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05.13.2010 CC Packet rrr CITY OF r 1 11 KENNEDALE 405 Municipal Drive, Kennedale, Texas 76060 www.cityofkennedale.com AGENDA KENNEDALE CITY COUNCIL REGULAR MEETING — MAY 13, 2010 COUNCIL CHAMBERS WORK SESSION — 5:30 PM REGULAR SESSION — 7:00 PM L CALL TO ORDER II. ROLL CALL III. WORK SESSION — 5:30 PM A. UTA Capstone Report on Oak Crest Redevelopment. New B. Chesapeake Report on drilling activities. C. Discuss and review any item on the agenda, if needed. *NOTE: Pursuant to Chapter 551, Texas Government Code, the City Council reserves the right to adjourn into Executive Session at any time during the work session or the regular session to discuss posted executive session items or to seek legal advice from the City Attorney on any item posted on the agenda. IV. REGULAR SESSION — 7:00 PM V. INVOCATION VI. US PLEDGE OF ALLEGIANCE VII. TEXAS PLEDGE OF ALLEGIANCE "Honor the Texas Flag; I Pledge Allegiance to Thee, Texas, One State under God; One and Indivisible." Name Page 1 of 4 ‘trof VIII. PRESENTATION(S) A. Mayor Lankhorst will present a proclamation to the Public Works Department declaring May 16 -22, 2010 as National Public Works Week. B. Nathan Deegan, YAC President will summarize Kennedale Youth Advisory Council activities. IX. VISITOR/CITIZENS FORUM At this time, any person with business before the Council not scheduled on the agenda may speak to the Council. No formal action can be taken on these items at this meeting. X. REPORTS /ANNOUNCEMENTS In addition to any specific matters listed below, the city council may receive a report about items of community interest, including but not limited to recognition of individual officials, citizens or departments, information regarding holiday schedules, upcoming or attended events, etc A. Mayor B. City Council C. City Manager XI. CONSENT AGENDA All matters listed under consent agenda have been previously discussed, require little or no deliberation, or are considered to be routine by the council. If discussion is desired, then an item will be removed from the consent agenda and considered separately. A. Approval of regular meeting minutes dated April 8, 2010. B. Approval of Resolution No. 325, authorizing participation in NLC Prescription Discount Drug Card Program. C. Approval of Notice from the Public Utility Commission (PUC) of Texas for a Consumer Price Index (CPI) Adjustment to municipal telecommunications right -of -way access line rates. D. Approval to authorize the City Manager to execute a contract with Tarrant County Tax Assessor - Collector for the assessment /collection of Ad Valorem taxes for the 2010 Tax Year. E. Approval to authorize the City Manager to execute a License Agreement with Carrizo Oil and Gas Company. XII. REGULAR ITEMS r F. Review and consider action to schedule a special meeting for Monday, May 17, 2010 at 5:30 PM to canvass May 8, 2010 General Election. Page 2 of 4 `hr► G. Review and consider action to approve Ordinance No. 447 of the City of Kennedale, Texas amending Chapter 23 of the Kennedale City Code of Ordinance (1991), as amended, by adding a new Article IX " Stormwater (Drainage) Utility System" to establish a municipal stormwater (drainage) utility system; establish an administrative appeals process; provide penalties and remedies for nonpayment; exempt certain property from fees; and provide a process by which to discontinue the Stormwater (Drainage) Utility System. H. Review and consider action to approve Ordinance No. 448 of the City of Kennedale, Texas amending Chapter 23, Article IX " Stormwater (Drainage) Utility System ", of the Kennedale City Code of Ordinances (1991), as amended, by adding a new Division 2 " Stormwater (Drainage) Utility Fees" to establish monthly stormwater (drainage) utility fees for the purpose of funding the Stormwater (Drainage) Utility System. I. Public hearing, review, and consider action to award bid for oil and gas development for Tracts 1H & 1H01, E.C. Cannon Survey, Abstract 378, City of Kennedale, Tarrant County, Texas. 1. Staff Presentation 2. Public Hearing 3. Action to award bid for oil and gas development. J. Public hearing, review, and consider action to award bid for the sale of land identified as Lots 19, 20, 21A & 21B, Block 1, Woodlea Acres Addition, Kennedale, Tarrant County, Texas. *law 1. Staff Presentation 2. Public Hearing 3. Action to award bid for sale of land. K. Discuss and consider naming of Bowman Springs Rd. L. Review and consider action to declare the U.S. Fallen Heroes Memorial as a City Economic Development Project pursuant to Chapter 380, L.G.C. M. Review and consider action to authorize the City Manager to execute an Interlocal Agreement with Tarrant County to fund transportation project — Kennedale Sublett Road. N. Review and consider action to dedicate easements to utility companies within the boundaries of the former Municipal Drive. O. Review and consider action to authorize the City Manager to execute an Interlocal Agreement with Tarrant County to fund transportation project — Little School Road. XIII. EXECUTIVE SESSION A. The City Council will meet in closed session pursuant to Section 551.071 of the Texas Government Code for consultation with the City Attorney pertaining to any matter in which the duty of the City Attorney under the Texas Disciplinary Rules of Professional Conduct may conflict with the Open Meetings Act, including discussion on any item posted on the agenda. Page 3 of 4 ice 1. Noise ordinance B. The City Council will meet in closed session pursuant to Section 551.072 of the Texas Government Code to deliberate the purchase, exchange, lease, or value of real property for the following: 1. Little School Road re- alignment properties C. The City Council will meet in closed session pursuant to Section 551.087 of the Texas Government Code to deliberate the offer of a financial or other incentive to a business prospect with which the city is conducting economic development negotiations. 1. Transfer of property located at 1000 E. Kennedale Parkway 2. Development of property located at 3830 New Hope Road XIV. RECONVENE INTO OPEN SESSION, AND TAKE ACTION NECESSARY PURSUANT TO EXECUTIVE SESSION, IF NEEDED. XV. ADJOURNMENT In compliance with the Americans with Disabilities Act, the City of Kennedale will provide for reasonable accommodations for persons attending City Council meetings. This building is err wheelchair accessible, and parking spaces for disabled citizens are available. Requests for sign interpreter services must be made forty -eight (48) hours prior to the meetings. Please contact Kathy Turner, City Secretary, at 817.985.2104 or (TDD) 1.800.735.2989 CERTIFICATION I certify that a copy of the May 13, 2010, agenda was posted on the City Hall bulletin board next to the main entrance of the City Hall building, 405 Municipal Drive, of the City of Kennedale, Texas, in a place convenient and readily accessible to the general public at all times and said Agenda was posted on the following date and time: Monday, May 10, 2010 by 5:00 p.m., and remained so posted continuously for at least 72 hours preceding the schedule time of said meeting, in accordance with Chapter 551 of the Texas Government Code. Kathy Turner City Secretary, TRMC /CMC I certify that the attached notice and agenda of items to be considered by the City Council was removed by me from the City Hall bulletin board on the day of , 2010. Title: Kathy Turner, City Secretary, TRMC /CMC Page 4 of 4 StaffReport To the Honorable Mayor and City Council Date: May 5, 2010 Agenda Item No: III A - Subject: Work Session Originated by: Kathy Turner, City Secretary Summary: Work Session ,,,• A. UTA Capstone Report on Oak Crest Redevelopment B. Chesapeake report on drilling activities C. Discuss and review any item on the agenda, if needed. Recommendation: Disposition by Council: StaffReport To the Honorable Mayor and City Council Date: May 5, 2010 Agenda Item No: VIII. Subject: Presentation(s) Originated by: Bob Hart, City Manager Summary: The following presentations will take place: A. Mayor Lankhorst will present a proclamation to the Public Works Department ' declaring May 16 -22, 2010 as National Public Works Week. B. Nathan Deegan, YAC President will provide a report on the Youth Advisory Council activities. Recommended Motion: StaffReport To the Honorable Mayor and City Council Date: May 5, 2010 Agenda Item No: IX. Subject: Visitor /Citizens Forum Originated by: Kathy Turner, City Secretary Summary: At this time, any person with business before the Council not scheduled on the agenda may speak to the Council. No formal action can be taken on these *ow items at this meeting. Recommendation: Disposition by Council: StaffReport To the Honorable Mayor and City Council Date: May 5, 2010 Agenda Item No: X. Subject: Reports /Announcements Originated by: Kathy Turner, City Secretary Summary: In addition to any specific matters listed below, the city council may receive a report about items of community interest, including but not limited to r recognition of individual officials, citizens or departments, information regarding holiday schedules, upcoming or attended events, etc. A. Mayor B. City Council C. City Manager Recommendation: Disposition by Council: StaffReport To the Honorable Mayor and City Council Date: May 5, 2010 Agenda Item No: XI A - Subject: Consent Agenda Originated by: Kathy Turner, City Secretary Summary: The following items have been placed under Consent Agenda. These items are considered to be routine and self - explanatory by the Council and will be enacted with one motion. There will be no separate discussion of these items unless a Councilmember requests that an item be removed from the Consent Agenda and be considered, in sequence, as a routine agenda item. Recommendation: Disposition by Council: w StaffReport To the Honorable Mayor and City Council Date: May 5, 2010 Agenda Item No: XI - A. Subject: Approval of regular meeting minutes dated April 8, 2010. Originated by: Kathy Rimer, City Secretary Summary: Meeting minutes dated April 8, 2010 are attached for your review and consideration. Recommendation: RECOMMEND APPROVAL Disposition by Council: 3491 MINUTES KENNEDALE CITY COUNCIL REGULAR MEETING — APRIL 8, 2010 405 MUNICIPAL DR. — KENNEDALE MUNICIPAL BLDG. COUNCIL CHAMBERS CALL TO ORDER Mayor Lankhorst called the work session to order at 5:30 p.m. II. ROLL CALL Kathy Turner, City Secretary called roll with the following persons present: Council present: Bryan Lankhorst Mayor John Clark Mayor Pro -Tem, Place 1 David Green Councilmember, Place 2 Brian Johnson Councilmember, Place 3 Kelly Turner Councilmember, Place 4 Jerry Miller Councilmember, Place 5 Staff present: Bob Hart City Manager Wayne K. Olson Legal Counsel Kathy Turner City Secretary Rachel Roberts Planner James Cowey Director of Development Services Sakura Moten - Dedrick Director of Finance Tommy Williams Chief of Police Larry Ledbetter Director of Public Works Mike McMurray Fire Chief III. WORK SESSION A. Discuss Utility Billing practices. Bob Hart, City Manager spoke on impervious classifications with the Stormwater Drainage Utility System and Fee Ordinances. Hart indicated that non - residential properties could be classified into categories; however like properties would need to be identified. A chart was then provided to Council, which listed all commercial properties within the City and reflected old and new computations based on impervious findings. Mr. Hart indicated if Council wished to classify non - residential properties into categories, he requested Council differ action because it would require revisions to the proposed ordinance and rate calculations. Next, Diane Palmer with Palmer Price, Inc. explaining that commercial /industrial properties could be divided into small, medium, and large business properties, in which they could be grouped and averaged together. Ms. Palmer said by doing this the larger businesses would be subsidized by the smaller properties in classification tier. 3492 Discussion then ensued with what rate to propose, calculation of rates, classification of churches, and exemption status for the school district. It was suggested to bring item back before Council reflecting a $1.50, $2.00, and $3.00 dollar schedule, non - residential classifications, church accounts, and to revisit the school issue with an interlocal agreement proposed. B. Discuss and review any item on the agenda, if needed. Bob Hart, City Manager addressed modifications to the proposed road projects on Little School Road and Kennedale Sublett Road. Modifications included an additional turn-a- round on Little School Road and Kennedale Sublett Road, as well as a portion of Little School Road being narrowed and median being pulled back to prevent from taking additional right -of -way from the north end of the project (Hoover, Rod, and Baird properties). W. REGULAR SESSION Mayor Lankhorst called the regular session to order at 7:00 p.m. V. INVOCATION Isabel Ericson, Kennedale High School student and member of the First United Methodist Church of Kennedale gave the Invocation. VI. US PLEDGE OF ALLEGIANCE Isabel Ericson, Kennedale High School student and member of the First United Methodist Church led the US Pledge of Allegiance. VII. TEXAS PLEDGE OF ALLEGIANCE "Honor the Texas Flag; I Pledge Allegiance to Thee, Texas, One State under God; One and Indivisible." Isabel Ericson, Kennedale High School student and member of the First United Methodist Church led the Texas Pledge of Allegiance. VIII. PRESENTATION 1. Update from Robert Early, President and CEO with John Peter Smith Hospital. Robert Early, CEO at John Peter Smith Hospital addressed Council in regards to the JPS Health Network. Mr. Early indicated that JPS became a level one trauma center in December 2009, and is the only level one trauma center within Tarrant County. He said no patient would need to be transported out or taken anywhere else from the time entrance was made or from the time patient left healthy, unless the patient was a burn victim. Next, Mr. Early reported that JPS contained the only psychiatric emergency room within 'err Tarrant County that deals with police forces and residents when those persons are needed to come in for psychiatric services. 3493 In closing, Mr. Early offered his help and assistance to the city and citizens of Kennedale and wants the city to benefit from JPS as the facility is a tax payers hospital. Mr. Early then offered an invitation to council and administrative staff to tour the trauma system of JPS. IX. VISITOR/CITIZENS FORUM Pat Doescher, Chairman of the Kennedale Chamber of Commerce announced upcoming Chamber events, which included the following: Business After Hours meeting scheduled for April 13 from 5:30 to 7:00 p.m. at Emerald Hills Funeral Home, Networking Luncheon scheduled for April 21 from 11:30 a.m. to 1:00 p.m. to be held at Life Fellowship Church with guest speaker to be Tarrant County District Attorney, and Candidate Forum to be held on the 27th of April from 6 to 8 p.m. in the Kennedale Council Chambers with Attorney Matthew Wallis moderating the event. Next, Mark Allen, Chamber Executive Director announced the Chamber of Commerce Leads Group, which meets on the 1s and 3 Tuesday of each month in the Chamber Office at 8:30 a.m., and the Wake Up North Texas meeting set for April 28 at 7 a.m. to be held at Big League Dreams, 500 Heritage Parkway South in Mansfield, Texas. Mr. Allen indicated that each meeting group is growing and encouraged anyone who was interested to please participate. Felipe Gutierrez, Art in the Park Event Chair provided an update on the Art in the Park Festival indicating that all vendor booths were sold, budget goals were met, and that a need for volunteers still existed. Mr. Gutierrez encouraged everyone to attend the upcoming event and volunteer, if interested. "' X. REPORTS /ANNOUNCEMENTS In addition to any specific matters listed below, the city council may receive a report about items of community interest, including but not limited to recognition of individual officials, citizens or departments, information regarding holiday schedules, upcoming or attended events, etc A. Mayor — No reports and /or announcements. B. City Council Councilmember Johnson acknowledged his Tarrant County College Government Class and welcomed them to the meeting. C. City Manager Bob Hart, City Manager spoke briefly on the NLC Prescription Drug Card, which is offered through the National League of Cities and is of no costs to the City and indicated that the card provides a twenty percent (20 %) discount on certain prescriptions to those individuals who do not currently have insurance. Mr. Hart then announced the below upcoming events and provided updates on each. • NLC Prescription Drug Card • Bark in the Park — April 10 • Art in the Park — April 16 — 18th 3494 • TownCenter Ground Breaking - April 24 • Economic Analysis — May 4 • Oak Crest Redevelopment Project — May 13 XI. CONSENT AGENDA All matters listed under consent agenda have been previously discussed, require little or no deliberation, or are considered to be routine by the council. If discussion is desired, then an item will be removed from the consent agenda and considered separately. A. Approval of regular meeting minutes dated March 11, 2010. B. Approval of 4 Quarter Quarterly Investment Report. C. Approval of Resolution No. 321, amending Resolution No. 314, calling a General Election to be held on May 8, 2010, and to include early voting sites conducted by other political subdivisions throughout Tarrant County. D. Approval of Ordinance No. 452, amending fees for certain city services. E. Review and consider action to authorize the City Manager to execute a License Agreement with Barnett Gathering, L.P. F. Approval to authorize expenditure of seizure funds to purchase radios for Police Department. G. Approval to authorize expenditure for repair of T -3 Water Well. H. Approval of Change Order No. 1 for Bowman Springs Road (TNP #KEN08305 -02). Councilmember Turner moved to approve consent agenda items A -H, seconded by Councilmember Miller. Motion carried unanimously (5 -0). XII. REGULAR ITEMS I. Review and consider action on Tarrant County Road Bond Project Designs for Little School Road, and Sublett Road. 1. Staff Presentation of Proposed Project Bob Hart, City Manager provided a recap of the Tarrant County Road Projects, which addressed the road projects timeline, County participation parameters, 2007 project review and actions, community issues, and roadway design studies /examples. Mr. Hart stated that the current design that is the topic of discussion was based on resident feedback, traffic projections, and other issues. The round -a -bouts were provided to help for smoother left turning movements at intersections, and would assist with air quality as traffic would continue to move. lorw 3495 A video clip was then shown reflecting a round -a -bout in Southlake, Texas in which the audience could get a sense how traffic moves through the intersections. Mr. Hart indicated that the medians were placed in the roads to encourage low speed, would permit u -turns without traffic backing up, would provide for easier pedestrian crossing safety, and the landscaping would assist with branding of the community. The overall design was recommended for a dramatic change when you enter Kennedale from adjoining communities, and is consistent with the Strategic Plan. 2. Presentation by Youth Advisory Council (YAC) for round -a -bout design Nathan Deegan, Chairman with the Kennedale Youth Advisory Council (YAC) introduced YAC members present and addressed round -a- bouts. Mr. Deegan explained that the main purpose of the Council is to help connect the community and bridge the gap between the City and the student body. In doing so, YAC was presented an opportunity to design a center piece that could be placed within the round -a -bout at the intersection of Wildcat Way and Kennedale Sublett Road. Thinking about how this could help the city and the students, two main questions were asked. One, was this the only way to minimize traffic? Two, what would be some other means by which we could go about doing so? Two main ideas that came to mind were stop signs and stop lights. Decided round -a- bout would be the best way at achieving our cause. With the round -a -bout it has been proven that there is a constant flow of traffic and it decreases the number of accidents. Another factor contemplated when making a decision, was how this could connect our city. If stop signs were installed, Wildcat Way and Sublett's looks would not change and would still be another two streets. Stop lights bring too much of an industrial look. Round -a -bouts in our opinion look more elegant and provide the city a more progressive look. Now that decision was made, we started thinking of ways which we could truly depict the students and the round -a -bout centerpiece. Met to discuss what they would like to see in the round -a -bout. Fahad Ali came up with a centerpiece, in which all students agreed upon. Next, Timothy Brestowski, Vice -Chair of the Kennedale Youth Advisory Council addressed facts and statistics in regards to round -a- bouts. He explained the major differences between the two, as well as the visual difference. He said round -a -bout studies reflect traffic patterns perform better than any other intersection forms including stop light and stop signs, and reduce the number of potential conflicts. Further, the US Dept of Transportation research reflects the severity of accidents were reduced significantly with the installation of round -a- bouts. Mr. Brestowski said a survey was conducted by YAC on students who would be utilizing the round -a- bouts, which reflected 51% in favor, and 49% against. Results lead to further research on percentage against round -a -bouts to see what a better solution would be, in which 32% of the student preferred to keep the roadway as is, 36% wanted a stop light, and 32% preferred a 3 -way stop. 3496 e Fahad Ali then described the centerpiece for the round -a -bout. An aerial view reflects four unique symbols which will be placed on the outside of the top most layers. Symbols included a gavel, which represents the different clubs and organizations within the school to display the orderly way that the school is held together. Secondly, the music notes represents the inter rhythm of the school from the band to the choir and all the personal music players in between. The torch demonstrates athletics of the school. School pride is deep in the green of the uniform and we stand with honor on the field. Last but not least, the masks show the fine arts that run through the school. This symbol represents the showmanship of the students. The main part of the centerpiece is the statue, which is the Wildcat standing primarily over the student with pride and carefulness, the prestigious animal protects the student. The child is reading a book to represent the importance of an education at KHS and KISD. The quote stands in the shadow of the statute, both literally and figuratively. It stands in respect of the structure as it emphasis both the living and learning wings of the school. The quote will be wrapped around the bottom layer of the structure. Parking lights will be placed around the outside of the centerpiece, in which green lights would be lit during home games, and white lights will be lit on all other nights and pointed inwards. Mr. Deegan closed the presentation indicating that a statistic presentation was presented before the leadership class, and found out that many of the students did not understand what a round -a -bout was, and /or the entrance /exit of a round -a -bout. After presentation, opinions were changed to favor the round -a -bout. Round -a -bouts use physical and geometric features that have been repeatedly proven to be safer and more effective than driver obedience and traffic control, and proven safer than any other intersection form. 3. Public Comments Mayor Lankhorst opened the meeting for public comments at 7:51 p.m. Dempsey Farmer, 1150 E. Kennedale Sublett Road, Kennedale, TX registered in opposition to the roadway project design. Mr. Farmer expressed concerns with roadway width being 15' versus 16', as it was a face to face roadway, left turn traffic back up, emergency vehicle access and response times, and round -a -bout pedestrian traffic. Mr. Farmer encouraged Council to reconsider the design of the roadway and make it a safe road for all of the citizens of Kennedale. Roy Boenig, 1020 Kennedale Sublett Road, Kennedale, TX registered in opposition to the roadway project design. Mr. Boenig expressed concerns with road width, driveway modifications for emergency vehicle access, costs to maintain medians, and four lane roadway versus two lane roadway with continuous left turn lane. Also, Mr. Boenig indicated that Council should consider the median on Kennedale Parkway versus rural residential streets. Next, Mr. Boenig indicated roadways would not affect any Councilmember as they did not live along the roadway. He then asked Council to reconsider the roadway medians, as it will affect 53 residential property owners every day for the next 20 years and is a huge inconvenience that should not be done. In closing, he indicated that he was not against the round -a- bouts. 3497 Frank Fernandez, 911 Shady Vale Drive, Kennedale, TX registered in favor of the roadway project design. Mr. Fernandez indicated that the roadway project design has been discussed over the past few years, in which discussions included roadway width, design, costs association, safety, and gateway entrance to the City. He recommended Council move forward with the project as planned. Mayor Lankhorst noted that Patrick White and Peggy Gostomski, 4301 N. Lordsburg Court, Arlington, TX 76017 registered in opposition to the roadway project design, but did not wish to address Council. No further comments, Mayor Lankhorst closed the public hearing at 8:10 p.m. Next, Mayor Lankhorst requested responses from Council in regards to public comments, if any. Councilmember Turner spoke of his experience from driving various fire trucks in Mesquite, Texas in which roadways were not 16' wide and driveway entrances were the standard entry width, which never prevented or delayed a fire truck from getting to a scene. Mike McMurray, Fire Chief addressed Council and the audience stating in his 35 years of experience, firefighters get to where they need to be. Chief McMurray promised the citizens of Kennedale that his department will always be there for them. Councilmember Turner explained that he was not concerned with emergency vehicles being slowed down getting to a residence, not concerned with them getting to your house, not concerned with them making a u -turn to get back to your house, as he feels these are no problems being someone who has driven fire trucks, being someone has sat in the passenger seat, being a citizen who has to rely on them to get to me — no problem with any emergency vehicle getting to any house on the roads. Roadway improvements are not going to hinder the department getting to where they need to get to. Also, Councilmember Turner indicated that roadway did impact him as his parents lived along the roadway, and his street would be affected as more cars would be utilizing his street for the u -turns. In summary, Councilmember Turner said he truly understands and appreciates the issues, but feels it all comes down to the frustrations with the issues of having to make u -turns to get back to one's own driveways when one has not had to do that in the past. Greg Saunders, Engineer with Teague Nall and Perkins indicated that he had been working on the project with the City since 2005. Mr. Saunders said the lane width from the back of the curb is 16', which makes the travel lane 15', and 6" curb on the outside and left inside curb carries a 4" curb, which allows a vehicle to travel up the curb for emergency purposes. Mr. Saunders said roadway is intended to be a one - lane roadway, not two lanes, unless there is an emergency in the roadway. Negie 3498 Mr. Saunders also said there is a left turn lane, which will allow a vehicle to be Atisoe outside the through lanes while waiting. At median opening, there have been adjustments which will allow for a car to be completely within the median while waiting. Mayor Pro -Tem Clark questioned if a median road is safer than a three -lane road with a continuous left turn lane. Mr. Saunders replied generally speaking it is, as elimination of a head -on collision is reduced. Councilmember Miller implied that he hears what everyone is saying as he himself has had. to deal with the same issue when the City of Arlington widening Kelly Perkins and Park Springs with a boulevard street. I knew everything you were going to say when you came because I heard it. I said it. It all boils down to money. When the road projects were discussed over the last five years, council felt it was a pie in the sky thing and probably would never happen. County came out with program that they would pay for half of it and that program goes for so long, and if the city does not take advantage of it the roads will not get built. To build four lanes, boils down to money. Once again how do you pay for it? We can assess curb and gutter fees and we can raise taxes but we are doing all this without doing that. There is really no choice, we either build the roads like they are designed or lose the county money and never build any of our roads. Councilmember Turner stated that he has listened until his ears bled, and he has talked until he was blue in the face, but negotiations to find the best solution the city can offer is what is being presented. I have to believe it is as close as to the right fir• choice we are ever going to get. I don't see it moving one direction or another. It has been discussed by most of these guys up here and plenty of other city staff and boards for long before I was on Council. But from the time I have been on Council it has been something discussed endlessly with open minds. And we have gotten to a point now that we have to move forward and make some decisions, and we are at that point. Please do not think that this is something that was decided six months or a year ago or the conversations last month did not mean anything. There has been a tremendous amount of conversations over the last months dealing with this stuff specifically. Councilmember Johnson questioned the assumption of four lanes in 2030 and asked if it was indeed a valid assumption. Mr. Hart indicated that traffic projections that city relied upon for 2030 shows Little School Road does not need more than what is being designed. Kennedale Sublett Road is still adequate for what is there, but we did not run past 2030. Councilmember Green addressed learning curve of round -a -bouts and reiterated the fact that it has been proven that medians reduce head on collisions. Furthermore, Councilmember Green spoke of inconvenience. Green indicated he and his neighbors are inconvenienced every day as Mistletoe turns into a one way street to help protect the safety of students at James A. Arthur Elementary. Green implied that he must go two blocks out of his way and is required to drive through a school zone due to the one way street that runs right in front of his house. Why is he v__r inconvenienced? It is due to a decision that was made from the city council as well as the school district to keep the students safe when they exit Arthur. 3499 Mayor Pro -Tem Clark said Council has been discussing the road projects since 2005, and every aspect has been examined including the taking of land to build the roads. Clark indicated the charge he has is to do the best he can for the city as a whole. It is an opportunity to get more for the town as a whole, and medians are the safest option that we can have for the city as a whole. Last, Mayor Lankhorst summarized the modifications to the road design, which includes the following: a median cut every 600 feet, median cut on Little School Road at the mid- point between the entrances to Brookstone Estates, median cut on Sublett between Bluebonnet Lane and Kevin Miller, as well as a traffic break at the intersection of Joy Lane. Median will be moved south of the Rod, Hoover, and Baird properties on Little School Road to honor previous promise made several years ago. Connect Sublet sidewalk to Steeplechase Drive. Connect Little School Road sidewalk to Arlington sidewalk. 4. Action, if necessary Councilmember Green moved to approve Tarrant County Bond Project Designs for Little School Road, and Kennedale Sublett Road as modified, seconded by Mayor Pro -Tem Clark. Motion carried unanimously (5 -0). J. Public hearing, review, and consider action to approve Ordinance No. 453, closing a portion of Municipal Drive. 1. Staff Presentation Niari Rachel Roberts, Planner indicated that the KEDC is petitioning the City to close a portion of Municipal Drive, and will then re -plat this portion of the roadway along with Lot 8 into one parcel and dedicate it as public access for the TownCenter. Next, Ms. Roberts advised that the City is negotiating with AT &T for AT &T's portion of Municipal Drive to be included in the closure. If AT &T decides against closing that portion of the Municipal Drive side of its property, the City would adjust the boundaries of the section to be closed so that the AT &T portion is excluded. Furthermore, Roberts advised notification letters were sent out to property owners within 200 feet of the requested closing and that one comment was received in opposition to the closure due to concerns about increased traffic along Third Street. In closing, Roberts indicated that the Planning & Zoning Commission voted to recommend approval of the petition, and is asking the City Council to consider requiring landscape screening to be planted along the street side of the proposed parking lot for Lot 2 of the Kennedale TownCenter. 2. Public Hearing Mayor Lankhorst opened the public hearing for public comments at 8:43 p.m. There being no persons registered to speak, Mayor Lankhorst closed the public hearing at 8:44 p.m. 3500 °+err+ 3. Staff Response and Summary Councilmember Miller questioned reason for landscaping requirements as ordinances were in place to address those issues. Ms. Roberts indicated that the Planning & Zoning Commission was just asking for consideration to address residents concern living adjacent to the parking area. Legal Counsel addressed the vacation and abandonment of Municipal Drive and explained legal differences of closing a street versus vacating a street. Mr. Olson said when a street is closed, the city is legally vacating the street for purposes of it being used as public right -of -way and as explained, it will be used for parking lot purposes afterwards, in which the street will revert to the abutting property owners. Legal Counsel also requested in motion that street vacation does not include portion of roadway abutting AT &T property. 4. Action on Ordinance No. 453 Councilmember Turner moved to approve Ordinance No. 453 excluding the property that abuts AT &T, second by Councilmember Miller. Motion carried unanimously (5- 0). K. Review and consider action to approve Ordinance No. 451, amending Chapter 17, of the Kennedale City Code (1991), as amended, by revising regulations governing outside storage and screening, including loading docks. Mayor Pro -Tem Clark moved to approve Ordinance No. 451, second by Councilmember Green. Mayor Pro -Tem Clark, and Councilmember's Green and Turner voted aye, while Councilmember's Johnson and Miller voted nay. Motion carried (3 -2 -0). L. Review and consider action to approve Ordinance No. 447 of the City of Kennedale, Texas amending Chapter 23 of the Kennedale City Code of Ordinance (1991), as amended, by adding a new Article IX "Stormwater (Drainage) Utility System" to establish a municipal stormwater (drainage) utility system; establish an administrative appeals process; provide penalties and remedies for nonpayment; exempt certain property from fees; and provide a process by which to discontinue the Stormwater (Drainage) Utility System. Councilmember Johnson moved to table Ordinance No. 447 to allow the City Manager to provide a classification system on stormwater drainage fees, second by Councilmember Turner. Motion carried unanimously (5 -0). M. Review and consider action to approve Ordinance No. 448 of the City of Kennedale, Texas amending Chapter 23, Article IX "Stormwater (Drainage) Utility System ", of the Kennedale City Code of Ordinances (1991), as amended, by adding a new Division 2 "Stormwater (Drainage) Utility Fees" to establish monthly stormwater (drainage) utility fees for the purpose of funding the Stormwater (Drainage) Utility System. 3501 Councilmember Johnson moved to table Ordinance No. 448 to allow the City Manager to provide a classification system on stormwater drainage fees, second by Councilmember "' Green. Motion carried unanimously (5 -0). There being no further discussion, Mayor Lankhorst recessed the meeting at 9:00 p.m. to enter into executive session. XIII. EXECUTIVE SESSION A. The City Council will meet in closed session pursuant to Section 551.071 of the Texas Government Code for consultation with the City Attorney pertaining to any matter in which the duty of the City Attorney under the Texas Disciplinary Rules of Professional Conduct may conflict with the Open Meetings Act, including discussion on any item posted on the agenda. B. The City Council will meet in closed session pursuant to Section 551.072 of the Texas Government Code to deliberate the purchase, exchange, lease, or value of real property for the following: 1. Sublett Road re- alignment properties 2. Little School Road re- alignment properties C. The City Council will meet in closed session pursuant to Section 551.074 of the Texas Government Code to deliberate the appointment, employment, evaluation, reassignment, duties, discipline, or dismissal of a public officer or employee. 1. City Manager D. The City Council will meet in closed session pursuant to Section 551.087 of the Texas Government Code to deliberate the offer of a financial or other incentive to a business prospect with which the city is conducting economic development negotiations. 1. Fallen Heroes Monument 2. Transfer of Bowman Springs Road property to the KEDC. 3. Transfer of property located at 1000 E. Kennedale Parkway XIV. RECONVENE INTO OPEN SESSION, AND TAKE ACTION NECESSARY PURSUANT TO EXECUTIVE SESSION, IF NEEDED. Mayor Lankhorst reconvened into open session at 9:55 p.m. A. Approval of Resolution No. 322, authorizing legal counsel to proceed with condemnation of a 0.041 of an acre tract of land situated within the J.M. Lilly Survey, Abstract 980, and the J.M. Lilly Survey, Abstract 985, City of Kennedale, Tarrant County, Texas, and being a portion of a tract of land described to Larry M. Walther by deed recorded in Volume 7892, Page 1314, Deed Records, Tarrant County, Texas, for a public roadway, and /or other public purposes permitted by law. Mayor Pro -Tem Clark moved to approve Resolution No. 322, second by Councilmember Johnson. Motion carried unanimously (5 -0). 3502 B. Approval of Resolution No. 323, authorizing legal counsel to proceed with condemnation `ow of a 0.05 acre tract of land situated within Lot 1, Block 1, Glenn Oaks Addition to the City of Kennedale, Tarrant County, Texas, as shown by plat recorded in Volume 388 -44, Page 42, plat records of Tarrant County, Texas; and a 0.055 of an acre tract of land situated within the W.E. Haltom Survey, Abstract No. 1791, to the City of Kennedale, Tarrant County, Texas, and recorded in Instrument No. D202193953, Deed Records, Tarrant County, Texas for a public roadway, and /or other public purposes permitted by law. C. Approval of Resolution No. 324, authorizing legal counsel to proceed with condemnation of Lots 25 and 26, Block 3, Briarwood Addition to the City of Kennedale, Tarrant County, Texas, according to the plat recorded in Volume 388 -13, Page 47, plat records, Tarrant County, Texas; said area is described in Volume 4284, Page 639, Deed Records, Tarrant County, Texas, for a public roadway and/or other purposes permitted by law. Mayor Pro -Tem Clark moved to approve Resolution No. 324, second by Councilmember Johnson. Motion carried unanimously (5 -0). Mayor Pro -Tem Clark moved to extend the City Manager's Contract three years from ending date of 2011 to 2014 with a consideration of a salary adjustment in the next budget session, second by Councilmember Johnson. Motion carried unanimously (5 -0). XV. ADJOURNMENT There being no further business to consider, Mayor Lankhorst asked for a motion to adjourn the meeting. Councilmember Johnson so moved and Councilmember Green seconded the motion. Meeting adjourned at 10:00 p.m. APPROVED: Mayor, Bryan Lankhorst ATTEST: Kathy Turner, City Secretary vr✓ StaffReport To the Honorable Mayor and City Council Date: May 5, 2010 Agenda Item No: XII -B. Subject: Approval of Resolution No. 325, authorizing participation in NLC Prescription Discount Drug Card Program. Originated by: Bob Hart, City Manager Summary: The NLC prescription discount card is designed to help residents save money on prescriptions that are not covered by insurance. The program is offered in collaboration with the National League of Cities through their member cities. The program is not insurance. The card is offered to all city residents, there are no age or income restrictions. There are no restrictions and no limits on how many times individuals can use the card. One card can be used by all family members. While savings may vary by drug and by pharmacy, the NLC prescription .mow discount card program provides average savings of 20 %. Residents will pay the negotiated discount price offered through the program or the pharmacy's retail price whichever is lower. The card is FREE. There is no cost to the city or to the residents to use the card. There are no enrollment fees and no membership fees. Residents just pay the prescription cost Tess any applicable discounts. There is no waiting period. City residents simply present their card at a participating pharmacy. More than 59,000 pharmacies nationwide participate in the program, including the major chains as well as many independent pharmacies. A dedicated toll -free number is provided for resident's to access CVS Caremark's award winning customer care and a program Web site is available for residents to access program tools and information. The NLC prescription discount card is administered by CVS Caremark the largest provider of prescriptions and related health care services in the nation. CVS Caremark has administered prescription discount programs since 1992. City Council acted on this item last month; however a resolution is required in order for participation. 'Sore Recommendation: Approve Resolution No. 325 authorizing participation in NLC Prescription Discount Drug Card Program. Page 1 of 1 RESOLUTION NO. 325 NLC PRESCRIPTION DISCOUNT CARD PROGRAM WHEREAS, many citizens of Kennedale are among the millions of Americans without health insurance or with limited prescription drug coverage; and WHEREAS, the National League of Cities is sponsoring a program in collaboration with CVS Caremark to provide relief to city residents around the country from the high cost of prescription drugs; and WHEREAS, NLC Prescription Discount Card Program will be available to member cities of NLC at no cost to those cities; and WHEREAS, CVS Caremark will provide participating cities with prescription discount cards, marketing materials and customer support; and WHEREAS, the discount cards offer an average savings of 20 percent off the retail price of most prescription drugs, has no enrollment form or membership fee, no restrictions based on the resident's age or income level, and may be used by city residents and their families any time their prescriptions are not covered by insurance; and NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF KENNEDALE, TEXAS, THAT: The City of Kennedale will inform the National League of Cities of its intent to participate in the NLC Prescription Discount Card Program and will work with NLC and CVS Caremark to implement the program to the benefit of the residents of Kennedale. PASSED, ADOPTED AND APPROVED by the City Council of the City of Kennedale, Texas, on this the 13 day of May 2010. Mayor, Bryan Lankhorst ATTEST: Kathy Turner, City Secretary Ned StaffReport To the Honorable Mayor and City Council Date: May 13, 2010 Agenda Item No: XI —C. Subject: REVIEW AND CONSIDER ACTION REGARDING A NOTICE FROM THE PUBLIC UTILITY COMMISSION (PUC) OF TEXAS FOR A CONSUMER PRICE INDEX (CPI) ADJUSTMENT TO MUNICIPAL TELECOMMUNICATIONS RIGHT -OF -WAY ACCESS LINE RATES Originated by: Sakura Moten - Dedrick Summary: `law HB 1777 went into effect on Sept 1, 1999. As of March 1, 2000, all telecommunications franchise fees in Texas are required to be based on a fee -per- access line method. The PUC, in October 1999, established three categories of access lines - residential, non - residential, and point -to- point. Each city was required to submit its 1998 base amount and allocation of the base amount to the PUC by Dec. 1, 1999. All CTPs were required to submit a city -by -city, December 31, 1998 access line count to the PUC by January 24, 2000. The PUC then calculated maximum access line rates for the three categories of access lines, for each city. The rate for each category, when multiplied by the number of lines in that category in a city, should equal that city's base amount. In March, 2000, the PUC established maximum initial access line rates for 1106 cities. These cities were then allowed to 1) exempt life -line customers, 2) choose lower rates, and 3) update base amounts and allocation formulas. CTPs were allowed to update line counts and petition unreasonable initial allocations. In response to this input from cities and CTPs, the PUC established final access line rates in April, 2000. CTPs were allowed to begin implementing these rates for the 2nd quarter of 2000 (April, May, June), but were required to begin implementing the rates by the 3rd quarter 2000 (July, August, September). State law allows a city to change its rates once a year given the Consumer Price Index, and its allocation once every 2 years. These changes must be initiated by the city each September and become effective the following January. CTPs may also petition the commission on unreasonable allocations in September of each year. The PUC will also annually adjust the access line rates by half of the increase in the Consumer Price Index starting in 2002. Should Council wish to accept this downward /decreased adjustment, we are not required to respond. Council is only required to respond via attached memo no later than April 30, 2010 should it wish to actually decrease the access line rates to levels lower than the new caps currently being proposed by the PUC. Nure Access Line Type 2009 (Current) 2010 (Proposed) 2010 (Difference) , Residential $1.59 $1.58 ($0.01) Non - Residential $1.46 $1.45 ($0.01) Point -To -Point $1.63 $1.62 ($0.01) Recommended Motion: Authorize downward adjustment as proposed by the PUC given approximately a 0.2% decrease in Consumer Price Index and direct staff to take no action. CPI decrease will automatically go into effect on April 30, 2010. Disposition by Council: iii� ►1 t �at., Public Utility Commission of Texas low ". `' 1701 N. Congress Ave., PO Box 13326, Austin, IX 78711 -3326 II 2009 CONSUMER PRICE INDEX ADJUSTMENT TO MUNICIPAL TELECOMMUNICATIONS RIGHT -OF -WAY ACCESS LINE RATES March 26, 2010 PURPOSE This letter is to notify you that your city's 2010 maximum access line rates have decreased by approximately .2% due to a decrease in the Consumer Price Index (CPI). This adjustment has been made pursuant to Chapter 283 of the Local Government Code (House Bill 1777) DEFAULT RATES FOR 2010: DECREASE Based on the choices made by your city in April 2009, your city's 2010 rates will be adjusted for deflation. According to our records, when similar CPI adjustments were made in April 2009, your city chose the MAXIMUM allowable CPI - adjusted rates. Therefore, your 2010 rates will reflect a decrease of .2% from your 2009 rates. You do not have the option to decline this decrease in rates as the adjustment is made pursuant to administrative procedures established for CPI annual adjestments. ACTION BY CITY: TO ACCEPT THE DECREASE (1) You do not have to respond to accept the decreased access line rates. (2) Respond ONLY if you want to decrease the access line rates to levels lower than the new caps. (3) To respond, notify the PUC using page 2 of this letter no later than April 30, 2010. (4) The PUC does not require City council authorization; however, if your city charter requires it, please do so immediately. (5) Verify your contact information and highlight any changes. (6) Make a copy of this document. WHAT HAPPENS IF A CITY DOES NOT RESPOND BY APRIL 30, 2010? It is not necessary fro the city to respond by April 30, 2010. Rates for your city will automatically decrease from the 2009 levels and no further reductions will be made. The next opportunity to adjust rates, assuming they are not already at the MAXIMUM levels, will be September 1, 2010. WHAT HAPPENS NEXT? The PUC will notify telephone companies of your new rates and you will be compensated accordingly beginning July 1, 2010. FUTURE REVISIONS TO CPI The access line rates will be revised annually in March depending on whether the CPI changes for the previous year. If the CPI changes for the year 2010, you will receive a similar letter in March 2011. See over... CITY OF KENNEDALE Section 1: Your 2009 city preferred maximum rates are as follows: Residential $1.59 Non Residential $1.46 Point - to - Point $1.63 Section 2: Your default rates for 2010 are as follows. Note: This is lower than 2009 rates due to a deflation adjustment. Residential $1.58 Non Residential $1.45 Point to point $1.62 To lower your default decrease further, notify the PUC by completing the section below. You can mail or fax this page to the PUC. To accept rates in Section 2, no action is required. , Title , am an authorized representative for the City /Town/Village of . The City declines to accept the default rates indicated in Section 2 above. Instead, we choose the following lower rates: Residential ; Non - Residential ; Point to Point Date: Signature: Other Comments: • HOW TO RESPOND INQUIRIES Mail: John Costello Inquiries only. Not for sending your response. Public Utility Commission HB1777 @puc.state.tx.us P.O. Box 13326 Phone No: 512- 936 -7377 Austin, Texas 78711 -3326 OR FAX TO John Costello at: (512) 936 -7428 CITY CONTACT INFORMATION Please notify us if the contact information we have on file for your city has changed. Thank you. Phone No. 1 (817) 985 - 2110 Phone No. 2 — _ Fax No: (817) 483 -0720 Email: sdedrick @cityofkennedale.com Address SAKURA MOTEN - DEDRICK DIRECTOR OF FINANCE or current city official responsible for right -of -way issues CITY OF KENNEDALE 405 MUNICIPAL DRIVE KENNEDALE TX 76060 StaffReport To the Honorable Mayor and City Council Date: May 13, 2010 Agenda Item No: XI -D. Subject: APPROVAL TO RATIFY CONTRACT WITH TARRANT COUNTY TAX OFFICE FOR THE ASSESSMENT AND COLLECTION OF AD VALOREM TAXES LEVIED BY THE CITY OF KENNEDALE FOR THE 2010 TAX YEAR Originated by: Sakura Moten - Dedrick Summary: *taw This is an annual agreement under which Tarrant County serves as the tax assessor and collector for the City of Kennedale, Texas. This agreement is substantially the same in form as it has been for several years. The main factor which generally changes from year to year is the cost that we are charged by Tarrant County to mail out tax statements. For the 2010 Tax Year (FY2010- 2011), the fee will be $.65 cents per parcel. The prior year fee was $.65. The City of Kennedale will be invoiced for all accounts based on the October billing roll certified to the Tarrant County Tax Assessor /Collector by January 15 and payment must be received by February 15. Recommended Motion: Approve contract. Disposition by Council: Agreement For The Collection Of Taxes COUNTY OF TARRANT § Agreement made this 1 day of MAY t av , 2010, by and between the Tarrant County Tax Assessor /Collector, hereinafter referred to as ASSESSOR/COLLECTOR, and Tarrant County, hereinafter referred to as the COUNTY, both of whom are addressed at 100 E. Weatherford Street, Fort Worth, Texas 76196 -0301, and the City of Kennedale, hereinafter referred to as City, whose address is 405 Municipal Dr, Kennedale, TX 76060. PURPOSE OF AGREEMENT The purpose of this Agreement is to state the terms and conditions under which the ASSESSOR/COLLECTOR will provide assessment and collection services of Ad Valorem taxes levied by the City. NOW THEREFORE, in consideration of the mutual promises herein contained, the parties hereto agree as follows: I SERVICES TO BE PERFORMED The ASSESSOR/COLLECTOR agrees to bill and collect the taxes due and owing on taxable property upon which the City has imposed said taxes. The ASSESSOR/COLLECTOR shall perform the said services in the same manner and fashion as Tarrant County collects its own taxes due and owing on taxable property. The services performed are as follows: receiving the Certified Appraisal Roll from the appropriate Appraisal District and monthly changes thereto; providing mortgage companies, property and tax representatives, tax roll and payment data; providing all necessary assessments of taxes and Truth in Taxation calculations as required; the transmittal of tax statements via the U.S. Mail or electronic transfer of data; and payment processing. All City disbursements, made by check or by electronic transfer (ACH), for collected tax accounts will be made to the City on the day the COUNTY Depository Bank indicates the mandatory assigned "float" period has elapsed and the funds are posted to the collected balance . If any daily collection total is less than one hundred dollars ($100.00), the disbursement may be withheld until the cumulative total of taxes collected for the City equals at least one hundred dollars ($100.00), or at the close of the month. II. REPORTS The ASSESSOR/COLLECTOR will provide the City the following reports, if requested: Daily: General Ledger Distribution Report Weekly: Detail Collection Report (Summary) Monthly: Tax Roll Summary (Totals Only) Year -to -Date Summary Report Detail Collection Report (Summary) Distribution Report (Summary) Delinquent Tax Attorney Tape Annual: Paid Tax Roll Delinquent Tax Roll Current Tax Roll A selection of the above listed Reports will only be available by intemet access. The ASSESSOR/COLLECTOR will provide the City the General Ledger Revenue & Expense Report monthly as required by Sec. 31.10 of the Texas Property Tax Code. III. COMPENSATION In consideration of the services to be performed by the ASSESSOR/COLLECTOR, compensation for the services rendered is a rate of sixty five cents ($.65) per account. The number of accounts will be based on the October billing roll certified to the ASSESSOR/COLLECTOR by the Appraisal District. New accounts added by the appropriate Appraisal District will be billed to the entity. The ASSESSOR/COLLECTOR will invoice for all these accounts by January 11, 2011 with payment to be received from the City by February 14, 2011. • The scope of services identified in this contract does not include the administration of a rollback election. In the event of a successful rollback election, these costs incurred by the Tarrant County Tax Office will be separately identified, billed, and paid by the entity. IV. AUDITS The ASSESSOR/COLLECTOR will provide to the City auditor necessary explanations of all reports and access to ASSESSOR/COLLECTOR in -house tax system computer terminals to assist the City auditor in verifying audit samples of the financial data previously provided by the ASSESSOR/COLLECTOR during the past audit period. V. TAX RATE REQUIREMENT The City will provide the ASSESSOR/COLLECTOR, in writing, the City's newly adopted tax rate and exemption schedule to be applied for assessing purposes by Wednesday, September 15, 2010. Under authority of Section 31.01 (h) of the Property Tax Code, any additional cost of printing and mailing tax statements because of late reporting of the tax rate or the exemption schedule will be charged to and must be paid by the City. If the City wishes its collection reports to be itemized as to maintenance and operation fund and interest and sinking fund, then the notice advising of the new tax rate must set out the separate rates, as well as the total rate. The tax rate and the exemption schedule for each of the last five (5) years in which an ad valorem tax was levied, or all prior years where there remains delinquent tax, must be furnished in writing to the ASSESSOR/COLLECTOR at the time of the initial contract. VI COMPLIANCE WITH APPLICABLE STATUTES, ORDINANCES, AND REGULATIONS In performing the services required under this Agreement, the ASSESSOR/COLLECTOR shall comply with all applicable federal and state statutes, fmal Court orders and Comptroller regulations. If such compliance is impossible for reasons beyond its control, the ASSESSOR/COLLECTOR shall immediately notify the City of that fact and the reasons therefore. VII. DEPOSIT OF FUNDS All funds collected by the ASSESSOR/COLLECTOR in the performance of the services stated herein for the City shall be promptly transferred to the account of the City at the City's depository bank. All payments to entities will be made electronically by the automated clearing house (ACH). The ASSESSOR/COLLECTOR has no liability for the funds after initiation of the ACH transfer of the City's funds from the COUNTY Depository to the City's designated depository. VIII. INVESTMENT OF FUNDS The City hereby agrees that the COUNTY, acting through the COUNTY Auditor, may invest collected ad valorem tax funds of the City during the period between collection and payment. The COUNTY agrees that it will invest such funds in compliance with the Public Funds Investment Act. The COUNTY further agrees that it will pay to the City all interest or other earnings attributable to taxes owed to the City. All parties agree that this Agreement will not be construed to lengthen the time period during which the COUNTY or the ASSESSOR/COLLECTOR may hold such funds before payment to the City. IX. REFUNDS Refunds will be made by the ASSESSOR/COLLECTOR except as set forth herein. The ASSESSOR/COLLECTOR will advise the City of changes in the tax roll which were mandated by the appropriate Appraisal District. The ASSESSOR/COLLECTOR will not make refunds on prior year paid accounts unless the prior year paid accounts for the past five (5) years are provided to the ASSESSOR/COLLECTOR. All refunds of overpayments or erroneous payments due, but not requested, and as described in Section 31.11 of the Texas Property Tax Code, will after three years from the date of payment, be proportionately disbursed to those entities contracting with the ASSESSOR/COLLECTOR. The contract must have been in force, actual assessment and collection functions begun and the tax account was at the time of the over or erroneous payment within the City's jurisdiction. The proportional share is based upon the City's percent of the tax account's total levy assessed at the time of receipt of the over or erroneous payment. In the event any lawsuit regarding the collection of taxes provided for in this agreement to which City of Kennedale is a party, is `'ow' settled or a final judgment rendered, and which final judgment is not appealed, and the terms of such settlement agreement or final judgment require that a refund be issued by City of Kennedale to the taxpayer, such refund shall be made by ASSESSOR/COLLECTOR by debiting funds collected by ASSESSOR/COLLECTOR on behalf of City of Kennedale and remitting such refund to the taxpayer in conformity with the terms of the settlement agreement or final judgment. X DELINQUENT COLLECTIONS The ASSESSOR/COLLECTOR will assess and collect the collection fee pursuant to Sections, 33.07, 33.08, 33.11 (changed order) and 33.48 of the Property Tax Code, when allowed. The ASSESSOR/COLLECTOR will collect attorney fees that are specified by the City through written agreement with a delinquent collection Attorney. The ASSESSOR/COLLECTOR will ' disburse the amount directly to the City for compensation to a Firm under contract to the City. If the delinquent collection Attorney contracted by the City requires attendance of ASSESSOR/COLLECTOR personnel at a court other than the District Courts in downtown Fort Worth, and the COUNTY is not a party, the employee's expenses and proportionate salary will be the responsibility of the City and will be added to the collection expenses and charged to the City. The ASSESSOR/COLLECTOR will not be responsible for the collection of prior year delinquent accounts unless all delinquent accounts information is provided to the ASSESSOR/COLLECTOR. • XL TERM OF AGREEMENT This Agreement shall become effective as of the date hereinabove set out, and shall continue in effect during the 2010 tax year, unless sooner terminated by providing sixty (60) day written notice, as outlined in paragraph XII. XIL NOTICES Any notices to be given hereunder by either party to the other may be effected, in writing, either by personal delivery or by mail, 'wrrr registered or certified, postage prepaid with return receipt requested. Mailed notices shall be addressed to the address of the parties as they appear in the introductory paragraph of this Agreement, but each party may change this address by written notice in accordance with this paragraph. • XIIL MISCELLANEOUS PROVISIONS '" This instrument hereto contains the entire Agreement between the parties relating to the rights herein granted and obligations herein assumed. Any oral representations or modifications concerning this instrument shall be of no force or effect. This Agreement shall be construed under and in accordance with the laws of the State of Texas, and all obligations of the parties created hereunder are performable in Tarrant County, Texas. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective legal representatives and successors. In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or enforceability shall not affect any other provision- hereof and this Agreement shall be construed as if such invalid, illegal, or unenforceable provisions had never been contained. This Agreement and the attachments hereto constitutes the sole and only agreement of the parties hereto and supersedes any prior understandings or written or oral agreements between the parties respecting the within subject matter. Executed on the day and year first above written, Tarrant County, Texas. BY :: BETSY PRICE, RTA DATE TAX ASSESSOR /COLLECTOR • TARRANT COUNTY FOR THE CITY OF KENNEDALE: 5/1/JD BY: DATE TITLE: c i H/ V aAkart • FOR TARRANT COUNTY: BY: B. GLEN WHITLEY DATE TARRANT COUNTY JUDGE APPROVED AS TO FORM * AND CONTENT BY: DISTRICT ATTORNEY'S OFFICE DATE *By law, the District Attorney's Office may only advise or approve contracts or legal documents on behalf of its clients. It may not advise or approve a contract or legal document on behalf of other parties. Our review of this document was conducted solely from the legal perspective of our client. Our approval of this document was offered solely for the benefit of our client. Other parties should not rely on this approval, and should seek review and approval by their own respective attorney(s). StaffReport To the Honorable Mayor and City Council Date: May 5, 2010 Agenda Item No: XI - E. Subject: Approval to authorize the City Manager to execute a License Agreement with Carrizo Oil and Gas Company. Originated by: Bob Hart, City Manager Summary: Carrizo Oil and Gas Company is a pipeline company that transports gas from the wellhead to the market place. Nome The routing of gas lines typically covers private property, public property, and public rights -of -way. Using rights -of -way is often preferable so that property is not encumbered with pipelines that may later serve as deterrents to development. The proposed agreement is premised upon the same concept as franchise agreements, in that the city will regulate the placement and depth of the line with a permit required at the time of construction, requires the relocation of the line in the event of street widening, the submission of as -built plans in a digital format, and payment for use of the right -of -way. The agreement has duration of 20 years. Further, it permits the payment of the annual payments in a lump sum payment with a discount rate of .92 %. The .92% figure is derived from the current two -year Treasury bill rate. As with current rights -of -way fees, the funds will be placed in the Streets Special Revenue Fund. Recommended Motion: PUBLIC RIGHT -OF -WAY USE LICENSE (NATURAL GAS PIPELINE CROSSING) The following statements are true and correct and constitute the basis upon which the City of Kennedalelligi has executed this Agreement. A. Carizzo Oil & Gas Company ( "Company ") wishes to construct a pipeline for the transportation of natural gas under a Public Right -of -Way. B. The City has reviewed Company's request and agrees to grant Company a revocable license to use certain Public Rights -of -Way in order to construct, operate and maintain a pipeline, on the terms and conditions set forth herein, solely for the transportation of Gas and solely in accordance with the terms and conditions of this Agreement. 1. DEFINITIONS. Capitalized terms used in this Agreement and not otherwise defined within this Agreement shall have the following meanings: Affiliate shall mean any individual, partnership, association, joint stock company, limited liability company, trust, corporation, or other person or entity who owns or controls, or is owned or controlled by, or is under common ownership or control with, the entity in question. Agreement shall mean the authorization issued to Company hereunder to use the Public Rights -of -Way for (i) the construction, installation, maintenance and repair of Company's Pipeline; (ii) the use of such Pipeline for the transportation of Gas; and (iii) any other directly related uses of the Public Rights -of -Way, pursuant to and in accordance with this Agreement. Company shall mean Carrizo Oil & Gas Company only and shall not include any Affiliate or third party. City shall mean the area within the corporate limits of the City of Kennedale, Texas and the governing body of the City of Kennedale, Texas. Director of Public Works shall mean the Director of Public Works of the City of Kennedale or the Director of Public Works' designated representative. City Manager shall mean the City Manager of the City of Kennedale or the City Manager's designated representative. Commission shall mean the Railroad Commission of the State of Texas or other authority succeeding to the regulatory powers of the Commission. Customer shall mean any Person located, in whole or in part, within the City. Gas shall mean gaseous natural gas, liquefied natural gas, or any mixture thereof. Person shall mean, without limitation, an individual, a corporation, a limited liability company, a general or limited partnership, a sole proprietorship, a join venture, a business trust or any other form or business entity or association. NuOl Pipeline shall mean the pipeline and other facilities approved by the City Manager that are installed by Company in the Public Rights -of -Way in accordance with this Agreement. Page 1 Public Right -of -Way shall mean only those dedicated public streets, highways, alleys and rights -of -way in the City identified in Exhibit "A" of this Agreement, attached hereto and hereby made a part of this Agreement for all purposes. 2. GRANT OF RIGHTS. 2.1 General Use of Public Rights- of -Wav for Provision of Gas. Subject to the terms and conditions set forth in this Agreement and the City ordinances, the City, to the extent of its interest therein, hereby grants Company a revocable license to (i) erect, construct, install and maintain its Pipeline in, over, under, along and across the Public Rights -of -Way and (ii) transport Gas through the portions of its Pipeline in, over, under, along and across the Public Rights -of -Way. Company hereby acknowledges and agrees that this Agreement allows only the transportation of Gas through the City and does not allow Company to distribute, sell or otherwise provide Gas to any Customer. 2.2. Nonexclusive. This Agreement and all rights granted to Company herein are strictly nonexclusive. The City reserves the right to grant other and future licenses and other authorizations for use of the Public Rights -of -Way to other Persons and entities in accordance with applicable law and as the City deems appropriate; provided, however, that as to the grant of subsequent licenses for use of the same Public Rights -of -Way that is solely within the discretion of the City, if a dispute arises as to priority of the use of the Public Rights -of -Way, the City will resolve such dispute in a manner that does not result in unreasonable interference with Company's operation of the Pipeline for the purposes provided for herein. This Agreement does not establish any priority for the use of the Public Rights -of- Way by Company or by any present or future licensees or other permit holders. In the event of any dispute as to the priority of use of the Public Rights -of -Way, the first priority shall be to the public s generally, the second priority to the City in the performance of its various functions, and thereafter, as between licensees and other permit holders, as determined by the City in the exercise of its powers, including the police power and other powers reserved to and conferred on it by the State of Texas. 2.3. Other Permits. This Agreement does not relieve Company of any obligation to obtain permits, licenses and other approvals from the City or other regulatory agency necessary for the construction, installation, maintenance or repair of Company's Pipeline or the transportation of Gas through such Pipeline. 2.4. Bonds. If any construction, maintenance and repair work in the License Area is undertaken by a contractor of Company, Company shall require such contractor to deliver to Company bonds executed by a corporate surety authorized to do business in the State of Texas and acceptable to the City in the proportional amount of the cost of work under the construction contract or construction project that will be performed by the contractor in the Public Rights -of -Way, or $50,000, whichever amount is greater. The bonds shall guarantee (i) the faithful performance and completion of all construction, maintenance or repair work in accordance with the contract between Company and the contractor and (ii) full payment for all wages for labor and services and of all bills for materials, supplies and equipment used in the performance of that contract; and (iii) that Company shall restore the right -of- -way affected by such cut, opening, or other excavation in a satisfactory and workmanlike manner; (iv) maintain such restoration work in a state of repair satisfactory to the City for a period of two years following the date the City approves the restoration; and fully comply with the City's ordinances governing excavation in the public rights -of -way. If the Company meets its obligations under this Section, the City shall return the bond to the Company upon expiration of the two -year period. The — bonds shall name both the City and Company as dual obligees. Page 2 3. TERM. This License shall become effective on the date as of which both parties have executed it ( "Effective Date ") and this license is granted for a period of twenty (20) years unless terminated earlier as provided herein. 4. FEES AND PAYMENTS TO CITY. 4.1. Right -of -Way Use Fee. On or prior to the Effective Date, and annually thereafter, Company shall pay the City as compensation for its use of the Public Rights -of -Way for the Term of this Agreement the sum of two thousand five hundred fifty -nine dollars and fifteen cents ($2559.15) ( "License Fee "). Company hereby acknowledges and agrees that the amount of this License Fee constitutes just and reasonable compensation for the cost to the City of administering, supervising, inspecting, and otherwise regulating the location of the gas pipeline, including maintaining records and maps of the location of the pipeline(s) contemplated by this Agreement. Licensee shall have the right to pay the entire sum of the License fee at time of execution and receive a .96% discount due to net present value.of money obtained by City. 4.2. Other Payments and Interest. In addition to the License Fee, Company shall pay the City all sums which may be due the City for property taxes, license fees, permit fees, or other taxes, charges or fees that the City may from time to time impose on all other similarly situated entities within the City. All sums not paid when due shall bear interest at the rate of ten percent (10 %) per annum or the maximum amount allowed by law, whichever is less, computed monthly. If such outstanding sums are paid with interest within thirty (30) days following their respective due dates, Company's failure to pay such sums by their respective due dates shall not, in and of itself, constitute an Event of Default under Section 9 of this Agreement. 4.3 City Regulation of Placement. Prior to easement acquisition or installing Licensee's- . pipeline infrastructure across any land within the territorial limits of the City of Kennedale, Texas, Licensee shall confer with and seek the written approval of the City Manager or designee that the proposed route is not in conflict with the City's thoroughfare, drainage, parks, and utility master plans, as such plans exist on the day Licensee seeks the written approval of its proposed route from the City. Should the City Manager or designee conclude that Licensee's proposed route is in conflict with the City's thoroughfare, drainage, parks, and utility master plans, Licensee shall either abandon its proposed route or relocate its pipeline infrastructure in such a manner that it no longer creates a conflict with the City's master plans. 5. REGULATORY AUTHORITY OF THE CITY. Company's property and operations hereunder shall be subject to such regulation by the City as may be reasonably necessary for the protection or benefit of the general public. In this connection, Company shall be subject to, governed by and shall comply with all applicable federal, state and local laws, including all ordinances, rules and regulations of the City, as same may be adopted and amended from time to time. 6. USE OF PUBLIC RIGHTS -OF -WAY. 6.1. Compliance with Laws, Ordinances, Rules and Regulations. The City has the right to control and regulate the use of the Public Rights -of -Way, public places and other City -owned property and the spaces above and beneath them. Company shall comply with all applicable laws, ordinances, rules and regulations, including, but not limited to, City ordinances, rules and policies related to construction permits, construction bonds, permissible hours of construction, operations during peak traffic hours, barricading requirements and any other construction rules or regulations that may be promulgated from time to time. Page 3 6.2. No Undue Burden. The Pipeline shall not be erected, installed, constructed, repaired, replaced or maintained in any manner that places an undue burden on the present or future use of the Public Rights -of -Way by the City and the public. If the City reasonably determines that the Pipeline rve does place an undue burden on any portion of the Public Rights -of -Way, Company, at Company's sole cost and expense and within a reasonable time period specified by the City, shall modify the Pipeline or take other actions determined by the City to be in the public interest to remove or alleviate the burden. 6.3. Minimal Interference. 6.3.1 Notice. Prior to the undertaking of any kind of construction, installation, maintenance, repairs or other work that requires the excavation, lane closure or other physical use of the Public Rights -of -Way, 'Company shall, except for work required to address an emergency, provide at least 24 hours' advance written notice to the owners of property adjacent to the Public Rights -of- Way that will be affected. In the case of emergencies Company shall provide notice to the affected landowners within 24 hours after commencement of work. 6.3.2 Worksite Regulations. During any such work, Company shall provide construction and maintenance signs and sufficient barricades at work sites to protect the public. The use of such traffic control devices shall be consistent with the standards and provisions of Part VI of the Texas Manual on Uniform Traffic Control Devices. Company shall utilize appropriate warning lights at all construction and maintenance sites where one or more traffic lanes are closed or obstructed during nighttime conditions. Licensee shall plan and execute construction of the pipeline so that no flood conditions are created or worsened on the surrounding land. To minimize erosion, the excavated portion of the right -of -way adjacent to the improved portion of the road shall be revegetated in accordance with Exhibit "B ". 6.3.3 Burial. Company shall bury or have buried its pipeline facilities at least seven feet below the lowest point in said right -of -way, and shall encase such portion of the pipeline facilities in steel for the entire width of the right -of -way. During backfill of the pipeline excavation, "Buried Pipeline" warning tape shall be buried one foot above the pipeline to warn future excavators of the presence of the pipeline. 6.4. "As- Built" Plans and Maps. Company, at Company's sole cost and expense, shall provide the City with as -built plans of all portions of the Pipeline located in the City and the City's extraterritorial jurisdiction and maps showing such Pipeline within 90 calendar days following the completion of such Pipeline. Company shall supply the textual documentation of such as -built plans and maps in computer format as requested in writing by the City and shall otherwise fully cooperate with the City in ensuring that the Pipeline is accurately reflected in the City's mapping system. 6.5. Marking of Pipeline. The Pipeline shall be marked, in a manner that is acceptable to the City Manager, to show conspicuously Company's name and a toll -free telephone number of Company that a Person may call for assistance. 6.6. Pavement Cut Coordination and Additional Fees. The City shall have the right to coordinate all excavation work in the Public Rights -of -Way in a manner that is consistent with and convenient for the implementation of the City's program for street construction, rebuilding, resurfacing and repair. To preserve the integrity of the Public Rights -of -Way, Company shall not cut, excavate or otherwise breach or damage the surface of any paved Public Right -of -Way Company obtains written consent from the City Manager, pays an additional fee agreed to by and between the parties, and restores the Public Rights -of -Way in accordance with this Agreement. Page 4 6.7. Restoration of Public Rights -of -Way and Property. Company, at Company's sole cost and expense, and in a manner approved by the City, shall promptly restore any portion of the Public Rights - of -Way, City -owned property or other privately -owned property that are in any way disturbed or damaged by the construction, operation, maintenance or removal of any of the Pipeline to, at Company's* option, as good or better a condition as such property was in immediately prior to the disturbance or damage. Company shall diligently commence such restoration within 30 calendar days following the date that Company first became aware of the disturbance or damage or, if the Pipeline is being removed, within 30 calendar days following such removal. 6.8. Relocation of Pipeline. Within 45 calendar days following a written request by the City, Company, at Company's sole cost and expense, shall protect, support, disconnect or remove from the Public Rights -of -Way all or any portion of its Pipeline due to street or other public excavation, construction, repair, grading, regrading or traffic conditions; the installation of sewers, drains, water pipes or municipally -owned facilities of any kind; the vacation, construction or relocation of streets or any other type of structure or improvement of a public agency; any public work; or any other type of improvement necessary, in the City's sole discretion, for the public health, safety or welfare. If Company reasonably requires more than forty -five (45) days to comply with the City's written request, it shall notify the City Manager in writing and the City will work in good faith with Company to negotiate a workable time frame. Any relocation will require that the Director of Public Works, at Company's expense, approve Company's plans. 6.9. Emergencies. 6.9.1. Work by the City. For purposes of this Section 6.9.1, a public emergency shall be any condition which, in the opinion of the officials specified herein, poses an immediate threat to life, health or property and is caused by any natural or man -made disaster, including, but not limited to, storms, floods, fires, accidents, explosion, water main breaks and hazardous materials spills. In the event of a public emergency, the City shall have the right to take whatever action is deemed appropriate by the City Manager or Fire Chief, or their authorized representatives, including, but not limited to, action that may result in damage to the Pipeline, and Company hereby (i) releases the City, its officers, agents, servants, employees and subcontractors from liability or responsibility for any Damages, as defined in Section 7.1, that may occur to the Pipeline or that Company may otherwise incur as a result of such a response, and (ii) agrees that Company, at Company's sole cost and expense, shall be responsible for the repair, relocation or reconstruction of all or any of its Pipeline that is affected by such action of the City. In responding to a public emergency, the City agrees to comply with all local, state and federal laws, including any requirements to notify the Texas One Call System, to the extent that they apply at the time and under the circumstances. In addition, if the City takes any action that it believes will affect the Pipeline, the City will notify Company as soon as practicable so that Company may advise and work with the City with respect to such action. 6.9.2. Work by or on Behalf of Company. In the event of an emergency directly that involves that portion of the Pipeline located in the Public Rights -of -Way and necessitates immediate emergency response work on or repairs, Company may initiate the emergency response work or repairs or take any action required under the circumstances provided that Company notifies the City as promptly as possible. After the emergency has passed, Company shall apply for and obtain a construction permit from the City Manager and otherwise fully comply with the requirements of this Agreement. 6.10. Removal of Pipeline. Page 5 6.10.1 Company obligated to Remove. Upon the revocation, termination or expiration without extension or renewal of this Agreement, Company's right to use the Public Rights -of -Way under this Agreement shall cease and Company shall immediately discontinue the transportation of Gas in or N through the City. Within six (6) months following such revocation, termination or expiration and if the City requests, Company, at Company's sole cost and expense, shall remove the Pipeline from the Public Rights -of -Way (or cap the Pipeline, if consented to by the City), in accordance with applicable laws and regulations. 6.10.2 City's Right to Remove. If Company has not removed all of the Pipeline from the Public Rights -of -Way (or capped the Pipeline, if consented to by the City) within six (6) months following revocation, termination or expiration of this Agreement, the City may deem any portion of the Pipeline remaining in the Public Rights -of -Way abandoned and, at the City's sole option, (i) take possession of and title to such property or (ii) take any and all legal action necessary to compel Company to remove such property; provided, however, that Company may not abandon its facilities or discontinue its services within the City without the approval of the Commission or successor agency or any other regulatory authority with such jurisdiction. 6.10.3 Restoration of Property. Within six (6) months following revocation, termination or expiration of this Agreement and in accordance with Section 6.7 of this Agreement, Company shall also restore any property, public or private, that is disturbed or damaged by removal (or, if consented to by the City, capping) of the Pipeline. If Company has not restored all such property within this time, the City, at the City's sole option, may perform or have performed any necessary restoration work, in which case Company shall immediately reimburse the City for any and all costs incurred in performing or having performed such restoration work. 7. LIABILITY AND INDEMNIFICATION. 7.1. Liability of Company. Company shall be liable and responsible for any and all damages, losses, liabilities (joint or several), payments, obligations, penalties, claims, litigation, demands, defenses, judgments, lawsuits, proceedings, costs, disbursements or expenses (including, without limitation, fees, disbursements and reasonable expenses of attorneys, accountants and other professional advisors and of expert witnesses and costs of investigation and preparation) of any kind or nature whatsoever (collectively "Damages"), which may arise out of or be in any way connected with (i) the construction, installation, operation, maintenance or condition of the Pipeline or any related facilities or appurtenances; (ii) the transportation of Gas through the Pipeline; (iii) any claim or lien arising out of work, labor, materials or supplies provided or supplied to Company, its contractors or subcontractors; or (iv) Company's failure to comply with any federal, state or local law, ordinance, rule or regulation, except to the extent directly caused by the intentional misconduct of the City. 7.2. Indemnification. COMPANY, AT COMPANY'S SOLE COST AND EXPENSE, SHALL INDEMNIFY AND HOLD HARMLESS THE CITY, ITS OFFICERS, BOARDS, COMMISSIONS, AGENTS, EMPLOYEES AND VOLUNTEERS ("INDEMNITEES"), FROM AND AGAINST ANY AND ALL DAMAGES WHICH MAY ARISE OUT OF OR BE IN ANY WAY CONNECTED WITH (I) THE CONSTRUCTION, INSTALLATION, OPERATION, MAINTENANCE OR CONDITION OF THE PIPELINE OR ANY RELATED FACILITIES OR APPURTENANCES; (II) THE TRANSPORTATION OF GAS THROUGH THE PIPELINE; (HI) ANY CLAIM OR LIEN ARISING OUT OF WORK, LABOR, MA TERIALS OR SUPPLIES PROVIDED OR SUPPLIED TO COMPANY, ITS CONTRACTORS OR SUBCONTRACTORS; OR (ITS COMPANY'S FAILURE TO $..r COMPLY WITH ANY FEDERAL, STATE OR LOCAL LAW, ORDINANCE, RULE OR REGULATION, ACT(S; OR (V) OR THE NEGLIGENT ACT OR OMISSION(S) OF THE CITY, ITS OFFICERS AND EMPLOYEES. Page 6 7.3. Assumption of Risk. Company hereby undertakes and assumes, for and on behalf of Company, its officers, agents, contractors, subcontractors, agents and employees, all risk of dangerous conditions, if any, on or about any City -owned or City - controlled property, including, but not limited toNS the Public Rights -of -Way. 7.4. Defense of Indemnitees. If an action is brought against any Indemnitee by reason of any matter for which the Indemnitees are indemnified hereunder, the City shall give Company prompt written notice of the making of any claim or commencement of any such action, lawsuit or other proceeding, and Company, at Company's sole cost and expense, shall resist and defend the same with reasonable participation by the City and with legal counsel selected by Company and specifically approved by the City. In such an event, Company shall not admit liability in any matter on behalf of any Indemnitee without the advance written consent of the City. 8. INSURANCE. Company shall procure and maintain at all times, in full force and effect, a policy or policies of insurance to provide coverages as specified herein, naming the City as an additional insured and covering all public risks related to the use, occupancy, condition, maintenance, existence or location of the Public Rights -of -Way and the construction, installation, operation, maintenance or condition of the Pipeline, including the transportation of Gas through the Pipeline, as follows: 8.1. Primary Liability Insurance Coverage. a. Commercial General Liability: $5,000,000 per occurrence, including coverage for the following: (i) Premises Liability; (ii) independent contractors; (iii) products /completed operations; (iv) personal injury; (v) contractual liability; (vi) explosion, collapse and underground property damage. b. Property Damage Liability: $10,000,000 per occurrence c. Automobile Liability: $1,000,000 per accident, including, but not limited to, all owned, leased, hired or non -owned motor vehicles used in conjunction with the rights granted under this Agreement d. Worker's Compensation: As required by law; and, Employer's Liability as follows: $1,000,000 per accident. 8.2. Requirements and Revisions to Required Coverage. The City may, not more than once every five years during the term of this Agreement, revise insurance coverage requirements and limits required by this Agreement. Company agrees that within ninety days of receipt of written notice from the City, Company will implement all such revisions requested by the City. The policy or policies of insurance shall be endorsed to provide that no material changes in coverage, including, but not limited to, cancellation, termination, non - renewal or amendment, shall be made without 30 days' prior written notice to the City. The policies and Certificate of Insurance provided to the City shall contain the following language: Page 7 CANCELLATION CLAUSE SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREFORE, THE ISSUING INSURER skew WILL PROVIDE 30 DAYS WRITTEN NOTICE TO THE NAMED CERTIFICATE HOLDER. 8.3. Underwriters and Certificates. Company shall procure and maintain its insurance with underwriters authorized to do business in the State of Texas and who are acceptable to the City in terms of solvency and financial strength. Within thirty (30) days following adoption of this Agreement by the City Council, Company shall furnish the City with certificates of insurance signed by the respective companies as proof that it has obtained the types and amounts of insurance coverage required herein. No construction shall commence until such certificates are received. In addition, Company shall, on demand, provide the City with evidence that it has maintained such coverage in full force and effect. 8.4. Deductibles. Deductible or self - insured retention limits on any line of coverage required herein shall not exceed $25,000 in the annual aggregate unless the limit per occurrence, or per line of coverage, or aggregate is otherwise approved by the City. 8.5. No Limitation of Liability. The insurance requirements set forth in this Section 8 and any recovery by the City of any sum by reason of any insurance policy required under this Agreement shall in no way be construed or affected to limit or in any way affect Company's liability to the City or other persons as provided by this Agreement or law. 9. DEFAULT. The occurrence at any time during the term of this Agreement of one or more of the following events shall constitute an "Event of Default" under this Agreement: 9.1. Breach. An Event of Default shall occur if Company materially breaches or violates any of the terms, covenants, representations or warranties set forth in this Agreement or fails to perform any obligation required by this Agreement. 9.2. Bankruptcy, Insolvency or Receivership. An Event of Default shall occur if Company (i) files a voluntary petition in bankruptcy; (ii) is adjudicated insolvent; (iii) files any petition or fails to contest any petition filed against it seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief for itself under any laws relating to bankruptcy, insolvency or other relief for debtors; (iv) seeks, consents to or acquiesces in the appointment of any trustee, receiver, master, custodian or liquidator of Company, any of Company's property or any revenues, issues, earnings or profits thereof; (v) makes an assignment for the benefit of creditors; or (vi) fails to pay Company's debts generally as they become due. 9.3. Violations of the Law. An Event of Default shall occur if Company violates any existing or future federal, state or local laws or any existing or future ordinances, rules and regulations of the City. 10. UNCURED DEFAULTS AND REMEDIES. 10.1. Notice of Default and Opportunity to Cure. If an Event of Default occurs on account of Company's failure to pay the License Fee in accordance with Section 9.1, such Event of Default shall be deemed an Uncured Default and the City shall have the right to terminate this Agreement immediately %tor upon provision of written notice to Company. If an Event of Default occurs for a reason other than for failure to pay the License Fee, the City shall provide Company with written notice and shall give Company the opportunity to cure such Event of Default. For an Event of Default, Company shall have Page 8 30 days from the date it receives written notice from the City to cure the Event of Default. If any Event of Default is not cured within the time period specified herein, such Event of Default shall, without further notice from the City, become an "Uncured Default" and the City immediately may exercise the remedies provided in Section 10.2. 10.2. Remedies for Uncured Defaults. Upon the occurrence of an Uncured Default, the City shall be entitled to exercise, at the same time or at different times, any of the following remedies, all of which shall be cumulative.of and without limitation to any other rights or remedies the City may have: 10.2.1. Termination of Agreement. Upon the occurrence of an Uncured Default, the City may terminate this Agreement. Upon such termination, Company shall forfeit all rights granted to it under this Agreement and, except as to Company's unperformed obligations and existing liabilities as of the date of termination, this Agreement shall automatically be deemed null and void and shall have no further force or effect. Company shall remain obligated to pay and the City shall retain the right to receive License Fees and any other payments due up to the date of termination. Company shall remove the Pipeline from and restore the Public Rights -of -Way as and when requested by the City. The City's right to terminate this Agreement under this Section 10.2.1 shall does not and shall not be construed to constitute any kind of limitation on the City's right to terminate this Agreement for other reasons as provided by and in accordance with this Agreement; provided, however, that Company may not abandon the Pipeline without the approval of the Commission or successor agency or other regulatory authority with jurisdiction, if such action without such approval is prohibited at the time by applicable federal or state law or regulation. 10.2.2 Legal Action Against Company. Upon the occurrence of an Uncured Default, the City may commence against Company an action at law for monetary damages or in equity, for injunctive relief or specific performance of any of the provisions of this Agreement which, as a matter of equity, are specifically enforceable. 11. PROVISION OF INFORMATION. 11.1. Filings with the Commission. Company shall, upon request, provide copies to the City of all documents which Company files with or sends to the Commission concerning or related to its transportation of Gas through or other operations in the City, including, but not limited to, filings related to (i) tariffs; (ii) rules, regulations and policies requested, under consideration or approved by the Commission; and (iii) applications and any supporting pre -filed testimony and exhibits filed by Company or third parties on behalf of Company, on the same date as such filings are made with the Commission. In addition, Company shall provide the City with copies of records, documents and other filings that Company is required to maintain or supply to the Commission under any applicable state or federal law, rule or regulation. 11.2. Lawsuits. Company shall provide the City with copies of all pleadings in all lawsuits to which Company is a party and that pertain to the granting of this Agreement and /or the transportation of Gas through the City within thirty (30) days of Company's receipt of same. 12. COMPANY AS INDEPENDENT CONTRACTOR. The parties agree that Company shall operate as an independent contractor as to all rights and privileges granted by this Agreement, and not as an agent, representative or employee of the City. Company shall have the exclusive right to control the details of its business and other operations necessary or appurtenant to the transportation of Gas in accordance with the terms and conditions of this Agreement, and shall be solely responsible for the acts and omissions of its officers, agents, Page 9 servants, employees, contractors and subcontractors. Company acknowledges that the doctrine of respondeat superior shall not apply as between the City and Company, its officers, agents, employees, contractors and subcontractors. Company further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between the City and Company. 13. ASSIGNMENT PROHIBITED. Company may not assign or otherwise transfer any of its rights or obligations under this Agreement unless specifically authorized in writing by the City, which authorization shall not be unreasonably withheld. 14. NOTICES. Notices required pursuant to the provisions of this Agreement shall be conclusively . determined to have been delivered when (i) hand- delivered to the other party, its agents, employees, servants or representatives, or (ii) received by the other party by United States Mail, postage prepaid, return receipt requested, addressed as follows: To THE CITY: To COMPANY: City of Kennedale Carrizo Oil & Gas Company Attn: City Manager 405 Municipal Drive Kennedale, Texas 76060 15. NON DISCRIMINATION COVENANT. Company shall not discriminate against any person on the basis of race, color, national origin, religion, handicap, sex, sexual orientation or familial status in the receipt of benefits from Company's business operations, in any opportunities for employment with Company or in the construction or installation of the Pipeline. 16. NO WAIVER. The failure of the City to insist upon the performance of any term or provision of this Agreement or to exercise any rights that the City may have, either under this Agreement or the law, shall not constitute a waiver of the City's right to insist upon appropriate performance or to assert any such right on any future occasion. 17. GOVERNING LAW AND VENUE. This Agreement shall be construed pursuant to and in accordance with the laws of the United States of America and the State of Texas. If any action, whether real or asserted, at law or in equity, arise out of the terms of this Agreement, Company's transportation of Gas or Company's use of the Public Rights -of -Way, venue for such action shall lie exclusively in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas, Fort Worth Division. 19. MISCELLANEOUS PROVISIONS. 19.1 Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable by a final order entered by a court of competent jurisdiction, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. For purposes of this Agreement, a court order shall be final only to the extent that all available legal rights and remedies pertaining to such order, including, without limitation all available appeals, have been exhausted. In such an event, the City and Company agree that they shall amend or have amended this Agreement to comply with such final order entered by a court of competent jurisdiction. Near 19.2. Force Majeure. In the event Company's performance of any of the terms, conditions or obligations required by this Agreement is prevented by a cause or event that is not within Company's reasonable control, Company's non - performance shall be deemed excused for the period of such inability. Causes or events that are not Page 10 within the Company's control shall include, but not be limited to, acts of God, strikes, sabotage, riots or civil disturbances, failure or loss of utilities, explosions and natural disasters. 19.3 Headings not controlling. Headings and titles, other than those captions in Section 1, that are used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 19.4 Entirety of Agreement. This Agreement, including the schedule of exhibits attached hereto and any documents incorporated herein by reference, contains the entire understanding and agreement between the City and Company as to the matters contained herein. Any prior or contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict with the terms and conditions of this Agreement. This Agreement shall not be amended unless agreed to in writing by both parties and approved by the City Council of the City. 19.5 No Waiver. The failure of the City to insist upon the performance of any provision of this Agreement or to exercise any rights that the City may have, either under this Agreement or the law, shall not constitute a waiver of the City's right to insist upon appropriate performance or to assert any such right on any future occasion. EXECUTED as of the later date below: CITY OF KENNEDALE: CARIZZO OIL & GAS COMPANY: By: Carrizo Oil & Gas Company Its General Partner By: By: *ftlif Date: Date: APPROVED AS TO FORM: By: City Attorney Page 11 EXHIBIT "A" lorry Page 12 EXHIBIT "B" Page 13 StaffReport To the Honorable Mayor and City Council Date: May 5, 2010 Agenda Item No: XII Subject: Regular Items Originated by: Kathy Turner, City Secretary Summary: The following items have been placed under Regular Items. These items are not considered to be routine, and will require separate discussion, in sequence, as a routine agenda item. Recommendation: Disposition by Council: StaffReport To the Honorable Mayor and City Council Date: May 5, 2010 Agenda Item No: XII -F. Subject: Review and consider action to schedule a special meeting for Monday, May 17, 2010 at 5:30 PM to canvass May 8, 2010 General Election. Originated by: Kathy Turner, City Secretary Summary: To allow time for all provisional and overseas ballots to be counted, City Council will need to schedule a special meeting to canvass the May 8, 2010 General Election. The last day to process provisional ballots is May 12, and the last day to receive ballots returning from overseas is May 13. Attached is a report Some that shows the number of overseas ballots that have been mailed to voters in each political subdivision participating in the May joint election. A provisional ballot is used to record a vote when there is some question in regards to a given voter's eligibility. A provisional ballot would be cast when: • The voter refuses to show a photo ID (in regions that require one) • The voter's name does not appear on the electoral roll for the given precinct. • The voter's registration contains inaccurate or out -dated information such as the wrong address or a misspelled name. • The voter's ballot has already been recorded Whether a provisional ballot is counted is contingent upon the verification of that voter's eligibility. Many voters do not realize that the provisional ballot is not counted until 7 -10 days after election so their vote does not affect the calling of the states to different candidates. A guarantee that a voter could cast a provisional ballot if he or she % believes that they are entitled to vote was one of the guarantees of the Help America Vote Act of 2002. Page 1 of 2 Tarrant County Elections Administration's plan is to have the ballot board meet on Thursday, May 13 and the morning of Friday, May 14 to process any provisional ballots and overseas ballots that can be counted. Canvass reports will then be provided to each entity by email later that day (Friday, May 14). Recommendation: Move to schedule a special meeting for Monday, May 17, 2010 to begin at 5:30 p.m. to canvass May 8, 2010 General Election. Page 2 of 2 Total Total 1,287 ARLINGTON ISD 259 AZLE ISD 14 CASTLEBERRYISD 11 CITY OF ARLINGTON 280 CITY OF AZLE 7 CITY OF BEDFORD 42 CITY OF BLUE MOUND 4 CITY OF COLLEYVILLE 39 CITY OF CROWLEY 10 CITY OF EULESS 38 CITY OF FOREST HILL 4 CITY OF GRAPEVINE 46 CITY OF HALTOM CITY 18 CITY OF HURST 31 CITY OF KENNEDALE 7 CITY OF MANSFIELD 40 CITY OF NORTH RICHLAND HILLS 34 CITY OF RICHLAND HILLS 5 CITY OF RIVER OAKS 5 CITY OF SOUTHLAKE 35 CITY OF WATAUGA 20 CITY OF WESTOVER HILLS 1 CITY OF WESTWORTH VILLAGE 3 CITY OF WHITE SETTLEMENT 18 CROWLEY ISD 80 EAGLE MOUNTAIN - SAGINAW ISD 55 FORT WORTH ISD DISTRICT 2 34 FORT WORTH ISD DISTRICT 3 17 FORT WORTH ISD DISTRICT 5 62 FORT WORTH ISD DISTRICT 6 46 GRAND PRAIRIE CITY COUNCIL DIST 4 15 GRAPEVINE- COLLEYVILLE ISD 91 Total KELLER ISD 126 KENNEDALEISD 18 MANSFIELD ISD 106 NORTHWEST ISD 16 TARRANT REGIONAL WATER DISTRICT 461 TCC DISTRICT 4 270 TCC DISTRICT 5 251 TOWN OF EDGECLIFF VILLAGE 5 TOWN OF WESTLAKE 1 WHITE SETTLEMENT ISD 38 04/08/2010 NIS 2 StaffReport To the Honorable Mayor and City Council Date: May 5, 2010 Agenda Item No: XII -G. Subject: AN ORDINANCE AMENDING CHAPTER 23 OF THE KENNEDALE CITY CODE OF ORDINANCE (1991), AS AMENDED, BY ADDING A NEW ARTICLE IX " STORMWATER (DRAINAGE) UTILITY SYSTEM" TO ESTABLISH A MUNICIPAL STORMWATER (DRAINAGE) UTILITY SYSTEM; ESTABLISH AN ADMINISTRATIVE APPEALS PROCESS; PROVIDE PENALTIES AND REMEDIES FOR NONPAYMENT; EXEMPT CERTAIN PROPERTY FROM FEES; AND PROVIDE A PROCESS BY WHICH TO DISCONTINUE THE STORMWATER (DRAINAGE) UTILITY SYSTEM Originated by: Bob Hart Summary: In 1989, after larger cities in the State of Texas started having to fund numerous activities to meet Federal and State water quality regulations, the State Legislature authorized local governments to create a Stormwater Utility System dedicated to the management of its stormwater (drainage and water quality) facilities and activities. The legislation also allowed for the levying of a dedicated fee to fund the utility. Over the last six months, the City Council has been reviewing the potential funding sources that may be available to begin incrementally solving stormwater quality and drainage problems including, county, state and federal monies for special projects and, in particular, the possible establishment of a Stormwater (Drainage) Utility that would be dedicated to stormwater activities. The City of Kennedale has identified numerous existing drainage systems throughout the City that do not function properly during heavy rainfall with regard to draining excess stormwater runoff safely and effectively. The current cost estimates to address these problems total to more than $80 million, with $34 million in the Village Creek watershed alone. After On March 11, 2010, the City Council held a hearing to receive comments and suggestions from the public concerning a Stormwater Utility. Upon approval of both the Stormwater Utility and rate structure ordinance by the City Council, it is anticipated that the new fees will go into effect during the June billing cycle. Amendments to the ordinance will be necessary depending upon the impervious cover calculations adopted by Council. Below is a brief summary of the Stormwater Utility timeline and community notification process that has occurred: Articles Published (Kennedale Dispatch) ✓ November 2009: City's Ongoing Stormwater Activities ✓ December 2009: Council Is Considering A Stormwater Utility ✓ January 2010: Council Is Considering A Stormwater Utility Ordinances Published (Kennedale News) ✓ January 08, 2010 ✓ January 15, 2010 ✓ January 22, 2010 Questions & Answer Brochure (Utility Bills) ✓ December 2009 ✓ January 2010 Public Hearings (City Council Meeting) ✓ February 11, 2010 - Postponed Due To Snow Storm ✓ March 11, 2010 Ordinances Considered (City Council Meeting) ✓ April 08, 2010 Recommended Motion: Staff recommends approval of the Stormwater Utility. Disposition by Council: ORDINANCE NO. 447 AN ORDINANCE OF THE CITY OF KENNEDALE, TEXAS, AMENDING CHAPTER 23 OF THE KENNEDALE CITY CODE OF ORDINANCES (1991), AS AMENDED, BY ADDING A NEW ARTICLE IX, "STORMWATER (DRAINAGE) UTILITY SYSTEM" TO ESTABLISH A MUNICIPAL STORMWATER (DRAINAGE) UTILITY SYSTEM; ESTABLISH AN ADMINISTRATIVE APPEALS PROCESS; PROVIDE PENALTIES AND REMEDIES FOR NONPAYMENT; EXEMPT CERTAIN PROPERTY FROM FEES; AND PROVIDE A PROCESS BY WHICH TO DISCONTINUE THE STORMWATER (DRAINAGE) UTILITY SYSTEM; PROVIDING A CUMULATIVE CLAUSE; PROVIDING A SEVERABILITY CLAUSE; PROVIDING A PENALTY CLAUSE; PROVIDING A SAVINGS CLAUSE; PROVIDING FOR PUBLICATION; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Kennedale, Texas (City) is a home rule city acting under its charter adopted by the electorate pursuant to Article XI, Section 5 of the Texas Constitution and Chapter 9 of the Local Government Code; and WHEREAS, within the City there exists a stormwater (drainage) system developed over a number of years that collects and directs stormwater runoff; and WHEREAS, portions of the existing stormwater (drainage) utility system are inadequate to collect and directs stormwater runoff within the City; and WHEREAS, it is necessary to ensure that the collection of stormwater runoff and direction of stormwater drainage within the City protects the public health, safety, and welfare of City residents, as well as protects against property damage; and WHEREAS, the City Council desires to address the various water quality and environmental issues that may further burden its stormwater (drainage) infrastructure; and protect against surface water overflow, standing surface water, and pollution; and WHEREAS, the City Council desires to establish a stormwater (drainage) utility system, as authorized by the Texas Local Government Code Chapter 552, Subchapter C "Municipal Drainage Utility Systems," (the "Act ") within the City's municipal boundaries; and WHEREAS, the Act further authorizes the City to establish a municipal stormwater (drainage) utility system service area; provide rules for the use, operation, and financing of the system; declare, after a public hearing, the City's stormwater (drainage) system to be a public utility; and prescribe bases upon which to fund a H: \CITY COUNCIL \ORDINANCES\2010 ORDINANCES \Ordnance No. 447 - Stormwater Drainage.doc Page 2 stormwater (drainage) utility system and to assess the fees and charges to support the system; and provide exemptions of certain governmental entities; and WHEREAS, the City desires to adopt the Act and establish a stormwater (drainage) utility system as a public utility; and WHEREAS, it is the intent of the City to fund the stormwater (drainage) utility system in a manner that fairly, equitably and in a non - discriminatorily manner allocates the cost of stormwater control and treatment to properties in proportion to stormwater runoff potential for each class of property; and WHEREAS, proper notice has been given and a public hearing has been held regarding the adoption of this Ordinance, as required by law. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF KENNEDALE, TEXAS, THAT: SECTION 1. Chapter 23 "Water, Sewers, and Sewage Disposal ", of the Kennedale City Code, is hereby amended to add a new Article IX, which reads: "ARTICLE IX. STORMWATER (DRAINAGE) UTILITY SYSTEM DIVISION 1. GENERALLY Sec. 23 -501. Authority to create Stormwater (Drainage) Utility System. The City does hereby declare under the Texas Constitution and the Texas Local Government Code, Chapter 552, Subchapter C, The Municipal Drainage Utility System Act (the "Act "), that said Act is hereby adopted and it is declared that the stormwater drainage of the City of Kennedale (the "City ") shall be a public utility. Pursuant to the provisions of Section 552.046 of the Act, the City incorporates its existing stormwater (drainage) facilities, materials, equipment, and supplies into the Stormwater (Drainage) Utility System ( "Stormwater (Drainage) System" or "Utility "). Sec. 23 -502. Findings and determinations. (a) Determination of Utility Service Area. The Stormwater (Drainage) System shall serve the City, the boundaries of which shall be the City's municipal boundaries. (b) It is hereby found, determined, and declared that the City shall: (1) Ensure that the cost of operating and maintaining the Stormwater (Drainage) System, and the financing of necessary repairs, replacements, improvements, and extension thereof must be H: \CITY COUNCIL \ORDINANCES\2010 ORDINANCES \Ordnance No. 447 - Stormwater Drainage.doc Page 3 directly related to stormwater (drainage) service and the terms of the stormwater (drainage) utility fees; (2) Provide stormwater (drainage) facilities and services for benefitted real property within the utility service area upon payment of the stormwater (drainage) utility fee unless the property is exempt under Section 23 -513; and (3) Establish a schedule of stormwater (drainage) utility fees for benefitted properties within the utility service area in accordance with the provisions of the Act; and (4) Offer stormwater (drainage) service under non - discriminatory, reasonable, and equitable terms. Sec. 23 -503. Application. This Article applies to the owner or user of a benefitted property within the utility service area, as determined by Section 23 -502, to which stormwater (drainage) service is provided, either directly or indirectly. Sec. 23 -504. Definitions. The following definitions shall apply to the establishment and operation of the Stormwater (Drainage) System: Act means Chapter 552, Subchapter C "Municipal Drainage Utility Systems," of the Texas Local Government Code, as amended. Allocated portion of a parcel means the part a parcel that has been assigned to an owner or customer based on the portion used by the owner or customer as compared to the parcel's total area. Benefitted property means an improved parcel, lot or tract within the utility service area to which stormwater (drainage) service is made available under this Article. All real property within the utility service area directly or indirectly receive stormwater (drainage) service. City means the City of Kennedale, Texas and the City's officers and employees. Customer means the person(s) or entity(ies) recorded as the customer or user of utility services for a parcel based on the records of the City or its contracted utility billing systems. Director of Public Works means the City's Director of Public Works or his /her vase designee responsible for the administration and enforcement of this Article. H: \CITY COUNCIL \ORDINANCES \2010 ORDINANCES \Ordnance No. 447 - Stormwater • Drainage.doc Page 4 Equivalent residential unit (ERU) means a unit of measurement of impervious surface area calculated for the average single family residential property within the utility service area, as measured in square feet (SF), including the residential structure, garage, driveway sidewalk, patio, out buildings, and any other impervious surface. Impervious surface means a surface that has been compacted or covered with a layer of material so that it is resistant to penetration by water and does not have a vegetative cover. An Impervious surface includes, but is not limited to, compacted soil with a surface treatment, gravel, crushed stone surface or soil compacted by vehicle traffic, asphalt or concrete pavement, a parking lot, a driveway, a sidewalk or private roadway, a building or artificial structure, or any surface that changes the natural landscape and increases, concentrates, pollutes, or otherwise alters the flow or amount of stormwater runoff. Impervious area means a measurement in square feet (SF) of impervious surface on which the amount of stormwater runoff potential for a benefitted property within a customer class is estimated. Improved parcel means a parcel, lot or tract or portion of lot or tract that has been changed from its natural state by addition of a building, facility, structure or other improvement on all or a portion of the parcel, which creates an impervious surface. Non - Residential property means an improved parcel that is not a residential property, including commercial, industrial, institutional, and governmental uses, a condominium or apartment consisting of five (5) or more residential units, a homeowners' association, or other similar uses or properties. Owner means the person(s) or entity(ies) listed as the owner of a parcel in the Tarrant County Appraisal District's or the City's records. Residential property means an improved parcel upon which five (5) or fewer residential units are constructed in one building. Residential unit means any building or portion thereof that contains living facilities, including provisions for sleeping, eating, cooking and sanitation, as required by applicable City codes, for not more than one family. A residential unit may be a single - family house, a town home, a condominium, a manufactured home or a portion of a duplex, triplex or quadplex. Service area means the geographic area within the incorporated limits of the City. Stormwater (drainage) infrastructure means the property - real, personal or mixed - that is used in providing stormwater capacity to manage and control stormwater runoff for the stormwater (drainage) system, including bridges, catch basins, channels, H: \CITY COUNCIL \ORDINANCES\2010 ORDINANCES \Ordnance No. 447 - Stormwater Drainage.doc Page 5 conduits, creeks, culverts, detention ponds, retention ponds, ditches, draws, creeks, flumes, pipes, pumps, sloughs, treatment works, and appurtenances to those items, whether natural or artificial, or using force or gravity, that are used to draw off surface water from land, carry the stormwater runoff away, collect, store, or treat the stormwater runoff, or divert the stormwater runoff into natural or artificial watercourses. Stormwater (drainage) operations and maintenance expenditures means an expenditure required to finance, operate and maintain stormwater (drainage) infrastructure, including debt service, equipment, personnel, educational and administrative expenditures. Stormwater runoff potential means the relative potential for causing stormwater runoff quantities, qualities, or velocities from an improved parcel based on the type of development or land use on the parcel and the size of the parcel. Stormwater (drainage) utility fee means the fee established under Division 2, Article IX of Chapter 23 of the Kennedale City Code that is levied against the owner or customer of a benefitted property for stormwater (drainage) services provided by the Stormwater (Drainage) System, including, but not limited to, the items described in the definition of "cost -of- service" in the Act. The stormwater (drainage) utility fee may also be referred to as a Fee. %.v Stormwater (Drainage) System means the Stormwater (Drainage) Utility System owned or controlled, in whole or in part, by the City, including the City's existing stormwater facilities, materials, and supplies and any stormwater facilities, materials, and supplies hereafter constructed or utilized, and dedicated to the service of benefitted property, and including provision for additions to the system. The Stormwater (Drainage) System may also be referred to as a Utility. Wholly sufficient and privately owned stormwater (drainage) system means land and facilities owned and operated by a person or entity other than the City and from which stormwater does not discharge, under any storm frequency event or conditions, into a creek, river, slough, culvert, channel or other infrastructure that is part of the City's Stormwater (Drainage) System. Sec. 23 -505. Administration. (a) Duty of Director of Public Works. The Director of Public Works shall administer the Stormwater (Drainage) System. The Director shall maintain an accurate record of all properties benefitted or served by the Stormwater (Drainage) System and the stormwater (drainage) utility fee levied for each parcel or portion of a parcel. The record may be maintained within the City's, utility billing system or in another record keeping system that may be developed. (b) Program Implementation. By the adoption of this Article, the City makes no representation that all stormwater problems may or will be remedied and the City H: \CITY COUNCIL \ORDINANCES\2010 ORDINANCES \Ordnance No. 447 - Stormwater Drainage.doc Page 6 Council retains full discretion in establishing the priorities in expending funds as they , become available to meet the City's stormwater drainage needs. The adoption of this Article shall not be construed to relieve private land owners, developers or other individuals or entities from providing stormwater (drainage) improvements required by the Kennedale City Code, and federal or State laws and regulations. (c) Access to Benefitted Properties. City employees shall have access to a benefitted property within the utility service area to inspect, maintain, repair, or enforce this Article or State laws or regulations. (d) Governmental Immunity. The City does not waive any immunity granted under any law. Sec. 23 -506. Stormwater (drainage) utility fee, billing policies, and procedures. (a) Stormwater (Drainage) Utility Rate Classes. A stormwater (drainage) utility fee is established, and the fee shall be imposed on each benefitted property within the utility service area for stormwater (drainage) services and stormwater (drainage) facilities provided by the Stormwater (Drainage) System. A benefitted property within the utility service area shall be classified and charged a stormwater (drainage) utility fee based on the stormwater (drainage) utility rate determined by the property's rate class. Depending on the use of the benefitted property, the property shall be classified as one of the rate classes: (1) Residential property; or (2) Non- Residential property. (b) Responsible Party. (1) A customer shall be billed monthly for stormwater (drainage) services. The stormwater (drainage) utility fee shall be levied along with other municipal utility services provided to the premises, including water, wastewater or solid waste /refuse services. (2) The utility bill imposing the stormwater (drainage) utility fee will be mailed to either the customer or owner who is currently identified as the responsible party for water, wastewater and solid waste service for the benefitted property; and, the customer or owner recorded in the utility billing system shall be responsible for payment of the stormwater (drainage) utility fee. (3) If there is no active customer account for a benefitted property recorded in the City's utility billing system, the benefitted property is vacant, either on a temporary or permanent basis, or when a benefitted property is not served by other municipal utility services, H: \CITY COUNCIL \ORDINANCES\2010 ORDINANCES \Ordnance No. 447 - Stormwater Drainage.doc Page 7 Nifty the Director shall establish a "Stormwater Only Account" and shall bill the owner of the benefitted property for the stormwater (drainage) utility fee. The owner of the benefitted property shall be responsible for payment of fees imposed via a Stormwater Only Account. (c) Revision of Rates. The City Council shall establish the initial stormwater (drainage) utility fee and stormwater (drainage) utility rates via ordinance pursuant to the provisions of the Act. The City Council reserves the right to review the fee and rate schedules at any time and may, by ordinance, increase or decrease the stormwater (drainage) utility fee or rates within the schedule upon a determination that the increase or decrease is warranted. (d) Billing Procedures and Policies. (1) Any partial payment of the stormwater (drainage) utility fee shall be applied against the amount due in accordance with the policies and procedures established for municipal utility services. (2) A late charge and interest may be imposed in accordance with the policies and procedures established for municipal utility services. tollw (e) Non - Payment. The City may direct the City Attorney to file suit to recover any unpaid fees, together with maximum interest, attorneys' fees and other costs and fees allowable under State or federal law. In addition to any other remedies or penalties provided by State or federal law or in this Article, a customer's failure to pay the stormwater (drainage) utility fee when due shall subject the customer to disconnection of any or all municipal utility services and /or the placement of a lien against the benefitted property to the extent authorized by law and the Kennedale City Code, as amended. Sec. 23 -507. Calculation of fees. (a) Rates in Accordance with the Act. The Stormwater (Drainage) System rates shall be established in accordance with the provisions of the Act and this Section. (b) Fee Calculation. The stormwater (drainage) utility fee shall be based on an inventory of improved parcels within the service area. The inventory shall evaluate the stormwater runoff potential for improved parcels within the service area and establish a rate for each class of benefitted properties. If authorized by the City Council, the Director may levy an amount to establish one or more funds to finance future stormwater (drainage) system construction and to improve stormwater quality. The stormwater runoff potential for each class shall be equitably and proportionately distributed between classes and among the parcels within each class of benefitted properties relative to the contribution of each class to stormwater runoff. The Nokiw H: \CITY COUNCIL \ORDINANCES\2010 ORDINANCES \Ordnance No. 447 - Stormwater Drainage.doc Page 8 stormwater (drainage) utility fee shall be set according to the requirements of Section 23 -502. (c) Stormwater Runoff Potential. For purposes of establishing the stormwater runoff potential for each class of benefitted properties and between classes of benefitted properties, the Director shall calculate the impervious area for parcels within the service area based on data gathered from the Tarrant County Appraisal District, Geographic Information System records, and aerial photography and site plans or plats available. The Director shall then determine the relative stormwater runoff potential for each rate class and among parcels within each rate class. The rate for each class of benefitted properties and for parcels within each class shall be based on the impervious area measured in square feet (SF). (d) Property values. In calculating the stormwater (drainage) utility rate, the Director shall be prohibited from using property values. Sec. 23 -508. Stormwater (drainage) utility fee credit. (a) Any non - residential properties on which stormwater runoff mitigation measures or best management practices (BMPs) have been implemented or which has on file with the City an approved individual stormwater management permit issued by the Texas Commission on Environmental Quality (TCEQ) may be eligible for a credit to the stormwater (drainage) utility fee. (b) The Director of Public Works shall adjust the fee for such properties according to the actual mitigative effect of the measures taken. Best Management Practices (BMPs) that were required as part of development plan approval will not be eligible for such credits. (c) The credit methodology shall be set forth in an administrative policy to be maintained in the Public Works Department of the City. (d) The application for credit shall be in writing and shall include an engineering report sealed by a Texas licensed professional engineer qualified in civil engineering, or other documentation that the Director of Public Works deems necessary, to properly evaluate the rationale for determining the credit for the approved stormwater management techniques. Submitted applications may be reviewed by the Director or by a third -party licensed engineer to validate the submitted rationale and methodology. Stormwater credits will begin upon completion and inspection of the approved mitigation measures on the property. Any property served by a private facility that is maintained by the City shall not receive a credit and shall be charged the normal monthly stormwater (drainage) utility fee. (e) The credit will be only for the impervious area within the total parcel area which receives the stormwater management technique; H: \CITY COUNCIL \ORDINANCES\2010 ORDINANCES \Ordnance No. 447 - Stormwater Drainage.doc Page 9 % (f) The maximum credits available with appropriate documentation and approval by the Director are as follows: (1) Mitigation efforts impacting stormwater quality are worth up to fifty percent (50 %) credit against the original fee; (2) Mitigation efforts impacting stormwater quantity are worth up to fifty percent (50 %) credit against the original fee. (g) The Director of Public Works will determine the final credit allowance based on all engineering reports. (h) The Director shall have the right to inspect the private stormwater (drainage) infrastructure facility at any reasonable time to determine if it is in compliance with the approved design and continues to be capable of functioning properly. If the facility's performance is affected, because it fails to meet the proper operating. standards, has been altered, or is in disrepair, the customer or owner shall pay the monthly stormwater (drainage) utility fee at the normal rate, without benefit of reduction, until such time that the facility is brought into total compliance. Sec. 23 -509. Collections and liens. (a) Disconnection of Municipal Utility Service. The City shall keep an itemized account of the amounts owed pursuant to this Article. If any account is not paid within the time period established for municipal utility fees for the benefitted property, as outlined in the City's policies and procedures, and the customer fails to make other arrangements satisfactory to the City, the City or its contracted utility service provider is authorized to disconnect utility services pursuant to its normal and customary business practices. (b) Notice of Intent to Place Lien. If any amount is not paid within sixty (60) days of the billing date, the City shall send notice to the customer and the property owner of its intent to impose a lien against the property to which service is provided. The notice of intent to place lien shall be mailed to both the property address listed by the Tarrant County Appraisal District and the property owner's billing address. The notice of intent to place lien shall contain the following information: (1) The name and address of the customer to whom utility bills were sent pursuant to this Article; (2) The street address and a legal description of the real property on which the building is or was located; (3) A statement of fees and the balance due, including any late charges and administrative fees incurred; and H: \CITY COUNCIL \ORDINANCES\2010 ORDINANCES \Ordnance No. 447 - Stormwater Drainage.doc Page 10 (4) A statement that the fees are unpaid and delinquent, and that if not paid in full within thirty (30) days, a lien will be placed upon the premises. (c) Appeal of Notice of Intent to Place Lien. The owner may appeal the decision to impose the lien against the property to the City Manager and the City Council under the procedures set forth in Section 23 -510. If the notice of appeal is filed, the filing of the lien shall not be imposed pending the appeal. (d) Notice of Lien Filed in County Records. If full payment or a Notice of Appeal, with sufficient bond guaranteeing payment in a form acceptable to the City Attorney as provided herein, is not received by the City within ten (10) days of the City's mailing of the Lien Notice, the City Secretary shall file a notice of lien in the Deed Records of Tarrant County, Texas. Such notice shall contain the following information: (1) The name and address of the customer to whom utility bills were sent pursuant to this Article and the name and address of the owner of the property; and (2) The street address and a legal description of the real property on which the building is or was located; and (3) An itemized statement of fees and the balance due, including any , late charges and administrative fees incurred. (e) Personal Obligation of Property Owner. The expenses incurred by the City as set forth in the notice of lien shall be a personal obligation of both the customer and the property owner and shall constitute a priority lien against the property, which lien, however, shall be secondary to an existing, recorded, bona fide mortgage lien. The City Attorney or his /her designee may bring an action in any court of proper jurisdiction against the owner of the property to recover the costs incurred by the City. (f) Lien Shall be Valid and Privileged. Upon filing of the notice of lien in the Deed Records of Tarrant County, Texas, the City's lien shall be valid against the property so assessed. The City's lien shall be privileged and superior to all other liens, including previously recorded judgment liens and any liens recorded after the City's lien. The lien shall continue until the assessment and all interest due and payable thereon has been paid. (g) Lien Must be Paid. No utility service, building permit or certificate of occupancy shall be allowed or issued on any property against which a lien has been imposed until the lien is paid in full and such lien is released by the City. (h) Release of Lien. After the expenses incurred by the City, as set forth in the notice of lien, have been fully paid with interest of ten percent (10 %) per annum, the City Secretary shall execute a release of lien, which shall be filed in the Deed Records of Tarrant County, Texas. H: \CITY COUNCIL \ORDINANCES\2010 ORDINANCES \Ordnance No. 447 - Stormwater Drainage.doc Page 11 Ni,,. Sec. 23 -510. Appeal of stormwater (drainage) utility fees. (a) Appeal to City Manager. An owner or customer who has been charged a stormwater (drainage) utility fee and believes that the calculation of the stormwater (drainage) utility fee is incorrect due to the miscalculation of impervious surface area, the misclassification of the customer class, or the ownership of exempt property, may appeal the fee to the City Manager. In addition, an owner or customer may appeal the discontinuance of the utility service, the filing of a lien, or both legal actions for non - payment of the stormwater (drainage) utility fee. The City Manager shall evaluate the appeal based on the provisions of this Article. (b) Process. (1) To request an appeal, the owner or customer shall file a written notice of appeal with the City Manager. The notice of appeal must include the grounds upon which relief is sought and include all documentation supporting the appeal. The City Manager may decide the appeal based upon the notice of appeal, supporting documentation, and information relied upon by the Director in the original fee determination. Evidence not included with the notice of appeal shall not be considered, and no hearing shall be held unless the City Manager determines, in his /her sole discretion, that an informal hearing would assist his /her determination of the merits of the appeal. If a hearing is held, the City Manager shall provide at least ten (10) business days written notice to the appellant of a date and time for such informal hearing. In any case, the City Manager shall decide and rule upon the appeal based upon a preponderance of the evidence. (2) The City Manager shall issue a written decision on the appeal within sixty (60) days of the City Manager's receipt of the notice of appeal. (A) If the City Manager determines, based upon a preponderance of the evidence, that a fee adjustment is warranted or the rate class is incorrect within the first year following the initial billing date on a benefitted property, the City Manager shall authorize a rate adjustment, which shall be retroactive to the beginning of billings for the appealed fee but the retroactive period shall not exceed one (1) year. (B) If the City Manager determines, based upon a preponderance of the evidence, that a fee adjustment is warranted or the rate class is incorrect after the first year following the initial billing date on a benefitted property, the Now- City Manager shall authorize a fee adjustment, which shall H: \CITY COUNCIL \ORDINANCES\2010 ORDINANCES \Ordnance No. 447 - Stormwater Drainage.doc Page 12 be prospective and applied to future billings. At the City Manager's discretion, the fee adjustment may also be retroactive but the retroactive period shall not exceed three (3) months prior to the receipt of the notice of appeal. (c) Supporting Information for Appeal. The owner or customer filing the appeal may be required, at his /her sole cost, to provide supplemental information to the City Manager, including but not limited to survey data sealed by a Texas licensed professional land surveyor, engineering reports sealed by a Texas licensed professional engineer qualified in civil engineering, or other documentation that the City Manager deems necessary to properly evaluate the appeal. The owner or customer shall provide such information within thirty (30) days of the City Manager's request, and the deadline for determination of the appeal will be extended accordingly. In determining the merits of the appeal, the City Manager may consider the owner or customer's failure to provide the requested information in a timely manner. (d) Appeal to the City Council. (1) An appellant may appeal the following decisions of the City Manager to the City Council: (A) the calculation of the stormwater (drainage) utility fee for a benefitted property due to the miscalculation of impervious surface area, the miscalculation of the customer class, or the ownership of exempt property; or (B) the discontinuance of utility service, the filing of a lien, or other legal action for non - payment of the stormwater (drainage) utility fee. (2) To appeal, an appellant shall file a written appeal to the City Council with the City Secretary within fifteen (15) days following receipt of the City Manager's decision that is being appealed. The City Council shall hear the appeal within sixty (60) days of receipt of the appeal by the City Secretary. Notice of the hearing shall be mailed to the address given in the appeal form or, if no address is given, to the address on the utility billing statement at least fifteen (15) days prior to the hearing. (3) Any appeal under this Subsection shall be governed by the following rules and procedures: (A) Such appeal shall be set as an item on the regular City Council agenda. (B) At the hearing of the appeal, the City Council may consider facts or evidence as the City Council determines is H: \CITY COUNCIL \ORDINANCES\2010 ORDINANCES \Ordnance No. 447 - Stormwater Drainage.doc Page 13 _ - *sr appropriate. The Director or City Manager, or his designee, shall present the facts and evidence relied upon and the reasons for the ruling; the appellant then shall have an opportunity to present the facts and evidence relied upon by the appellant; the City Council then shall consider any facts or evidence from the public or other interested persons. The City Council may ask questions of the Director, the City Manager, the appellant, or any other interested persons as the City Council determines is appropriate. The City Council may limit the time for any presentation in its sole discretion, and may continue the hearing to a subsequent meeting at the City Council's discretion. Upon the conclusion of the hearing, the City Council may render its decision or it may take the appeal under advisement and make or render its decision on the appeal within thirty (30) days of the hearing. Any appeal shall be determined by majority vote of the members of the City Council then present at a meeting of the Council. The City Council's decision shall be final. (C) Written documents or evidence that any party, including the Director or City Manager, wishes to submit must be filed with the City Secretary and submitted to the City Council no fewer than five (5) business days prior to the appeal hearing. Any interested party may review any documents so submitted prior to the hearing upon request, during normal business hours. The appellant may submit a report describing the basis for the appeal prepared by a Texas licensed professional engineer qualified in civil engineering. The failure to submit such a report shall be considered in determining whether the applicant has met the burden of proof and may constitute sufficient grounds for denial of the appeal. (D) The burden of proof shall be on the appellant to demonstrate that the fee is not applicable, that the determination of the fee amount is incorrect due to the misidentification of impervious surface area, or that the rate class assigned to the appellant is incorrect. (E) No appeal for the same or related issue on the same piece of property shall be allowed from a previous ruling on any appeal absent a material change of circumstances. If the appellant asserts such a change of circumstances and seeks rehearing of an appeal, such appeal need not be considered unless the appellant presents in writing evidence *f "' establishing such change of circumstances. Any such subsequent appeal shall be considered entirely on its merits H: \CITY COUNCIL \ORDINANCES\2010 ORDINANCES \Ordnance No. 447 - Stormwater Drainage.doc Page 14 and the peculiar and specific conditions related to the N s property on which the appeal is brought. (F) If the appeal is accompanied by a bond or other sufficient security satisfactory to the City Attorney in an amount equal to the original determination of the stormwater (drainage) utility fee due, any discontinued utility service may be reinstated while the appeal is pending. The City Council shall apply the standards and review criteria contained in this Article. (G) Following the hearing, the City Council shall consider all evidence and determine whether the appeal should be granted, in whole or in part, or denied. Sec. 23 -511. Termination of stormwater (drainage) utility system. If, after at least five (5) years of substantially continuous operation of the Stormwater (Drainage) System, the City Council determines that the Stormwater (Drainage) System should be discontinued, the powers under the Act should be revoked, and the provision for financing municipal stormwater costs should be made by using other revenues, the City Council may adopt an ordinance that in effect, after providing notice and a public hearing as required by the Act, discontinues the Stormwater (Drainage) System. `" Sec. 23 -512. Stormwater (drainage) utility fund. (a) Stormwater (drainage) utility fund. A stormwater (drainage) utility fund is established and may consist of one or more accounts. All stormwater (drainage) utility fees shall be deposited as collected and received into this fund, and shall be used exclusively for stormwater (drainage) services as provided in the Act, including, but not limited to the following: (1) The cost of the acquisition of land, rights -of -way, options to purchase land, easements, and interests in land relating to structures, equipment, and facilities used in draining the benefitted property; (2) The cost of the acquisition, construction, repair, and maintenance of structures, equipment, and facilities used in draining the benefitted property; (3) The cost of architectural, engineering, legal, and related services, Naisi plans and specifications, studies, surveys, estimates of cost and of H: \CITY COUNCIL \ORDINANCES\2010 ORDINANCES \Ordnance No. 447 - Stormwater Drainage.doc Page 15 'Noe revenue, and all other expenses necessary or incident to planning, designing, providing, or determining the feasibility and capability of structures, equipment, and facilities used in draining the benefitted property; (4) The cost of all machinery, equipment, furniture, and facilities necessary or incident to the provision and operation of draining the benefitted property; (5) The prorated cost of funding and financing charges and interest arising from construction projects and the start-up cost of a stormwater (drainage) facility used in draining the benefitted property; (6) The prorated cost of debt service and reserve requirements for funding of stormwater (drainage) infrastructure, equipment and facilities paid with revenue bonds or other securities or obligations issued by the City and supported by pledge of stormwater Now revenues, including any fees and expenses incidental thereto; (7) To the extent permitted by law, the cost of constructing, sampling, monitoring, building, inspecting and maintaining structures needed for the State's regulation and permitting requirements imposed on the City for providing stormwater quality improvements for the benefitted property; and (8) The administrative costs of the Stormwater (Drainage) System. (b) Stormwater (drainage) utility fund accounting. (1) The City shall clearly account for revenues and expenditures authorized for operation of the Stormwater (Drainage) System. (2) The revenues collected from stormwater (drainage) utility fees shall be segregated and completely identifiable from other City funds and accounts. (3) Funds and revenues in the stormwater (drainage) utility fund may be transferred to the City's general fund as allowed by law. (c) Stormwater (drainage) utility service deposit. A deposit shall not be imposed for initiation or continuation of stormwater (drainage) utility service. H: \CITY COUNCIL \ORDINANCES\2010 ORDINANCES \Ordnance No. 447 - Stormwater Drainage.doc Page 16 Sec. 23 -513. Exemptions. (a) The following entities or persons shall be exempt from payment of the fees established by this Article: (1) Government/Educational Entities. (A) The State of Texas, including a State agency; (B) A public or private institution of higher education; (C) Tarrant County; and (D) City of Kennedale. (2) Private Property Exemption. Any property to which a mandatory exemption under Section 552.053 of the Act applies is exempt from this Article, including without limitation: (A) Property with proper construction and maintenance of a wholly sufficient and privately owned stormwater (drainage) system that does not discharge under any storm frequency event or conditions to waterways controlled or maintained by the City; (B) Property held and maintained in its natural state, until such time that the property is developed and all of the public infrastructure constructed has been accepted by the City for maintenance; and (C) A subdivided parcel or lot, until a structure has been built on the lot and a certificate of occupancy has been issued, or the City has taken another official action to release the property for occupancy. (b) Proof of Exemption. If the owner of property asserts that such property is exempt pursuant to this Section or any other applicable law, such property owner has the burden to assert such exemption by filing notice of eligibility for such exemption and sufficient evidence of entitlement to such exemption with the Director of Public Works. If the exemption is not granted, the owner may appeal using the procedures for appeal provided in Section 23 -510, above. [Sec. 23 -514 to Sec 23 -525 Reserved]" H: \CITY COUNCIL \ORDINANCES \2010 ORDINANCES \Ordnance No. 447 - Stormwater Drainage.doc Page 17 SECTION 2. PENALTY FOR VIOLATION Any person, firm or corporation who violates, disobeys, omits, neglects or refuses to comply with or who resists the enforcement of any of the provisions of this Ordinance shall be fined no more than Two Thousand Dollars and no cents ($2,000.00) for each violation, and in addition shall pay all costs and expenses involved in the case. Each day a violation occurs is a separate offense. Nothing herein contained shall prevent the City from taking such other lawful action as is necessary to prevent or remedy any violation. SECTION 3. CUMULATIVE CLAUSE This Ordinance shall be cumulative of all provisions of all existing ordinances and of the Kennedale City Code (1991), as amended, including but not limited to all ordinances of the City of Kennedale affecting stormwater (drainage) services and stormwater (drainage) utility systems, and shall not repeal any of the provisions of such ordinances except in those instances where provisions of such ordinances are in direct conflict with the provisions of this ordinance. SECTION 4. SEVERABILITY CLAUSE It is hereby declared to be the intention of the City Council that the phrases, clauses, sentences, paragraphs, and sections of this Ordinance are severable, and if any phrase, clause, sentence, paragraph or section of this Ordinance shall be declared unconstitutional by the valid judgment or decree of any court of competent jurisdiction, such unconstitutionality shall not affect any of the remaining phrases, clauses, sentences, paragraphs and sections of this Ordinance, since the same would have been enacted by the City Council without the incorporation in this Ordinance of any such unconstitutional phrase, clause, sentence, paragraph or section. SECTION 5. SAVINGS CLAUSE All rights and remedies of the City of Kennedale are expressly saved as to any and all violations of the provisions of the Kennedale City Code (1991), as amended, or any other ordinances regarding stormwater (drainage) services and stormwater (drainage) utility systems that have accrued at the time of the effective date of this Ordinance; and, as to such accrued violations and all pending litigation, both civil and criminal, whether pending in court or not, under such ordinances, same shall not be affected by this Ordinance but may be prosecuted until final disposition by the courts. New H: \CITY COUNCIL \ORDINANCES\2010 ORDINANCES \Ordnance No. 447 - Stormwater Drainage.doc Page 1 8 SECTION 6. PAMPHLET FORM CLAUSE The City Secretary of the City is hereby authorized to publish this Ordinance in book or pamphlet form for general distribution among the public, and the operative provisions of this Ordinance as so published shall be admissible in evidence in all courts without further proof than the production thereof. SECTION 7. PUBLICATION CLAUSE The City Secretary of the City of Kennedale is hereby directed to publish the caption penalty clause publication clause and effective date clause of this Ordinance in every issue of the official newspaper of the City of Kennedale for two days or one issue of the newspaper if the official newspaper is a weekly newspaper as authorized by Section 3.10 of the City of Kennedale Charter. SECTION 8. EFFECTIVE DATE This Ordinance shall be in full force and effect from and after its passage and publication as required by law, and it is so ordained. PASSED AND APPROVED THIS DAY OF , 2010. Bryan Lankhorst, Mayor ATTEST: Kathy Turner, City Secretary APPROVED AS TO FORM AND LEGALITY: City Attorney H: \CITY COUNCIL \ORDINANCES\2010 ORDINANCES\Ordnance No. 447 - Stormwater Drainage.doc Page 19 ,44100. LEGAL NOTICE Notice is hereby given that the City Council of the City of Kennedale will hold a public hearing on February 11, 2010, at 7:00 P.M. in the Council Chambers at Kennedale City Hall, 405 Municipal Drive, Kennedale, TX 76060 to consider the following: Conduct a public hearing on Ordinance No. 448, an ordinance of the City of Kennedale, Texas amending Chapter 23, Article IX "Stormwater (Drainage) Utility System ", of the Kennedale City Code of Ordinances (1991), as amended, by adding a new Division 2 "Stormwater (Drainage) Utility Fees" to establish monthly stormwater (drainage) utility fees for the purpose of funding the Stormwater (Drainage) Utility System; providing a cumulative clause; providing a severability clause; providing a savings clause; providing for publication; and providing an effective date. Please see Exhibit "A" for the Ordinance. Any interested persons and parties may submit any information they wish to be considered to the City Secretary prior to the date of the public hearings or may appear at the public hearings to be heard, or both. The facility is wheelchair accessible. If you plan to attend and you have a disability that requires special arrangements, please notify the City Secretary 48 hours in advance of the hearings so that reasonable accommodations can be made. For sign interpretive services, please call 72 hours in advance. For more information on this Legal Notice, please contact the City Secretary at (817) 985 -2104. Signed this the 4 day of January, 2010. Kathy Turner City Secretary Published: January 8, 2010 January 15, 2010 January 22, 2010 H: \CITY COUNCIL \ORDINANCES\2010 ORDINANCES \Ordinance No. 448 - Stormwater Drainage Utility Fee.doc Page 1 StaffReport To the Honorable Mayor and City Council Date: May 5, 2010 Agenda Item No: XII -H. Subject: AN ORDINANCE AMENDING CHAPTER 23, ARTICLE IX "STORMWATER (DRAINAGE) UTILITY SYSTEM ", OF THE KENNEDALE CITY CODE OF ORDINANCES (1991), AS AMENDED, BY ADDING A NEW DIVISION 2 "STORMWATER (DRAINAGE) UTILITY FEES" TO ESTABLISH MONTHLY STORMWATER (DRAINAGE) UTILITY FEES FOR THE PURPOSE OF FUNDING THE STORMWATER (DRAINAGE) UTILITY SYSTEM Originated by: Bob Hart N Summary: In 1989, after larger cities in the State of Texas started having to fund numerous activities to meet Federal and State water quality regulations, the State Legislature authorized local governments to create a Stormwater Utility System dedicated to the management of its stormwater (drainage and water quality) facilities and activities. The legislation also allowed for the levying of a dedicated fee to fund the utility. Over the last six months, the City Council has been reviewing the potential funding sources that may be available to begin incrementally solving stormwater quality and drainage problems including, county, state and federal monies for special projects and, in particular, the possible establishment of a Stormwater (Drainage) Utility that would be dedicated to stormwater activities. The City of Kennedale has identified numerous existing drainage systems throughout the City that do not function properly during heavy rainfall with regard to draining excess stormwater runoff safely and effectively. The current cost estimates to address these problems total to more than $80 million, with $34 million in the Village Creek watershed alone. Other cost components provide local match for federal grant to conduct a flood control study, conduct required stormwater monitoring, and to pay for ditch cleaning. After On March 11, 2010, the City Council held a hearing to receive comments and suggestions from the public concerning a Stormwater Utility. Upon approval of both the Stormwater Utility and rate structure ordinance by the City Council, it is anticipated that the new fees will go into effect during the June billing cycle. err.., Below is a brief summary of the Stormwater Utility timeline and community notification process that has occurred: ,` Articles Published (Kennedale Dispatch) ✓ November 2009: City's Ongoing Stormwater Activities ✓ December 2009: Council Is Considering A Stormwater Utility ✓ January 2010: Council Is Considering A Stormwater Utility Ordinances Published (Kennedale News) ✓ January 08, 2010 ✓ January 15, 2010 ✓ January 22, 2010 Questions & Answer Brochure (Utility Bills) ✓ December 2009 ✓ January 2010 Public Hearings (City Council Meeting) ✓ February 11, 2010 - Postponed Due To Snow Storm ✓ March 11, 2010 Ordinances Considered (City Council Meeting) ✓ April 08, 2010 Attachments: Nod Utility Rate Options Non - Residential Billing Tiers Revenues Monthly Stormwater Bills Recommended Motion: Staff recommends approval of the Stormwater Utility Fees based at $2.50 with the reduced impervious allocation, churches assessed a residential fee, and KISD exempted from the fee (with the understanding that KISD related projects will be deleted from the Capital Improvement Plan and future KISD related needed improvements will be paid through an Interlocal Agreement). Disposition by Council: Nis nr ORDINANCE NO. 448 AN ORDINANCE OF THE CITY OF KENNEDALE, TEXAS AMENDING CHAPTER 23, ARTICLE IX "STORMWATER (DRAINAGE) UTILITY SYSTEM ", OF THE KENNEDALE CITY CODE OF ORDINANCES (1991), AS AMENDED, BY ADDING A NEW DIVISION 2 "STORMWATER (DRAINAGE) UTILITY FEES" TO ESTABLISH MONTHLY STORMWATER (DRAINAGE) UTILITY FEES FOR THE PURPOSE OF FUNDING THE STORMWATER (DRAINAGE) UTILITY SYSTEM; PROVIDING A CUMULATIVE CLAUSE; PROVIDING A SEVERABILITY CLAUSE; PROVIDING A SAVINGS CLAUSE; PROVIDING FOR PUBLICATION; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Kennedale, Texas (City) is a home rule city acting under its charter adopted by the electorate pursuant to Article XI, Section 5 of the Texas Constitution and Chapter 9 of the Local Government Code; and WHEREAS, the City Council of the City of Kennedale, Texas ( "City Council ") has adopted Ordinance No. 447, to create a tormwater (drainage) utility system and t.r provide stormwater (drainage) service to collect and direct stormwater runoff for benefitted properties within the utility service area upon payment of stormwater (drainage) utility fees; and WHEREAS, the City Council, after holding a public hearing and finding that the fees are nondiscriminatory, reasonable, and equitable, now desires to levy a schedule of stormwater (drainage) utility fees for stormwater (drainage) service; and WHEREAS, in setting the schedule of stormwater (drainage) utility fees, the fees are based on an inventory of improved parcels within the utility service area. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF KENNEDALE, TEXAS, THAT: SECTION 1. The City Council hereby establishes stormwater (drainage) utility fees as set forth herein. Stormwater (drainage) utility fees shall be levied against all benefitted properties within the utility service area unless exempt under Division 1, Section 23 -513. These fees shall be imposed and issued with utility billing statements issued on and after February 1, 2010. SECTION 2. H: \CITY COUNCIL \ORDINANCES \2010 ORDINANCES \Ordinance No. 448 - Stormwater Drainage Utility Fee.doc Page 2 Chapter 23 "Water, Sewers, and Sewage Disposal ", of the Kennedale City Code, • is hereby amended to add a new Division 2 to Article IX "Stormwater (Drainage) Utility System ", which shall read as follows: "DIVISION 2. STORMWATER (DRAINAGE) UTILITY FEES Sec. 23 -526. Applicability. The City Council hereby establishes the stormwater (drainage) utility fees as set forth herein. A stormwater (drainage) utility fee shall be levied against all benefitted property within the utility service area unless exempt under Division 1, Section 23 -513. Sec. 23 -527. Fee calculation. (a) Stormwater (Drainage) Utility Fee Calculation. Stormwater (drainage) utility fees shall be calculated based on the total stormwater runoff potential for benefitted properties for all customers within the utility service area. The total stormwater runoff potential shall be measured as impervious areas in square feet ( "SF "). (b) Stormwater Utility Fee. The total stormwater runoff potential for the service area shall be allocated between the customer classes based on the relative amount of impervious area in each class established in Division 1, Section 23- 506(a). (1) Residential Property Class. Stormwater utility fees for the residential property class of customers, as defined in Division 1, Section 23 -504 shall be as followings: (A) A monthly, flat -rate fee per a single - family equivalent residential unit ( "ERU "); or (B) One (1) flat -rate ERU fee per dwelling unit on a residential parcel. (C) The flat -rate fee is established in the fee schedule listed in Subsection (c)(1). (D) The monthly stormwater fee is based on the average impervious area for an ERU, which is two thousand eight hundred (2,800) SF. (2) Non - Residential Property Class. A stormwater (drainage) utility fee for each improved non - residential property or allocated portion of an improved non - residential property shall equal the product of impervious area in square feet ( "SF ") times the stormwater (drainage) utility rate established in the rate schedule listed in Subsection (c)(2). H: \CITY COUNCIL \ORDINANCES 12010 ORDINANCES \Ordinance No. 448 - Stormwater Drainage Utility Fee.doc Page 3 • (c) Schedule of Monthly Fees and Rates. The monthly stormwater (drainage) utility fee shall be as follows: (1) Residential Units. The monthly stormwater (drainage) utility fee for each residential dwelling unit or ERU shall be as follows for each fiscal year beginning October 1, 2009 (FY2010): Fiscal Year Monthly Fee FY2010 $4.00 FY2011 $4.50 FY2012 $5.00 FY2013 $5.50 FY2014 $6.00 FY2015 $6.50 FY2016 $7.00 FY2017 $7.50 FY2018 $8.00 FY2019 $8.50 (2) Non - residential unit. The monthly stormwater utility fee for the impervious area measured in square feet on each non - residential parcel shall be as follows for each fiscal year beginning October 1, 2009 (FY2010): �wr Fiscal Year Rate (per square foot) FY2010 $0.00143 FY2011 $0.00161 FY2012 $0.00179 FY2013 $0.00197 FY2014 $0.00215 FY2015 $0.00233 FY2016 $0.00250 FY2017 $0.00268 FY2018 $0.00286 FY2019 $0.00304 (3) Revision of Fees or Rates. The stormwater (drainage) utility fee or the stormwater (drainage) utility rate may be revised by the City Council via ordinance from time to time as permitted by this Article and the Act. [Sec. 23 -528 to Sec. 23 -545 Reserved]" Igoe H: \CITY COUNCIL \ORDINANCES\2010 ORDINANCES \Ordinance No. 448 - Stormwater Drainage Utility Fee.doc Page 4 SECTION 3. This Ordinance shall be cumulative of all provisions of all existing ordinances and of the Kennedale City Code (1991), as amended, including but not limited to all ordinances of the City of Kennedale affecting stormwater (drainage) utility fees or rates and shall not repeal any of the provisions of such ordinances except in those instances where provisions of such ordinances are in direct conflict with the provisions of this Ordinance. SECTION 4. It is hereby declared to be the intention of the City Council that the phrases, clauses, sentences, paragraphs, and sections of this ordinance are severable, and if any phrase, clause, sentence, paragraph or section of this Ordinance shall be declared unconstitutional by the valid judgment or decree of any court of competent jurisdiction, such unconstitutionality shall not affect any of the remaining phrases, clauses, sentences, paragraphs and sections of this ordinance, since the same would have been enacted by the City Council without the incorporation in this Ordinance of any such unconstitutional phrase, clause, sentence, paragraph or section. SECTION 5. All rights and remedies of the City of Kennedale are expressly saved as to any and all violations of the provisions of the Kennedale City Code (1991), as amended, or any other ordinances regarding stormwater (drainage) utility fees or rates that have accrued at the time of the effective date of this Ordinance; and, as to such accrued violations and all pending litigation, both civil and criminal, whether pending in court or not, under such ordinances, same shall not be affected by this ordinance but may be prosecuted until final disposition by the courts. SECTION 6. The City Secretary of the City is hereby authorized to publish this Ordinance in book or pamphlet form for general distribution among the public, and the operative provisions of this Ordinance as so published shall be admissible in evidence in all courts without further proof than the production thereof. SECTION 7. The City Secretary of the City of Kennedale is hereby directed to publish the caption penalty clause publication clause and effective date clause of this ordinance in every issue of the official newspaper of the City of Kennedale for two days or one issue of the newspaper if the official newspaper is a weekly newspaper as authorized by Section 3.10 of the City of Kennedale Charter. H: \CITY COUNCIL \ORDINANCES \2010 ORDINANCES \Ordinance No. 448 - Stormwater Drainage Utility Fee.doc Page 5 SECTION 8. This Ordinance shall be in full force and effect from and after its passage and publication as required by law, and it is so ordained. PASSED AND APPROVED THIS DAY OF , 2010. 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O - - O - j N 10 p p m 0 O m p m p CO W l '1 0) 0) 0 A To D j N N - - O - N ( 10 i0 N O OD A 10 OM 10 i W - N 2 N C N a C = N co o N e (0 K V / W 49 ( •' ) N 0 m 0 0 (9 0) CO N Q m 9 ': , 9 0 V) 19 Vi N 69 C M N VI - O O II . O O N m oat N m ($ - o $ Or M c CC 1 To D M 7 d C m N O C— N 10 NI h N 1 F m . . Q m > I ce a O - J J ( `0 7 (app f9 M (O Ni N 6 /91 69 W - at ' 3 e a - ; : 0 0 0 M •• r O 0 a0 O I N O I 1 Opp O N �Mpp 10 T o V M Pt N a N D W O 0 1D - f 0 of L 10 A A C 0 ( O t N ' f Y N ( Co j A a- 0 N N 1001 I d 1 0 ci C d • s g E 12T, u a • s c co m c U _ m i N v a o I E o F • t � o Ce d m E E n co m C m b O O N LIS O 1f') O 1 w a) 1 E O U Q I to TD U 7 a a1 a1 T m � I m = 3 m j E a1 > Y o E - > o 0 0 U 2 • Staff Report To the Honorable Mayor and City Council Date: May 5, 2010 Agenda Item No: XII - I. Subject: Public hearing, review, and consider action to award bid for oil and gas development for Tracts 1H and 1H01, E.C. Cannon Survey, Abstract 378, City of Kennedale, Texas, Tarrant County, Texas. Originated by: Bob Hart, City Manager Summary: The City was approached to lease the two tracts for the properties identified above, which are located at 1000 E. Kennedale Parkway. Bids were solicited and one bid was received. The bid was for 2 years, no surface drilling, 25% royalty, and a bonus of $4,000.00 per acre or a total of $20,000. Prior to awarding bid, council must conduct a public hearing. Recommended Motion: Recommend Council award bid to Griffith Land Services, Inc., for oil and gas development for Tracts 1H and 1H01, E.C. Cannon Survey, Abstract 378. OIL AND GAS LEASE BID DOCUMENT The City of Kennedale, Texas intends to lease property for oil and gas development only, as described below: See property description attached and incorporated herein as Exhibit "A ". Said lease or leases shall be awarded, at the discretion of the City Council, to the highest and best bidder submitting a bid in accordance with terms as outlined below: BIDS MAY BE SUBMITTED FOR: 1) A SPECIFIC TRACT OR TRACTS, 2) FOR ALL TRACTS OR 3) FOR BOTH INDIVIDUAL TRACTS AND FOR ALL TRACTS AS A WHOLE INDICATING THE BIDDER'S PREFERENCE FOR POSSIBLE LEASE AWARD. It is the intention, of the Council to award and sell the lease or multiple leases based on the highest and best bid or bids submitted to the City Council at a public hearing that will be held for the Council to consider the bids; provided that, if in the judgment of the Council the bids submitted do not represent the fair value of such lease(s), the Council will reject any or all of the bids. No bids will be considered unless submitted by 2:00 p.m., on Mav 3, 2010. The , Council reserves the right to reject any and all bids for such lease(s). However, should any bid be accepted, such lease shall be executed upon a form acceptable to the Council and the Lessee- therein and shall, at a minimum, provide: 1. for a primary term of not more than two (2) years from date of execution. 2. for a royalty to be paid Lessor of not less than 1 4 ( y) of all oil and gas produced from said land; 3. for bonus money as specified in the bid and with the minimum of f - flw..,.,�1 ($ '-(, 0.O.42v ) per acre; and 4. at a minimum, the following provisions: A. LESSEE MUST AGREE TO INDEMNIFY LESSOR AGAINST ANY AND ALL CLAIMS UPON THE PART OF THIRD PERSONS FOR DAMAGES OR INJURIES OF ANY KIND OR CHARACTER WHICH MIGHT ARISE FROM THE LESSEE'S OPERATIONS. B. Lessor prohibits the disposal of salt water or oil field waste in or on the hereinabove described tract of land. Page 1 •w C. Lessee must covenant and agree to comply with the Oil and Gas regulations, Ordinance No. 271, Section 17-426 of the Zoning Ordinance of the City of Kennedale, Texas, as it may be amended. D. Ingress and egress to the proposed tract must be approved by the City Manager to the extent such access traverses City Property. E. Lessee must satisfy itself as to title and acquire all necessary abstracts and other title information solely at their own expense; the lease form shall contain no general warranty of title by Lessor. F. NO SURFACE DRILLING /DRILL SITES SHALL BE PERMITTED ON THE LEASED PREMISES. THIS LEASE SHALL BE AWARDED AS A "NO- DRILL" LEASE. G. The City shall allow the successful bidder to pool the lease, the land or minerals included in the lease with any other land, leases, mineral estates or parts of any of these to form a drilling or spacing unit for the exploration, development, and production of oil and gas; provided, however, in the event the successful bidder should exercise its option to pool or unitize on any portion of the leased premises with other lands as herein provided, Lessee shall always include the entire applicable Leased Premises in such pool or unitization. An oil and gas lease will be negotiated after a successful bidder is selected. The oil and gas lease must be approved by the City Council. By submitting a bid, each bidder agrees to waive and does hereby waive any claim the bidder has or may have against the City of Kennedale, Texas, and the City's respective officers, employees and representatives for the award of damages or attorney fees, arising out of or in connection with the administration, evaluation, or recommendation of any bid, waiver, deletion or amendment of any requirements under the Bid Documents or the Lease Documents, acceptance or rejection of any bids, and award of the Bid or lease. By submitting a bid, the bidder specifically waives any right to recover or be paid attorney's fees from the City of Kennedale, Texas, or any of the City's officers, employees and representatives under any of the provisions of the Texas Uniform Declaratory Judgments Act (Texas Civil Practice and Remedies Code, Section 37.001, et. seq., as amended). The bidder acknowledges and agrees that this is the intentional relinquishment of a presently existing known right and that there is no disparity of bargaining power between the bidder and the City of Kennedale, Texas. By execution and submission of this bid, the bidder hereby represents and warrants to the City of Kennedale that the bidder has read and understands the Bid Documents and this bid is made in accordance with the Bid Documents. Bidder acknowledges that it understands all terms within the bid documents, which include the waiver provisions, and that it had the right to consult with counsel regarding all of the above documents. Page 2 The City reserves the right to waive, delete or amend any of the requirements connected with this bid. The City further reserves the right, in accordance with Section 253.005 of the Texas Local Government Code, to lease the tracts in the manner and on the terms the City Council determines, for the benefit of the City. Bids shall be delivered to City Secretary's Office, City of Kennedale, 405 Municipal Drive, Kennedale, Texas 76060. Bids shall be placed in a sealed envelope marked "Bid to Lease City Property for Oil and Gas Development." Any bid received after the specified time will not be considered. Bids shall be submitted on the attached bid form. A SEPARATE BID FORM MUST BE USED FOR EACH TRACT UNLESS THE BID IS SUBMITTED FOR ALL TRACTS. The bidder may attach as many additional pages as it deems necessary. City staff will publicly open, and read the bids at 2:00 p.m. on Monday, May 3, 2010, Conference Room, City of Kennedale, 405 Municipal Drive, Kennedale, Texas 76060. The City Council will receive and consider the bids at a public hearing to be held at the regular City Council meeting at 7:00 p.m. an May 13, 2010, in the City Council Chambers, City of Kennedale, 405 Municipal Drive, Kennedale, Texas 76060. Bidders may contact the Bob Hart, City Manager at 817.985.2102 for clarifications and questions. H:1OIL AND GAS\OIL & GAS BID FORMS \O11 & Gas Lease Bid Documents- Blank DocumenLdoc 3 EXHIBIT "A" TRACTS 1H AND 1H01, E.C. CANNON SURVEY, ABSTRACT 378, KENNEDALE, TARRANT COUNTY, TEXAS. PROPERTY LOCATED AT: 1000 E. KENNEDALE PARKWAY KENNEDALE, TEXAS 76060 PROPERTY CONSISTS OF AN APPROXIMATE TOTAL OF 5 ACRES TiMM■iivmiirrilt - _ - rs..■ aB t V N i i t a e4 le' s� ;;.; 4 0 8 6 V i, Ai e/ '' o A / I i_. 1 - ' . - - 000 N 1,.111 ors % r ^ S O .. " • 11 ' ' . . ._... EN ism; eggio , Fr • o Imo Elm 3 . : " - ' i . r lila . Ilk 4 ' ; s • q ' 4 _.cam/ {� 1 • . M ' x 3 ' • - • • \/ • _� \ oa • � � H 111 ' ' Li: - .?, . i /•\ . .-_, . -4 it .111111110 ` _ 4. F ' • it 4110 r r ` ' ' 8 , ' ` H M ■ Y -. li .fit Gt • Y e 1 kik i •s Q 0 .1% w _� Il P w 1 ma y© dig ill, t e l L'� N ; i e 1 /— :� �i a ' e — _ _ ° I. tN Y i F I [/ ' I It ! I 11. '' B• Y P ,- `f • ����ff ..(( II • 11111 • . t E!! S3 . i i a• NI FF f C e t f a dr 1. 1111 c H Y v le f ■ t 1111 I .. o U i wY HY i § MI 1 y Ik414: , 7 C . /) NEE e • , I. o F id r - 1 > ' 111111 i " It tI . t i '°41 y • d & ' E 111 // • i r 'Nw' BID FORM April 28 ,2010 Tr 1H & 1H01, E.C. Cannon, A -378 This bid is hereby tendered solely for the following property: Kennedale, Tarrant County Minimum Standards of the Bid: 1. A primary term of not more than two (2) years from date of execution. (If less than two years, specify: 2. A royalty to lessor not less than Twenty -Five Percent (25 %) cost free royalty interest of all oil and gas produced from said land. (If greater than Twenty -Five Percent (25 %), please specify: • ) 3. Bonus money as specified by bidder, with a minimum of Fifteen Hundred dollars ($1,500) per net mineral acre. Five (5) acres X $ y = total bonus money: 42-Q,00v•oo 4 4•10` 4. THIS BID IS TENDERED FOR A NO -DRILL LEASE. NO SURFACE DRILLING /DRILL SITES SHALL OCCUR ON THE LEASED PREMISES. 5. This bid is tendered with the understanding that an oil and gas lease will be negotiated once the successful bidder is selected. 6. By submitting a bid, the bidder agrees to waive and does hereby waive any claim the bidder has or may have against the City of Kennedale, Texas, and the City's respective officers, employees and representatives for the award of attorney fees, arising out of or in connection with the administration, evaluation, or recommendation of any Bid, waiver of any requirements under the Bid Documents, or the Lease Documents, acceptance or rejection of any Bids, and award of the Bid. By submitting a Bid, the bidder specifically waives any right to recover or be paid attorney's fees from the City of Kennedale, Texas, or any of the City's officers, employees and representatives under any of the provisions of the Texas Uniform Declaratory Judgments Act (Texas Civil Practice and Remedies Code, Section 37.001, et. seq., as amended). 7. The bidder agrees that this is the intentional relinquishment of a presently existing known right. Page 1 oft 8. By execution and submission of this Bid, the bidder hereby represents and warrants to the City of Kennedale that the bidder has read and understands the Bid Documents and this Bid is made in accordance with the Bid Documents. Bidder acknowledges that it understands all terms within the Bid Documents which include the waiver provisions, and that it had the right to consult with counsel regarding all of the above documents. 9. By submitting a Bid, the bidder agrees to waive and does hereby waive any claim the bidder has or may have against the City of Kennedale, Texas and the City's officers, employees and representatives arising out of or in any way connected with the following: A. the administration, evaluation or recommendation of any Bid; B. waiver or deletion of any of the requirements under the Bid Documents or the Lease Documents; C. acceptance or rejection of any Bids; and D. award of the Bid or Lease. 10. By submitting a Bid, the bidder acknowledges that the bidder understands all terms of the Bid Documents and consents to the bidding process and the possibility of a negative assessment. By submitting a bid, the bidder acknowledges and agrees that there was and is no disparity of bargaining power between the bidder and the City of Kennedale, Texas. 11. The bidder agrees that this is the intentional relinquishment of the above listed presently existing rights. 12. The City reserves the right to waive, delete or amend any of the requirements connected with this Bid or to reject any or all bids. Certification of B der Page 2 of 2 StaffReport To the Honorable Mayor and City Council Date: May 5, 2010 Agenda Item No: XII -J. Subject: Public hearing, review, and consider action to award bid for the sale of land identified as Lots 19, 20, 21A & 21B, Block 1, Woodlea Acres Addition, Kennedale, Tarrant County, Texas. Originated by: Bob Hart, City Manager Summary: Bid opening is scheduled for Tuesday, May 11 at 3 p.m., at which time a revised staff report along with bid packet will be provided for your review. Recommended Motion: StaffReport To the Honorable Mayor and City Council Date: May 5, 2010 Agenda Item No: XII - K. Subject: Discuss and consider naming of Bowman Springs Road. Originated by: Bob Hart, City Manager Summary: Council will need to discuss the naming /re- naming of Bowman Springs Road. A map depicting the area of roadway to be named /re -named is attached and areas are Sow' highlighted in read and blue. Recommended Motion: Stow Bowman Springs W 0 E • U_ Legend Bowman Springs "A" — Bowman Springs "B" Parcel files from Tarrant Appraisal District 500 250 0 500 Feet w �� E Location of Bowman Springs "B" is approximate. 1 5 StaffReport To the Honorable Mayor and City Council Date: May 5, 2010 Agenda Item No: XII - L. Subject: Review and consider action to declare the U.S. Fallen Heroes Memorial as a City Economic Development Project pursuant to Chapter 380, L.G.C. Originated by: Bob Hart, City Manager Summary: By Council approving this action, it will enable the City to secure access to businesses to raise funds for the memorial and claim as a City EDC project pursuant 4 40rr to Chapter 380, L.G.C. Recommended Motion: 'err StaffReport To the Honorable Mayor and City Council Date: May 5, 2010 Agenda Item No: XII - M. Subject: Review and consider action to authorize the City Manager to enter into an Interlocal Agreement with Tarrant County to fund transportation project for Sublett Road. Originated by: Bob Hart, City Manager Summary: The attached agreement will finalize funding for Sublett Road project. Recommended Motion: Recommend approval. STATE OF TEXAS § § Interlocal Agreement COUNTY OF TARRANT § This agreement is entered into between Tarrant County, Texas, hereinafter referred to as COUNTY, and City of Kennedale, hereinafter referred to as CITY, and collectively referred to as the parties, for the purpose of funding a needed transportation project within the boundaries of both parties which the Commissioners Court and the governing body of the CITY find serves a public purpose and the public welfare of the citizens of Tarrant County. The COUNTY and the CITY make the following findings of fact: 1. This agreement is made pursuant to Chapter 791 of the Texas Government Code; 2. To the extent necessary the parties will use current revenues to pay obligations in this agreement; 3. The project benefits the public in that it is a needed transportation project; 4. The COUNTY and the CITY each has the legal authority to perform its obligations in this agreement; and 5. The division of costs provided in this agreement constitutes adequate consideration to each party. I. PROJECT DESCRIPTION This project will widen Sublett Road from two lanes to two lanes with a raised median and turn lanes from Little Road to the Arlington city limits. A roundabout will be constructed at the intersection of Sublett Road and Wildcat Way. Interlocal Agreement Transportation Bond 2006 -2007 Page 1 II. SCOPE OF SERVICES PROVIDED BY CITY The services to be provided by the CITY shall include, but are not limited to, the following: A. All costs associated with said project including acquisition of right of way, planning, engineering, surveying and governmental approval costs; B. All construction costs; C. Construction agreement administration, site review, permitting and inspection; D. Interagency cooperation; E. A monthly progress report documenting the percent complete for each major component of the project shall be provided to the COUNTY; F. CITY will notify the COUNTY on completion of the project. G. CITY will include the following language on all on -site public notice signage: "This project is funded by the City of Kennedale and the Tarrant County Commissioners Court through the 2006 Tarrant County Bond Program" III. TERM This agreement will conclude with the ending of the current fiscal year unless terminated sooner per Section XI of this agreement. IV. COST COUNTY agrees to reimburse 50% of the CITY's actual costs of the as -built final total project cost or an amount of $1,761,575 whichever is less and in accordance with Attachment A which is attached hereto and hereby made a part of this agreement for all purposes. However, in the event that the schedule is delayed, the COUNTY is excused from paying until the successful completion of the scheduled phase of the project as reasonably determined by the COUNTY. The CITY will provide certification signed by the CFO or authorized official that the work has been completed and that the funds being requested have been expended. Interlocal Agreement Transportation Bond 2006 -2007 Page 2 • CITY understands that CITY will be responsible for any other expenses incurred by CITY in performing the services under this agreement. V. AGENCY- INDEPENDENT CONTRACTOR Neither COUNTY nor any employee thereof is an agent of CITY and neither CITY nor any employee thereof is an agent of COUNTY. This agreement does not and shall not be construed to entitle either party or any of their respective employees, if applicable, to any benefit, privilege or other amenities of employment by the other party. CITY agrees that the COUNTY will have no right to control the manner or means of construction of the project. VI. ASSIGNMENT Neither party may assign, in whole nor in part, any interest it may have in this agreement without the prior written consent of the other party. VII. THIRD PARTY BENEFICIARY EXCLUDED No person other than a party to this agreement may bring a cause of action pursuant to this agreement as a third party beneficiary. This agreement may not be interpreted to waive the sovereign immunity of any party to this agreement to the extent such party may have immunity under Texas law. VIII. AUDIT OF RECORDS CITY's records regarding this project shall be subject to audit by the COUNTY during the term of this agreement and for two years after the completion of the project. IX. ENTIRE AGREEMENT This agreement represents the entire understanding of and between the parties and superseded all prior representations. This agreement may not be varied orally, but must be amended by written document of subsequent date duly executed by these parties. This agreement shall be governed by the laws of the State of Texas and venue Interlocal Agreement Transportation Bond 2006 -2007 Page 3 • for any action under this agreement shall be in the district courts of Tarrant County, Texas. X. SCHEDULING CITY agrees that the COUNTY retains control over the COUNTY funding disbursement schedule identified in Attachment A. COUNTY agrees to notify CITY of any changes to the funding disbursement schedule 30 days in advance. Such notification will be in the form of written correspondence delivered by regular mail. XI. TERMINATION Until funded by the COUNTY as described in Paragraph IV this agreement may be terminated by either party by providing written notice to the other party at least thirty (30) days prior to the intended date of termination. Any notice or other writing required by this agreement, shall be deemed given when personally delivered or mailed by certified or registered United States mail, return - receipt, postage prepaid, addressed as follows: COUNTY: CITY: 4460, County Administrator City Manager Tarrant County City of Kennedale 100 E Weatherford St 405 Municipal Drive Fort Worth, Texas 76196 Kennedale, Texas 76060 APPROVED on this day the day of , 20 , by Tarrant County. Commissioners Court Order No. TARRANT COUNTY STATE OF TEXAS CITY County Judge Signature Interlocal Agreement Transportation Bond 2006 -2007 Page 4 APPROVED AS TO FORM: District Attorney's Office* *By law, the District Attorney's Office may only advise or approve agreements or legal documents on behalf of its clients. It may not advise or approve a agreement or legal document on behalf of other parties. Our review of this document was conducted solely from the legal perspective of our client. Our approval of this document was offered solely for the benefit of our client. Other parties should not rely on this approval, and should seek review and approval by their own respective attorney(s). CERTIFICATION OF AVAILABLE FUNDS IN THE AMOUNT OF Certification of Funds Available as follows: Fiscal year ending September 30, 2007 $ Fiscal year ending September 30, 2008 $ Fiscal year ending September 30, 2009 $247,000 Fiscal year ending September 30, 2010 $103,750 All future years funding is contingent on future debt issuance and renewal of this contract Fiscal year ending September 30, 2011 $705,411 Fiscal year ending September 30, 2012 $705,414 Fiscal year ending September 30, 2013 $ Fiscal year ending September 30, 2014 $ Fiscal year ending September 30, 2015 $ Fiscal year ending September 30, 2016 $ $1,761,575 Auditor's Office Interlocal Agreement Transportation Bond 2006 -2007 Page 5 ATTACHMENT A Project Information City: City of Kennedale Project Name: Sublett Road widening from Little Rd. to Arlington city limits Proposed Project Schedule Start Date Duration (mo) End Date * Design: Oct -2008 8 Jun -2009 ROW Acquisition: Jul -2009 10 May -2010 Utility Relocation: May -2010 5 Oct -2010 Construction: Dec -2010 17 May -2012 * COUNTY payments by completed phase are contingent upon the COUNTY'S reasonable determination that the work regarding the project phase for which payment is expected is successfully completed, as determined by the COUNTY. COUNTY plans to issue debt for all phases of this project, therefore payment remains contingent on debt issuance in accordance with applicable law. Once Construction commences, COUNTY payment shall be made by fiscal quarter prorated over the life of the'construction but contingent upon reasonable progress in construction as may be determined by the COUNTY. Proposed County Payment by Phase Design: $247,000 ROW Acquisition: $103,750 Utility Relocation: $ Construction: $1,410,825 County Funding Total: $1,761,575 Proposed County Payment by Calendar QuarterjSUBJECT TO CHANGE) 1st Quarter 2nd Quarter 3rd Quarter 4th Quarter 2007 $ $ $ 2008 $ $ $ $ 2009 $ $247,000 $ $ 2010 $ $103,750 $ $ 2011 $235,137 $235,137 $235,137 $235,138 2012 $235,138 $235,138 $ $ 2013 $ $ $ $ 2014 $ $ $ $ 2015 $ $ $ $ 2016 $ $ $ $ Nome Interlocal Agreement Transportation Bond 2006 -2007 Page 6 ,. S taffReport To the Honorable Mayor and City Council Date: May 5, 2010 Agenda Item No: XII - N. Subject: Review and consider action to dedicate easements to utility companies within the boundaries of the former Municipal Drive. Originated by: Kathy Turner, City Secretary Summary: When action was taken to vacate Municipal Drive, no easements were dedicated for utilities that are currently in place. Legal Counsel is preparing required documents that will provide itimeo required easements for needed utilities. Document with revised staff report will be provided for your review prior to the meeting. Recommended Motion: StaffReport To the Honorable Mayor and City Council Date: May 10, 2010 Agenda Item No: XII -0. Subject: Review and consider action to authorize the City Manager to execute an Interlocal Agreement with Tarrant County to fund transportation project — Little School Road. Originated by: Bob Hart, City Manager Summary: This agreement will finalize funding for road improvements to Little School Road. Recommended Motion: StaffReport To the Honorable Mayor and City Council Date: May 5, 2010 Agenda Item No: xIII A. -C. Subject: Executive Session Originated by: Kathy Turner, City Secretary Summary: a. The City Council will meet in closed session pursuant to Section 551.071 of the Texas Government Code for consultation with the City Attorney pertaining to any matter in which the duty of the City Attorney under the Texas Disciplinary Rules of Professional Conduct may conflict with the Open Meetings Act, including discussion on any item posted on the agenda. 1. Noise ordinance b. The City Council will meet in closed session pursuant to Section 551.072 of the Texas Government Code to deliberate the purchase, exchange, lease or value of real property for the following: 1. Little School Road re- alignment properties c. The City Council will meet in closed session pursuant to Section 551.087 of the Texas Government Code to deliberate the offer of a financial or other incentive to a business prospect with which the city is conducting economic development negotiations. 1. Transfer of Bowman Springs Road property to the KEDC. 2. 1000 E. Kennedale Parkway, Kennedale, Texas Disposition by Council: StaffReport To the Honorable Mayor and City Council Date: May 5, 2010 Agenda Item No: XIV. Subject: Reconvene into open session, and take action necessary pursuant to executive session, if needed. Originated by: Kathy Turner, City Secretary Summary: City Council met in executive session pursuant to Section 551.071, Section 551.072, and Section 551.087 of the Texas Local Government Code. City Council will reconvene into open session, and take action necessary pursuant to executive session, if needed. '+ Disposition by Council: