Will there be mitigation in Caldwell Creek (noise)? What is the station concept? Will EIS be available for public view? Tammy Nakamura -Once the committee makes their recommendations, what are the next steps? When are the recommendations going to the City Council? 4. Adjournment There being no further business, Chairman Gooding adjourned the meeting at 9:05 p.m. Minutes taken and prepared by Joyceinne Williams COMMUTER RAIL COMMITTEE MINUTES November 4, 2008 1. Call to Order The meeting was called to order at 9:10 a.m. Present: John Gooding, Joyce Hammill, and Fred Mills 2. Committee Review The committee reviewed the Draft Environmental Impact Study and drafted six (6) questions to submit to the Commuter Rail Committee at the November 10th meeting for review prior to submitting to the Southwest & Northeast Rail Corridor. 3. Adjournment Meeting was adjourned at 11:10 a.m. Minutes taken by John Gooding. RESOLUTION R-08-3033 A RESOLUTION APPROVING COUNCIL ACTION UNDER BUSINESS AT THE REGULAR COUNCIL MEETING OF NOVEMBER 18, 2008 WHEREAS, Council has taken action on certain items on the agenda under Business. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF COLLEYVILLE, TEXAS: Sec. 1. THAT the agenda decisions approved by Council action under Business this date and not otherwise adopted by Ordinance and/or separate Resolution as follows are hereby adopted: a. THAT AND IT IS SO RESOLVED. APPROVED BY A VOTE OF AYES, ON THIS THE DAY OF NAYS AND ABSTENTIONS 2008. ATTEST: Cynthia Singleton, TRMC, CMC City Secretary CITY OF COLLEYVILLE David Kelly Mayor