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CP 2006-10-24 NOTICE OF CITY COUNCIL MEETING AND AGENDA OCTOBER 24, 2006 DOUG STOVER, BILLY FAUGHT, Place 5 Mayor Mayor Pro Tem TIM BRANCHEAU, Place 1 MARSHA TUNNELL, Place 4 JAYNE PETERS, Place 2 MARVIN FRANKLIN, Place 6 BRIANNA HINOJOSA-FLORES, Place 3 BILL YORK, Place 7 JIM WITT, City Manager MEETING TIME AND PLACE: Call to Order 5:30 p.m. Council Chambers (Open to the Public) Executive Session Immediately Following 1st Fl. Conf. Room (Closed to the Public) Work Session Immediately Following 1st Fl. Conf. Room (Open to the Public) Regular Session 7:00 p.m. Council Chambers (Open to the Public) Notice is hereby given that the City Council of the City of Coppell, Texas will meet in Regular Called Session on Tuesday, October 24, 2006, at 5:30 p.m. for Executive Session, Work Session will follow immediately thereafter, and Regular Session will begin at 7:00 p.m., to be held at Town Center, 255 Parkway Boulevard, Coppell, Texas. As authorized by Section 551.071(2) of the Texas Government Code, this meeting may be convened into closed Executive Session for the purpose of seeking confidential legal advice from the City Attorney on any agenda item listed herein. The City of Coppell reserves the right to reconvene, recess or realign the Work Session or called Executive Session or order of business at any time prior to adjournment. The purpose of the meeting is to consider the following items: ITEM # ITEM DESCRIPTION 1. Call to order. ag102406 Page 1 of 6 ITEM # ITEM DESCRIPTION EXECUTIVE SESSION (Closed to the Public) 2. Convene Executive Session A. Section 551.071, Texas Government Code - Consultation with City Attorney. 1. The City of Coppell and Coppell Independent School District opposition to a change of zoning request of the Billingsley Corporation in the City of Dallas, Zoning Case Number Z045- 107; and City of Coppell vs. CB Parkway Business Center VI, et al in the County Court at Law No. 3,; and CB Parkway Business Center, et al vs. City of Coppell, et al.; and City of Dallas vs. Douglas Stover, et al in the 191st District Court; and City of Coppell, et al vs. City of Dallas, et al in the 101st District Court. B. Section 551.087, Texas Government Code – Economic Development Negotiations. 1. Economic Development Prospects on the west side of Coppell. WORK SESSION (Open to the Public) 3. Convene Work Session A. Discussion regarding upcoming Legislative Session. B. Discussion regarding the Red Light Enforcement Program. C. Discussion regarding Economic Development incentives. D. Reporting of Election Results. E. Discussion of Agenda Items. Adjourn Work Session. PUBLIC ANNOUNCEMENTS Public Service Announcements concerning local civic events and no Council action is required or permitted. REGULAR SESSION (Open to the Public) 4. Convene Regular Session. 5. Invocation. 6. Pledge of Allegiance. ag102406 Page 2 of 6 ITEM # ITEM DESCRIPTION 7. Consider approval of a proclamation naming November Coppell ISD Education Foundation Month, and authorizing the Mayor to sign. 8. Consider approval of a proclamation naming the week of November 6 through 10, 2006 as MUNICIPAL COURT WEEK, and authorizing the Mayor to sign. 9. Report by Park Board. 10. Citizens' Appearances. CONSENT AGENDA 11. Consider approval of the following consent agenda items: A. Consider approval of minutes: October 10, 2006. B. Consider approval of canceling the Regular City Council meeting scheduled for December 26, 2006. C. Consider approval of a grant agreement between the city of Coppell, the Coppell Education Development Corporation, and the Coppell Independent School District for ESL in the amount of $1,083,600.00 and authorizing the City Manager to sign. D. Consider approval of a grant agreement between the city of Coppell, the Coppell Education Development Corporation, and the Coppell Independent School District for foreign language in the amount of $644,375.00 and authorizing the City Manager to sign. E. Consider approval of a grant agreement between the city of Coppell, the Coppell Education Development Corporation, and the Coppell Independent School District for literacy in the amount of $804,917.00 and authorizing the Mayor to sign. F. Consider approval of a grant agreement between the city of Coppell, the Coppell Education Development Corporation, and The North Hills School for foreign language in the amount of $21,746.40 and authorizing the City Manager to sign. G. Consider approval of a grant agreement between the city of Coppell, the Coppell Education Development Corporation, and ag102406 Page 3 of 6 ITEM # ITEM DESCRIPTION The North Hills School for technology in the amount of $16,311.53 and authorizing the City Manager to sign. H. Consider approval of an ordinance of the City of Coppell, Texas, amending the code of ordinances by amending article 6-8, Food Service sanitation, by repealing the same in its entirety and replacing with a new article 6-8, Food Service sanitation, sections 6- 8-1 through 6-8-12, providing for food service; providing for the adoption of state rules; providing for amendments; providing for seasonal food establishments; providing for temporary food establishments; providing for mobile units; providing for food service regulations, permits and pre-operational inspections; providing for certified food manager; providing for the suspension of a food permit; providing for revocation of a food permit; providing for examination and condemnation of food; and authorizing the Mayor to sign. I. Consider approval of renewing the annual Dallas County Health Services Agreement, effective October 1, 2006 through September 30, 2007, in the amount of $3,131.00, and authorizing the Mayor to sign. END OF CONSENT 12. Consider approval of an Ordinance appointing a presiding municipal judge and alternate municipal judges of the Coppell Municipal Court of Record No. 1 of the city of Coppell, Texas; and authorizing the Mayor to sign. 13. PUBLIC HEARING (Continued): Consider approval of Case No. PD-214-TH-1, TH-2, C and SF-9, The Ellington, zoning change request from C (Commercial), R (Retail) and SF-9 (Single Family–9) to PD-214-TH-1, TH-2, C and SF-9 (Planned Development- 214-Townhouse-1, Townhouse-2, Commercial and Single-Family), with a Concept Site Plan to allow the development of 125 townhouse units (67 TH-1 units on approximately 11.6 acres of Tract A.1 and 58 TH-2 units on approximately 7.5 acres of Tract A.2); Commercial uses on Tract A.3 (approximately 2 acres) along Sandy Lake Road; and on Tracts A.4 and A.5 (4.4 acres) along Denton Tap Road; SF-9 on 3.3 acres for park/open space, on Tract B for a total of approximately 29.05 acres of property located south of Sandy Lake Road, and west of Denton Tap Road. ag102406 Page 4 of 6 ITEM # ITEM DESCRIPTION 14. Consider approval of an ordinance providing for the implementation of an automated red light enforcement program in the city of Coppell, Texas; imposing a civil penalty; and authorizing the Mayor to sign. 15. Consider approval of an agreement between the City of Coppell and Redflex Traffic Systems, Inc. for Photo Red Light Enforcement Program; and authorizing the City Manager to sign and provide a letter of intent. 16. Consider approval of sending a letter to Senator Chris Harris regarding the city of Coppell adopting a sex offender residency ordinance, and authorizing the Mayor to sign. 17. Necessary action resulting from Work Session. 18. Council Committee Reports. A. Carrollton/Farmers Branch ISD/Lewisville ISD – Councilmember Tunnell. B. Coppell ISD – Mayor Pro Tem Faught and Councilmember York. C. Coppell Seniors – Mayor Pro Tem Faught and Councilmember Brancheau. D. Dallas Regional Mobility Coalition - Councilmember Peters. E. Economic Development Committee - Councilmembers Peters and Franklin. F. Metrocrest Hospital Authority - Councilmember Tunnell. G. Metrocrest Medical Foundation - Councilmember Hinojosa-Flores. H. Metrocrest Medical Services – Councilmember Hinojosa-Flores. I. Metrocrest Social Service Center – Councilmember York. J. North Texas Council of Governments - Councilmember Peters. K. NTCOG/Regional Emergency Management - Councilmember Franklin. L. North Texas Commission - Councilmember Brancheau. M. Senior Adult Services – Mayor Pro Tem Faught. 19. Necessary Action Resulting from Executive Session. Adjournment. ____________________________________ Douglas N. Stover, Mayor ag102406 Page 5 of 6 CERTIFICATE I certify that the above Notice of Meeting was posted on the bulletin board at the City Hall of the City of Coppell, Texas on this 20th day of October, 2006, at __________________. ____________________________________ Libby Ball, City Secretary DETAILED INFORMATION REGARDING THIS AGENDA IS AVAILABLE ON THE CITY'S WEBSITE (www.ci.coppell.tx.us) UNDER PUBLIC DOCUMENTS, COUNCIL PACKETS. PUBLIC NOTICES STATEMENT FOR ADA COMPLIANCE The City of Coppell acknowledges its responsibility to comply with the Americans With Disabilities Act of 1990. Thus, in order to assist individuals with disabilities who require special services (i.e. sign interpretative services, alternative audio/visual devices, and amanuenses) for participation in or access to the City of Coppell sponsored public programs, services and/or meetings, the City requests that individuals make requests for these services forty-eight (48) hours ahead of the scheduled program, service and/or meeting. To make arrangements, contact Vivyon V. Bowman, ADA Coordinator or other designated official at (972) 462-0022, or (TDD 1-800-RELAY, TX 1-800-735-2989). ag102406 Page 6 of 6 KEY TO COUNCIL GOALS ICONS 2007 Economic Development • Promote highest and best use of Lesley tract • Continue to explore large tract development options • Continue “hot spot” focus • Refine “Old Coppell” vision • Assess use/sale/acquisition of City property • Develop strategy to attract and retain high value office/retail/development Quality Public Facilities & Infrastructure • Explore funding sources for IMF • Implement ½-cent sales tax reallocation for parks • Continue focus on local/regional transportation efforts • Provide quality park and recreation facilities Excellent City Services & High Citizen Satisfaction • Continue strategic planning for future costs of service delivery • Timely response with quality service delivery • Optimize citizen communication efforts • Promote citizen involvement • Actively participate in the legislative process Sense of Community • Develop and support community special events • Encourage and evaluate teen initiatives • Reassess viability of City cemetery • Evaluate services and programs for senior citizen community • Continue support for social services benefiting Coppell citizens • Continue partnership with public entities serving our community Fiscal Stability • Continue and refine financial planning and forecasting • Continue systematic management of debt and expenditures • Balance expenditures with ability to maintain over time • Perform cost analysis on all approved projects and programs prior to implementation • Minimize potential impact of external factors and developments Neighborhood Integrity & Code Enforcement • Maintain communication with neighborhoods and the community • Update Master Plan and Zoning as required • Continue proactive neighborhood integrity programs Safe Community • Maintain and improve existing excellent level of service • Continue focus on Homeland Security • Provide quality public education programs • Continue traffic/speed control efforts DATE: October 24, 2006 ITEM #: ES-2 AGENDA REQUEST FORM EXECUTIVE SESSION A. Section 551.071, Texas Government Code – Consultation with City Attorney. 1. The City of Coppell and Coppell Independent School District opposition to a change of zoning request of the Billingsley Corporation in the City of Dallas, Zoning Case Number Z045-107; and City of Coppell vs. CB Parkway Business Center VI, et al in the County Court at Law No. 3,; and CB Parkway Business Center, et al vs. City of Coppell, et al.; and City of Dallas vs. Douglas Stover, et al in the 191st District Court; and City of Coppell, et al vs. City of Dallas, et al in the 101st District Court. B. Section 551.087, Texas Government Code – Economic Development Negotiations. 1. Economic Development Prospects on the west side of Coppell. Agenda Request Form - Revised 02/04 Document Name: %executivesession DATE: October 24, 2006 ITEM #: WS-3 AGENDA REQUEST FORM WORK SESSION A. Discussion regarding upcoming Legislative Session. B. Discussion regarding the Red Light Enforcement Program. C. Discussion regarding Economic Development incentives. D. Reporting of Election Results. E. Discussion of Agenda Items. Agenda Request Form - Revised 02/04 Document Name: %worksession WORK SESSION CONSENT REGULAR DEPT: DATE: ITEM #: AGENDA REQUEST FORM ITEM TYPE: ITEM CAPTION: GOAL(S): EXECUTIVE SUMMARY: FINANCIAL COMMENTS: RECOMMENDED ACTION: ACTION TAKEN BY COUNCIL: ȱ City Manager October 24, 2006 7 ✔ PROCLAMATION Consider approval of a proclamation naming November COPPELL ISD EDUCATION FOUNDATION MONTH, and authorizing the Mayor to sign. Staff recommends approval. !Education PROCLAMATION WHEREAS, the Coppell ISD Education Foundation believes that all parents and community members can participate with the school district to enrich public education; and WHEREAS, the Foundation seeks to encourage all students to work to their highest potential by providing opportunities for unique educational experiences; and WHEREAS, the Foundation encourages Coppell ISD teachers to implement innovative instructional strategies by funding original programs and projects; and WHEREAS, the Foundation believes in recognizing staff members for exemplary teaching; and WHEREAS, the Foundation is resolved, through the administration of its gifts, to support education in Coppell ISD. NOW, THEREFORE, I, Douglas N. Stover, Mayor of the city of Coppell, do commend the directors of the Coppell Independent School District Education Foundation, and proclaim the month of November as "COPPELL ISD EDUCATION FOUNDATION MONTH" and call upon all citizens to join me in recognizing the valuable work of the Education Foundation and to work with them to support the staff and students of Coppell public schools. IN WITNESS THEREOF, I have set my hand and caused the seal of the city of Coppell to be affixed this ______day of October 2006 ____________________________________ Douglas N. Stover, Mayor ATTEST: _______________________ Libby Ball, City Secretary WORK SESSION CONSENT REGULAR DEPT: DATE: ITEM #: AGENDA REQUEST FORM ITEM TYPE: ITEM CAPTION: GOAL(S): EXECUTIVE SUMMARY: FINANCIAL COMMENTS: RECOMMENDED ACTION: ACTION TAKEN BY COUNCIL: ȱ ȱ City Manager October 24, 2006 8 ✔ PROCLAMATION Consider approval of a proclamation naming the week of November 6 through 10, 2006 as MUNICIPAL COURT WEEK, and authorizing the Mayor to sign. Staff Recommends approval. !Court PROCLAMATION WHEREAS, there are over 850 municipal courts and more than 1,250 municipal judges in the state of Texas that handle over 7 million cases and more than 3,800 jury trials every year; and WHEREAS, municipal judges make up over one-third of the entire State’s judiciary; and WHEREAS, more people come in personal contact with municipal courts than all other Texas courts combined, and the public perception of the entire Texas judicial system is largely dependent upon the public’s experience in municipal court; and WHEREAS, municipal courts serve as the local justice center for the enforcement of local ordinances and fine-only State offenses that protect the peace and dignity of our community; and WHEREAS, municipal judges and court support personnel have pledged to be ever mindful of their neutrality and impartiality, rendering equal service to all, and conform to the standards set by the Canons of Judicial Conduct; and WHEREAS, the municipal judges and clerks continually strive to improve the administration of justice through participation in judicial education programs, seminars, workshops and the annual meetings of their state and local professional organizations; and WHEREAS, it is most appropriate that we recognize the accomplishments of over 850 Texas Municipal Courts, and of the Coppell Municipal Court Number 1, and salute their critical role in preserving public safety, protecting the quality of life and deterring future criminal behavior in Texas communities and in our community. NOW, THEREFORE, I, Douglas N. Stover, Mayor of the city of Coppell, Texas, and the City Council of the city of Coppell, Texas, do hereby proclaim the week of November 6–10, 2006, "MUNICIPAL COURT WEEK" and further extend appreciation to the municipal judges and court clerks throughout Texas and to our Presiding and Associate Municipal Judges and court support personnel for the vital services they perform and their exemplary dedication to our community. I call upon all residents of Coppell to join with the City Council in recognizing the vital service they perform and their exemplary dedication to the community they represent. IN WITNESS THEREOF, I have set my hand and caused the seal of the City of Coppell to be affixed this _____ day of October 2006. ____________________________ Douglas N. Stover, Mayor ATTEST: _____________________________ Libby Ball, City Secretary WORK SESSION CONSENT REGULAR DEPT: DATE: ITEM #: AGENDA REQUEST FORM ITEM TYPE: ITEM CAPTION: GOAL(S): EXECUTIVE SUMMARY: FINANCIAL COMMENTS: RECOMMENDED ACTION: ACTION TAKEN BY COUNCIL: City Secretary October 24, 2006 9 ✔ REPORT Report by Park Board. The semi-annual report will be made by a member of the Park Board. No action necessary on this item. %boardreport DATE: October 24, 2006 ITEM #: 10 AGENDA REQUEST FORM CITIZENS' APPEARANCES ORDINANCE NO. 2001-964 AN ORDINANCE OF THE CITY OF COPPELL, TEXAS, ESTABLISHING RULES, TIMES AND PROCEDURES FOR CONDUCTING CITY COUNCIL MEETINGS. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF COPPELL, TEXAS, THE FOLLOWING ARE HEREBY ADOPTED AS THE RULES, TIMES AND PROCEDURES FOR CONDUCTING COUNCIL MEETINGS OF THE CITY COUNCIL OF THE CITY OF COPPELL, TEXAS: The City of Coppell Code of Ordinances, Article 1-10 "Rules, Times and Procedures for Conducting City Council Meetings," be, and the same is hereby, amended to read as follows: "ARTICLE 1-10 RULES, TIMES AND PROCEDURES FOR CONDUCTING CITY COUNCIL MEETINGS ". . . 1-10-6.2.1 CITIZENS APPEARANCE Persons wishing to speak on any matter other than an item scheduled for a public hearing on the agenda, must sign a register and list their residence address, provided by the City Secretary on a table outside the Council Chambers, and such persons may be heard only at the "Citizens Appearance" portion of a regular meeting or special meeting. Each speaker must state his or her name and address of residence. Presentations by individuals during the "Citizens Appearance" shall be limited to two (2) minutes each. An individual speaker's time may be extended for an additional two (2) minutes with the approval of a majority of the Council members present. There shall be a cumulative limit of twenty (20) minutes allotted of any regular or special Council meeting. Those persons who signed up to speak at the "Citizens Appearance" shall be called upon in the order that they have signed the provided register. No personal attacks by any speaker shall be made against any member of the Council, Mayor, individual, group or corporation (Charter Article 3, Section 3.12). Agenda Request Form - Revised 09/02 Document Name: %citapp.doc WORK SESSION CONSENT REGULAR DEPT: DATE: ITEM #: AGENDA REQUEST FORM ITEM TYPE: ITEM CAPTION: GOAL(S): EXECUTIVE SUMMARY: FINANCIAL COMMENTS: RECOMMENDED ACTION: ACTION TAKEN BY COUNCIL: City Secretary October 24, 2006 11/A ✔ PROCEDURAL Consider approval of minutes: October 10, 2006. Minutes of the City Council meeting held on October 10, 2006. Staff recommends approval. %minutes MINUTES OF OCTOBER 10, 2006 The City Council of the City of Coppell met in Regular Called Session on Tuesday, October 24, 2006, at 5:30 p.m. in the City Council Chambers of Town Center, 255 Parkway Boulevard, Coppell, Texas. The following members were present: Doug Stover, Mayor Billy Faught, Mayor Pro Tem Tim Brancheau, Councilmember Jayne Peters, Councilmember Brianna Hinojosa-Flores, Councilmember Marsha Tunnell, Councilmember (late arrival) Marvin Franklin, Councilmember Bill York, Councilmember Also present were City Manager Jim Witt, City Secretary Libby Ball and City Attorney Robert Hager. 1. Call to order. Mayor Stover called the meeting to order, determined that a quorum was present and convened into Work Session. WORK SESSION (Open to the Public) 2. Convene Work Session A. Discussion regarding upcoming Legislative Session. B. Discussion regarding Red Light Camera installation. C. Discussion regarding appointments to Board of Adjustment and American Red Cross. D. Discussion regarding proposed Programming of Spaces at the Senior Recreation Center building. E. Discussion of Agenda Items. Councilmember Tunnell arrived during Work Session. REGULAR SESSION (Open to the Public) 3. Convene Regular Session. cm101006 Page 1 of 13 4. Invocation. Pastor Wayne McDonald of the Metrocrest Community Church led those present in the Invocation. 5. Pledge of Allegiance. Mayor Stover led those present in the Pledge of Allegiance. 6. Consider approval of a Proclamation naming the week of October 23 through October 31, 2006 as Red Ribbon Week, and authorizing the Mayor to sign. Presentation: Mayor Stover read the Proclamation for the record and presented the same to R. J. Harr and McGruff. Action: Councilmember Hinojosa-Flores moved to approve a Proclamation naming the week of October 23 through October 31, 2006 as Red Ribbon Week, and authorizing the Mayor to sign. Councilmember Peters seconded the motion; the motion carried 7-0 with Mayor Pro Tem Faught and Councilmembers Brancheau, Peters, Hinojosa-Flores, Tunnell, Franklin and York voting in favor of the motion. 7. Consider approval of a proclamation proclaiming the week of October 8th through 14th, 2006, as Fire Prevention Week, and authorizing the Mayor to sign. Presentation: Mayor Stover read the Proclamation for the record and presented the same to Fire Chief Kevin Richardson. Action: Mayor Pro Tem Faught moved to approve a proclamation proclaiming the week of October 8th through 14th, 2006, as Fire Prevention Week, and authorizing the Mayor to sign. Councilmember Brancheau seconded the ag101006 Page 2 of 13 motion; the motion carried 7-0 with Mayor Pro Tem Faught and Councilmembers Brancheau, Peters, Hinojosa-Flores, Tunnell, Franklin and York voting in favor of the motion. Mayor Stover advised that Item 15 would be postponed and a motion on Item 15 was considered at this time. See Item 15 for minutes. 8. Citizens' Appearances. A. Rob Reedy, 1513 Pebble Creek, spoke to Council regarding the Sex Offender Ordinance. CONSENT AGENDA 9. Consider approval of the following consent agenda items: A. Consider approval of minutes: September 26, 2006. B. Consider approval of an ordinance establishing the City Seal, Logo and Associated Icons as the official Logo for the City of Coppell; and authorizing the Mayor to sign. C. Consider approval of an ordinance revising the Thoroughfare Plan to add the proposed Lesley Drive as a two-lane undivided collector street (C2U), in its entirety from IH 635 to Dividend Drive; and authorizing the Mayor to sign. D. Consider approval to purchase a Dispatch Radio Control Upgrade from Motorola in the amount of $61,865.43, which is being funded by the Homeland Security Grant Program (HSGP) Sub-Recipient Agreement; and authorizing the City Manager to sign. E. Consider approval of a Letter of Agreement with Teague Nall and Perkins for Professional Services related to the design, bidding and construction administration of Beautification of Medians on East Sandy Lake Road, in ag101006 Page 3 of 13 the amount of $54,000.00, and authorizing the City Manager to sign. F. Consider approval of an Interlocal Cooperation Agreement with Denton County to receive compensation in the amount of $5,734 for library services for fiscal year 06/07; and authorizing the Mayor to sign. G. Consider approval of an Ordinance for Case No. S-1235- TC, Healthy Me Marketplace, zoning change request from TC (Town Center) to S-1235-TC (Special Use Permit-1235- Town Center), to allow the operation of a 2,995-square- foot grocery and restaurant, which will include interactive food preparation or cooking school, to be located in the Town Center Addition, Lot 2, Block 3, along the east side of Denton Tap Road; north of Town Center Boulevard, and authorizing the Mayor to sign. Action: Councilmember Tunnell moved to approve Consent Agenda Items A, B carrying Ordinance No. 2006-1137, C carrying Ordinance No. 2006- 1138, D, E, F and G carrying Ordinance No. 91500-A-438. Councilmember Franklin seconded the motion; the motion carried 7-0 with Mayor Pro Tem Faught and Councilmembers Brancheau, Peters, Hinojosa-Flores, Tunnell, Franklin and York voting in favor of the motion. 10. PUBLIC HEARING: Consider approval of Case No. PD-195R-O, Callahan Medical/Office Addition, zoning change request from PD-195-O (Planned Development-195-Office) to PD-195R-O (Planned Development–195 Revised-Office) to allow additional attached signage and a revision to the monument sign to allow for a multi-tenant sign on 1.95 acres of property located at 848 S. Denton Tap Road, north of Belt Line Road. Presentation: Gary Sieb, Director of Planning, made a presentation to the Council. ag101006 Page 4 of 13 Public Hearing: Mayor Stover opened the Public Hearing and asked for those who had signed up to speak on this proposal. A. Alan Sims, 749 Armstrong, expressed his opinion regarding signs. Action: Councilmember Brancheau moved to close the Public Hearing and approve Case No. PD-195R-O, Callahan Medical/Office Addition, zoning change request from PD-195-O (Planned Development-195-Office) to PD- 195R-O (Planned Development–195 Revised-Office) to allow additional attached signage and a revision to the monument sign to allow for a multi-tenant sign on 1.95 acres of property located at 848 S. Denton Tap Road, north of Belt Line Road, subject to the following conditions: 1) Additional attached signs shall be in accordance with the following regulations: a) Maximum total square footage of attached Zoning Ordinance signage shall be 100 square feet; b) All signs shall be similar fonts; c) All letters shall be individually-mounted, channel letters; d) Black letters on the cast stone portions of the façade and white letters on the brick portion of the building are allowed. e) Once all signs are installed there will be a balanced appearance. 2) The multi-tenant monument sign shall adhere to all provisions of Section 12-29-4.2(A). iii of the Zoning Ordinance Councilmember Peters seconded the motion; the motion carried 7-0 with Mayor Pro Tem Faught and Councilmembers Brancheau, Peters, Hinojosa-Flores, Tunnell, Franklin and York voting in favor of the motion. 11. PUBLIC HEARING: Consider approval of Case No. PD-199R4-HC-S-1211R2 Service Star, zoning change request from PD-199-HC-S-1211R (Planned Development-199-Highway Commercial-Special Use Permit- 1211 Revised) to PD-199R4-HC-S-1211R2 (Planned Development 199-Highway Commercial-Special Use Permit- 1211 Revision 2), to revise the detail site plan for Tract 4 to allow the development of 9,310-square-foot retail building and ag101006 Page 5 of 13 to allow revised signage for the previously approved auto repair garage on 2.24 acres of property located at the southwest corner of S.H. 121 and MacArthur Blvd. Presentation: Gary Sieb, Director of Planning, made a presentation to the Council. Public Hearing: Mayor Stover opened the Public Hearing and advised that no one had signed up to speak on this proposal. Action: Mayor Pro Tem Faught moved to close the Public Hearing and approve Case No. PD-199R4-HC-S-1211R2 Service Star, zoning change request from PD-199-HC-S-1211R (Planned Development-199-Highway Commercial-Special Use Permit-1211 Revised) to PD-199R4-HC-S- 1211R2 (Planned Development 199-Highway Commercial-Special Use Permit-1211 Revision 2), to revise the detail site plan for Tract 4 to allow the development of 9,310-square-foot retail building and to allow revised signage for the previously approved auto repair garage on 2.24 acres of property located at the southwest corner of S.H. 121 and MacArthur Blvd., subject to the following conditions: 1) Black lettering to be on the monument signs and white channel lettering on the building with the Firestone logo; and 2) Contact Larry Redick at 972-323-8917 to discuss electric service requirements. Councilmember Peters seconded the motion; the motion carried 7-0 with Mayor Pro Tem Faught and Councilmembers Brancheau, Peters, Hinojosa-Flores, Tunnell, Franklin and York voting in favor of the motion. 12. Consider approval of the Coppell Town Center Plaza, Site Plan, to allow the development of plaza area to include an amphitheater, 65-foot tall tower element, water feature, shade pavilion, walkways, seating areas and landscaping on approximately 6 acres of property located south of Coppell Town Center and east of the Justice Center. ag101006 Page 6 of 13 Presentation: Gary Sieb, Director of Planning, made a presentation to the Council. Action: Councilmember Peters moved to approve the Coppell Town Center Plaza, Site Plan, to allow the development of plaza area to include an amphitheater, 65-foot tall tower element, water feature, shade pavilion, walkways, seating areas and landscaping on approximately 6 acres of property located south of Coppell Town Center and east of the Justice Center, subject to the following conditions: 1) Meet paving and drainage design criteria of Engineering; 2) Provide additional information regarding water feature – depth, fountain, dimension, etc., if known; and 3) Contact Larry Redick at 972-323-8917 to discuss electric service requirements. Councilmember Tunnell seconded the motion; the motion carried 6-1 with Mayor Pro Tem Faught and Councilmembers Brancheau, Peters, Hinojosa-Flores, Tunnell and York voting in favor of the motion and Councilmember Franklin voting against the motion. 13. PUBLIC HEARING (continued): Consider approval of Case No. PD-214-TH-1, TH-2, C and SF-9, The Ellington, zoning change request from C (Commercial), R (Retail) and SF-9 (Single Family–9) to PD-214-TH-1, TH-2, C and SF-9 (Planned Development-214-Townhouse-1, Townhouse- 2, Commercial and Single-Family), with a Concept Site Plan to allow the development of 125 townhouse units (67 TH-1 units on approximately 11.6 acres of Tract A.1 and 58 TH-2 units on approximately 7.5 acres of Tract A.2); Commercial uses on Tract A.3 (approximately 2 acres) along Sandy Lake Road; and on Tracts A.4 and A.5 (4.4 acres) along Denton Tap Road; SF-9 on 3.3 acres for park/open space, on Tract B for a total of approximately 29.05 acres of property located south of Sandy Lake Road, and west of Denton Tap Road. ag101006 Page 7 of 13 Presentation: Gary Sieb, Director of Planning, made a presentation to the Council. Public Hearing: Mayor Stover opened the Public Hearing and asked for those persons who had signed up to speak on this proposal. A. Karen Pearsall, 325 Clear Haven, spoke against this proposal. B. Alan Simms, 749 Armstrong Blvd., spoke against lowering the tree mitigation. C. Mitch Milby, 105 Forest Bend, spoke against this proposal. EXECUTIVE SESSION (Closed to the Public) Convene Executive Session A. Section 551.071, Texas Government Code - Consultation with City Attorney. Mayor Stover convened into Executive Session at 9:53 p.m. as allowed under the above-stated article. Mayor Stover adjourned the Executive Session at 10:25 p.m. and reopened the Regular Session. Councilmember Tunnell left the meeting during Executive Session. REGULAR SESSION (Open to the Public) Action: Councilmember Peters moved to continue the Public Hearing until October 24, 2006 and direct staff to bring back a traffic impact analysis, financial impact analysis, physical impact analysis, cost of service analysis and school impact analysis. Councilmember Franklin seconded the motion; the motion carried 6-0 with Mayor Pro Tem Faught and Councilmembers Brancheau, Peters, Hinojosa-Flores, Franklin and York voting in favor of the motion. Item 16 was considered at this time. See Item 16 for minutes. ag101006 Page 8 of 13 14. Consider approval of awarding Bid/Contract # Q-0806-01 to Tiseo Paving Company for the construction of the Bethel Road I project, from Freeport Parkway to the west city limit line, in an amount of $7,293,659, as provided for in CIP funds; and authorizing the City Manager to sign. Presentation: Ken Griffin, Director of Engineering and Public Works, made a presentation to the Council. Action: Councilmember York moved to approve awarding Bid/Contract # Q- 0806-01 to Tiseo Paving Company for the construction of the Bethel Road I project, from Freeport Parkway to the west city limit line, in an amount of $7,293,659, as provided for in CIP funds; and authorizing the City Manager to sign. Councilmember Franklin seconded the motion; the motion carried 6-0 with Mayor Pro Tem Faught and Councilmembers Brancheau, Peters, Hinojosa-Flores, Franklin and York voting in favor of the motion. 15. Consider approval of an ordinance providing for the implementation of an automated red light enforcement program in the city of Coppell, Texas; imposing a civil penalty; providing a repealing clause; providing a severability clause; providing a savings clause; providing an effective date; and authorizing the Mayor to sign. This Item was considered prior to Item 8. Action: Councilmember Peters moved to postpone this item until October 24, 2006. Councilmember York seconded the motion; the motion carried 7-0 with Mayor Pro Tem Faught and Councilmembers Brancheau, Peters, Hinojosa-Flores, Tunnell, Franklin and York voting in favor of the motion. 16. Consider approval of an ordinance amending Chapter 6-5 Special Events and repealing Ordinance No. 2003-1065 in its entirety and authorizing the Mayor to sign. ag101006 Page 9 of 13 This Item was considered prior to Item 14. Presentation: City Manager Jim Witt made a presentation to the Council. Action: Councilmember Franklin moved to approve Ordinance No. 2006-1139 amending Chapter 6-5 Special Events and repealing Ordinance No. 2003-1065 in its entirety and authorizing the Mayor to sign. Mayor Pro Tem Faught seconded the motion; the motion carried 6-0 with Mayor Pro Tem Faught and Councilmembers Brancheau, Peters, Hinojosa-Flores, Franklin and York voting in favor of the motion. 17. Consider approval of a Resolution approving the bylaws of the Texas Clean Air cities coalition or coalition of cities and other local government entities and organizations formed to pursue mutual interests in respect of certain coal-burning electric power plants proposed for construction in Texas, and to preserve the rights of Texas local governments to reasonably priced electric energy; accepting membership in said coalition; appointing a representative to serve on behalf of the city of Coppell; approving payment of a membership assessment; providing an effective date, and authorizing the Mayor to sign. Presentation: City Manager Jim Witt made a presentation to the Council. Action: Councilmember York moved to approve Resolution No. 2006-1010.1 approving the bylaws of the Texas Clean Air cities coalition or coalition of cities and other local government entities and organizations formed to pursue mutual interests in respect of certain coal-burning electric power plants proposed for construction in Texas, and to preserve the rights of Texas local governments to reasonably priced electric energy; accepting membership in said coalition; appointing Councilmember Tim Brancheau to serve on behalf of the city of Coppell; approving payment of a membership assessment; providing an effective date, and authorizing the Mayor to sign. Councilmember Peters seconded the motion; the motion carried 6-0 with Mayor Pro Tem Faught and Councilmembers ag101006 Page 10 of 13 Brancheau, Peters, Hinojosa-Flores, Franklin and York voting in favor of the motion. 18. Consider approval of accepting the resignation of Lawrence Swicegood from the Board of Adjustment and appointing a new member to fill the unexpired term. Action: Councilmember Franklin moved to accept the resignation of Lawrence Swicegood from the Board of Adjustment and appoint Harold Copher to fill the unexpired term. Councilmember York seconded the motion; the motion carried 6-0 with Mayor Pro Tem Faught and Councilmembers Brancheau, Peters, Hinojosa-Flores, Franklin and York voting in favor of the motion. 19. Consider approval of accepting the resignation of Nancy Yingling from the American Red Cross and appointing a new member to fill the unexpired term. Action: Councilmember Brancheau moved to accept the resignation of Nancy Yingling from the American Red Cross and appoint Ron Carpenter to fill the unexpired term. Mayor Pro Tem Faught seconded the motion; the motion carried 6-0 with Mayor Pro Tem Faught and Councilmembers Brancheau, Peters, Hinojosa-Flores, Franklin and York voting in favor of the motion. 20. Necessary action resulting from Work Session. There was no action necessary under this item. 21. Mayor and Council Reports. A. Report by Mayor Stover regarding Metroplex Mayors’ Meeting. A. City Manager Jim Witt summarized the Metroplex Mayors’ Meeting. The speaker was Jim Jackson, Chancellor of the University of North Texas (formerly Dallas County ag101006 Page 11 of 13 Commissioner). Mr. Jackson had discussed the growth and future plans of UNT and the Texas college systems. EXECUTIVE SESSION (Closed to the Public) 22. Convene Executive Session A. Section 551.071, Texas Government Code - Consultation with City Attorney. 1. The City of Coppell and Coppell Independent School District opposition to a change of zoning request of the Billingsley Corporation in the City of Dallas, Zoning Case Number Z045-107; and City of Coppell vs. CB Parkway Business Center VI, et al in the County Court at Law No. 3,; and CB Parkway Business Center, et al vs. City of Coppell, et al.; and City of Dallas vs. Douglas Stover, et al in the 191st District Court; and City of Coppell, et al vs. City of Dallas, et al in the 101st District Court. 2. Discussion regarding Sex Offender Ordinance. B. Section 551.072, Texas Government Code - Deliberation regarding Real Property. 1. Sale of property South of Bethel and West of Denton Tap. C. Section 551.087, Texas Government Code – Economic Development Negotiations. 1. Economic Development Prospects on the west side of Coppell. Mayor Stover convened into Executive Session at 11:00 p.m. as allowed under the above-stated article. Mayor Stover adjourned the Executive Session at 11:48 p.m. and reopened the Regular Session. REGULAR SESSION (Open to the Public) 23. Necessary Action Resulting from Executive Session. There was no action necessary under this item. ag101006 Page 12 of 13 There being no further business to come before the City Council, the meeting was adjourned. ____________________________________ Douglas N. Stover, Mayor ATTEST: ____________________________________ Libby Ball, City Secretary ag101006 Page 13 of 13 WORK SESSION CONSENT REGULAR DEPT: DATE: ITEM #: AGENDA REQUEST FORM ITEM TYPE: ITEM CAPTION: GOAL(S): EXECUTIVE SUMMARY: FINANCIAL COMMENTS: RECOMMENDED ACTION: ACTION TAKEN BY COUNCIL: City Secretary October 24, 2006 11/B ✔ PROCEDURAL Consider approval of cancelling the Regular City Council meeting scheduled for December 26, 2006. Historically this meeting has been cancelled due to the holidays and this year it falls the day after Christmas. Staff recommends approval. %cancelmeeting WORK SESSION CONSENT REGULAR DEPT: DATE: ITEM #: AGENDA REQUEST FORM ITEM TYPE: ITEM CAPTION: GOAL(S): EXECUTIVE SUMMARY: FINANCIAL COMMENTS: RECOMMENDED ACTION: ACTION TAKEN BY COUNCIL: ȱ ȱ City Manager October 24, 2006 11/C ✔ CONTRACT/BID or PROPOSAL Consider approval of a grant agreement between the city of Coppell, the Coppell Education Development Corporation, and the Coppell Independent School District for ESL in the amount of $1,083,600.00 and authorizing the City Manager to sign. Funds for this grant are available from the 1/2 cent CEDC sales tax. Staff Recommends approval. !ESL _______________________________________________ COPPELL EDUCATION DEVELOPMENT GRANT Page 1 STATE OF TEXAS § COPPELL EDUCATION DEVELOPMENT CORPORATION § COUNTY OF DALLAS § GRANT AGREEMENT This Educational Development Grant Agreement (“AGREEMENT”) is made by and between the City of Coppell, Texas (“CITY”), Coppell Education Development Corporation (“CEDC”) and the Coppell Independent School District (the “CISD”), acting by and through their respective authorized officers. W I T N E S S E T H : WHEREAS, the CITY is authorized by TEX. LOC. GOV’T CODE § 379A to provide educational development grants to publicly funded institutions through the CEDC for the promotion of literacy, foreign language and career technology for a skilled workforce; and WHEREAS, the CITY seeks to support programs for promoting literacy, foreign language and career technology for a skilled workforce; and WHEREAS, the CISD has submitted a grant application No. 2006-L03 to provide funding for hiring nineteen (19) certified teachers and three (3) instructional aides for ESOL (the PROJECT), which is designed to develop proficiency in the English language for those students who enter the district as either non-English speaking or limited English speaking; and WHEREAS, the PROJECT will provide daily instruction for approximately 582 pre- Kindergarten through twelfth grade students from more than 50 countries; and WHEREAS, CISD is in need of funding the salaries for nineteen (19) certified teachers and three (3) instructional aides, and seeks the assistance of the CEDC for such assistance; and WHEREAS, the CITY has determined that making an education development grant to the CISD in accordance with this AGREEMENT will further the objectives of the CITY, will benefit the CITY and the CITY’s inhabitants and will promote literacy in the CITY. NOW THEREFORE, in consideration of the foregoing, and other valuable consideration the receipt and sufficiency of which are hereby acknowledged on the terms and conditions hereinafter set forth, the parties agree as follows: GENERAL PROVISIONS 1. Subject to availability of funds collected from the 379A sales tax, the CITY agrees to provide the CISD an education development grant (the “GRANT”) in the amount of One Million Eighty-three Thousand Six Hundred Dollars and no cents ($1,083,600.00). _______________________________________________ COPPELL EDUCATION DEVELOPMENT GRANT Page 2 2. CISD agrees to utilize the GRANT to fund the salaries for nineteen (19) certified teachers and three (3) instructional aides for approximately 582 pre-Kindergarten through twelfth grade students. 3. CITY agrees to provide the GRANT of One Million Eighty-three Thousand Six Hundred Dollars and no cents ($1,083,600.00) funds payable on a quarterly basis with the first payment to be made in November 2006. 4. No later than May 31, 2007 the CISD shall submit a detailed list of expenditures for this GRANT to the CEDC. The detailed expenditures shall include, but not limited to, all personnel costs, the number of students served, grade levels actually served, and any changes in personnel during the period covered by this GRANT. 5. In the event the CISD breaches any of the terms of this AGREEMENT or fails to use the GRANT for the purposes set forth herein, then the CISD, after expiration of the notice and cure period described herein, shall be in default of this AGREEMENT. As liquidated damages in the event of such default, the CISD shall, within thirty (30) days after demand, repay to the CITY, the GRANT with interest at the rate of eight percent (8%) per annum from the date of receipt of the GRANT until paid. The parties acknowledge that actual damages in the event of default would be speculative and difficult to determine. Upon breach by CISD of any obligations under this AGREEMENT, the CITY shall notify the CISD in writing, who shall have thirty (30) days from receipt of the notice in which to cure such default. If CISD fails to cure the default within the time provided herein, or, as such time period may be extended, then the CITY at its sole option, shall have the right to terminate this AGREEMENT without further notice to the CISD. 6. The terms and conditions of this AGREEMENT are binding upon the successors and assigns of all parties hereto. This AGREEMENT may not be assigned without the express written consent of CITY and CEDC. 7. It is understood and agreed between the parties that CISD, in the use of the GRANT and in satisfying the conditions of this AGREEMENT, is acting independently, and that the CITY and/or the CEDC assumes no responsibilities or liabilities to third parties in connection with these actions. CISD agrees to indemnify and hold harmless the CITY and the CEDC from all such claims, suits, and causes of action, liabilities and expenses, including reasonable attorney’s fees, of any nature whatsoever arising out of the CISD’s performance of the conditions under this AGREEMENT. 8. Any notice required or permitted to be delivered hereunder shall be deemed received when sent by United States mail, postage pre-paid, certified mail, return receipt requested, addressed to the party at the address set forth opposite the signature of the party. 9. This AGREEMENT shall be governed by the laws of the State of Texas; and venue for any action concerning this AGREEMENT shall be in the State District Court of Dallas County, Texas. _______________________________________________ COPPELL EDUCATION DEVELOPMENT GRANT Page 3 10. In the event 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 unenforceability shall not effect the other provisions, and the AGREEMENT shall be construed as if such invalid, illegal, or unenforceable provision had never been contained in it. EXECUTED this _______ day of _____________________, 2006. CITY OF COPPELL, TEXAS By: ______________________________________ JIM WITT, CITY MANAGER 255 Parkway Boulevard P.O. Box 9478 Coppell, Texas 75019 ATTEST: By: ______________________________________ EXECUTED this _______ day of _____________________, 2006. COPPELL EDUCATION DEVELOPMENT CORPORATION By: ______________________________________ ANTONIO ALTEMUS, PRESIDENT 255 Parkway Boulevard P.O. Box 9478 Coppell, Texas 75019 ATTEST: By: ______________________________________ _______________________________________________ COPPELL EDUCATION DEVELOPMENT GRANT Page 4 SIGNED this ______ day of ________________, 2006. COPPELL INDEPENDENT SCHOOL DISTRICT By: ______________________________________ DR. JEFF TURNER, SUPERINTENDENT Coppell Independent School District 200 S. Denton Road Coppell, Texas 75019 ATTEST: By: ______________________________________ CITY’S ACKNOWLEDGMENT STATE OF TEXAS § § COUNTY OF DALLAS § This instrument was acknowledged before me on the _____ day of _______________, 2006, by Jim Witt, City Manager of the City of Coppell, Texas, a Texas municipality, on behalf of said municipality. ___________________________________ Notary Public, State of Texas My Commission Expires: _________________________ _______________________________________________ COPPELL EDUCATION DEVELOPMENT GRANT Page 5 COPPELL EDUCATION DEVELOPMENT CORPORATION STATE OF TEXAS § § COUNTY OF DALLAS § This instrument was acknowledged before me on the _______ day of ___________, 2006, by Antonio Altemus, President of the Coppell Education Development Corporation, on behalf of said Corporation. Notary Public, State of Texas My Commission expires: COPPELL INDEPENDENT SCHOOL DISTRICT STATE OF TEXAS § § COUNTY OF DALLAS § This instrument was acknowledged before me on the _______ day of ___________, 2006, by Dr. Jeff Turner, Superintendent of Coppell Independent School District, on behalf of said District. ____________________________________ Notary Public, State of Texas My Commission expires: _______________________ WORK SESSION CONSENT REGULAR DEPT: DATE: ITEM #: AGENDA REQUEST FORM ITEM TYPE: ITEM CAPTION: GOAL(S): EXECUTIVE SUMMARY: FINANCIAL COMMENTS: RECOMMENDED ACTION: ACTION TAKEN BY COUNCIL: ȱ ȱ City Manager October 24, 2006 11/D ✔ CONTRACT/BID or PROPOSAL Consider approval of a grant agreement between the city of Coppell, the Coppell Education Development Corporation, and the Coppell Independent School District for foreign language in the amount of $644,375.00 and authorizing the City Manager to sign. Funds for this grant are available from the CEDC 1/2 cent sales tax. Staff Recommends approval. !Foreign _______________________________________________ COPPELL EDUCATION DEVELOPMENT GRANT Page 1 STATE OF TEXAS § COPPELL EDUCATION DEVELOPMENT CORPORATION § COUNTY OF DALLAS § GRANT AGREEMENT This Educational Development Grant Agreement (“AGREEMENT”) is made by and between the City of Coppell, Texas (“CITY”), Coppell Education Development Corporation (“CEDC”) and the Coppell Independent School District (the “CISD”), acting by and through their respective authorized officers. W I T N E S S E T H : WHEREAS, the CITY is authorized by TEX. LOC. GOV’T CODE § 379A to provide educational development grants to publicly funded institutions through the CEDC for the promotion of literacy, foreign language and career technology for a skilled workforce; and WHEREAS, the CITY seeks to support programs for promoting literacy, foreign language and career technology for a skilled workforce; and WHEREAS, the CISD has submitted a grant application No. 2006-S01 to provide funding for hiring twelve (12) certified Spanish teachers for grades nine to twelve at the high school (the PROJECT), to provide daily instruction in order to satisfy a state graduation requirement; and WHEREAS, the CISD has developed the PROJECT using certified Spanish teachers who specialize in such field; and WHEREAS, CISD is in need of funding the salaries and benefits for twelve (12) certified Spanish teachers, and seeks the assistance of the CEDC for such assistance; and WHEREAS, the CITY has determined that making an education development grant to the CISD in accordance with this AGREEMENT will further the objectives of the CITY, will benefit the CITY and the CITY’s inhabitants and will promote foreign language in the CITY. NOW THEREFORE, in consideration of the foregoing, and other valuable consideration the receipt and sufficiency of which are hereby acknowledged on the terms and conditions hereinafter set forth, the parties agree as follows: GENERAL PROVISIONS 1. Subject to availability of funds collected from the 379A sales tax, the CITY agrees to provide the CISD an education development grant (the “GRANT”) in an amount not to exceed Six Hundred Forty-four Thousand Three Hundred Seventy-five Dollars and No Cents ($644,375.00). _______________________________________________ COPPELL EDUCATION DEVELOPMENT GRANT Page 2 2. CISD agrees to utilize the GRANT to fund salaries and benefits for twelve (12) certified Spanish teachers at Coppell High School. 3. CITY agrees to provide the GRANT of Six Hundred Forty-four Thousand Three Hundred Seventy-five Dollars and No Cents ($644,375.00), funds payable on a quarterly basis with the first payment to be made in November 2006. Funds to be expended in accordance with the budget categories set forth in the GRANT application. 4. No later than May 31, 2007 the CISD shall submit personnel costs for this GRANT to the CEDC. The detailed expenditures shall include, but not limited to, salaries, number of students served, grade levels actually served, copies of contracts, and any changes in personnel during the period covered by this GRANT. 5. In the event the CISD breaches any of the terms of this AGREEMENT or fails to use the GRANT for the purposes set forth herein, then the CISD, after expiration of the notice and cure period described herein, shall be in default of this AGREEMENT. As liquidated damages in the event of such default, the CISD shall, within thirty (30) days after demand, repay to the CITY, the GRANT with interest at the rate of eight percent (8%) per annum from the date of receipt of the GRANT until paid. The parties acknowledge that actual damages in the event of default would be speculative and difficult to determine. Upon breach by CISD of any obligations under this AGREEMENT, the CITY shall notify the CISD in writing, who shall have thirty (30) days from receipt of the notice in which to cure such default. If CISD fails to cure the default within the time provided herein, or, as such time period may be extended, then the CITY at its sole option, shall have the right to terminate this AGREEMENT without further notice to the CISD. 6. The terms and conditions of this AGREEMENT are binding upon the successors and assigns of all parties hereto. This AGREEMENT may not be assigned without the express written consent of CITY and CEDC. 7. It is understood and agreed between the parties that CISD, in the use of the GRANT and in satisfying the conditions of this AGREEMENT, is acting independently, and that the CITY and/or the CEDC assumes no responsibilities or liabilities to third parties in connection with these actions. CISD agrees to indemnify and hold harmless the CITY and the CEDC from all such claims, suits, and causes of action, liabilities and expenses, including reasonable attorney’s fees, of any nature whatsoever arising out of the CISD’S performance of the conditions under this AGREEMENT. 8. Any notice required or permitted to be delivered hereunder shall be deemed received when sent by United States mail, postage pre-paid, certified mail, return receipt requested, addressed to the party at the address set forth opposite the signature of the party. 9. This AGREEMENT shall be governed by the laws of the State of Texas; and venue for any action concerning this AGREEMENT shall be in the State District Court of Dallas County, Texas. _______________________________________________ COPPELL EDUCATION DEVELOPMENT GRANT Page 3 10. In the event 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 unenforceability shall not effect the other provisions, and the AGREEMENT shall be construed as if such invalid, illegal, or unenforceable provision had never been contained in it. EXECUTED this _______ day of _____________________, 2006. CITY OF COPPELL, TEXAS By: ______________________________________ JIM WITT, CITY MANAGER 255 Parkway Boulevard P.O. Box 9478 Coppell, Texas 75019 ATTEST: By: ______________________________________ EXECUTED this _______ day of _____________________, 2006. COPPELL EDUCATION DEVELOPMENT CORPORATION By: ______________________________________ Antonio Altemus, President 255 Parkway Boulevard P.O. Box 9478 Coppell, Texas 75019 ATTEST: By: ______________________________________ _______________________________________________ COPPELL EDUCATION DEVELOPMENT GRANT Page 4 EXECUTED this ______ day of ________________, 2006. COPPELL INDEPENDENT SCHOOL DISTRICT By: ______________________________________ DR. JEFF TURNER, SUPERINTENDENT Coppell Independent School District 200 S. Denton Road Coppell, Texas 75019 ATTEST: By: ______________________________________ CITY’S ACKNOWLEDGMENT STATE OF TEXAS § § COUNTY OF DALLAS § This instrument was acknowledged before me on the _____ day of _______________, 2006, by Jim Witt, City Manager of the City of Coppell, Texas, a Texas municipality, on behalf of said municipality. ___________________________________ Notary Public, State of Texas My Commission Expires: _________________________ _______________________________________________ COPPELL EDUCATION DEVELOPMENT GRANT Page 5 COPPELL EDUCATION DEVELOPMENT CORPORATION STATE OF TEXAS § § COUNTY OF DALLAS § This instrument was acknowledged before me on the _______ day of ___________, 2006, by Antonio Altemus, President, Coppell Education Development Corporation, on behalf of said Corporation. Notary Public, State of Texas My Commission expires: ________________________ COPPELL INDEPENDENT SCHOOL DISTRICT STATE OF TEXAS § § COUNTY OF DALLAS § This instrument was acknowledged before me on the _______ day of ___________, 2006, by Dr. Jeff Turner, Superintendent of Coppell Independent School District, on behalf of said District. Notary Public, State of Texas My Commission expires: ________________________ WORK SESSION CONSENT REGULAR DEPT: DATE: ITEM #: AGENDA REQUEST FORM ITEM TYPE: ITEM CAPTION: GOAL(S): EXECUTIVE SUMMARY: FINANCIAL COMMENTS: RECOMMENDED ACTION: ACTION TAKEN BY COUNCIL: ȱ ȱ City Manager October 24, 2006 11/E ✔ CONTRACT/BID or PROPOSAL Consider approval of a grant agreement between the city of Coppell, the Coppell Education Development Corporation, and the Coppell Independent School District for literacy in the amount of $804,917.00 and authorizing the City Manager to sign. Funds for this grant are available from the CEDC 1/2 cent sales tax. Staff Recommends approval. !Literacy _______________________________________________ COPPELL EDUCATION DEVELOPMENT GRANT Page 1 STATE OF TEXAS § COPPELL EDUCATION DEVELOPMENT CORPORATION § COUNTY OF DALLAS § GRANT AGREEMENT This Educational Development Grant Agreement (“AGREEMENT”) is made by and between the City of Coppell, Texas (“CITY”), Coppell Education Development Corporation (“CEDC”) and the Coppell Independent School District (the “CISD”), acting by and through their respective authorized officers. W I T N E S S E T H : WHEREAS, the CITY is authorized by TEX. LOC. GOV’T CODE § 379A to provide educational development grants to publicly funded institutions through the CEDC for the promotion of literacy, foreign language and career technology for a skilled workforce; and WHEREAS, the CITY seeks to support programs for promoting literacy, foreign language and career technology for a skilled workforce; and WHEREAS, the CISD has submitted a grant application No. 2006-L04 to provide funding for thirteen (13) Literacy Intervention Support teachers, and additional non-fiction literacy resources for all students (the PROJECT); and WHEREAS, the CISD has developed the PROJECT to provide intensive, focused literacy instruction to identified students on a daily basis; and WHEREAS, the PROJECT will provide additional classroom support in a small group setting that is taught by literacy specialists to help students maximize their potential, accelerate literacy skills and improve self-esteem and achievement; and WHEREAS, CISD is in need of funding the salaries of thirteen (13) Literacy Intervention Support Teachers and additional non-fiction literacy resources, and seeks the assistance of the CEDC for such assistance; and WHEREAS, the CITY has determined that making an education development grant to the CISD in accordance with this AGREEMENT will further the objectives of the CITY, will benefit the CITY and the CITY’s inhabitants, and will promote literacy in the CITY. NOW THEREFORE, in consideration of the foregoing, and other valuable consideration the receipt and sufficiency of which are hereby acknowledged on the terms and conditions hereinafter set forth, the parties agree as follows: _______________________________________________ COPPELL EDUCATION DEVELOPMENT GRANT Page 2 GENERAL PROVISIONS 1. Subject to availability of funds collected from the 379A sales tax, the CITY agrees to provide the CISD an education development grant (the “GRANT”) in an amount not to exceed Eight Hundred Four Thousand Nine Hundred Seventeen Dollars and no cents ($804,917.00). 2. CISD agrees to utilize the GRANT to fund thirteen (13) Literacy Intervention Support Teachers and additional non-fiction literacy resources for literacy teachers and campus literacy support. 3. CITY agrees to provide the GRANT of Eight Hundred Four Thousand Nine Hundred Seventeen Dollars and no cents ($804,917.00) funds payable on a quarterly basis with the first payment to be made on or before November 1, 2006. Funds to be expended in accordance with the budget categories set forth in the GRANT application. 4. No later than May 31, 2007 the CISD shall submit a detail list of expenditures for this GRANT to the CEDC. The detailed list of expenditures shall include all personnel costs, invoices, and other financial documents which address the GRANT expenditures by category as approved by the CEDC, and reflected in Item 3 of this AGREEMENT. CISD shall also provide documentation related to the number of students served, grade level served, and any changes in personnel during the period covered by this grant, as well as any other information that reflects the success of the Literacy Intervention Support Program. 5. In the event the CISD breaches any of the terms of this AGREEMENT or fails to use the GRANT for the purposes set forth herein, then the CISD, after expiration of the notice and cure period described herein, shall be in default of this AGREEMENT. As liquidated damages in the event of such default, the CISD shall, within thirty (30) days after demand, repay to the CITY, the GRANT with interest at the rate of eight percent (8%) per annum from the date of receipt of the GRANT until paid. The parties acknowledge that actual damages in the event of default would be speculative and difficult to determine. Upon breach by CISD of any obligations under this AGREEMENT, the CITY shall notify the CISD in writing, who shall have thirty (30) days from receipt of the notice in which to cure such default. If CISD fails to cure the default within the time provided herein, or, as such time period may be extended, then the CITY at its sole option, shall have the right to terminate this AGREEMENT without further notice to the CISD. 6. The terms and conditions of this AGREEMENT are binding upon the successors and assigns of all parties hereto. This AGREEMENT may not be assigned without the express written consent of CITY and CEDC. 7. It is understood and agreed between the parties that CISD, in the use of the GRANT and in satisfying the conditions of this AGREEMENT, is acting independently, and that the CITY and/or the CEDC assumes no responsibilities or liabilities to third parties in connection with these actions. CISD agrees to indemnify and hold harmless the CITY and the CEDC from all such claims, suits, and causes of action, liabilities and expenses, including reasonable attorney’s _______________________________________________ COPPELL EDUCATION DEVELOPMENT GRANT Page 3 fees, of any nature whatsoever arising out of the CISD’S performance of the conditions under this AGREEMENT. 8. Any notice required or permitted to be delivered hereunder shall be deemed received when sent by United States mail, postage pre-paid, certified mail, return receipt requested, addressed to the party at the address set forth opposite the signature of the party. 9. This AGREEMENT shall be governed by the laws of the State of Texas; and venue for any action concerning this AGREEMENT shall be in the State District Court of Dallas County, Texas. 10. In the event 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 unenforceability shall not effect the other provisions, and the AGREEMENT shall be construed as if such invalid, illegal, or unenforceable provision had never been contained in it. EXECUTED this _______ day of _____________________, 2006. CITY OF COPPELL, TEXAS By: ______________________________________ JIM WITT, CITY MANAGER 255 Parkway Boulevard P.O. Box 9478 Coppell, Texas 75019 ATTEST: By: ______________________________________ EXECUTED this _______ day of _____________________, 2006. COPPELL EDUCATION DEVELOPMENT CORPORATION By: ______________________________________ Antonio Altemus, President 255 Parkway Boulevard P.O. Box 9478 Coppell, Texas 75019 _______________________________________________ COPPELL EDUCATION DEVELOPMENT GRANT Page 4 ATTEST: By: ______________________________________ SIGNED this ______ day of ________________, 2006. COPPELL INDEPENDENT SCHOOL DISTRICT By: ______________________________________ DR. JEFF TURNER SUPERINTENDENT Coppell Independent School District 200 S. Denton Road Coppell, Texas 75019 ATTEST: By: ______________________________________ CITY’S ACKNOWLEDGMENT STATE OF TEXAS § § COUNTY OF DALLAS § This instrument was acknowledged before me on the _____ day of _______________, 2006, by Jim Witt, City Manager of the City of Coppell, Texas, a Texas municipality, on behalf of said municipality. ___________________________________ Notary Public, State of Texas My Commission Expires: _________________________ _______________________________________________ COPPELL EDUCATION DEVELOPMENT GRANT Page 5 COPPELL EDUCATION DEVELOPMENT CORPORATION STATE OF TEXAS § § COUNTY OF DALLAS § This instrument was acknowledged before me on the _______ day of ___________, 2006, by Antonio Altemus, President, Coppell Education Development Corporation, on behalf of said corporation. Notary Public, State of Texas My Commission expires: _______________________ COPPELL INDEPENDENT SCHOOL DISTRICT STATE OF TEXAS § § COUNTY OF DALLAS § This instrument was acknowledged before me on the _______ day of ___________, 2006, by Dr. Jeff Turner, Superintendent of Coppell Independent School District, on behalf of said District. Notary Public, State of Texas My Commission expires: ______________________ WORK SESSION CONSENT REGULAR DEPT: DATE: ITEM #: AGENDA REQUEST FORM ITEM TYPE: ITEM CAPTION: GOAL(S): EXECUTIVE SUMMARY: FINANCIAL COMMENTS: RECOMMENDED ACTION: ACTION TAKEN BY COUNCIL: ȱ ȱ City Manager October 24, 2006 11/F ✔ CONTRACT/BID or PROPOSAL Consider approval of a grant agreement between the city of Coppell, the Coppell Education Development Corporation, and The North Hills School for foreign language in the amount of $21,746.40 and authorizing the City Manager to sign. Funds for this grant are available from the CEDC 1/2 cent sales tax. Staff Recommends approval. !North _______________________________________________ COPPELL EDUCATION DEVELOPMENT GRANT Page 1 STATE OF TEXAS § COPPELL EDUCATION DEVELOPMENT CORPORATION § COUNTY OF DALLAS § GRANT AGREEMENT This Educational Development Grant Agreement (“Agreement”) is made by and between the city of Coppell, Texas (“CITY”), Coppell Education Development Corporation (“CEDC”) and The North Hills School (the “NHS”), acting by and through their respective authorized officers. W I T N E S S E T H : WHEREAS, the CITY is authorized by TEX. LOC. GOV’T CODE § 379A to provide educational development grants to publicly funded institutions through the CEDC for the promotion of literacy, foreign language and career technology for a skilled workforce; and WHEREAS, the CITY seeks to support programs for promoting literacy, foreign language and career technology for a skilled workforce; and WHEREAS, the NHS has submitted a grant application No. 2006-L05 to provide funding for NHS to purchase hardware and software (the PROJECT) for promoting foreign language; and WHEREAS, the NHS has developed the PROJECT in order to purchase hardware and software for its foreign language lab for grades sixth through twelfth; and WHEREAS, NHS is in need of funding the purchase of this material, and seeks the assistance of the CEDC; and WHEREAS, the CITY has determined that making an education development grant to the NHS in accordance with this Agreement will further the objectives of the CITY, will benefit the CITY and the CITY’s inhabitants and will promote career technology in the CITY; NOW THEREFORE, in consideration of the foregoing, and other valuable consideration the receipt and sufficiency of which are hereby acknowledged on the terms and conditions hereinafter set forth, the parties agree as follows: GENERAL PROVISIONS 1. Subject to availability of funds collected from the 379A sales tax, the CITY agrees to provide the NHS an education development grant (the “GRANT”) in an amount not to exceed Twenty-one Thousand Seven Hundred Forty-six Dollars and Forty Cents ($21,746.40). 2.NHS agrees to utilize the GRANT to purchase 21 desktop computers, software and 26 stereo headphones for their language lab. _______________________________________________ COPPELL EDUCATION DEVELOPMENT GRANT Page 2 3.CITY agrees to provide the GRANT of Twenty-one Thousand Seven Hundred Forty-six Dollars and Forty Cents ($21,746.40) funds payable on a quarterly basis with the first payment due in November 2006. Funds to be expended in accordance with the budget categories set forth in the GRANT application. 4. No later than May 31, 2007 the NHS shall submit the receipts for the instructional materials purchased for this GRANT to the CEDC. The detailed expenditures shall include, but not be limited to, copies of invoices. 5. In the event the NHS breaches any of the terms of this AGREEMENT or fails to use the GRANT for the purposes set forth herein, then the NHS, after expiration of the notice and cure period described herein, shall be in default of this AGREEMENT. As liquidated damages in the event of such default, the NHS shall, within thirty (30) days after demand, repay to the CITY, the GRANT with interest at the rate of eight percent (8%) per annum from the date of receipt of the GRANT until paid. The parties acknowledge that actual damages in the event of default would be speculative and difficult to determine. Upon breach by NHS of any obligations under this AGREEMENT, the CITY shall notify the NHS in writing, who shall have thirty (30) days from receipt of the notice in which to cure such default. If NHS fails to cure the default within the time provided herein, or, as such time period may be extended, then the CITY at its sole option, shall have the right to terminate this AGREEMENT without further notice to the NHS. 6. The terms and conditions of this AGREEMENT are binding upon the successors and assigns of all parties hereto. This AGREEMENT may not be assigned without the express written consent of CITY and CEDC. 7. It is understood and agreed between the parties that NHS, in the use of the GRANT and in satisfying the conditions of this AGREEMENT, is acting independently, and that the CITY and/or the CEDC assumes no responsibilities or liabilities to third parties in connection with these actions. NHS agrees to indemnify and hold harmless the CITY and the CEDC from all such claims, suits, and causes of action, liabilities and expenses, including reasonable attorney’s fees, of any nature whatsoever arising out of the NHS’S performance of the conditions under this AGREEMENT. 8. Any notice required or permitted to be delivered hereunder shall be deemed received when sent by United States mail, postage pre-paid, certified mail, return receipt requested, addressed to the party at the address set forth opposite the signature of the party. 9. This AGREEMENT shall be governed by the laws of the State of Texas; and venue for any action concerning this AGREEMENT shall be in the State District Court of Dallas County, Texas. 10. In the event 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 unenforceability shall not effect the other provisions, and the AGREEMENT shall be construed as if such invalid, illegal, or unenforceable provision had never been contained in it. _______________________________________________ COPPELL EDUCATION DEVELOPMENT GRANT Page 3 EXECUTED this _______ day of _____________________, 2006. CITY OF COPPELL, TEXAS By: ______________________________________ JIM WITT, CITY MANAGER 255 Parkway Boulevard P.O. Box 9478 Coppell, Texas 75019 ATTEST: By: ______________________________________ EXECUTED this _______ day of _____________________, 2006. COPPELL EDUCATION DEVELOPMENT CORPORATION By: ______________________________________ ANTONIO ALTEMUS, PRESIDENT 255 Parkway Boulevard P.O. Box 9478 Coppell, Texas 75019 ATTEST: By: ______________________________________ _______________________________________________ COPPELL EDUCATION DEVELOPMENT GRANT Page 4 EXECUTED this ______ day of ________________, 2006. THE NORTH HILLS SCHOOL By: ______________________________________ RAYMOND E. DOERGE DIRECTOR OF STUDENT LIFE The North Hills School 606 E. Royal Lane Irving, Texas 75039 ATTEST: By: ______________________________________ CITY’S ACKNOWLEDGMENT STATE OF TEXAS § § COUNTY OF DALLAS § This instrument was acknowledged before me on the _____ day of _______________, 2006, by Jim Witt, City Manager of the City of Coppell, Texas, a Texas municipality, on behalf of said municipality. ___________________________________ Notary Public, State of Texas My Commission Expires: _________________________ _______________________________________________ COPPELL EDUCATION DEVELOPMENT GRANT Page 5 COPPELL EDUCATION DEVELOPMENT CORPORATION STATE OF TEXAS § § COUNTY OF DALLAS § This instrument was acknowledged before me on the _______ day of ___________, 2006, by Antonio Altemus, President of Coppell Education Development Corporation, on behalf of said corporation. Notary Public, State of Texas My Commission expires: _________________________ NORTH HILLS SCHOOL STATE OF TEXAS § § COUNTY OF DALLAS § This instrument was acknowledged before me on the _______ day of ___________, 2006, by Raymond E. Doerge, Director of Student Life, The North Hills School, on behalf of said school. Notary Public, State of Texas My Commission expires: __________________________ WORK SESSION CONSENT REGULAR DEPT: DATE: ITEM #: AGENDA REQUEST FORM ITEM TYPE: ITEM CAPTION: GOAL(S): EXECUTIVE SUMMARY: FINANCIAL COMMENTS: RECOMMENDED ACTION: ACTION TAKEN BY COUNCIL: ȱ ȱ City Manager October 24, 2006 11/G ✔ CONTRACT/BID or PROPOSAL Consider approval of a grant agreement between the city of Coppell, the Coppell Education Development Corporation, and The North Hills School for technology in the amount of $16,311.53 and authorizing the City Manager to sign. Funds for this grant are available from the CEDC 1/2 cent sales tax. Staff Recommends approval. !NorthHills _______________________________________________ COPPELL EDUCATION DEVELOPMENT GRANT Page 1 STATE OF TEXAS § COPPELL EDUCATION DEVELOPMENT CORPORATION § COUNTY OF DALLAS § GRANT AGREEMENT This Educational Development Grant Agreement (“Agreement”) is made by and between the city of Coppell, Texas (“CITY”), Coppell Education Development Corporation (“CEDC”) and The North Hills School (the “NHS”), acting by and through their respective authorized officers. W I T N E S S E T H : WHEREAS, the CITY is authorized by TEX. LOC. GOV’T CODE § 379A to provide educational development grants to publicly funded institutions through the CEDC for the promotion of literacy, foreign language and career technology for a skilled workforce; and WHEREAS, the CITY seeks to support programs for promoting literacy, foreign language and career technology for a skilled workforce; and WHEREAS, the NHS has submitted a grant application No. 2006-T02 to provide funding for computers, projectors, screens, a scanner, printer, software and a digital camera to expand the art curriculum by updating technology at NHS (the PROJECT); and WHEREAS, the NHS has developed the PROJECT to benefit 154 students grades 9 through 12 for the purpose of career technology; and WHEREAS, NHS is in need of funding this equipment for their high school art curriculum, and seeks the assistance of the CEDC; and WHEREAS, the CITY has determined that making an education development grant to the NHS in accordance with this Agreement will further the objectives of the CITY, will benefit the CITY and the CITY’s inhabitants and will promote career technology in the CITY; NOW THEREFORE, in consideration of the foregoing, and other valuable consideration the receipt and sufficiency of which are hereby acknowledged on the terms and conditions hereinafter set forth, the parties agree as follows: GENERAL PROVISIONS 1. Subject to availability of funds collected from the 379A sales tax, the CITY agrees to provide the NHS an education development grant (the “GRANT”) in an amount not to exceed Sixteen Thousand Three Hundred Eleven Dollars and Fifty-three Cents ($16,311.53). 2.NHS agrees to utilize the GRANT to purchase computers, projectors, screens, a scanner, printer, software and a digital camera to update technology in their art curriculum. _______________________________________________ COPPELL EDUCATION DEVELOPMENT GRANT Page 2 3.CITY agrees to provide the GRANT of Sixteen Thousand Three Hundred Eleven Dollars and Fifty-three Cents ($16,311.53) funds payable on a quarterly basis with the first payment due in November 2006. Funds to be expended in accordance with the budget categories set forth in the GRANT application. 4. No later than May 15, 2007 the NHS shall submit the receipts for computers, projectors, screens, a scanner, printer, software and a digital camera purchased for this GRANT to the CEDC. The detailed expenditures shall include, but not be limited to, copies of invoices. 5. In the event the NHS breaches any of the terms of this AGREEMENT or fails to use the GRANT for the purposes set forth herein, then the NHS, after expiration of the notice and cure period described herein, shall be in default of this AGREEMENT. As liquidated damages in the event of such default, the NHS shall, within thirty (30) days after demand, repay to the CITY, the GRANT with interest at the rate of eight percent (8%) per annum from the date of receipt of the GRANT until paid. The parties acknowledge that actual damages in the event of default would be speculative and difficult to determine. Upon breach by NHS of any obligations under this AGREEMENT, the CITY shall notify the NHS in writing, who shall have thirty (30) days from receipt of the notice in which to cure such default. If NHS fails to cure the default within the time provided herein, or, as such time period may be extended, then the CITY at its sole option, shall have the right to terminate this AGREEMENT without further notice to the NHS. 6. The terms and conditions of this AGREEMENT are binding upon the successors and assigns of all parties hereto. This AGREEMENT may not be assigned without the express written consent of CITY and CEDC. 7. It is understood and agreed between the parties that NHS, in the use of the GRANT and in satisfying the conditions of this AGREEMENT, is acting independently, and that the CITY and/or the CEDC assumes no responsibilities or liabilities to third parties in connection with these actions. NHS agrees to indemnify and hold harmless the CITY and the CEDC from all such claims, suits, and causes of action, liabilities and expenses, including reasonable attorney’s fees, of any nature whatsoever arising out of the NHS’S performance of the conditions under this AGREEMENT. 8. Any notice required or permitted to be delivered hereunder shall be deemed received when sent by United States mail, postage pre-paid, certified mail, return receipt requested, addressed to the party at the address set forth opposite the signature of the party. 9. This AGREEMENT shall be governed by the laws of the State of Texas; and venue for any action concerning this AGREEMENT shall be in the State District Court of Dallas County, Texas. 10. In the event 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 unenforceability shall not effect the other provisions, and the AGREEMENT shall be construed as if such invalid, illegal, or unenforceable provision had never been contained in it. _______________________________________________ COPPELL EDUCATION DEVELOPMENT GRANT Page 3 EXECUTED this _______ day of _____________________, 2006. CITY OF COPPELL, TEXAS By: ______________________________________ JIM WITT, CITY MANAGER 255 Parkway Boulevard P.O. Box 9478 Coppell, Texas 75019 ATTEST: By: ______________________________________ EXECUTED this _______ day of _____________________, 2006. COPPELL EDUCATION DEVELOPMENT CORPORATION By: ______________________________________ ANTONIO ALTEMUS, PRESIDENT 255 Parkway Boulevard P.O. Box 9478 Coppell, Texas 75019 ATTEST: By: ______________________________________ _______________________________________________ COPPELL EDUCATION DEVELOPMENT GRANT Page 4 SIGNED this ______ day of ________________, 2006. THE NORTH HILLS SCHOOL By: ______________________________________ RAYMOND E. DOERGE DIRECTOR OF STUDENT LIFE The North Hills School 606 E. Royal Lane Irving, Texas 75039 ATTEST: By: ______________________________________ CITY’S ACKNOWLEDGMENT STATE OF TEXAS § § COUNTY OF DALLAS § This instrument was acknowledged before me on the _____ day of _______________, 2006, by Jim Witt, City Manager of the City of Coppell, Texas, a Texas municipality, on behalf of said municipality. ___________________________________ Notary Public, State of Texas My Commission Expires: _________________________ _______________________________________________ COPPELL EDUCATION DEVELOPMENT GRANT Page 5 COPPELL EDUCATION DEVELOPMENT CORPORATION STATE OF TEXAS § § COUNTY OF DALLAS § This instrument was acknowledged before me on the _______ day of ___________, 2006, by Antonio Altemus, President of Coppell Education Development Corporation, on behalf of said corporation. Notary Public, State of Texas My Commission expires: _________________________ NORTH HILLS SCHOOL STATE OF TEXAS § § COUNTY OF DALLAS § This instrument was acknowledged before me on the _______ day of ___________, 2006, by Raymond E. Doerge, Director of Student Life, The North Hills School, on behalf of said school. Notary Public, State of Texas My Commission expires: __________________________ WORK SESSION CONSENT REGULAR DEPT: DATE: ITEM #: AGENDA REQUEST FORM ITEM TYPE: ITEM CAPTION: GOAL(S): EXECUTIVE SUMMARY: FINANCIAL COMMENTS: RECOMMENDED ACTION: ACTION TAKEN BY COUNCIL: Parks and Recreation October 24, 2006 11/H ✔ ORDINANCE Consider approval of an ordinance of the City of Coppell, Texas, amending the code of ordinances by amending article 6-8, Food Service sanitation, by repealing the same in its entirety and replacing with a new article 6-8, Food Service sanitation, sections 6-8-1 through 6-8-12, providing for food service; providing for the adoption of state rules; providing for amendments; providing for seasonal food establishments; providing for temporary food establishments; providing for mobile units; providing for food service regulations, permits and pre-operational inspections; providing for certified food manager; providing for the suspension of a food permit; providing for revocation of a food permit; providing for examination and condemnation of food; and authorizing the Mayor to sign. Please see attached Major Changes in the State Rules and Major Changes in the City Ordinance. Staff recommends approval. ^Food Service Sanitation - 1 AR Major Changes in the Texas Food Establishment Rules: Meat, poultry and eggs that are not ready-to-eat shall be labeled to include safe handling instructions. (p.34) Shell eggs must now be received in refrigerated equipment that maintains a temperature of 45 degrees or less. (p.37) Food employees may contact exposed ready-to-eat food with bare hands if documentation is maintained that the employees have received training; if two or more control measures are utilized; and if documentation is maintained that corrective action are taken when the other two requirements are not followed. However, food employees are not allowed bare hand contact if a highly susceptible population is served. St. Joseph Village is the only establishment that meets the definition of a highly susceptible population. (p.42 & 43) Changed the required cooking temperature of pork to 145 degrees from 155 degrees. (p.52) Prohibits the sale or service of undercooked beefsteak to highly susceptible populations. (p.54) Requirement to inform consumers regarding the risk of consuming raw or undercooked animal food has been expanded to include beef, eggs, fish, lamb, milk, pork and poultry, in addition to shellfish. (p.68) Changed the required hot holding temperature of foods from 140 degrees to 135 degrees. (p.60) Changed the date marking requirements for ready-to-eat potentially hazardous food prepared in the food establishment and exempted certain products from date marking. (p.61 & 62) Prohibits using time as a public health control in food service establishments that serve a highly susceptible population. (p.63) Requires a small-diameter probe to measure temperatures of thin food masses. (p.86) Changed the water temperature requirement for handwashing sinks from 110 degrees to 100 degrees. (p.107) Requires an insulated container with a spigot that can be turned on to allow potable, clean, warm water to flow for handwashing at temporary food establishments. (p.137) Major Changes in the City Ordinance: Added definitions to make the intent of the various definitions used in the Rules clearer. Walls and ceiling coverings and coatings shall be light colored in areas that are required to be smooth, easily cleanable and non-absorbent. Concession stands may use concrete, porous blocks, or bricks for indoor wall construction if finished and sealed to provide a smooth, easily cleanable, non-absorbent surface. Added requirements for seasonal food establishments. Restricted ice as a coolant for potentially hazardous foods at temporary food establishments operating for more than 4 hours. Foods served at a temporary event may be limited depending on the facilities at the event. Mechanical refrigeration is required for the storage of potentially hazardous foods. Mobile food permits are valid for 6 months. (Used to be 12 months) Page 1 70282 AN ORDINANCE OF THE CITY OF COPPELL, TEXAS, AMENDING THE CODE OF ORDINANCES BY AMENDING ARTICLE 6-8, FOOD SERVICE SANITATION, BY REPEALING THE SAME IN ITS ENTIRETY AND REPLACING WITH A NEW ARTICLE 6-8, FOOD SERVICE SANITATION, SECTIONS 6-8-1 THROUGH 6-8-12, PROVIDING FOR FOOD SERVICE; PROVIDING FOR THE ADOPTION OF STATE RULES; PROVIDING FOR AMENDMENTS; PROVIDING FOR SEASONAL FOOD ESTABLISHMENTS; PROVIDING FOR TEMPORARY FOOD ESTABLISHMENTS; PROVIDING FOR MOBILE UNITS; PROVIDING FOR FOOD SERVICE REGULATIONS, PERMITS AND PRE-OPERATIONAL INSPECTIONS; PROVIDING FOR CERTIFIED FOOD MANAGER; PROVIDING FOR THE SUSPENSION OF A FOOD PERMIT; PROVIDING FOR REVOCATION OF A FOOD PERMIT; PROVIDING FOR EXAMINATION AND CONDEMNATION OF FOOD; PROVIDING FOR A HEARING; PROVIDING FOR SERVICE OF NOTICES; PROVIDING A REPEALING CLAUSE; PROVIDING A SEVERABILITY CLAUSE; PROVIDING A SAVINGS CLAUSE; PROVIDING FOR A PENALTY OF A FINE NOT TO EXCEED THE SUM OF TWO THOUSAND DOLLARS ($2,000.00) FOR EACH OFFENSE; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Coppell previously adopted Ordinance 99- 873, codified as Article 6-8 of the Code of Ordinances, providing for Food Service Regulations within the City; and WHEREAS, a review of Article 6-8 indicates certain conflicts with the Texas Food Establishment Rules published by the Texas Department of State Health Services, effective March 15, 2006; and WHEREAS, the City Council of the City of Coppell has determined that Article 6-8 of the Code of Ordinances should be repealed in its entirety and replaced with new regulations for Food Service Sanitation which will be beneficial for the general welfare of the inhabitants of the City of Coppell and in compliance with State law. SECTION 1. That the Code of Ordinances be, and the same is, hereby amended by repealing the current Chapter 6, Article 6-8, “Food Service Regulations” in its entirety and replacing the same with a new Article 6-8, Sections 6-8-1 through 6-8-12, “Food Service Sanitation,” which shall read as follows: Page 2 70282 “ARTICLE 6-8 FOOD SERVICE SANITATION Sec. 6-8-1 Adoption of state rules on food service sanitation. A. The Texas Food Establishment Rules adopted by the Texas Department of State Health Services as 25 Tex. Admin. Code Sections 229.161 through 229.171 and 229.173 through 229.175 as amended herein are hereby adopted as the City of Coppell Rules for Food Service Sanitation, a copy of which is attached as Exhibit "A" to the adoptive ordinance that amends this article, and which shall be maintained together with the adoptive ordinance in a separate file in the office of the city secretary. All references contained herein to sections within this ordinance are in the TEXAS ADMINISTRATIVE CODE. The City of Coppell amends the Texas Food Establishment Rules as follows: Sec. 6-8-2 Amendments A. Definitions - Section 229.162 is amended to include the following: Catering Operation means a food establishment, that pursuant to a contract or agreement, prepares food in an approved facility and transports food in an approved manner to another location for final cooking or service.” A catering operation is classified as a food establishment. Concession Stand means a food establishment operated on a seasonal basis for the purpose of providing food at sporting and special events. Food Establishment - Section 229.162 (40)(C) (viii) shall be added to read, “Provided that the operations do not expose the public to a substantial and imminent health hazard as determined by the regulatory authority, a food establishment does not include the sale, distribution or service of food at an event, party or other special event that is not open to persons other than the members or invited guests of the sponsor, provided that there is no public advertisement of the event, public solicitation of funds at or for the event, or participation by the general public in the event.” Pushcart means a non self-propelled mobile food unit limited to serving only prepackaged, non-potentially hazardous food. A pushcart is classified as a mobile food unit. A pushcart does not include non self propelled units owned and operated within a retail food store. Seasonal Food Establishment means a food service establishment that operates at a fixed location for a period greater than 14 consecutive days, but less than 365 days, and is restricted to limited food preparation, unless approved by the regulatory authority. Page 3 70282 B. Equipment, Utensils and Linens – Section 226.165 (f)(24) is amended to read, as follows: “Equipment in new or extensively remodeled establishments shall meet National Sanitation Foundation or equivalent approval. Any other equipment is subject to approval by the regulatory authority.” C. Grease Trap – Section 229.166 (j)(3) is amended to read, as follows: “A grease trap or grease interceptor is required unless approved by the regulatory authority. If used, a grease trap or grease interceptor shall be located outside the facility. It shall be sized according to the plumbing code as currently adopted by the City of Coppell.” D. Floors, Walls, and Ceilings – Section 229.167 (c) is amended as follows: 1. Wall and ceiling coverings and coatings – Section 229.167 (c)(6)(a) is amended to read, “The walls and ceilings of walk-in refrigerating units, food preparation areas, dry storage areas, food storage areas, equipment-washing and utensil washing-areas, toilet rooms and vestibules shall be light colored, smooth, nonabsorbent, and easily cleanable.” 2. Wall and ceiling coverings and coatings – Section 229.167 (c)(6)(b) is amended to read, “Concession stands may use concrete, porous blocks, or bricks for indoor wall construction if finished and sealed to provide a smooth, easily cleanable, non-absorbent surface.” 3. Floor construction – Section 229.167 (c)(9) shall be added to read, “Floors and floor coverings of all food preparation, food service, food storage, and utensil-washing areas, and the floors of all walk-in refrigerating units, dressing rooms, locker rooms, toilet rooms and vestibules, shall be constructed of smooth durable material such as terrazzo, ceramic tile, quarry tile or the equivalent as approved by the regulatory authority and shall be maintained in good repair. Sealed concrete is not acceptable as a floor surface for areas mentioned above.” E. Competency and Access – Section 229.171 (i) (1) is amended to read, as follows: “An individual conducting inspections of retail food establishments shall be a Registered Professional Sanitarian or a Sanitarian-in-Training in Texas.” Sec. 6-8-3 Seasonal Food Establishments. A. General - The regulatory authority may impose additional requirements to protect against health hazards related to the conduct of the seasonal food establishments, may prohibit the sale of some or all potentially hazardous food, and Page 4 70282 when no health hazards will result, may waive or modify requirements of this chapter. Seasonal food establishments shall comply with the requirements of this ordinance. B. Concession Stands - Concession facilities are seasonal food service establishments generally associated with athletic and recreational facilities. The degree of regulation of a concession facility shall depend upon the type and volume of foods conveyed, and the status of the facility. C. Farmers Market – The following does not apply to non-potentially hazardous, uncut produce. 1. All foods must be commercially produced prepackaged items from a licensed facility or commissary. Product sampling is prohibited. This prohibition does not apply to food that has been prepared or packaged under conditions meeting the requirements of this Ordinance and served within facilities meeting the requirements of this Ordinance. 2. A manufacturing permit from the Department of State Health Services and copies of product labels shall be provided to the regulatory authority. 3. All refrigerated foods must be maintained below 41 degrees using mechanical refrigeration. Sec. 6-8-4 Temporary Food Establishments - Section 229.170 is amended as follows: A. Food Temperatures – Section 229.170 (b) is amended to read, “All food temperature requirements shall be met as contained in 229.164(k)-(o) of this title (relating to Food). Ice shall not be used as a coolant for potentially hazardous foods at a temporary food establishment operating for more than 4 hours. B. Limited Food Prep – Section 229.170 (l) shall be added to read, “Those potentially hazardous foods requiring limited preparation, such as preformed hamburgers and hot dogs shall be prepared and served unless otherwise approved by the regulatory authority. No slicing, dicing, or cutting of food products onsite. This prohibition does not apply to potentially hazardous food that has been prepared or packaged under conditions meeting the requirements of this Ordinance, is obtained in individual servings, in facilities that meet the requirements of this Ordinance, and is served directly in the unopened container in which it was packaged. The preparation or service of meat sandwiches, smoked or barbecued meats and eggs are prohibited unless the facility is a fully equipped enclosed building with sinks, refrigeration, and hot and cold running water. The sale or conveyance of fish, raw poultry, or shellfish products (except certain prepackaged frozen products) is prohibited.” Page 5 70282 Sec. 6-8-5 Mobile Units - Section 229.169 is amended as follows: A. Permits – Section 226.169 (a)(10) shall be added to read, “A schedule of all stops in Coppell including locations and exact times shall be submitted at the time of the application. Any changes in the schedule shall be reported to the regulatory authority within three days of such change. Failure to maintain a current schedule of these stops may result in suspension of the permit to operate.” Sec. 6-8-6 Food service regulations, permits, and pre-operational inspections. A. General. 1. Any reference to "regulatory authority" in the rules shall mean the City of Coppell Environmental Health Department. 2. In cases where a person or firm conducts, in a single building or at the same address, more than one food operation, whether such operations constitute a food establishment or temporary food establishment, then a separate permit shall be required for each separate operation. 3. Mechanical refrigeration or effectively insulated facilities are required for the storage of potentially hazardous foods. Using ice as the sole coolant for potentially hazardous foods is not acceptable, however, ice can be used as a coolant for potentially hazardous foods at a temporary food establishment operating for less than 4 hours. B. Permit required. It shall be unlawful for any person to operate a food establishment within the limits of the City of Coppell without having been issued a valid food permit. Only a person who complies with the requirements in this article shall be entitled to receive or retain a permit, and not withstanding the fact that all inspections necessary for obtaining a food permit have been completed, such permit shall not be issued until after the building in which the establishment is to be located has been issued a certificate of occupancy by the City of Coppell. Permits are not transferable from one person to another person or place. A valid permit shall be posted in or on a conspicuous place of every food establishment regulated by this ordinance. Permits shall remain in effect for 12 months from the date of issuance unless sooner revoked for cause. Mobile Food Establishment permits are valid for 6 months. If the permit is granted to a temporary food establishment, the permit shall be in effect for a period of time not exceeding 14 consecutive days in conjunction with a single event or celebration. Page 6 70282 C. Issuance of permits. 1. Any person desiring to operate a food establishment shall make written application for a permit on forms provided by the regulatory authority. The application shall include the name and address of each applicant, the location and type of food establishment and the signature of the applicant. An application for a temporary food establishment shall include the inclusive dates of the proposed operation. For temporary and seasonal events, applications and fees shall be submitted at least 4 working days prior to the start date. 2. The application shall be accompanied by a nonrefundable permit fee established by resolution of the city council from time to time. Failure to pay the annual fee shall cause the permit to be automatically revoked. 3. Establishments that provide only non-potentially hazardous foods, sold or served in original packaging and/or in single use containers, may be exempt from permitting requirements upon approval of the regulatory authority. Full compliance with this ordinance, including permit requirements and associated fees and inspections may be required of establishments if judged to be capable of causing foodborne illness or increased public health risk. D. Submission and review of plans. 1. Whenever a food establishment is constructed or extensively remodeled and whenever an existing structure is converted to use as a food establishment, properly prepared plans and specifications for such construction, remodeling, or conversion shall be submitted to the regulatory authority for review and approval before construction, remodeling or conversion is commenced. The plans and specifications shall include a proposed menu, proposed layout, equipment arrangement, mechanical plans and construction materials of work areas, and the type and model of proposed fixed equipment and facilities. No food establishment shall be constructed, extensively remodeled, or converted except in accordance with said approved plans and specifications. 2. Deviation from the approved plans and specifications shall result in a food establishment permit denial, suspension, or revocation. E. Inspections. 1. The regulatory authority shall inspect the food establishment prior to the issuance of the food establishment permit to determine compliance with any approved plans and specifications, compliance with other requirements of this article and shall determine that a certificate of occupancy has been issued for the building in which the establishment is to be located. Page 7 70282 2. The regulatory authority shall conduct periodic routine inspections to determine if a food establishment is in compliance with the rules. If during a routine inspection, immediate correction of a critical item is not achieved, the regulatory authority shall verify correction of the violation within ten calendar days. If a critical item is not corrected during the initial inspection, a reinspection fee, established by resolution of the city council from time to time, shall be assessed at the follow up inspection. 3. When the total cumulative demerit value of an establishment exceeds 30 demerits, the establishment shall immediately cease operations. The establishment shall remain closed until corrective action on all identified critical violations is complete. Corrective action on all other violations must be initiated within 48 hours. The establishment shall remain closed until reopened by the regulatory authority. In the case of temporary food establishments, all violations shall be corrected immediately. 4. Denial of access to regulatory authority shall be cause for suspension or revocation of the food service permit. Sec. 6-8-7 Certified Food Manager. Section 229.163 is amended as follows, 1. Responsibility, assignment – Section 229.163 (a) The permit holder shall be the person in charge or shall designate a person in charge and shall ensure that a person in charge is present at the food establishment during all hours of operation. The person in charge shall have successfully completed a Certified Food Managers Program accredited by the department. a. Food establishments that serve sell or distribute only prepackaged foods and non-potentially hazardous beverages as well as seasonal establishments and temporary establishments are exempt from the Certified Food Managers Program requirements. b. A certified food manager is required for each separately permitted section of each food establishment. The regulatory authority may require additional certified operators in sufficient number to insure that all areas of food preparation and food service, during times of operation, are under the direction of certified supervisory personnel. c. Compliance may be required of establishments having exemption if they have repeated or serious critical food code violations, or if the establishment is judged by the regulatory authority to be capable of causing foodborne illness. d. If a food establishment cannot meet the requirements of this section because of the termination or transfer of certified personnel, the food Page 8 70282 establishment shall employ another certified food manager within 30 days after such termination or transfer. 2. Knowledge, demonstration – Section 229.163 (b)(2) is amended to read “being a certified food protection manager who has shown proficiency of required information through passing a department approved examination; Sec. 6-8-8 Suspension of a food permit. A. The regulatory authority may, without warning, notice, or hearing, suspend any permit to operate a food establishment if the holder of such permit does not comply with the requirements of this article, or the operation of its establishment does not comply with the requirements set forth herein, or, if the operation of the food establishment otherwise constitutes a substantial hazard to public health. Suspension is effective upon service of the notice. When a permit is suspended, food service operations shall immediately cease. Whenever a permit is suspended the holder thereof shall be afforded an opportunity for a hearing within 20 days after receipt of a written request for hearing. B. Whenever a permit is suspended, the holder thereof or the person in charge shall be notified in writing that an opportunity for a hearing shall be provided if a written request for hearing is filed with the regulatory authority within ten days after receipt of notice. If no written request for hearing is filed within ten days, the suspension is sustained. The regulatory authority may terminate the suspension at any time if reasons for suspension no longer exist. Sec. 6-8-9 Revocation of a food permit. A. The regulatory authority may, after providing opportunity for hearing, revoke a permit for serious or repeated violations of any of the requirements of this article or for interference with the regulatory authority in the performance of its duties. B. Prior to revocation, the regulatory authority shall notify, in writing, the holder of the permit or the person in charge, of the specific reason(s) for which the permit is to be revoked and that the permit shall be revoked at the end of the ten days after service of such notice unless a written request for hearing is filed within the ten day period. If no request for hearing is filed within the ten day period, the revocation of the permit becomes final. A permit may be suspended pending its permanent revocation or a hearing relative thereto. C. The holder of the revoked permit may make written application for a new permit. Page 9 70282 Sec. 6-8-10 Examination and condemnation of food. A. The regulatory authority shall tag, label, or otherwise identify any food subject to a hold order. No food subject to a hold order shall be used, served, or moved from the establishment. The regulatory authority’s hold order shall permit storage of the food under the conditions specified in the hold order, unless storage is not possible without risk to the public health, in which case immediate destruction shall be ordered and accomplished. B. A hold order shall state that a request for hearing may be filed within ten days after issuance thereof and that if no hearing is requested the food shall be destroyed. On the basis of evidence produced at that hearing, the hold order may be vacated, or the owner or person in charge of the food may be directed by written order to denature or destroy such food or to bring it into compliance with the provisions of this article. Sec. 6-8-11 Hearings. The hearings provided for in this article shall be conducted by the City Manager at a time and place designated by it. Testimony given at a hearing shall be recorded verbatim. The City Manager shall make a final finding based upon the complete record, and shall sustain, modify or rescind any notice or order considered in the hearing. The regulatory authority shall furnish a written report of the hearing decision to the holder of the permit. Sec. 6-8-12 Service of Notices. A notice provided for in this article is properly served when it is delivered to the holder of the permit or the person in charge, or when it is sent by registered or certified mail, return receipt requested, to the last known address of the holder of the permit.” SECTION 2.All provisions of this ordinance of the City of Coppell is an addition to other ordinances or charter provisions; however, in the event this is in conflict with the provisions of this ordinance, be, then the provisions and the same are hereby, repealed, and all other provisions of the ordinances of the City of Coppell not in conflict with the provisions of this ordinance shall remain in full force and effect. SECTION 3. Should any sentence, paragraph, subdivision, clause, phrase or section of this ordinance be adjudged or held to be unconstitutional, illegal, or invalid, the same shall not Page 10 70282 affect the validity of this ordinance as a whole, or any part or provision thereof other than the part so decided to be invalid, illegal, or unconstitutional, and shall not affect the validity of the Code of Ordinances of the City of Coppell, Texas. SECTION 4. That the Code of Ordinances of the City of Coppell, Texas, as amended, shall remain in full force and effect, save and except as amended by this ordinance. SECTION 5. Any person, firm or corporation violating any of the provisions of this ordinance or the Code of Ordinances, as amended, shall be subject to a fine not to exceed the sum of Two Thousand ($2,000.00) dollars for each offense, and each and every day such offense shall continue shall be deemed to constitute a separate offense. SECTION 6. That this Ordinance shall take effect immediately from and after its passage and publication, as the law and charter is such cases provide. DULY PASSED by the City Council of the City of Coppell, Texas, this ___ day of ____________, 2006. APPROVED: By: DOUGLAS N. STOVER , MAYOR ATTEST: By: LIBBY BALL, CITY SECRETARY APPROVED AS TO FORM: By: ROBERT E. HAGER, CITY ATTORNEY (REH/cdb 09/26/06) Texas Food Establishment Rules Texas Department of State Health Services Division for Regulatory Services Environmental and Consumer Safety Section Policy, Standards, and Quality Assurance Unit Food Establishments Group Texas Food Establishment Rules 25 TAC §§229.161 229.171, 229.173 229.175 Texas Department of State Health Services Division for Regulatory Services Environmental and Consumer Safety Section Policy Standards and Quality Assurance Unit Food Establishments Group 1100 West 49th Street Austin, Texas 78756-3199 Effective Date: March 15, 2006 i TABLE OF CONTENTS §229.161 Purpose.........................................................................................................................1 §229.162 Definitions....................................................................................................................1 §229.163 Management and Personnel ..........................................................................................20 (a) Responsibility, assignment.....................................................................................20 (b) Knowledge, demonstration.....................................................................................20 (c) Duties, person in charge.........................................................................................22 (d) Disease or medical condition..................................................................................23 (e) Hands and arms, clean condition............................................................................28 (f) Hands and arms cleaning procedure.......................................................................28 (g) Special handwash procedures.................................................................................29 (h) When to wash ........................................................................................................29 (i) Where to wash.......................................................................................................29 (j) Hand sanitizers.......................................................................................................29 (k) Fingernail maintenance..........................................................................................30 (l) Jewelry prohibition.................................................................................................31 (m) Outer clothing clean condition................................................................................31 (n) Eating, drinking, or using tobacco ..........................................................................31 (o) Discharges from the eyes, nose, and mouth............................................................31 (p) Hair restraints, effectiveness...................................................................................31 (q) Handling prohibition..............................................................................................32 §229.164 Food.............................................................................................................................33 (a) Condition safe, unadulterated, and honestly presented............................................33 (b) Approved sources...................................................................................................33 (c) Specifications for receiving....................................................................................37 (d) Mulluscan shellfish, maintaining identification ......................................................40 (e) Preventing contamination by employees.................................................................42 (f) Preventing food and ingredient contamination........................................................43 (g) Preventing contamination from ice used as a coolant..............................................46 (h) Preventing contamination from equipment, utensils, and linens..............................46 (i) Preventing contamination from the premises..........................................................49 (j) Preventing contamination by consumers.................................................................50 (k) Cooking.................................................................................................................52 (l) Freezing.................................................................................................................55 (m) Reheating...............................................................................................................56 (n) Treating juice.........................................................................................................57 (o) Time and temperature control.................................................................................57 (p) Specialized processing methods.............................................................................63 (q) Food identity, accurate representation ....................................................................66 (r) Labeling.................................................................................................................66 (s) Consumer advisory................................................................................................68 ii (t) Disposition, contaminated food..............................................................................68 (u) Additional safeguards, requirements for food establishments serving highly susceptible populations ..........................................................................................69 (v) Donation of foods ..................................................................................................71 §229.165 Equipment, Utensils, and Linens ...................................................................................73 (a) Multiuse materials..................................................................................................73 (b) Single-service and single-use, characteristics .........................................................75 (c) Durability and strength...........................................................................................75 (d) Cleanability............................................................................................................76 (e) Accuracy of temperature measuring devices, food..................................................77 (f) Functionality of equipment.....................................................................................78 (g) Equipment, numbers and capacities........................................................................84 (h) Utensils, temperature measuring devices, and testing devices.................................86 (i) Location of equipment, clothes washers and dryers, and storage cabinets...............86 (j) Installation, fixed equipment..................................................................................87 (k) Equipment, maintenance and operation..................................................................88 (l) Utensils and temperature and pressure measuring devices......................................92 (m) Cleaning of equipment and utensils........................................................................93 (n) Frequency of cleaning............................................................................................93 (o) Methods of cleaning...............................................................................................96 (p) Sanitization, food-contact surfaces and utensils......................................................99 (q) Sanitization frequency, before use after cleaning....................................................99 (r) Sanitization methods, hot water and chemical........................................................100 (s) Laundering, clean linens ........................................................................................100 (t) Laundering, frequency ...........................................................................................100 (u) Laundering, methods..............................................................................................101 (v) Drying, equipment and utensils ..............................................................................101 (w) Lubricating and reassembling of food-contact surfaces, equipment ........................102 (x) Storage...................................................................................................................102 (y) Handling of utensils, single-service articles............................................................103 §229.166 Water, Plumbing, and Waste.........................................................................................105 (a) Water source ..........................................................................................................105 (b) Water quality standards ..........................................................................................105 (c) Water quantity and availability...............................................................................106 (d) Water distribution, delivery, and retention systems.................................................106 (e) Plumbing systems, approved materials ...................................................................107 (f) Plumbing design, construction, and installation......................................................107 (g) Plumbing, numbers and capacities..........................................................................108 (h) Plumbing, location and placement ..........................................................................109 (i) Plumbing, operation and maintenance ....................................................................109 (j) Sewage retention, drainage, and delivery................................................................113 (k) Disposal facility.....................................................................................................113 (l) Storage facilities on the premises ...........................................................................114 (m) Refuse removal......................................................................................................117 iii (n) Facilities for disposal and recycling, community or individual facility....................117 §229.167 Physical Facilities.........................................................................................................118 (a) Indoor areas, surface characteristics .......................................................................118 (b) Outdoor areas, surface characteristics .....................................................................118 (c) Floors, walls, and ceilings ......................................................................................118 (d) Functionality ..........................................................................................................120 (e) Handwashing facilities...........................................................................................122 (f) Toilets and urinals..................................................................................................123 (g) Lighting, intensit y..................................................................................................123 (h) Ventilation, mechanical..........................................................................................124 (i) Dressing areas and lockers, designation..................................................................124 (j) Service sinks, availability .......................................................................................124 (k) Handwashing facilities, conveniently located.........................................................124 (l) Toilet rooms, convenience and accessibility...........................................................124 (m) Employee accommodations, designated areas.........................................................124 (n) Distressed merchandise, segregation and location ..................................................124 (o) Receptacles, waste handling units, and designated storage areas.............................125 (p) Premises, buildings, systems, rooms, fixtures, equipment, devices, and materials...125 §229.168 Poisonous or Toxic Materials........................................................................................129 (a) Original containers, identifying information, prominence .......................................129 (b) Working containers, common name .......................................................................129 (c) Storage, separation.................................................................................................129 (d) Presence and use....................................................................................................129 (e) Container prohibitions, poisonous or toxic material containers ...............................130 (f) Chemicals ..............................................................................................................130 (g) Lubricants, incidental food contact, criteria............................................................131 (h) Pesticides...............................................................................................................131 (i) Medicines ..............................................................................................................132 (j) First aid supplies, storage .......................................................................................132 (k) Other personal care items, storage ..........................................................................132 (l) Storage and display, separation ..............................................................................132 §229.169 Mobile Food Establishments.........................................................................................133 (a) Mobile food establishment provisions ....................................................................133 (b) Central preparation facility .....................................................................................135 (c) Servicing area and operations .................................................................................135 §229.170 Temporary Food Establishments ...................................................................................136 (a) General..................................................................................................................136 (b) Food temperatures..................................................................................................136 (c) Ice..........................................................................................................................136 (d) Equipment..............................................................................................................136 (e) Single-service articles ............................................................................................136 iv (f) Water.....................................................................................................................136 (g) Wet storage ............................................................................................................137 (h) Sewage ..................................................................................................................137 (i) Handwashing .........................................................................................................137 (j) Floors.....................................................................................................................137 (k) Ceilings and outer openings of food preparation areas ............................................137 §229.171 Compliance and Enforcement .......................................................................................138 (a) Use for intended purpose, public health protection.................................................138 (b) Additional requirements, preventing health hazards, provision for conditions not addressed...............................................................................................................138 (c) Variances...............................................................................................................138 (d) HACCP plan requirements .....................................................................................139 (e) Confidentiality, trade secrets ..................................................................................141 (f) Permit requirement, prerequisite for operation........................................................141 (g) Conditions of retention, responsibilities of the permit holder ..................................141 (h) Inspection frequency, performance-based and risk-based .......................................142 (i) Competency and access..........................................................................................143 (j) Report of findings..................................................................................................144 (k) Imminent health hazards ........................................................................................149 (l) Critical violations, time frame for corrections.........................................................149 (m) Other violations, time frame for corrections ...........................................................150 (n) Examination and detention of food .........................................................................150 (o) Investigation and control ........................................................................................151 (p) Reporting of communicable diseases ......................................................................152 §229.173 Heimlich Maneuver Poster............................................................................................154 (a) Purpose..................................................................................................................154 (b) Placement ..............................................................................................................154 (c) Specifications.........................................................................................................154 §229.174 Bed and Breakfast Extended Establishments.................................................................155 (a) General..................................................................................................................155 (b) Food supplies .........................................................................................................155 (c) Food preparation and protection .............................................................................155 (d) Cleaning and sanitizing..........................................................................................155 (e) Personal hygiene....................................................................................................155 (f) Employee restrooms...............................................................................................155 (g) Equipment and utensil design and construction......................................................155 (h) Handsinks ..............................................................................................................155 (i) Food-contact surfaces.............................................................................................156 (j) Insect proof/rodent proof........................................................................................156 (k) Equipment..............................................................................................................156 (l) Garbage receptacles ...............................................................................................156 (m) Sewage ..................................................................................................................156 (n) Water supply ..........................................................................................................156 v §229.175 Outfitter Operations......................................................................................................157 (a) General..................................................................................................................157 (b) Food supplies .........................................................................................................157 (c) Food temperatures..................................................................................................157 (d) Warewashing .........................................................................................................157 (e) Ice usage................................................................................................................157 (f) Potable water .........................................................................................................157 (g) Handwashing .........................................................................................................157 (h) Equipment..............................................................................................................157 (SEE ANNEX FOR NUMERICALLY SEQUENTIAL INDEX BY PARAGRAPH) TEXAS ADMINISTRATIVE CODE FORMAT 229.161 - Section (a) Subsection (1) Paragraph (A) Subparagraph (i) Clause (I) Subclause -a- Item -1- Subitem 1 TEXAS ADMINSTRATIVE CODE TITLE 25 HEALTH SERVICES PART 1 DEPARTMENT OF STATE HEALTH SERVICES CHAPTER 229 FOOD AND DRUG SUBCHAPTER K TEXAS FOOD ESTABLISHMENT §§229. 229.161 - 229.171, 229.173 - 229.175 §229.161. Purpose. The purpose of these rules is to safeguard public health and provide to consumers food that is safe, unadulterated, and honestly presented. §229.162. Definitions. The following definitions apply in the interpretation and application of this Code. (1) Additive-- (A) Food additive is a substance which affects the characteristics of any food as specified in the Texas Health and Safety Code, Chapter 431, §431.002(17). (B) Color additive is any material imparting color to a food as stated in the Texas Health and Safety Code, Chapter 431, §431.002(6). (2) Adulterated food--A food shall be deemed to be adulterated as specified in the Texas Health and Safety Code, Chapter 431, §431.081. (3) Approved--Acceptable to the regulatory authority based on a determination of conformity with principles, practices, and generally recognized standards that protect public health. (4) aw --Water activity which is a measure of the free moisture in a food, is the quotient of the water vapor pressure of the substance divided by the vapor pressure of pure water at the same temperature, and is indicated by the symbol aw. (5) Bed and Breakfast-- (A) Bed and Breakfast Limited means: (i) an establishment with seven or fewer rooms for rent; (ii) an establishment that serves breakfast to overnight guests; (iii) the establishment is not a retail food establishment; and (iv) the owner or manager shall successfully complete a food managers certification course accredited by the department. 2 §229.162(5) §229.162(12) (B) Bed and Breakfast Extended means: (i) an establishment with more than seven rooms for rent; or (ii) an establishment that provides food service other than breakfast to overnight guests; and (iii) the establishment must meet the specific requirements as outlined in §229.174 of this title (relating to Bed and Breakfast Extended Establishments). (C) Bed and Breakfast Food Establishment means: (i) an establishment that provides food service other than to its overnight guests; and (ii) the establishment must meet the rules and regulations applicable to retail food establishments. (6) Beverage--A liquid for drinking, including water. (7) Bottled drinking water--Water that is sealed in bottles, packages, or other containers and offered for sale for human consumption, including bottled mineral water. (8) Casing--A tubular container for sausage products made of either natural or artificial (synthetic) material. (9) Certification number--A unique combination of letters and numbers assigned by a shellfish control authority to a molluscan shellfish dealer according to the provisions of the National Shellfish Sanitation Program. (10) Child care center--Any facility licensed by the regulatory authority to receive 13 or more children for child care, which prepares food for on-site consumption. (11) CIP--Cleaned in place by the circulation or flowing by mechanical means through a piping system of a detergent solution, water rinse, and sanitizing solution onto or over equipment surfaces that require cleaning, such as the method used, in part, to clean and sanitize a frozen dessert machine except that CIP does not include the cleaning of equipment such as band saws, slicers, or mixers that are subjected to in-place manual cleaning without the use of a CIP system. (12) Code of Federal Regulations (CFR)--Citations in these rules to the CFR refer sequentially to the Title, Part, and Section numbers, such as 21 CFR §178.1010 refers to Title 21, Part 178, §1010. The compilation of the general and permanent rules published in the Federal Register by the executive departments and agencies of the federal government which: 3 §229.162(12) 229.162(21) (A) is published annually by the U.S. Government Printing Office; and (B) contains FDA rules in 21 CFR, USDA rules in 7 CFR and 9 CFR, EPA rules in 40 CFR, and Wildlife and Fisheries rules in 50 CFR. (13) Commingle-- (A) To combine shellstock harvested on different days or from different growing areas as identified on the tag or label, or (B) To combine shucked shellfish from containers with different container codes or different shucking dates. (14) Comminuted--Reduced in size by methods including chopping, flaking, grinding, or mincing. The term includes fish or meat products that are reduced in size and restructured or reformulated such as gefilte fish, gyros, ground beef, and sausage; and a mixture of two or more types of meat that have been reduced in size and combined, such as sausages made from two or more meats. (15) Common dining area--A central location in a group residence where people gather to eat at mealtime. The term does not apply to a kitchenette or dining area located within a resident’s private living quarters. (16) Confirmed disease outbreak--A foodborne disease outbreak in which laboratory analysis of appropriate specimens identifies a causative agent and epidemiological analysis implicates the food as the source of the illness. (17) Consumer--A person who is a member of the public, takes possession of food, is not functioning in the capacity of an operator of a food establishment or food processing plant, and does not offer the food for resale. (18) Corrosion-resistant material--A material that maintains acceptable surface cleanability characteristics under prolonged influence of the food to be contacted, the normal use of cleaning compounds and sanitizing solutions, and other conditions of the use environment. (19) Critical control point--A point or procedure in a specific food system where loss of control may result in an unacceptable health risk. (20) Critical item--A provision of these rules, that, if in noncompliance, is more likely than other violations to contribute to food contamination, illness, or environmental health hazard. (21) Critical limit--The maximum or minimum value to which a physical, biological, or chemical parameter must be controlled at a critical control point to minimize the risk that the identified food safety hazard may occur. 4 §229.162(21) 229.162(26) (22) Department--The Department of State Health Services. (23) Disclosure--A written statement that clearly identifies the animal-derived foods which are, or can be ordered, raw, undercooked, or without otherwise being processed to eliminate pathogens in their entirety, or items that contain an ingredient that is raw, undercooked, or without otherwise being processed to eliminate pathogens. (24) Drinking water-- (A) Drinking water means water that meets 30 TAC, §§290.101-290.114, 290.117-290.119, 290.121 (relating to Drinking Water Standards Governing Drinking Water Quality and Reporting Requirements for Public Water Supply Systems). (B) Drinking water is traditionally known as potable water. (C) Drinking water includes the term water except where the term used connotes that the water is not potable, such as boiler water, mop water, rainwater, wastewater, and nondrinking water. (25) Dry storage area means a room or area designated for the storage of packaged or containerized bulk food that is not potentially hazardous and dry goods such as single-service items. (26) Easily cleanable-- (A) Easily cleanable means a characteristic of a surface that: (i) allows effective removal of soil by normal cleaning methods; (ii) is dependent on the material, design, construction, and installation of the surface; and (iii) varies with the likelihood of the surfaces role in introducing pathogenic or toxigenic agents or other contaminants into food based on the surfaces approved placement, purpose, and use. (B) Easily cleanable includes a tiered application of the criteria that qualify the surface as easily cleanable as specified under subparagraph (A) of this paragraph to different situations in which varying degrees of cleanability are required such as: (i) the appropriateness of stainless steel for a food preparation surface as opposed to the lack of need for stainless steel to be used for floors or for tables used for consumer dining; or 5 §229.162(26) 229.162(34) (ii) the need for a different degree of cleanability for a utilitarian attachment or accessory in the kitchen as opposed to a decorative attachment or accessory in the consumer dining area. (27) Easily movable-- (A) Portable; mounted on casters, gliders, or rollers; or provided with a mechanical means to safely tilt a unit of equipment for cleaning; and (B) Having no utility connection, a utility connection that disconnects quickly, or a flexible utility connection line of sufficient length to allow the equipment to be moved for cleaning of the equipment and adjacent area. (28) Egg--The shell egg of the domesticated chicken, turkey, duck, goose, or guinea. (29) Employee--The permit holder, person in charge, person having supervisory or management duties, person on the payroll, family member, volunteer, person performing work under contractual agreement, or other person working in a food establishment. (30) EPA--The U.S. Environmental Protection Agency. (31) Equipment-- (A) Equipment means an article that is used in the operation of a food establishment such as a freezer, grinder, hood, ice maker, meat block, mixer, oven, reach-in refrigerator, scale, sink, slicer, stove, table, temperature measuring device for ambient air, vending machine, or warewashing machine. (B) Equipment does not include items used for handling or storing large quantities of packaged foods that are received from a supplier in a cased or overwrapped lot, such as hand trucks, forklifts, dollies, pallets, racks, and skids. (32) Exclude--To prevent a person from working as a food employee or entering a food establishment except for those areas open to the general public. (33) Exotic animal--Member of a species of game not indigenous to this state including axis deer, nilga antelope, red sheep, or other cloven-hoofed ruminant animals. Exotic animals are considered livestock as defined in these rules and are amenable to inspection under Texas Health and Safety Code, Chapter 433, §433.035 (Inspection and Other Regulation of Exotic Animals in Interstate Commerce). (34) FDA--The U.S. Food and Drug Administration. 6 §229.162(34) 229.162(40) (35) Fish-- (A) Fish means fresh or saltwater finfish, crustaceans and other forms of aquatic life (including alligator, frog, aquatic turtle, jellyfish, sea cucumber, and sea urchin and the roe of such animals) other than birds or mammals, and all mollusks, if such animal life is intended for human consumption. (B) Fish includes an edible human food product derived in whole or in part from fish, including fish that have been processed in any manner. (36) Food--A raw, cooked, or processed edible substance, ice, beverage, or ingredient used or intended for use or for sale in whole or in part for human consumption, or chewing gum. (37) Foodborne disease outbreak--The occurrence of two or more cases of a similar illness resulting from the ingestion of a common food. (38) Food-contact surface-- (A) A surface of equipment or a utensil with which food normally comes into contact; or (B) A surface of equipment or a utensil from which food may drain, drip, or splash: (i) into a food; or (ii) onto a surface normally in contact with food. (39) Food employee--An individual working with unpackaged food, food equipment or utensils, or food-contact surfaces. (40) Food establishment-- (A) Food establishment means an operation that stores, prepares, packages, serves, vends, or otherwise provides food for human consumption: (i) such as a restaurant; retail food store; satellite or catered feeding location; catering operation if the operation provides food directly to a consumer or to a conveyance used to transport people; market; vending location; conveyance used to transport people; institution; or food bank; and (ii) that relinquishes possession of food to a consumer directly, or indirectly through a delivery service such as home delivery of grocery orders or restaurant takeout orders, or delivery service that is provided by common carriers. 7 §229.162(40) 229.162(42) (B) Food establishment includes: (i) an element of the operation such as a transportation vehicle or a central preparation facility that supplies a vending location or satellite feeding location unless the vending or feeding location is permitted by the regulatory authority; and (ii) an operation that is conducted in a mobile, stationary, temporary, or permanent facility or location; where consumption is on or off the premises; and regardless of whether there is a charge for the food. (C) Food establishment does not include: (i) an establishment that offers only prepackaged foods that are not potentially hazardous; (ii) a produce stand that only offers whole, uncut fresh fruits and vegetables; (iii) a food processing plant; (iv) a kitchen in a private home if only food that is not potentially hazardous is prepared for sale or service at a function such as a religious or charitable organization’s bake sale if allowed by law; (v) an area where food that is prepared as specified in subparagraph (C)(iv) of this paragraph is sold or offered for human consumption; (vi) a Bed and Breakfast Limited facility as defined in these rules; or (vii) a private home that receives catered or home-delivered food. (41) Food processing plant-- (A) Food processing plant means a commercial operation that manufactures, packages, labels, or stores food for human consumption and does not provide food directly to a consumer. (B) Food processing plant does not include a food establishment as defined under paragraph (40) of this section. (42) Game animal-- (A) Game animal means an animal, the products of which are food, that is not classified as cattle, sheep, swine, goat, horse, mule, or other equine in 9 CFR 301, Definitions; as 8 §229.162(42) 229.162(50) poultry in 9 CFR 381, Poultry Products Inspection Regulations; or as fish as defined under paragraph (35) of this section. (B) Game animal includes mammals such as reindeer, elk, deer, antelope, water buffalo, bison, rabbit, squirrel, opossum, raccoon, nutria, or muskrat, and nonaquatic reptiles such as land snakes. (C) Game animal does not include ratites such as ostrich, emu, and rhea. (43) General use pesticide--A pesticide that is not classified by EPA for restricted use as specified in 40 CFR §152.175. (44) Grade A standards--The requirements of the United States Public Health Service/FDA Grade A Pasteurized Milk Ordinance with which certain fluid and dry milk and milk products comply. (45) Group residence--A private or public housing corporation or institutional facility that provides living quarters and meals. The term includes a domicile for unrelated persons such as a retirement home, correctional facility, or a long-term care facility. (46) Hazard Analysis Critical Control Point (HACCP)--A systematic approach to the hazard identification, evaluation, and control of food safety hazards. (47) HACCP plan--A written document that delineates the formal procedures for following the Hazard Analysis Critical Control Point principles developed by The National Advisory Committee on Microbiological Criteria for Foods. (48) Hazard--A biological, chemical, or physical property that may cause an unacceptable consumer health risk. (49) Hermetically sealed container--A container that is designed and intended to be secure against the entry of microorganisms and, in the case of low acid canned foods, to maintain the commercial sterility of its contents after processing. (50) Highly susceptible population--Persons who are more likely than other people in the general population to experience foodborne disease because they are: (A) immunocompromised; preschool age children, or older adults; and (B) obtaining food at a facility that provides services such as custodial care, health care, or assisted living, such as a child or adult day care center, kidney dialysis center, hospital or nursing home, or nutritional or socialization services such as a senior center. 9 §229.162(51) 229.162(60) (51) Imminent health hazard--A significant threat or danger to health that is considered to exist when there is evidence sufficient to show that a product, practice, circumstance, or event creates a situation that requires immediate correction or cessation of operation to prevent injury based on: (A) the number of potential injuries; and (B) the nature, severity, and duration of the anticipated injury. (52) Injected--Manipulating a meat so that infectious or toxigenic microorganisms may be introduced from its surface to its interior through tenderizing with deep penetration or injecting the meat such as by processes which may be referred to as injecting, pinning, or stitch pumping. (53) Juice--When used in the context of food safety, the aqueous liquid expressed or extracted from one or more fruits or vegetables, purØes of the edible portions of one or more fruits or vegetables, or any concentrates of such liquid or purØe. Juice includes juice as a whole beverage, an ingredient of a beverage and a purØe as an ingredient of a beverage. (54) Kitchenware--Food preparation and storage utensils. (55) Law--Applicable local, state, and federal statutes, regulations, and ordinances. (56) Linens--Fabric items such as cloth hampers, cloth napkins, tablecloths, wiping cloths, and work garments including cloth gloves. (57) Livestock--Cattle, sheep, swine, goats, horses, mules, other equine, poultry, domesticated rabbits, exotic animals, and domesticated birds. Livestock are amenable to inspection. (58) Meat--The flesh of animals used as food including the dressed flesh of cattle, swine, sheep, or goats and other edible animals, except fish, poultry, exotic animals as specified in §229.164(b)(7)(A)(ii) and (iii), and wild game animals as specified in §229.164(b)(7)(B)(iii) and (iv) of this title (relating to Food) that is offered for human consumption. (59) mg/L--Milligrams per liter, which is the metric equivalent of parts per million (ppm). (60) Mobile food establishment--A vehicle mounted food establishment that is readily moveable. (61) Molluscan shellfish--Any edible species of fresh or frozen oysters, clams, mussels, and scallops or edible portions thereof, except when the scallop product consists only of the shucked adductor muscle. 10 §229.162(61) 229.162(69) (62) Outfitter operation--Any operation such as trail rides or river raft trips where food is offered to patrons and which operates out of a central preparation location or food establishment. (63) Packaged-- (A) Packaged means bottled, canned, cartoned, securely bagged, or securely wrapped, whether packaged in a food establishment or a food processing plant. (B) Packaged does not include a wrapper, carry-out box, or other nondurable container used to containerize food with the purpose of facilitating food protection during service and receipt of the food by the consumer. (64) Permit--The document issued by the regulatory authority that authorizes a person to operate a food establishment. (65) Permit holder--The entity that: (A) is legally responsible for the operation of the food establishment such as the owner, the owners agent, or other person; and (B) possesses a valid permit to operate a food establishment. (66) Person--An association, a corporation, individual, partnership, other legal entity, government, or governmental subdivision or agency. (67) Person in charge--The individual present at a food establishment who is responsible for the operation at the time of inspection. (68) Personal care items-- (A) Personal care items means items or substances that may be poisonous, toxic, or a source of contamination and are used to maintain or enhance a persons health, hygiene, or appearance. (B) Personal care items include items such as medicines; first aid supplies; and other items such as cosmetics, and toiletries such as toothpaste and mouthwash. (69) pH--The symbol for the negative logarithm of the hydrogen ion concentration, which is a measure of the degree of acidity or alkalinity of a solution. Values between 0 and 7 indicate acidity and values between 7 and 14 indicate alkalinity. The value for pure distilled water is 7, which is considered neutral. 11 §229.162(69) 229.162(74) (70) Physical facilities--The structure and interior surfaces of a food establishment including accessories such as soap and towel dispensers and attachments such as light fixtures and heating or air conditioning system vents. (71) Plumbing fixture--A receptacle or device that: (A) is permanently or temporarily connected to the water distribution system of the premises and demands a supply of water from the system; or (B) discharges used water, waste materials, or sewage directly or indirectly to the drainage system of the premises. (72) Plumbing system--The water supply and distribution pipes; plumbing fixtures and traps; soil, waste, and vent pipes; sanitary and storm sewers and building drains, including their respective connections, devices, and appurtenances within the premises; and water-treating equipment. (73) Poisonous or toxic materials--Substances that are not intended for ingestion and are included in four categories: (A) cleaners and sanitizers, which include cleaning and sanitizing agents and agents such as caustics, acids, drying agents, polishes, and other chemicals; (B) pesticides, except sanitizers, which include substances such as insecticides and rodenticides; (C) substances necessary for the operation and maintenance of the establishment such as nonfood grade lubricants and personal care items that may be deleterious to health; and (D) substances that are not necessary for the operation and maintenance of the establishment and are on the premises for retail sale, such as petroleum products and paints. (74) Potentially hazardous food-- (A) Potentially hazardous food (PHF) means a food that requires time and temperature control for safety (TCS) to limit pathogen growth or toxin production. (B) Potentially hazardous food includes: (i) an animal food (a food of animal origin), including fresh shell eggs, that is raw or heat-treated; a food of plant origin that is heat-treated or consists of raw seed sprouts; cut melons; and garlic-in-oil mixtures that are not modified in a way that results in mixtures that do not support growth as specified under subparagraph (A) of this paragraph; and 12 §229.162(74) 229.162(74) (ii) a food whose pH/aw interaction is designated as PHF/TCS in one of the tables listed in subparagraph (D) of this paragraph, unless a product assessment or vendor documentation acceptable to the regulatory authority is provided. (C) Potentially hazardous food does not include: (i) an air-cooled hard-boiled egg with shell intact, or a shell egg that is not hard-boiled, but has been treated to destroy all viable Salmonellae; (ii) a food whose pH/aw interaction is designated as non-PHF/non-TCS in one of the tables in subparagraph (D) of this paragraph; (iii) a food, in an unopened hermetically sealed container, that is commercially processed to achieve and maintain commercial sterility under conditions of non- refrigerated storage and distribution; (iv) a food for which a product assessment, including laboratory evidence, demonstrates that time and temperature control for safety is not required and that may contain a preservative, other barrier to the growth of microorganisms, or a combination of barriers that inhibit the growth of microorganisms; or (v) a food that does not support the growth of microorganisms as specified under subparagraph (A) of this paragraph even though the food may contain an infectious or toxigenic microorganism or chemical or physical contaminant at a level sufficient to cause illness. (D) Potentially hazardous food does not include food that, because of pH, wateractivity (aw) or the interaction of pH and aw, is considered non-PHF/non-TCS in Table A or B below. Guidance for using the tables is provided in the document entitled Using pH, a w, or the Interaction of pH and aw to Determine If a Food Requires Time/Temperature Control for Safety (TCS). Copies of the guidance document may be downloaded from the following website: http://www.dshs.state.tx.us, or may be obtained from the department, 1100 West 49th Street, Austin, Texas 78756-3182. (i) Table A. 13 §229.162(74) 229.162(75) Figure: 25 TAC §229.162(74)(D)(i) Table A. Control of spores: Product heat-treated to control vegetative cells and subsequently packaged. Critical pH values Critical a w values 4.6 or less >4.6 5.6 >5.6 0.92 or less non-PHF/non-TCS non-PHF/non-TCS non-PHF/non-TCS >0.92-0.95 non-PHF/non-TCS non-PHF/non-TCS PHF/TCS >0.95 non-PHF/non-TCS PHF/TCS PHF/TCS (ii) Table B. Figure: 25 TAC §229.162(74)(D)(ii) Table B. Control of vegetative cells and spores: Product not heat-treated or heat-treated but not packaged. Critical pH values Critical a w Values <4.2 4.2 4.6 4.6 5.0 >5.0 <0.88 non-PHF/non- TCS non-PHF/non- TCS non-PHF/non- TCS non-PHF/non- TCS 0.88-0.90 non-PHF/non- TCS non-PHF/non- TCS non-PHF/non- TCS PHF/TCS >0.90-0.92 non-PHF/non- TCS non-PHF/non- TCS PHF/TCS PHF/TCS >0.92 non-PHF/non- TCS PHF/TCS PHF/TCS PHF/TCS (75) Poultry-- (A) Poultry means: (i) any domesticated bird (chickens, turkeys, ducks, geese, or guineas), whether live or dead, as defined in the Health and Safety Code, Chapter 433, §433.003; and (ii) any migratory waterfowl, game bird, such as pheasant, partridge, quail, grouse, or guinea, or pigeon or squab, whether live or dead, as defined in the Health and Safety Code, Chapter 433, §433.003. (B) Poultry does not include ratites. 14 §229.162(76) 229.162(80) (76) Premises-- (A) The physical facility, its contents, and the contiguous land or property under the control of the permit holder; or (B) The physical facility, its contents, and the land or property not described under subparagraph (A) of this paragraph if its facilities and contents are under the control of the permit holder and may impact food establishment personnel, facilities, or operations, and a food establishment is only one component of a larger operation such as a health care facility, hotel, motel, school, recreational camp, or prison. (77) Primal cut--A basic major cut into which carcasses and sides of meat are separated, such as a beef round, pork loin, lamb flank, or veal breast. (78) Public water system has the meaning stated in 30 Texas Administrative Code (TAC), §§290.101 - 290.121 (relating to Drinking Water Standards Governing Drinking Water Quality and Reporting Requirements for Public Water Supply Systems). (79) Pushcart--A non self-propelled mobile food unit limited to serving nonpotentially hazardous food or potentially hazardous foods requiring a limited amount of preparation as authorized by the regulatory authority. A pushcart is classified as a mobile food establishment. A pushcart does not include non self-propelled units owned and operated within a retail food store. (80) Ready-to-eat food-- (A) Ready-to-eat food means food that: (i) is in a form that is edible without additional preparation to achieve food safety, as specified under §§229.164(k)(1)(A)-(C), 229.164(k)(2), or 229.164(l)(1)-(2) of this title; (ii) is a raw or partially cooked animal food and the consumer is advised as specified under §229.164(k)(1)(D)(i) and (ii) of this title; (iii) is prepared in accordance with a variance that is granted as specified under §229.164(k)(1)(D)(i) and (iii) of this title; and (iv) may receive additional preparation for palatability or aesthetic, epicurean, gastronomic, or culinary purposes. 15 §229.162(80) 229.162(81) (B) Ready-to-eat food includes: (i) raw animal food that is cooked as specified under §§229.164(k)(1) or 229.164(k)(2), or frozen as specified under §229.164(l)(1)-(2) of this title; (ii) raw fruits and vegetables that are washed as specified under §229.164(f)(6) of this title; (iii) fruits and vegetables that are cooked for hot holding, as specified under §229.164(k)(3) of this title; (iv) all potentially hazardous food that is cooked to the temperature and time required for the specific food under §229.164(k) of this title, and cooled as specified in §229.164(o)(4) of this title; (v) plant food for which further washing, cooking, or other processing is not required for food safety, and from which rinds, peels, husks, or shells, if naturally present are removed; (vi) substances derived from plants such as spices, seasonings, and sugar; (vii) a bakery item such as bread, cakes, pies, fillings, or icing for which further cooking is not required for food safety; (viii) the following products that are produced in accordance with USDA guidelines and that have received a lethality treatment for pathogens: dry, fermented sausages, such as dry salami or pepperoni; salt-cured meat and poultry products, such as prosciutto ham, country cured ham, and Parma ham; and dried meat and poultry products, such as jerky or beef sticks; and (ix) foods manufactured according to 21 CFR 113, Thermally Processed Low-Acid Foods Packaged in Hermetically Sealed Containers. (81) Reduced oxygen packaging-- (A) Reduced oxygen packaging means: (i) the reduction of the amount of oxygen in a package by removing oxygen; displacing oxygen and replacing it with another gas or combination of gases; or otherwise controlling the oxygen content to a level below that normally found in the surrounding, 21% oxygen atmosphere; and 16 §229.162(81) 229.162(87) (ii) a process as specified in subparagraph (A)(i) of this paragraph that involves a food for which Clostridium botulinum is identified as a microbiological hazard in the final packaged form. (B) Reduced oxygen packaging includes: (i) vacuum packaging, in which air is removed from a package of food and the package is hermetically sealed so that a vacuum remains inside the package, such as sous vide; (ii) modified atmosphere packaging, in which the atmosphere of a package of food is modified so that its composition is different from air but the atmosphere may change over time due to the permeability of the packaging material or the respiration of the food. Modified atmosphere packaging includes: reduction in the proportion of oxygen, total replacement of oxygen, or an increase in the proportion of other gases such as carbon dioxide or nitrogen; and (iii) controlled atmosphere packaging, in which the atmosphere of a package of food is modified so that until the package is opened, its composition is different from air, and continuous control of that atmosphere is maintained, such as by using oxygen scavengers or a combination of total replacement of oxygen, nonrespiring food, and impermeable packaging material. (82) Refuse--Solid waste not carried by water through the sewage system. (83) Regulatory authority--The local, state, or federal enforcement body or authorized representative having jurisdiction over the food establishment. (84) Reminder--A written statement concerning the health risk of consuming animal foods raw, undercooked, or without otherwise being processed to eliminate pathogens. (85) Restrict--To limit the activities of a food employee so that there is no risk of transmitting a disease that is transmissible through food and the food employee does not work with exposed food, clean equipment, utensils, linens; and unwrapped single-service or single-use articles. (86) Restricted egg--Any check, dirty egg, incubator reject, inedible, leaker, or loss as defined in 9 CFR 590. (87) Restricted use pesticide--A pesticide product that contains the active ingredients specified in 40 CFR §152.175, Pesticides classified for restricted use, and that is limited to use by or under the direct supervision of a certified applicator. 17 §229.162(88) 229.162(97) (88) Risk--The likelihood that an adverse health effect will occur within a population as a result of a hazard in a food. (89) Roadside food vendor--A person who operates a mobile retail food store from a temporary location adjacent to a public road or highway. Food shall not be prepared or processed by a roadside food vendor. A roadside food vendor is classified as a mobile food establishment. (90) Safe material means: (A) an article manufactured from or composed of materials that may not reasonably be expected to result, directly or indirectly, in their becoming a component or otherwise affecting the characteristics of any food; (B) an additive that is used as specified in Chapter 431 of the Texas Health and Safety Code; or (C) other materials that are not additives and that are used in conformity with applicable regulations of the Food and Drug Administration. (91) Sanitization--The application of cumulative heat or chemicals on cleaned food- contact surfaces that, when evaluated for efficacy, is sufficient to yield a reduction of 5 logs, which is equal to a 99.999% reduction, of representative disease microorganisms of public health importance. (92) Sealed--Free of cracks or other openings that allow the entry or passage of moisture. (93) Service animal--An animal such as a guide dog, signal dog, or other animal individually trained to provide assistance to an individual with a disability. (94) Servicing area--An operating base location to which a mobile food establishment or transportation vehicle returns regularly for such things as vehicle and equipment cleaning, discharging liquid or solid wastes, refilling water tanks and ice bins, and boarding food. (95) Sewage--Liquid waste containing animal or vegetable matter in suspension or solution and may include liquids containing chemicals in solution. (96) Shellfish control authority--A state, federal, foreign, tribal, or other government entity legally responsible for administering a program that includes certification of molluscan shellfish harvesters and dealers for interstate commerce. (97) Shellstock--Raw, in-shell molluscan shellfish. 18 §229.162(98) 229.162(105) (98) Shiga toxin-producing Escherichia coli--Any E. coli capable of producing Shiga toxins (also called verocytotoxins or Shiga-like toxins). This includes, but is not limited to, E. coli reported as serotype O157:H7, O157: NM, and O157:H-. (99) Shucked shellfish--Molluscan shellfish that have one or both shells removed. (100) Single-service articles--Tableware, carry-out utensils, and other items such as bags, containers, placemats, stirrers, straws, toothpicks, and wrappers that are designed and constructed for one time, one person use after which they are intended for discard. (101) Single-use articles-- (A) Single-use articles means utensils and bulk food containers designed and constructed to be used once and discarded. (B) Single-use articles include items such as wax paper, butcher paper, plastic wrap, formed aluminum food containers, jars, plastic tubs or buckets, bread wrappers, pickle barrels, ketchup bottles, and number 10 cans which do not meet the materials, durability, strength, and cleanability specifications under §§229.165(a), (c), and (d) of this title (relating to Equipment, Utensils, and Linens) for multiuse utensils. (102) Slacking--The process of moderating the temperature of a food such as allowing a food to gradually increase from a temperature of -23 degrees Celsius (-10 degrees Fahrenheit) to -4 degrees Celsius (25 degrees Fahrenheit) in preparation for deep-fat frying or to facilitate even heat penetration during the cooking of previously block-frozen food such as spinach. (103) Smooth-- (A) A food-contact surface having a surface free of pits and inclusions with a cleanability equal to or exceeding that of (100 grit) number 3 stainless steel; (B) A nonfood-contact surface of equipment having a surface equal to that of commercial grade hot-rolled steel free of visible scale; and (C) A floor, wall, or ceiling having an even or level surface with no roughness or projections that render it difficult to clean. (104) Table-mounted equipment--Equipment that is not portable and is designed to be mounted off the floor on a table, counter, or shelf. (105) Tableware--Eating, drinking, and serving utensils for table use such as flatware including forks, knives, and spoons; hollowware including bowls, cups, serving dishes, and tumblers; and plates. 19 §229.162(106) §229.162(115) (106) TCS--Time and temperature control for safety. (107) Temperature measuring device--A thermometer, thermocouple, thermistor, or other device that indicates the temperature of food, air, or water. (108) Temporary food establishment--A food establishment that operates for a period of no more than 14 consecutive days in conjunction with a single event or celebration. (109) USDA--The U.S. Department of Agriculture. (110) Utensil--A food-contact implement or container used in the storage, preparation, transportation, dispensing, sale, or service of food, such as kitchenware or tableware that is multiuse, single-service, or single-use; gloves used in contact with food; temperature sensing probes of food temperature measuring devices; and probe-type price or identification tags used in contact with food. (111) Variance--A written document issued by the regulatory authority that authorizes a modification or waiver of one or more requirements of this title if, in the opinion of the regulatory authority, a health hazard or nuisance will not result from the modification or waiver. (112) Vending machine--A self-service device that, upon insertion of a coin, paper currency, token, card, or key, or by optional manual operation, dispenses unit servings of food in bulk or in packages without the necessity of replenishing the device between each vending operation. (113) Vending machine location--The room, enclosure, space, or area where one or more vending machines are installed and operated and includes the storage areas and areas on the premises that are used to service and maintain the vending machines. (114) Warewashing--The cleaning and sanitizing of utensils and food-contact surfaces of equipment. (115) Whole-muscle, intact beef--Whole muscle beef that is not injected, mechanically tenderized, reconstructed, or scored and marinated, from which beef steaks may be cut. 20 §229.163(a) §229.163(b) §229.163. Management and Personnel. (a) Responsibility, assignment. The permit holder shall be the person in charge or shall designate a person in charge and shall ensure that a person in charge is present at the food establishment during all hours of operation. (b) Knowledge, demonstration. Based on the risks of foodborne illness inherent to the food operation, during inspections and upon request the person in charge shall demonstrate to the regulatory authority knowledge of foodborne disease prevention, application of the Hazard Analysis Critical Control Point principles, and the requirements of these rules. The person in charge shall demonstrate this knowledge by: (1) complying with these rules by having no critical violations during the current inspection; (2) being a certified food protection manager who has shown proficiency of required information through passing a department approved examination; or (3) responding correctly to the inspectors questions as they relate to the specific food operation. The areas of knowledge include: (A) describing the relationship between the prevention of foodborne disease and the personal hygiene of a food employee; (B) explaining the responsibility of the person in charge for preventing the transmission of foodborne disease by a food employee who has a disease or medical condition that may cause foodborne disease; (C) describing the symptoms associated with the diseases that are transmissible through food; (D) explaining the significance of the relationship between maintaining the time and temperature of potentially hazardous food and the prevention of foodborne illness; (E) explaining the hazards involved in the consumption of raw or undercooked meat, poultry, eggs, and fish; (F) stating the required food temperatures and times for safe cooking of potentially hazardous food including meat, poultry, eggs, and fish; (G) stating the required temperatures and times for the safe refrigerated storage, hot holding, cooling, and reheating of potentially hazardous food; 21 §229.163(b) §229.163(b) (H) describing the relationship between the prevention of foodborne illness and the management and control of the following: (i) cross contamination; (ii) hand contact with ready-to-eat foods; (iii) handwashing; and (iv) maintaining the food establishment in a clean condition and in good repair; (I) explaining the relationship between food safety and providing equipment that is: (i) sufficient in number and capacity; and (ii) properly designed, constructed, located, installed, operated, maintained, and cleaned; (J) explaining correct procedures for cleaning and sanitizing utensils and food-contact surfaces of equipment; (K) identifying the source of water used and measures taken to ensure that it remains protected from contamination such as providing protection from backflow and precluding the creation of cross connections; (L) identifying poisonous and toxic materials in the food establishment and the procedures necessary to ensure that they are safely stored, dispensed, used, and disposed of according to law; (M) identifying critical control points in the operation from purchasing through sale or service that when not controlled may contribute to the transmission of foodborne illness and explaining steps taken to ensure that the points are controlled in accordance with the requirements of these rules; (N) explaining the details of how the person in charge and food employees comply with the HACCP plan if a plan is required by the law, these rules, or an agreement between the regulatory authority and the establishment; and (O) explaining the responsibilities, rights, and authorities assigned by these rules to the: (i) food employee; 22 §229.163(b) §229.163(c) (ii) person in charge; and (iii) regulatory authority. (c) Duties, person in charge. The person in charge shall ensure that: (1) food establishment operations are not conducted in a private home or in a room used as living or sleeping quarters as specified under §229.167(d)(10) of this title (relating to Physical Facilities); (2) persons unnecessary to the food establishment operation are not allowed in the food preparation, food storage, or warewashing areas, except that brief visits and tours may be authorized by the person in charge if steps are taken to ensure that exposed food; clean equipment, utensils, and linens; and unwrapped single-service and single-use articles are protected from contamination; (3) employees and other persons such as delivery and maintenance persons and pesticide applicators entering the food preparation, food storage, and warewashing areas comply with these rules; (4) employees are effectively cleaning their hands, by routinely monitoring the employees handwashing; (5) employees are visibly observing foods as they are received to determine that they are from approved sources, delivered at the required temperatures, protected from contamination, unadulterated, and accurately presented, by routinely monitoring the employees observations and periodically evaluating foods upon their receipt; (6) employees are properly cooking potentially hazardous food, being particularly careful in cooking those foods known to cause severe foodborne illness and death, such as eggs and comminuted meats, through daily oversight of the employees routine monitoring of the cooking temperatures using appropriate temperature measuring devices properly scaled and calibrated as specified under §§229.165(e) and (l)(1)(B) of this title (relating to Equipment, Utensils, and Linens); (7) employees are using proper methods to rapidly cool potentially hazardous foods that are not held hot or are not for consumption within four hours, through daily oversight of the employees’ routine monitoring of food temperatures during cooling; (8) consumers who order raw or partially cooked ready-to-eat foods of animal origin are informed as specified under §229.164(s) of this title (relating to Food) that the food is not cooked sufficiently to ensure its safety; 23 §229.163(c) §229.163(d) (9) employees are properly sanitizing cleaned multiuse equipment and utensils before they are reused, through routine monitoring of solution temperature and exposure time for hot water sanitizing, and chemical concentration, pH, temperature, and exposure time for chemical sanitizing; (10) consumers are notified that clean tableware is to be used when they return to self-service areas such as salad bars and buffets as specified under §229.164 (h)(6) of this title; (11) except when otherwise approved as specified in §229.164(e)(1)(D) of this title, employees are preventing cross-contamination of ready-to-eat food with bare hands by properly using suitable utensils such as deli tissue, spatulas, tongs, single-use gloves, or dispensing equipment; and (12) employees are properly trained in food safety as it relates to their assigned duties. (d) Disease or medical condition. (1) Responsibility of the person in charge to require reporting by food employees and applicants. The permit holder shall require food employee applicants to whom a conditional offer of employment is made and food employees to report to the person in charge, information about their health and activities as they relate to diseases that are transmissible through food. A food employee or applicant shall report the information in a manner that allows the person in charge to reduce the risk of foodborne disease transmission, including the date of onset of jaundice or of an illness specified under subparagraph (C) of this paragraph, if the food employee or applicant: (A) is diagnosed with an illness due to: (i) Norovirus; (ii) hepatitis A virus; (iii) Salmonella typhi; (iv) Shigella spp.; or (v) shiga toxin-producing Escherichia coli; (B) has a symptom caused by illness, infection, or other source that is: (i) associated with an acute gastrointestinal illness such as: (I) vomiting; 24 §229.163(d) §229.163(d) (II) diarrhea; (III) jaundice; or (IV) sore throat with fever. (ii) a lesion containing pus such as a boil or infected wound that is open or draining and is: (I) on the hands or wrists, unless an impermeable cover such as a finger cot or stall protects the lesion and a single-use glove is worn over the impermeable cover; (II) on exposed portions of the arms, unless the lesion is protected by an impermeable cover; or (III) on other parts of the body, unless the lesion is covered by a dry, durable, tight-fitting bandage; (C) has experienced jaundice, or a past illness from: (i) S. typhi within the past three months; (ii) Shigella spp. or shiga toxin-producing Escherichia coli within the past month; or (iii) onset of jaundice within the past seven days; or (D) meets one or more of the following conditions: (i) is suspected of causing, or being exposed to, a confirmed disease outbreak caused by Norovirus, S. typhi, Shigella spp., shiga toxin-producing Escherichia coli, or hepatitis A virus including an outbreak at an event such as a family meal, church supper, or festival because the food employee or applicant: (I) prepared food implicated in the outbreak; or (II) consumed implicated food or food at the event prepared by a person who is infected or ill with the infectious agent that caused the outbreak or who is suspected of being a shedder of the infectious agent; 25 §229.163(d) §229.163(d) (ii) lives in the same household as, and has knowledge about, a person who is diagnosed with a disease caused by Norovirus, S. typhi, Shigella spp, shiga toxin- producing Escherichia coli, or hepatitis A virus; or (iii) lives in the same household as, and has knowledge about, a person who attends or works in a setting where there is a confirmed disease outbreak caused by Norovirus, S. typhi, Shigella spp., shiga toxin-producing Escherichia coli, or hepatitis A virus. (2) Exclusions and restrictions. The person in charge shall: (A) exclude a food employee from a food establishment if the food employee is exhibiting sudden onset vomiting and/or diarrhea that cannot be attributed to a non- infectious condition; (B) exclude a food employee from a food establishment if the food employee is diagnosed with an infectious agent specified under paragraph (1)(A) of this subsection; (C) exclude jaundiced food employees from the food establishment if the onset of jaundice occurred within the last seven calendar days; (D) exclude a food employee who is serving a highly susceptible population, if the food employee: (i) is not experiencing a symptom of acute gastrointestinal illness specified under paragraph (1)(B)(i) of this subsection but has a stool that is positive for Norovirus, S. typhi, Shigella spp., or shiga toxin-producing Escherichia coli; (ii) had a past illness from S. typhi within the last three months, unless the employee provides laboratory confirmation of three consecutive, negative stools as specified in §229.171(o)(4)(A) of this title (relating to Compliance and Enforcement), and is asymptomatic; or (iii) had a past illness from Shigella spp. or shiga toxin-producing Escherichia coli within the last month, unless the employee provides laboratory confirmation of two consecutive, negative stools as specified in §229.171(o)(4)(C) of this title, and is asymptomatic; and (E) except as specified under subparagraph (D) of this paragraph, restrict a food employee from working with exposed food; clean equipment, utensils, and linens; and unwrapped single-service and single-use articles, in a food establishment if the food employee is: (i) suffering from a symptom of a sore throat with fever as specified under paragraph (1)(B)(i)(IV) of this subsection; or 26 §229.163(d) §229.163(d) (ii) not experiencing a symptom of acute gastroenteritis specified under paragraph (1)(B)(i) of this subsection but has a stool that yields a specimen culture that is positive for Norovirus, Salmonella typhi, Shigella spp., or shiga toxin-producing Escherichia coli; or (iii) has a lesion containing pus such as a boil or infected wound that is open or draining as specified under paragraph (1)(B)(ii) of this subsection, and is not covered with an impermeable cover. (3) Removal of exclusions and restrictions. (A) The person in charge may remove an exclusion specified under paragraph (2)(A) of this subsection if: (i) the employee is free of vomiting and/or diarrhea symptoms for at least 24 hours; or (ii) the person excluded as specified under paragraph (2)(A) of this subsection provides to the person in charge written medical documentation from a physician licensed to practice medicine or, if allowed by law, a nurse practitioner or physician assistant, that specifies the vomiting and/or diarrhea result from a chronic noninfectious condition such as Crohns disease, irritable bowel syndrome, or ulcerative colitis; or other acute noninfectious condition. (B) The person in charge may remove an exclusion specified under paragraph (2)(B) of this subsection if: (i) the person in charge obtains approval from the regulatory authority; and (ii) the person excluded as specified under paragraph (2)(B) of this subsection provides to the person in charge written medical documentation from a physician licensed to practice medicine or, if allowed by law, a nurse practitioner or physician assistant, that specifies that the excluded person may work as a food employee in a food establishment, including an establishment that serves a highly susceptible population, because the person is free of the infectious agent of concern as specified in §229.171(o)(4) of this title. (C) The person in charge may remove a restriction specified under: (i) paragraph (2)(E)(i) or (iii) of this subsection if the restricted person: (I) is free of sore throat with fever as specified under paragraph (1)(B)(i)(IV) of this subsection or an infected wound or boil, as specified under 27 §229.163(d) §229.163(d) paragraph (1)(B)(ii) of this subsection, and no foodborne illness occurs that may have been caused by the restricted person; (II) is suspected of causing foodborne illness but is free of the symptoms specified under paragraph (1)(B)(i) or (ii) of this subsection and provides written medical documentation from a physician licensed to practice medicine or, if allowed by law, a nurse practitioner or physician assistant, stating that the restricted person is free of the infectious agent that is suspected of causing the persons symptoms or causing foodborne illness, as specified in §229.171(o)(4) of this title; or (III) provides written medical documentation from a physician licensed to practice medicine or, if allowed by law, a nurse practitioner or physician assistant, stating that the symptoms experienced result from a chronic noninfectious condition such as Crohns disease, irritable bowel syndrome, or ulcerative colitis; or (ii) paragraph (2)(E)(ii) of this subsection if the restricted person provides written medical documentation from a physician licensed to practice medicine or, if allowed by law, a nurse practitioner or physician assistant, according to the criteria specified in §229.171(o)(4) of this title that indicates the stools are free of Norovirus, Salmonella typhi, or Shigella spp., or shiga toxin-producing Escherichia coli, whichever is the infectious agent of concern. (D) The person in charge may remove an exclusion specified under paragraph (2)(D) of this subsection if the excluded person provides written medical documentation from a physician licensed to practice medicine or, if allowed by law, a nurse practitioner or physician assistant: (i) that specifies that the person is free of the infectious agent of concern as specified in §229.171(o)(4) of this title; or (ii) if the person is excluded under paragraph (2)(A) of this subsection stating that the symptoms experienced result from a chronic noninfectious condition such as Crohns disease, irritable bowel syndrome, or ulcerative colitis. (E) The person in charge may remove a jaundiced employee from an exclusion as specified under paragraph (2)(C) of this subsection, if: (i) earlier than seven days, no foodborne illness occurs that may have been caused by the excluded or restricted person and the excluded food employee provides written medical documentation from a physician licensed to practice medicine or, if allowed by law, a nurse practitioner or physician assistant, that specifies that the person is free of hepatitis A virus and the excluded food employee is no longer infectious, as specified in §229.171(o)(4)(D)(i) of this title; or 28 §229.163(d) §229.163(f) (ii) the excluded or restricted person is suspected of causing foodborne illness and complies with the requirements in §229.171(o)(4)(D)(i) and (ii) of this title. (4) Responsibility of a food employee or an applicant to report to the person in charge. A food employee or a person who applies for a job as a food employee shall: (A) in a manner specified under paragraph (1) of this subsection, report to the person in charge the information specified under paragraph (1)(A)-(D) of this subsection; and (B) comply with exclusions and restrictions that are specified under paragraph (2)(A)-(E) of this subsection. (5) Reporting by the person in charge. The person in charge shall notify the regulatory authority that a food employee is diagnosed with an illness due to Norovirus, Salmonella typhi, Shigella spp., shiga toxin-producing Escherichia coli, or hepatitis A virus. (e) Hands and arms, clean condition. Food employees shall keep their hands and exposed portions of their arms clean. (f) Hands and arms cleaning procedure. (1) Except as specified in paragraph (2) of this subsection, food employees shall clean their hands and exposed portions of their arms (or surrogate prosthetic devices for hands or arms) for at least 20 seconds, using a cleaning compound in a lavatory that is equipped as specified under §229.166(f)(2) of this title (relating to Water, Plumbing, and Waste). (2) Food employees shall use the following cleaning procedure: (A) vigorous friction on the surfaces of the lathered fingers, finger tips, areas between the fingers, hands and arms (or by vigorously rubbing the surrogate prosthetic devices for hands or arms) for at least 10 to 15 seconds, followed by; (B) thorough rinsing under clean, running warm water; and (C) immediately follow the cleaning procedure with thorough drying of cleaned hands and arms (or surrogate prosthetic devices) using a method as specified under §229.167(e)(3) of this title (relating to Physical Facilities). (3) Food employees shall pay particular attention to the areas underneath the fingernails during the cleaning procedure. 29 §229.163(f) §229.163(j) (4) If approved and capable of removing the types of soils encountered in the food operations involved, an automatic handwashing facility may be used by food employees to clean their hands. (g) Special handwash procedures. Employees not utilizing suitable utensils or single-use gloves when handling ready-to-eat foods shall wash hands using the cleaning procedures specified in subsection (f)(2) of this section and follow the approved procedures specified in §229.164(e)(1)(D) of this title. (h) When to wash. Food employees shall clean their hands and exposed portions of their arms as specified under subsection (f) of this section immediately before engaging in food preparation including working with exposed food, clean equipment and utensils, and unwrapped single-service and single-use articles and: (1) after touching bare human body parts other than clean hands and clean, exposed portions of arms; (2) after using the toilet room; (3) after caring for or handling service animals or aquatic animals as specified in subsection (q)(2) of this section; (4) except as specified in subsection (n)(2) of this section, after coughing, sneezing, using a handkerchief or disposable tissue, using tobacco, eating, or drinking; (5) after handling soiled equipment or utensils; (6) during food preparation, as often as necessary to remove soil and contamination and to prevent cross contamination when changing tasks; (7) when switching between working with raw food and working with ready-to- eat food; (8) before donning gloves for working with food; and (9) after engaging in other activities that contaminate the hands. (i) Where to wash. Food employees shall clean their hands in a handwashing lavatory or approved automatic handwashing facility and may not clean their hands in a sink used for food preparation or warewashing, or in a service sink or a curbed cleaning facility used for the disposal of mop water and similar liquid waste. (j) Hand sanitizers. 30 §229.163(j) §229.163(k) (1) A hand sanitizer and a chemical hand sanitizing solution used as a hand dip shall: (A) comply with one of the following: (i) be an approved drug that is listed in the FDA publication Approved Drug Products with Therapeutic Equivalence Evaluations as an approved drug based on safety and effectiveness; or (ii) have active antimicrobial ingredients that are listed in the FDA monograph for over-the-counter (OTC) Health-Care Antiseptic Drug Products as an antiseptic handwash; and (B) consist of components that are: (i) listed for such use in contact with food in 21 CFR 178, Indirect Food Additives: Adjuvants, Production Aids, and Sanitizers; or (ii) exempt from regulation as food additives under 21 CFR §170.39, Threshold of Regulation for Substances Used in Food-contact Articles; or (iii) generally recognized as safe (GRAS) for the intended use in contact with food within the meaning of the Federal Food, Drug and Cosmetic Act (FFDCA); or (iv) permitted for such use by an effective Food Contact Substance Notification as defined by paragraph 409(h) of the FFDCA and listed in FDA’s Inventory of Effective Premarket Notifications for Food Contact Substances; and (C) be applied only to hands that are cleaned as specified under subsection (f) of this section. (2) If a hand sanitizer or a chemical hand sanitizing solution used as a hand dip does not meet the criteria specified under paragraph (1)(B) of this subsection, use shall be: (A) followed by thorough hand rinsing in clean water before hand contact with food or by the use of gloves; or (B) limited to situations that involve no direct contact with food by the bare hands. (3) A chemical hand sanitizing solution used as a hand dip shall be maintained clean and at a strength equivalent to at least 100 mg/L chlorine. (k) Fingernail maintenance. 31 §229.163(k) §229.163(p) (1) Food employees shall keep their fingernails trimmed, filed, and maintained so the edges and surfaces are cleanable and not rough. (2) Unless wearing intact gloves in good repair, a food employee may not wear fingernail polish or artificial fingernails when working with exposed food. (l) Jewelry prohibition. While preparing food, food employees may not wear jewelry including medical information jewelry on their arms and hands. This section does not apply to a plain ring such as a wedding band. (m) Outer clothing clean condition. Food employees shall wear clean outer clothing to prevent contamination of food, equipment, utensils, linens, and single-service and single-use articles. (n) Eating, drinking, or using tobacco. (1) Except as specified in paragraph (2) of this subsection, an employee shall eat, drink, or use any form of tobacco only in designated areas where the contamination of exposed food; clean equipment, utensils, and linens; unwrapped single-service and single-use articles; or other items needing protection cannot result. (2) A food employee may drink from a closed beverage container if the container is handled to prevent contamination of: (A) the employees hands; (B) the container; and (C) exposed food; clean equipment, utensils, and linens; and unwrapped single-service and single-use articles. (o) Discharges from the eyes, nose, and mouth. Food employees experiencing persistent sneezing, coughing, or a runny nose that causes discharges from the eyes, nose, or mouth may not work with exposed food; clean equipment, utensils, and linens; or unwrapped single-service or single-use articles. (p) Hair restraints, effectiveness. (1) Except as provided in paragraph (2) of this subsection, food employees shall wear hair restraints such as hats, hair coverings or nets, beard restraints, and clothing that covers body hair, that are designed and worn to effectively keep their hair from contacting exposed food; clean equipment, utensils, and linens; and unwrapped single-service and single-use articles. 32 §229.163(p) §229.163(q) (2) This section does not apply to food employees such as counter staff who only serve beverages and wrapped or packaged foods, hostesses, and wait staff if they present a minimal risk of contaminating exposed food; clean equipment, utensils, and linens; and unwrapped single-service and single-use articles. (q) Handling prohibition. (1) Except as specified in paragraph (2) of this subsection, food employees may not care for or handle animals that may be present such as patrol dogs, service animals, or pets that are allowed as specified in §229.167(p)(15)(B)(ii)-(v) of this title (relating to Physical Facilities). (2) Food employees with assistance animals may handle or care for their assistance animals and food employees may handle or care for fish in aquariums or molluscan shellfish or crustacea in display tanks if they wash their hands as specified under subsections (f) and (h)(3) of this section. 33 §229.164(a) §229.164(b) §229.164. Food. (a) Condition safe, unadulterated, and honestly presented. Food shall be safe, unadulterated, and, as specified under subsection (q)(2) of this section, honestly presented. (b) Approved sources. (1) Compliance with food law. (A) Food shall be obtained from sources that comply with applicable laws and are licensed by the state regulatory authority having jurisdiction over the processing and distribution of the food. (B) Food prepared in a private home, except as allowed in these rules, or from an unlicensed food manufacturer or wholesaler, is considered to be from an unapproved source and may not be used or offered for human consumption in a food establishment. (C) Packaged food shall be labeled as specified in law, including 21 CFR 101, Food Labeling, 9 CFR 317, Labeling, Marking Devices, and Containers, and 9 CFR 381 Subpart N, Labeling and Containers, and as specified under subsection (c)(7) and (8) of this section. (D) Fish, other than molluscan shellfish, that are intended for consumption in their raw form and allowed as specified under subsection (k)(1)(D) of this section may be offered for sale or service if they are obtained from a supplier that freezes the fish as specified under subsection (l)(1) of this section; or frozen on the premises as specified under subsection (l)(1) of this section and records are retained as specified under subsection (l)(3) of this section. (E) Whole-muscle, intact beef steaks that are intended for consumption in an undercooked form without a consumer advisory as specified in subsection (k)(1)(C) of this section shall be: (i) obtained from a food processing plant that, upon request by the purchaser, packages the steaks and labels them, to indicate that the steaks meet the definition of whole-muscle, intact beef; or (ii) deemed acceptable by the regulatory authority based on other evidence, such as written buyer specifications or invoices, that indicates that the steaks meet the definition of whole-muscle, intact beef; and (iii) if individually cut in a food establishment: 34 §229.164(b) §229.164(b) (I) cut from whole-muscle intact beef that is labeled by a food processing plant as specified in clause (i) or identified as specified in clause (ii) of this subparagraph; (II) prepared so they remain intact; and (III) if packaged for undercooking in a food establishment, labeled as specified in clause (i) or identified as specified in clause (ii) of this subparagraph. (F) Meat and poultry that is not a ready-to-eat food and is in a packaged form when it is offered for sale or otherwise offered for consumption, shall be labeled to include safe handling instructions as specified in law, including 9 CFR §317.2(l) and 9 CFR §381.125(b). (G) Shell eggs that have not been specifically treated to destroy all viable Salmonellae shall be labeled to include safe handling instructions as specified in law, including 21 CFR §101.17(h). (2) Food in a hermetically sealed container. Food in a hermetically sealed container shall be obtained from a food processing plant that is regulated by the food regulatory agency that has jurisdiction over the plant. (3) Fluid milk and milk products. Fluid milk and milk products shall be obtained from sources that comply with Grade A standards as specified in law. (4) Fish. (A) Fish that are received for sale or service shall be: (i) commercially and legally caught or harvested; or (ii) approved for sale or service. (B) Molluscan shellfish that are recreationally caught may not be received for sale or service. (5) Molluscan shellfish. (A) Molluscan shellfish shall be obtained from sources according to law and the requirements specified in the U.S. Department of Health and Human Services, Public Health Service, Food and Drug Administration, National Shellfish Sanitation Program Guide for the Control of Molluscan Shellfish. 35 §229.164(b) §229.164(b) (B) Molluscan shellfish received in interstate commerce shall be from sources that are listed in the Interstate Certified Shellfish Shippers List. (6) Wild mushrooms. (A) Except as specified in subparagraph (B) of this paragraph, mushroom species picked in the wild shall be obtained from sources where each mushroom is individually inspected and found to be safe by an approved mushroom identification expert. (B) This section does not apply to: (i) cultivated wild mushroom species that are grown, harvested, and processed in an operation that is regulated by the food regulatory agency that has jurisdiction over the operation; or (ii) wild mushroom species if they are in packaged form and are the product of a food processing plant that is regulated by the food regulatory agency that has jurisdiction over the plant. (7) Exotic animals and game animals. (A) If exotic animals are received for sale or service, they shall: (i) be commercially raised for food and: (I) slaughtered, processed, and deemed to be inspected and approved under an inspection program administered by USDA in accordance with 9 CFR 352, Exotic Animals; Voluntary Inspection; or (II) slaughtered, processed, and deemed to be inspected and passed under a meat and poultry inspection program administered by the department or any other state meat inspection program deemed equal to USDA inspection; (ii) as allowed by law, for exotic animals that are live caught, be slaughtered and processed as required in subparagraph (A)(i)(I) or (II) of this paragraph; and (iii) as allowed by law, for exotic animals that are field dressed: (I) receive an antemortem and postmortem examination by the appropriate inspection personnel as described in subparagraph (A)(i)(I) or (II) of this paragraph; and 36 §229.164(b) §229.164(b) (II) be field dressed, transported, and processed according to the requirements specified by the appropriate regulatory authority as described in paragraph (7)(A)(i)(I) or (II) of this subsection. (B) If game animals are received for sale or service they shall be: (i) commercially raised for food and: (I) raised, slaughtered, and processed under a voluntary inspection program that is conducted by the agency that has animal health jurisdiction; or (II) under a routine inspection program conducted by a regulatory agency other than the agency that has animal health jurisdiction; and (III) raised, slaughtered, and processed according to: (-a-) laws governing meat and poultry as determined by the agency that has animal health jurisdiction and the agency that conducts the inspection program; and (-b-) requirements which are developed by the agency that has animal health jurisdiction and the agency that conducts the inspection program with consideration of factors such as the need for antemortem and postmortem examination by an approved veterinarian or veterinarians designee; (ii) under a voluntary inspection program administered by the USDA for game animals such as exotic animals (reindeer, elk, deer, antelope, water buffalo, or bison) that are inspected and approved in accordance with 9 CFR 352, Exotic Animals; Voluntary Inspection or rabbits that are inspected and certified in accordance with 9 CFR 354, Voluntary Inspection of Rabbits and Edible Products Thereof; (iii) as allowed by law, for wild game animals that are live-caught: (I) under a routine inspection program conducted by a regulatory agency such as the agency that has animal health jurisdiction; and (II) slaughtered and processed according to: (-a-) laws governing meat and poultry as determined by the agency that has animal health jurisdiction and the agency that conducts the inspection program; and (-b-) requirements which are developed by the agency that has animal health jurisdiction and the agency that conducts the inspection program 37 §229.164(b) §229.164(c) with consideration of factors such as the need for antemortem and postmortem examination by an approved veterinarian or veterinarian’s designee; or (iv) as allowed by law, for field-dressed wild game animals under a routine inspection program that ensures the animals: (I) receive a postmortem examination by an approved veterinarian or veterinarians designee; or (II) are field-dressed and transported according to requirements specified by the agency that has animal health jurisdiction and the agency that conducts the inspection program; and (III) are processed according to laws governing meat and poultry as determined by the agency that has animal health jurisdiction and the agency that conducts the inspection program. (C) A game animal may not be received for sale or service if it is a species of wildlife that is listed in 50 CFR 17, Endangered and Threatened Wildlife and Plants. (c) Specifications for receiving. (1) Temperature. (A) Except as specified in subparagraph (B) of this paragraph, refrigerated, potentially hazardous food shall be at a temperature of 5 degrees Celsius (41 degrees Fahrenheit) or below when received. (B) If a temperature other than 5 degrees Celsius (41 degrees Fahrenheit) for a potentially hazardous food is specified in law governing its distribution, such as laws governing milk and molluscan shellfish, the food may be received at the specified temperature. (C) Raw shell eggs shall be received in refrigerated equipment that maintains an ambient air temperature of 7 degrees Celsius (45 degrees Fahrenheit) or less. (D) Potentially hazardous food that is cooked to a temperature and for a time specified under subsection (k) of this section and received hot shall be at a temperature of 57 degrees Celsius (135 degrees Fahrenheit) or above. (E) A food that is labeled frozen and shipped frozen by a food processing plant shall be received frozen. (F) Upon receipt, potentially hazardous food shall be free of evidence of previous temperature abuse. 38 §229.164(c) §229.164(c) (2) Additives. Food may not contain unapproved food additives or additives that exceed amounts specified in 21 CFR 170-180 relating to food additives, generally recognized as safe or prior sanctioned substances that exceed amounts specified in 21 CFR 181-186, substances that exceed amounts specified in 9 CFR Subpart C, §424.21(b), food ingredients and sources of radiation, or pesticide residues that exceed provisions specified in 40 CFR 180, Tolerances and Exemptions From Tolerances for Pesticide Chemicals in Food. (3) Shell eggs. Shell eggs shall be received clean and sound and may not exceed the restricted egg tolerances for U.S. Consumer Grade B as specified in 7 CFR 56, Voluntary Grading of Shell Eggs and United States Standards, Grades, and Weight Classes for Shell Eggs, and 9 CFR 590, Inspection of Eggs and Egg Products. (4) Eggs and milk products, pasteurized. (A) Liquid, frozen, and dry eggs and egg products shall be obtained pasteurized. (B) Fluid and dry milk and milk products complying with grade A standards as specified in law shall be obtained pasteurized. (C) Frozen milk products, such as ice cream, shall be obtained pasteurized in accordance with the Texas Frozen Desserts Manufacturing Act, Texas Health and Safety Code, Chapter 440. (D) Cheese shall be obtained pasteurized unless alternative procedures to pasteurization are specified in the CFR, such as 21 CFR 133, Cheeses and Related Cheese Products, for curing certain cheese varieties. (5) Package integrity. Food packages shall be in good condition and protect the integrity of the contents so that the food is not exposed to adulteration or potential contaminants. (6) Ice. Ice for use as a food or a cooling medium shall be made from drinking water. (7) Shucked shellfish, packaging and identification. (A) Raw shucked shellfish shall be obtained in nonreturnable packages which bear a legible label that identifies the: (i) name, address, and certification number of the shucker-packer or repacker of the molluscan shellfish; and 39 §229.164(c) §229.164(c) (ii) the sell by date for packages with a capacity of less than 1.87 L (one-half gallon) or the date shucked for packages with a capacity of 1.87 L (one-half gallon) or more. (B) A package of raw shucked shellfish that does not bear a label or which bears a label which does not contain all the information as specified under subparagraph (A) of this paragraph shall be subject to detention as provided in Health and Safety Code, Chapter 436. (8) Shellstock identification. (A) Shellstock shall be obtained in containers bearing legible source identification tags or labels that are affixed by the harvester and each dealer that depurates, ships, or reships the shellstock, as specified in the Texas Molluscan Shellfish Rules, 25 TAC, Chapter 241, §§241.50 - 241.71, and that list: (i) except as specified under subparagraph (C) of this paragraph, on the harvester’s tag or label, the following information in the following order: (I) the harvesters identification number that is assigned by the shellfish control authority; (II) the date of harvesting; (III) the most precise identification of the harvest location or aquaculture site that is practicable based on the system of harvest area designations that is in use by the shellfish control authority and including the abbreviation of the name of the state or country in which the shellfish are harvested; (IV) the type and quantity of shellfish; and (V) the following statement in bold, capitalized type: THIS TAG IS REQUIRED TO BE ATTACHED UNTIL CONTAINER IS EMPTY OR RETAGGED AND THEREAFTER KEPT ON FILE FOR 90 DAYS ; and (ii) except as specified in subparagraph (D) of this paragraph, on each dealers tag or label, the following information in the following order: (I) the dealers name and address, and the certification number assigned by the shellfish control authority; (II) the original shippers certification number including the abbreviation of the name of the state or country in which the shellfish are harvested; 40 §229.164(c) §229.164(d) (III) the same information as specified for a harvesters tag under clause (i)(II)-(IV) of this subparagraph; (IV) the following statement in bold, capitalized type: THIS TAG IS REQUIRED TO BE ATTACHED UNTIL CONTAINER IS EMPTY AND THEREAFTER KEPT ON FILE FOR 90 DAYS ; and (V) the consumer information statement required as specified in subsection (s) of this section. (B) A container of shellstock that does not bear a tag or label or that bears a tag or label that does not contain all the information as specified under subparagraph (A) of this paragraph shall be subject to detention as provided in Health and Safety Code, Chapter 436. (C) If a place is provided on the harvesters tag or label for a dealer’s name, address, and certification number, the dealers information shall be listed first. (D) If the harvesters tag or label is designed to accommodate each dealers identification as specified under subparagraph (A)(ii)(I) and (II) of this paragraph, individual dealer tags or labels need not be provided. (9) Shellstock, condition. When received by a food establishment, shellstock shall be reasonably free of mud, dead shellfish, and shellfish with broken shells. Dead shellfish or shellstock with badly broken shells shall be discarded. (10) Juice treated. Pre-packaged juice shall: (A) be obtained from a processor with a HACCP system as specified in 21 CFR 120; (B) be obtained pasteurized or otherwise treated to attain a 5-log reduction of the most resistant microorganism of public health significance as specified in 21 CFR §120.24; or (C) bear a warning label as specified in 21 CFR §101.17(g). (d) Molluscan shellfish, maintaining identification. (1) Except as specified in paragraphs (2)-(4) of this subsection, molluscan shellfish may not be removed from the container in which they are received other than immediately before sale or preparation for service. (2) For display purposes, shellstock may be removed from the container in which they are received, displayed on drained ice, or held in a display container maintained at 41 41 §229.164(d) §229.164(d) degrees Fahrenheit, and a quantity specified by a consumer may be removed from the display or display container and provided to the consumer if: (A) the source of the shellstock on display is identified as specified under subsection (c)(8) of this section and recorded as specified under paragraph (5) of this subsection; and (B) the shellstock are protected from contamination. (3) Shucked shellfish may be removed from the container in which they were received and held in a display container maintained at or below 41 degrees Fahrenheit from which individual servings are dispensed upon a consumer’s request if: (A) the labeling information for the shellfish on display as specified under subsection (c)(7) of this section is retained and correlated to the date when, or dates during which, the shellfish are sold or served; and (B) the shellfish are protected from contamination. (4) Shucked shellfish may be removed from the container in which they were received and repacked in consumer self service containers where allowed by law if: (A) the labeling information for the shellfish is on each container as specified under subsection (c)(7) of this section and subsection (r) of this section; and (B) the labeling information as specified under subsection (c)(7) of this section is retained which correlates with the date when, or dates during which, the shellfish are sold or served; (C) is maintained for 90 days; and (D) the shellfish are protected from contamination. (5) Shellstock, tags. (A) Except as specified under subparagraph (B)(ii) of this paragraph, shellstock tags shall remain attached to the container in which the shellstock are received until the container is empty. (B) The identity of the source of shellstock that are sold or served shall be maintained by retaining shellstock tags or labels for 90 calendar days from the date the container is emptied by: 42 §229.164(d) §229.164(e) (i) using an approved record keeping system that keeps the tags or labels in chronological order correlated to the date when, or dates during which, the shellstock are sold or served; and (ii) if shellstock are removed from their tagged or labeled container: (I) preserving source identification by using a record keeping system as specified under clause (i) of this subparagraph; and (II) ensuring that shellstock from one tagged or labeled container are not commingled with shellstock from another container with different shellfish certification numbers, different harvest dates or different growing areas as identified on the tag or label. (e) Preventing contamination by employees. (1) Preventing contamination from hands. (A) Food employees shall wash their hands as specified under §229.163(f) of this title (relating to Management and Personnel). (B) Except when washing fruits and vegetables as specified under subsection (f)(6) of this section or as specified in subparagraph (D) of this paragraph, food employees may not contact exposed, ready-to-eat food with their bare hands and shall use suitable utensils such as deli tissue, spatulas, tongs, single-use gloves, or dispensing equipment. (C) Food employees shall minimize bare hand and arm contact with exposed food that is not in a ready-to-eat form. (D) Food employees not serving a highly susceptible population may contact exposed, ready-to-eat food with their bare hands if: (i) documentation is maintained at the food establishment that food employees acknowledge that they have received training in: (I) the risks of contacting the specific ready-to-eat foods with bare hands; (II) proper handwashing as specified under §229.163(f) of this title; (III) when to wash their hands as specified under §229.163(h) of this title; 43 §229.164(e) §229.164(f) (IV) where to wash their hands as specified under §229.163(i) of this title; (V) proper fingernail maintenance as specified under §229.163(k) of this title; (VI) prohibition of jewelry as specified under §229.163(l) of this title; (VII) good hygienic practices as related to §229.163(n) and §229.163(o) of this title; and (VIII) employee health policies that detail how the food establishment complies with §§229.163(d)(1)-(5) of this title; (ii) documentation is maintained at the food establishment that food employees contacting ready-to-eat foods with bare hands utilize two or more of the following control measures to provide additional safeguards to hazards associated with bare hand contact: (I) double handwashing; (II) nail brushes; (III) a hand sanitizer after handwashing as specified under §229.163(j) of this title; (IV) incentive programs that assist or encourage food employees not to work when they are ill such as paid sick leave; or (V) other control measures approved by the regulatory authority; and (iii) documentation is maintained at the food establishment that corrective actions are taken when clauses (i)-(ii) of this subparagraph are not followed. (2) Preventing contamination when tasting. A food employee may not use a utensil more than once to taste food that is to be sold or served. (f) Preventing food and ingredient contamination. (1) General. At all times, including while being stored, prepared, displayed, served, or transported, food shall be protected from potential contamination. (2) Packaged and unpackaged food - separation, packaging, and segregation. 44 §229.164(f) §229.164(f) (A) Food shall be protected from cross contamination by: (i) separating raw animal foods during storage, preparation, holding, and display from: (I) raw ready-to-eat food including other raw animal food such as fish for sushi or molluscan shellfish, or other raw ready-to-eat food such as vegetables; and (II) cooked ready-to-eat food; (ii) except when combined as ingredients, separating types of raw animal foods from each other such as beef, fish, lamb, pork, and poultry during storage, preparation, holding, and display by: (I) using separate equipment for each type; or (II) arranging each type of food in equipment so that cross contamination of one type with another is prevented; and (III) preparing each type of food at different times or in separate areas; (iii) cleaning equipment and utensils as specified under §229.165(n)(1) of this title (relating to Equipment, Utensils, and Linens), and sanitizing as specified under §229.165(r) of this title; (iv) except as specified in subparagraph (B) of this paragraph, storing the food in packages, covered containers, or wrappings; (v) cleaning hermetically sealed containers of food of visible soil before opening; (vi) protecting food containers that are received packaged together in a case or overwrap from cuts when the case or overwrap is opened; (vii) storing damaged, spoiled, or recalled food being held in the food establishment as specified under §229.167(n) of this title; and (viii) separating fruits and vegetables, before they are washed as specified under paragraph (6) of this subsection from ready-to-eat food. (B) Subparagraph (A)(iv) of this paragraph does not apply to: 45 §229.164(f) §229.164(f) (i) whole, uncut, raw fruits and vegetables and nuts in the shell, that require peeling or hulling before consumption; (ii) primal cuts, quarters, or sides of raw meat or slab bacon that are hung on clean, sanitized hooks or placed on clean, sanitized racks; (iii) whole, uncut, processed meats such as country hams, and smoked or cured sausages that are placed on clean, sanitized racks; (iv) food being cooled as specified under subsection (o)(5)(B)(ii) of this section; or (v) shellstock. (3) Food storage containers, identified with common name of food. Working containers holding food or food ingredients that are removed from their original packages for use in the food establishment, such as cooking oils, flour, herbs, potato flakes, salt, spices, and sugar shall be identified with the common name of the food except that containers holding food that can be readily and unmistakably recognized such as dry pasta need not be identified. (4) Pasteurized eggs, substitute for raw shell eggs for certain recipes. Pasteurized eggs or egg products shall be substituted for raw shell eggs in the preparation of foods such as Caesar salad, hollandaise or bØarnaise sauce, mayonnaise, meringue, eggnog, ice cream, and egg- fortified beverages that are not: (A) cooked as specified under subsection (k)(1)(A)(i) or (ii) of this section; or (B) included under subsection (k)(1)(D) of this section. (5) Protection from unapproved additives. (A) Food shall be protected from contamination that may result from the addition of, as specified in subsection (c)(2) of this section: (i) unsafe or unapproved food or color additives; and (ii) unsafe or unapproved levels of approved food and color additives. (B) A food employee may not: (i) apply sulfiting agents to fresh fruits and vegetables intended for raw consumption or to a food considered to be a good source of vitamin B1; or 46 §229.164(f) §229.164(h) (ii) serve or sell food specified under clause (i) of this subparagraph that is treated with sulfiting agents before receipt by the food establishment, except that grapes need not meet this subparagraph. (6) Washing fruits and vegetables. (A) Raw fruits and vegetables shall be thoroughly washed in water to remove soil and other contaminants before being cut, combined with other ingredients, cooked, served, or offered for human consumption in ready-to-eat form except as specified in subparagraph (B) of this paragraph of this section and except that whole, raw fruits and vegetables that are intended for washing by the consumer before consumption need not be washed before they are sold. (B) Fruits and vegetables may be washed by using chemicals as specified under §229.168(f)(2) of this title (relating to Poisonous or Toxic Materials). (g) Preventing contamination from ice used as a coolant. (1) Ice used as exterior coolant, prohibited as ingredient. After use as a medium for cooling the exterior surfaces of food such as melons or fish, packaged foods such as canned beverages, or cooling coils and tubes of equipment, ice may not be used as food. (2) Storage or display of food in contact with water or ice. (A) Packaged food may not be stored in direct contact with ice or water if the food is subject to the entry of water because of the nature of its packaging, wrapping, or container or its positioning in the ice or water. (B) Except as specified in subparagraphs (C) and (D) of this paragraph, unpackaged food may not be stored in direct contact with undrained ice. (C) Whole, raw fruits or vegetables; cut, raw vegetables such as celery or carrot sticks or cut potatoes; and tofu may be immersed in ice or water. (D) Raw chicken and raw fish that are received immersed in ice in shipping containers may remain in that condition while in storage awaiting preparation, display, service, or sale. (h) Preventing contamination from equipment, utensils, and linens. (1) Food contact with equipment and utensils. Food shall only contact surfaces of equipment and utensils that are cleaned as specified under §229.165(m)-(o) of this title, and sanitized as specified under §229.165(p)-(r) of this title. 47 §229.164(h) §229.164(h) (2) In-use utensils, between-use storage. During pauses in food preparation or dispensing, food preparation and dispensing utensils shall be stored: (A) except as specified under subparagraph (B) of this paragraph, in the food with their handles above the top of the food and the container; (B) in food that is not potentially hazardous with their handles above the top of the food within containers or equipment that can be closed, such as bins of sugar, flour, or cinnamon; (C) on a clean portion of the food preparation table or cooking equipment only if the in-use utensil and the food-contact surface of the food preparation table or cooking equipment are cleaned and sanitized at a frequency specified under §§229.165(n)(1) and (q) of this title; (D) in running water of sufficient velocity to flush particulates to the drain, if used with moist food such as ice cream or mashed potatoes; (E) in a clean, protected location if the utensils, such as ice scoops, are used only with a food that is not potentially hazardous; or (F) in a container of water if the water is maintained at a temperature of at least 57 degrees Celsius (135 degrees Fahrenheit) and the container is cleaned at a frequency specified under §229.165(n)(1)(D)(vii) of this title. (3) Linens and napkins, use limitation. Linens and napkins may not be used in contact with food unless they are used to line a container for the service of foods and the linens and napkins are replaced each time the container is refilled for a new consumer. (4) Wiping cloths, use limitation. (A) Cloths that are in use for wiping food spills shall be used for no other purpose. (B) Cloths used for wiping food spills shall be: (i) dry and used for wiping food spills from tableware and carry- out containers; or (ii) wet and cleaned as specified under §229.165(t)(4) of this title, stored in a chemical sanitizer at a concentration specified in §229.165(k)(14) of this title, and used for wiping spills from food-contact and nonfood-contact surfaces of equipment. 48 §229.164(h) §229.164(h) (C) Dry or wet cloths that are used with raw animal foods shall be kept separate from cloths used for other purposes, and wet cloths used with raw animal foods shall be kept in a separate sanitizing solution. (D) Wet wiping cloths used with a freshly made sanitizing solution and dry wiping cloths shall be free of food debris and visible soil. (E) Working containers of sanitizing solutions for storage of in-use wiping cloths may be placed above the floor and used in a manner to prevent contamination of food, equipment, utensils, linens, single-service or single-use articles. (5) Gloves, use limitation. (A) If used, single-use gloves shall be used for only one task such as working with ready-to-eat food or with raw animal food, used for no other purpose, and discarded when damaged or soiled, or when interruptions occur in the operation. (B) Except as specified in subparagraph (C) of this paragraph, slash- resistant gloves that are used to protect the hands during operations requiring cutting shall be used in direct contact only with food that is subsequently cooked as specified under subsection (k) of this section such as frozen food or a primal cut of meat. (C) Slash-resistant gloves may be used with ready-to-eat food that will not be subsequently cooked if the slash-resistant gloves have a smooth, durable, and nonabsorbent outer surface; or if the slash-resistant gloves are covered with a smooth, durable, nonabsorbent glove, or a single-use glove. (D) Cloth gloves may not be used in direct contact with food unless the food is subsequently cooked as required under subsection (k) of this section such as frozen food or a primal cut of meat. (6) Using clean tableware for second portions and refills. (A) Except for refilling a consumer’s drinking cup or container without contact between the pouring utensil and the lip-contact area of the drinking cup or container, food employees may not use tableware, including single-service articles, soiled by the consumer, to provide second portions or refills. (B) Except as specified in subparagraph (C) of this paragraph, self-service consumers may not be allowed to use soiled tableware, including single-service articles, to obtain additional food from the display and serving equipment. A card, sign or other effective means of notification shall be displayed to notify consumers that clean tableware is to be used upon return to self-service areas such as salad bars and buffets. 49 §229.164(h) §229.164(i) (C) Drinking cups and containers may be reused by self-service consumers if refilling is a contamination-free process as specified under §229.165(f)(3)(A), (B), and (D) of this title. (7) Refilling returnables. (A) A take-home food container returned to a food establishment may not be refilled at a food establishment with a potentially hazardous food. (B) Except as specified in subparagraph (C) of this paragraph, a take-home food container refilled with food that is not potentially hazardous shall be cleaned as specified in §229.165(o)(7)(B) of this title. (C) Personal take-out beverage containers, such as thermally insulated bottles, nonspill coffee cups, and promotional beverage glasses, may be refilled by employees or the consumer if refilling is a contamination-free process as specified in §229.165(f)(3)(A), (B), and (D) of this title. (i) Preventing contamination from the premises. (1) Food storage. (A) Except as specified in subparagraphs (B) and (C) of this paragraph, food shall be protected from contamination by storing the food: (i) in a clean, dry location; (ii) where it is not exposed to splash, dust, or other contamination; and (iii) at least 15 cm (6 inches) above the floor. (B) Food in packages and working containers may be stored less than 15 cm (6 inches) above the floor on case lot handling equipment as specified in §229.165(f)(22) of this title. (C) Pressurized beverage containers, cased food in waterproof containers such as bottles or cans, and milk containers in plastic crates may be stored on a floor that is clean and not exposed to floor moisture. (2) Food storage, prohibited areas. Food may not be stored: (A) in locker rooms; 50 §229.164(i) §229.164(j) (B) in toilet rooms; (C) in dressing rooms; (D) in garbage rooms; (E) in mechanical rooms; (F) under sewer lines that are not shielded to intercept potential drips; (G) under leaking water lines, including leaking automatic fire sprinkler heads, or under lines on which water has condensed; (H) under open stairwells; or (I) under other sources of contamination. (3) Vended potentially hazardous food, original container. Potentially hazardous food dispensed through a vending machine shall be in the package in which it was placed at the food establishment or food processing plant at which it was prepared. (4) Food preparation. During preparation, unpackaged food shall be protected from environmental sources of contamination. (j) Preventing contamination by consumers. (1) Food display. Except for nuts in the shell and whole, raw fruits and vegetables that are intended for hulling, peeling, or washing by the consumer before consumption, food on display shall be protected from contamination by the use of packaging; counter, service line, or salad bar food guards; display cases; or other effective means. (2) Condiments, protection. (A) Condiments shall be protected from contamination by being kept in dispensers that are designed to provide protection, protected food displays provided with the proper utensils, original containers designed for dispensing, or individual packages or portions. (B) Condiments at a vending machine location shall be in individual packages or provided in dispensers that are filled at an approved location, such as the food establishment that provides food to the vending machine location, a food processing plant that is regulated by the agency that has jurisdiction over the operation, or a properly equipped facility that is located on the site of the vending machine location. (3) Consumer self-service operations. 51 §229.164(j) §229.164(j) (A) Raw, unpackaged animal food, such as beef, lamb, pork, poultry, and fish may not be offered for consumer self-service. This paragraph does not apply to: (i) consumer self-service of ready-to-eat foods at buffets or salad bars that serve foods such as sushi or raw shellfish; (ii) ready-to-cook individual portions for immediate cooking and consumption on the premises such as consumer-cooked meats or consumer-selected ingredients for Mongolian barbecue; or (iii) raw, frozen, shell-on shrimp or lobster. (B) Consumer self-service operations for ready-to-eat foods shall be provided with suitable utensils or effective dispensing methods that protect the food from contamination. (C) Consumer self-service operations such as buffets and salad bars shall be monitored by food employees trained in safe operating procedures. (D) A person may sell unpackaged food that is not potentially hazardous, that is displayed, and sold in bulk from a self-service container if: (i) the self-service container has a tight-fitting lid that is securely attached to the container; and (ii) the container, lid and any utensil are constructed of nontoxic materials that provide for easy cleaning and proper repair. (E) The lid of a gravity feed type container shall be kept closed except when the container is being serviced or refilled. (F) The lid of a scoop utensil type container shall be kept closed except during customer service. The container must have a utensil, equipped with a handle, to be used in dispersing the food. (G) The seller shall: (i) keep the container, lid, and any utensil sanitary to prevent spoilage and insect infestation; and (ii) post in the immediate display area a conspicuous sign that instructs the customer on the proper procedure for dispensing the food. (4) Returned food and reservice of food. 52 §229.164(j) §229.164(k) (A) Except as specified in subparagraph (B) of this paragraph, after being served or sold and in the possession of a consumer, food that is unused or returned by the consumer may not be offered as food for human consumption. (B) A container of food that is not potentially hazardous may be transferred from one consumer to another if: (i) the food is dispensed so that it is protected from contamination and the container is closed between uses, such as a narrow-neck bottle containing catsup, steak sauce, or wine; or (ii) the food, such as crackers, salt, or pepper, is in an unopened original package and is maintained in sound condition. (5) Preventing contamination from other sources. Food shall be protected from contamination that may result from a factor or source not specified in subsections (e)-(j) of this section. (k) Cooking. (1) Raw animal foods. (A) Except as specified under subparagraphs (B)-(D) of this paragraph, raw animal foods such as eggs, fish, meat, poultry, and foods containing these raw animal foods, shall be cooked to heat all parts of the food to a temperature and for a time that complies with one of the following methods based on the food that is being cooked: (i) 63 degrees Celsius (145 degrees Fahrenheit) or above for 15 seconds for: (I) raw shell eggs that are broken and prepared in response to a consumer’s order and for immediate service; and (II) except as specified under clauses (ii) and (iii) of this subparagraph, and subparagraph (B) of this paragraph, fish, meat, and pork including game animals and exotic animals commercially raised for food as specified under subsection (b)(7)(A)(i) and (b)(7)(B)(i) of this section and game animals under a voluntary inspection program as specified under subsection (b)(7)(B)(ii) of this section; (ii) 68 degrees Celsius (155 degrees Fahrenheit) for 15 seconds or the temperature specified in the following chart that corresponds to the holding time for ratites and injected meats; the following if they are comminuted: fish, meat, game animals and exotic animals commercially raised for food as specified under subsection (b)(7)(A)(i) and (b)(7)(B)(i) of this section, and game animals and exotic animals under a voluntary inspection program as 53 §229.164(k) §229.164(k) specified under subsection (b)(7)(B)(ii) of this section; and raw eggs that are not prepared as specified under clause (i)(I) of this subparagraph; or Figure 1: 25 TAC §229.164(k)(1)(A)(ii) Cooking Raw Animal Foods Alternatives to the 155 Degree Fahrenheit/15 Second Requirement Minimum Temperature ”C (”F) Minimum Time 63 (145) 3 minutes 66 (150) 1 minute 70 (158) < 1 second (instantaneous) (iii) 74 degrees Celsius (165 degrees Fahrenheit) or above for 15 seconds for poultry, wild game animals and exotic animals as specified under subsection (b)(7)(A)(iii) and (b)(7)(B)(iii) and (iv) of this section, stuffed fish, stuffed meat, stuffed pasta, stuffed poultry, stuffed ratites, or stuffing containing fish, meat, poultry, or ratites. (B) Whole beef roasts, corned beef roasts, pork roasts, and cured pork roasts such as ham, shall be cooked: (i) in an oven that is preheated to the temperature specified for the roast’s weight in the following chart and that is held at that temperature; and Figure 1: 25 TAC §229.164(k)(1)(B)(i) Cooking Whole Beef or Corned Beef Roasts Oven Preheating/Holding Requirements Per Weight Oven Temperature Based on Roast Weight Oven Type Less than 4.5 kg (10 lbs) 4.5 kg (10 lbs) or More Still Dry 177” C (350” F) or more 121” C (250” F) or more Convection 121” C (250” F) or more 121” C (250” F) or more High Humidity 1 121” C (250” F) or more 121” C (250” F) or more 1 Relative humidity greater than 90% for at least 1 hour as measures in the cooking chamber or exit of the oven ; or in a moisture-impermeable bag that provides 100% humidity. 54 §229.164(k) §229.164(k) (ii) as specified in the following chart, to heat all parts of the food to a temperature and for the holding time that corresponds to that temperature. Figure 1: 25 TAC §229.164(k)(1)(B)(ii) Cooking Whole Beef or Corned Beef Roasts Heating Temperatures and Holding Times Temperature ”C (”F) Time1 in Minutes Temperature ”C (”F) Time1 in Seconds 54.4 (130) 112 63.9 (147) 134 55.0 (131) 89 65.0 (149) 85 56.1 (133) 56 66.1 (151) 54 57.2 (135) 36 67.2 (153) 34 57.8 (136) 28 68.3 (155) 22 58.9 (138) 18 69.4 (157) 14 60.0 (140) 12 70.0 (158) 0 61.1 (142) 8 62.2 (144) 5 62.8 (145) 4 1 Holding time may include postover heat rise. (C) A raw or undercooked whole-muscle, intact beef steak may be served or offered for sale in a ready-to-eat form if: (i) the food establishment serves a population that is not a highly susceptible population; (ii) the steak is labeled to indicate that it meets the definition of whole-muscle, intact beef as specified under subsection (b)(1)(E) of this section; and (iii) the steak is cooked on both the top and bottom to a surface temperature of 63 degrees Celsius (145 degrees Fahrenheit) or above and a cooked color change is achieved on all external surfaces. (D) A raw animal food such as raw egg, raw fish, raw-marinated fish, raw molluscan shellfish, or steak tartare; or a partially cooked food such as lightly cooked fish, soft cooked eggs, or rare meat other than whole-muscle, intact beef steaks as specified in subparagraph (C) of this paragraph, may be served or offered for sale upon consumer request or selection in a ready-to-eat form if: (i) as specified under subsection (u)(3)(A) and (B)of this section, the food establishment serves a population that is not a highly susceptible population; and 55 §229.164(k) §229.164(l) (ii) the consumer is informed as specified under subsection (s) of this section that to ensure its safety, the food should be cooked as specified under subparagraph (A) or (B) of this paragraph; or (iii) the regulatory authority grants a variance from subparagraph (A) or (B) of this paragraph as specified in §229.171(c) of this title (relating to Compliance and Enforcement) based on a HACCP plan that: (I) is submitted by the permit holder and approved as specified under §229.171(c)(2) of this title; (II) documents scientific data or other information showing that a lesser time and temperature regimen results in a safe food; and (III) verifies that equipment and procedures for food preparation and training of food employees at the food establishment meet the conditions of the variance. (2) Microwave cooking. Raw animal foods cooked in a microwave oven shall be: (A) rotated or stirred throughout or midway during cooking to compensate for uneven distribution of heat; (B) covered to retain surface moisture; (C) heated to a temperature of at least 74 degrees Celsius (165 degrees Fahrenheit) in all parts of the food; and (D) allowed to stand covered for 2 minutes after cooking to obtain temperature equilibrium. (3) Plant food cooking for hot holding. Fruits and vegetables that are cooked for hot holding shall be cooked to a temperature of 57 degrees Celsius (135 degrees Fahrenheit). (l) Freezing. (1) Parasite destruction. Except as specified in paragraph (2) of this subsection, before service or sale in ready-to-eat form, raw, raw-marinated, partially cooked, or marinated- partially cooked fish other than molluscan shellfish shall be: (A) frozen and stored at a temperature of -20 degrees Celsius (-4 degrees Fahrenheit) or below for 168 hours (7 days) in a freezer; or 56 §229.164(l) §229.164(m) (B) frozen at -35 degrees Celsius (-31 degrees Fahrenheit) or below until solid and stored at -35 degrees Celsius (-31 degrees Fahrenheit) for 15 hours. (2) If the fish are tuna of the species Thunnus alalunga, Thunnus albacares (Yellowfin tuna), Thunnus atlanticus, Thunnus maccoyii (Bluefin tuna, Southern), Thunnus obesus (Bigeye tuna), or Thunnus thynnus (Bluefin tuna, Northern), the fish may be served or sold in a raw, raw-marinated, or partially cooked ready-to-eat form without freezing as specified under paragraph (1) of this subsection. (3) Records, creation and retention. (A) Except as specified in paragraph (2) of this subsection and subparagraph (B) of this paragraph, if raw, raw-marinated, partially cooked, or marinated- partially cooked fish are served or sold in ready-to-eat form, the person in charge shall record the freezing temperature and time to which the fish are subjected and shall retain the records of the food establishment for 90 calendar days beyond the time of service or sale of the fish. (B) If the fish are frozen by a supplier, a written agreement or statement from the supplier stipulating that the fish supplied are frozen to a temperature and for a time specified under paragraph (1) of this subsection, may substitute for the records specified under subparagraph (A) of this paragraph. (m) Reheating. (1) Preparation for immediate service. Cooked and refrigerated food that is prepared for immediate service in response to an individual consumer order, such as a roast beef sandwich au jus, may be served at any temperature. (2) Reheating for hot holding. (A) Except as specified under subparagraphs (B), (C) and in (E) of this paragraph, potentially hazardous food that is cooked, cooled, and reheated for hot holding shall be reheated so that all parts of the food reach a temperature of at least 74 degrees Celsius (165 degrees Fahrenheit) for 15 seconds. (B) Except as specified under subparagraph (C) of this paragraph, potentially hazardous food reheated in a microwave oven for hot holding shall be reheated so that all parts of the food reach a temperature of at least 74 degrees Celsius (165 degrees Fahrenheit) and the food is rotated or stirred, covered, and allowed to stand covered for 2 minutes after reheating. (C) Ready-to-eat food taken from a commercially processed, hermetically sealed container, or from an intact package from a food processing plant that is inspected by the food regulatory authority that has jurisdiction over the plant, shall be heated to a temperature of at least 57 degrees Celsius (135 degrees Fahrenheit) for hot holding. 57 §229.164(m) §229.164(o) (D) Reheating for hot holding shall be done rapidly and the time the food is between the temperature specified under subsection (o)(6)(B) of this section and 74 degrees Celsius (165 degrees Fahrenheit) may not exceed two hours. (E) Remaining unsliced portions of roasts that are cooked as specified under subsection (k)(1)(B) of this section, may be reheated for hot holding using the oven parameters and minimum time and temperature conditions specified under subsection (k)(1)(B) of this section. (n) Treating juice. Juice packaged in a food establishment shall be: (1) treated under a HACCP plan as specified in §229.171(d)(2)(B)-(D) of this title (relating to Compliance and Enforcement) to attain a 5-log reduction, which is equal to a 99.999% reduction, of the most resistant microorganism of public health significance; or (2) labeled, if not treated to yield a 5-log reduction of the most resistant microorganism of public health significance: (A) as specified under subsection (r) of this section; and (B) as specified in 21 CFR §101.17(g) with the phrase, WARNING: This product has not been pasteurized and, therefore, may contain harmful bacteria that can cause serious illness in children, the elderly, and persons with weakened immune systems. (o) Temperature and time control. (1) Frozen food. Stored frozen foods shall be maintained frozen. (2) Potentially hazardous food, slacking. Frozen potentially hazardous food that is slacked to moderate the temperature shall be held: (A) under refrigeration that maintains the food temperature at 5 degrees Celsius (41 degrees Fahrenheit) or less as specified in paragraph (6)(B)(i) of this subsection; or at 7 degrees Celsius (45 degrees Fahrenheit) or less as specified in paragraph (6)(B)(ii) of this subsection; or (B) at any temperature if the food remains frozen. (3) Thawing. Except as specified in subparagraph (D) of this paragraph, potentially hazardous food shall be thawed: (A) under refrigeration that maintains the food temperature at 5 degrees Celsius (41 degrees Fahrenheit) or less as specified in paragraph (6)(B)(i) of this subsection; or 58 §229.164(o) §229.164(o) at 7 degrees Celsius (45 degrees Fahrenheit) or less as specified in paragraph (6)(B)(ii) of this subsection; or (B) completely submerged under running water: (i) at a water temperature of 21 degrees Celsius (70 degrees Fahrenheit) or below; (ii) with sufficient water velocity to agitate and float off loose particles in an overflow; and (iii) for a period of time that does not allow thawed portions of ready-to-eat food to rise above 5 degrees Celsius (41 degrees Fahrenheit) as specified in paragraph (6)(B)(i) of this subsection, or 7 degrees Celsius (45 degrees Fahrenheit) as specified in paragraph (6)(B)(ii) of this subsection; or (iv) for a period of time that does not allow thawed portions of a raw animal food requiring cooking as specified in subsection (k)(1)(A) or (B) of this section to be above 5 degrees Celsius (41 degrees Fahrenheit), or 7 degrees Celsius (45 degrees Fahrenheit) as specified in paragraph (6)(B)(ii) of this subsection, for more than 4 hours including: (I) the time the food is exposed to the running water and the time needed for preparation for cooking; or (II) the time it takes under refrigeration to lower the food temperature to 5 degrees Celsius (41 degrees Fahrenheit) as specified in paragraph (6)(B)(i) of this subsection, or 7 degrees Celsius (45 degrees Fahrenheit) as specified in paragraph (6)(B)(ii) of this subsection; (C) as part of a cooking process if the food that is frozen is: (i) cooked as specified in subsections (k)(1)(A) or (B) or (2) of this section; or (ii) thawed in a microwave oven and immediately transferred to conventional cooking equipment, with no interruption in the process; or (D) using any procedure if a portion of frozen ready-to-eat food is thawed and prepared for immediate service in response to an individual consumer’s order. (4) Cooling. (A) Cooked potentially hazardous food shall be cooled: 59 §229.164(o) §229.164(o) (i) within two hours, from 57 degrees Celsius (135 degrees Fahrenheit) to 21 degrees C (70 degrees Fahrenheit); and (ii) within a total of six hours, from 57 degrees Celsius (135 degrees Fahrenheit) to 5 degrees Celsius (41 degrees Fahrenheit) or less as specified in paragraph (6)(B)(i) of this subsection, or to 7 degrees Celsius (45 degrees Fahrenheit) or less as specified in paragraph (6)(B)(ii) of this subsection. (B) Potentially hazardous food shall be cooled within four hours to 5 degrees Celsius (41 degrees Fahrenheit) or less, or to 7 degrees Celsius (45 degrees Fahrenheit) or less as specified in paragraph (6)(B) of this subsection if prepared from ingredients at ambient temperature, such as reconstituted foods and canned tuna. (C) Except as specified in subparagraph (D) of this paragraph, a potentially hazardous food received in compliance with laws allowing a temperature above 5 degrees Celsius (41 degrees Fahrenheit) during shipment from the supplier as specified in subsection (c)(1)(B) of this section, shall be cooled within four hours to 5 degrees Celsius (41 degrees Fahrenheit) or less, or to 7 degrees Celsius (45 degrees Fahrenheit) or less as specified in paragraph (6)(B) of this subsection. (D) Raw shell eggs shall be received as specified under subsection (c)(1)(C) of this section and immediately placed in refrigerated equipment that maintains an ambient air temperature of 7 degrees Celsius (45 degrees Fahrenheit) or less. (5) Cooling methods. (A) Cooling shall be accomplished in accordance with the time and temperature criteria specified under paragraph (4) of this subsection by using one or more of the following methods based on the type of food being cooled: (i) placing the food in shallow pans; (ii) separating the food into smaller or thinner portions; (iii) using rapid cooling equipment; (iv) stirring the food in a container placed in an ice water bath; (v) using containers that facilitate heat transfer; (vi) adding ice as an ingredient; or (vii) other effective methods. 60 §229.164(o) §229.164(o) (B) When placed in cooling or cold holding equipment, food containers in which food is being cooled shall be: (i) arranged in the equipment to provide maximum heat transfer through the container walls; and (ii) loosely covered, or uncovered if protected from overhead contamination as specified under subsection (i)(1)(A)(ii) of this section, during the cooling period to facilitate heat transfer from the surface of the food. (6) Potentially hazardous food, hot and cold holding. Except during preparation, cooking, or cooling, or when time is used as the public health control as specified under paragraph (9) of this subsection, and except as specified in subparagraph (B) of this paragraph, potentially hazardous food shall be maintained: (A) at 57 degrees Celsius (135 degrees Fahrenheit) or above, except that roasts cooked to a temperature and for a time specified in subsection (k)(1)(B) of this section or reheated as specified in subsection (m)(2)(E) of this section may be held at a temperature of 54 degrees Celsius (130 degrees Fahrenheit) or above; or (B) at a temperature specified in the following: (i) 5 degrees Celsius (41 degrees Fahrenheit) or less; or (ii) 7 degrees Celsius (45 degrees Fahrenheit) or less in countertop, under-counter and open-top refrigeration units located in the food preparation area that were in use prior to October 6, 2003, provided the food is date marked as specified in paragraphs (7)-(9) of this subsection. (C) Shell eggs that have not been treated to destroy all viable Salmonellae shall be stored in refrigerated equipment that maintains an ambient air temperature of 7 degrees Celsius (45 degrees Fahrenheit) or less. (7) Ready-to-eat, potentially hazardous food, date marking. (A) Except as specified in subparagraphs (D)-(F) of this paragraph refrigerated, ready-to-eat, potentially hazardous food prepared and held in a food establishment for more than 24 hours shall be clearly marked using calendar dates, days of the week, color- coded marks, or other effective means to indicate the date or day by which the food shall be consumed on the premises, sold, or discarded, based on the temperature and time combinations specified below. The day of preparation shall be counted as Day 1. (i) 5 degrees Celsius (41 degrees Fahrenheit) or less for a maximum of seven days; or 61 §229.164(o) §229.164(o) (ii) 7 degrees Celsius (45 degrees Fahrenheit) or for a maximum of four days in countertop, under-counter and open-top refrigeration units located in the food preparation area and were in use prior to October 6, 2003, as specified in paragraph (6)(B)(ii) of this subsection. (B) Except as specified in subparagraphs (D)-(G) of this paragraph, refrigerated, ready-to-eat, potentially hazardous food prepared and packaged by a food processing plant shall be clearly marked using calendar dates, days of the week, color-coded marks, or other effective means, at the time the original container is opened in a food establishment and if the food is held for more than 24 hours, to indicate the date or day by which the food shall be consumed on the premises, sold, or discarded, based on the temperature and time combinations specified in subparagraph (A) of this paragraph: (i) the day the original container is opened in the food establishment shall be counted as Day 1; and (ii) the day or date marked by the food establishment may not exceed a manufacturers use-by date if the manufacturer determined the use-by date based on food safety. (C) A refrigerated, ready-to-eat potentially hazardous food that is frequently rewrapped, such as lunchmeat or a roast, or for which date marking is impractical, such as soft serve mix or milk in a dispensing machine, may be marked as specified in subparagraphs (A) or (B) of this paragraph or by an alternative method acceptable to the regulatory authority. (D) Alternative date marking systems must receive prior approval from the regulatory authority. (E) Subparagraph (B) of this paragraph does not apply to the following cheeses that are maintained under refrigeration as specified in paragraph (6)(B) of this subsection: (i) hard cheeses manufactured as specified in 21 CFR §133.150, and with a moisture content not exceeding 39%, such as cheddar, gruyere, parmesan, reggiano, and romano; (ii) semisoft cheeses manufactured as specified in 21 CFR §133.187, and with a moisture content of more than 39% but less than 50%, such as blue, edam, gorgonzola, gouda, and monterey jack; or (iii) pasteurized process cheeses manufactured as specified in 21 CFR §133.169, and labeled as containing an acidifying agent. 62 §229.164(o) §229.164(o) (F) Subparagraphs (A) and (B) of this paragraph do not apply to individual meal portions served or repackaged for sale from a bulk container upon a consumers request. (G) Subparagraph (B) of this paragraph does not apply to the following when the face has been cut, but the remaining portion is whole and intact: (i) fermented sausages produced in a federally inspected food processing plant that are not labeled Keep Refrigerated and which retain the original casing on the product; (ii) shelf stable, dry, fermented sausages; and (iii) shelf stable salt-cured products such as prosciutto and Parma (ham) produced in a federally inspected food processing plant that are not labeled Keep Refrigerated. (H) Subparagraph (B) of this paragraph does not apply to cultured dairy products as defined in 21 CFR 131, Milk and Cream, such as yogurt, sour cream, and buttermilk, that are maintained under refrigeration as specified in paragraph (6)(B) of this subsection. (I) Subparagraph (B) of this paragraph does not apply to preserved fish products, such as pickled herring, and dried or salted cod, and other acidified fish products defined in 21 CFR 114, Acidified Foods. (J) A refrigerated, ready-to-eat, potentially hazardous food ingredient or a portion of a refrigerated, ready-to-eat, potentially hazardous food that is subsequently combined with additional ingredients or portions of food shall retain the date marking of the earliest- prepared or first-prepared ingredient. (8) Ready-to-eat, potentially hazardous food, disposition. (A) A food specified in paragraph (7)(A) or (B) of this subsection shall be discarded if it: (i) exceeds either of the temperature and time combinations specified in paragraph (7)(A) of this subsection, except time that the product is frozen; (ii) is in a container or package that does not bear a date or day; or (iii) is appropriately marked with a date or day that exceeds a temperature and time combination as specified in paragraph (7)(A) of this subsection. (B) Refrigerated, ready-to-eat, potentially hazardous food prepared in a food establishment and dispensed through a vending machine with an automatic shutoff control 63 §229.164(o) §229.164(p) shall be discarded if it exceeds a temperature and time combination as specified in paragraph (7)(A) of this subsection. (9) Time as a public health control. (A) Except as specified under subparagraph (B) of this paragraph, if time only, rather than time in conjunction with temperature, is used as the public health control for a working supply of potentially hazardous food before cooking, or for ready-to-eat potentially hazardous food that is displayed or held for service for immediate consumption: (i) the food shall be marked or otherwise identified to indicate the time that is four hours past the point in time when the food is removed from temperature control; (ii) the food shall be cooked and served, served if ready-to-eat, or discarded, within 4 hours from the point in time when the food is removed from temperature control; (iii) the food in unmarked containers or packages or marked to exceed a four hour limit shall be discarded; and (iv) written procedures shall be maintained in the food establishment and made available to the regulatory authority upon request, that ensure compliance with: (I) clauses (i)-(iv) of this subparagraph, and (II) paragraph (4) of this subsection for food that is prepared, cooked, and refrigerated before time is used as a public health control. (B) In a food establishment that serves a highly susceptible population, time only, rather than time in conjunction with temperature, may not be used as the public health control for raw eggs. (p) Specialized processing methods. (1) Variance requirement. A food establishment shall obtain a variance from the department as specified in §229.171(c)(1) and (2) of this title before: (A) smoking food as a method of food preservation rather than as a method of flavor enhancement; (B) curing food; (C) using food additives or adding components such as vinegar: 64 §229.164(p) §229.164(p) (i) as a method of food preservation rather than as a method of flavor enhancement; or (ii) to render a food so that it is not potentially hazardous; (D) packaging food using a reduced oxygen packaging method except as specified under paragraph (2) of this subsection where a barrier to Clostridium botulinum in addition to refrigeration exists; (E) operating a molluscan shellfish life-support system display tank used to store and display shellfish that are offered for human consumption; (F) custom processing animals that are for personal use as food and not for sale or service in a food establishment; (G) preparing food by another method that is determined by the regulatory authority to require a variance; or (H) sprouting seeds or beans in a retail food establishment. (2) Clostridium botulinum controls, reduced oxygen packaging criteria. (A) Except for a food establishment that obtains a variance as specified under paragraph (1) of this subsection, a food establishment that packages food using a reduced oxygen packaging method and Clostridium botulinum is identified as a microbiological hazard in the final packaged form shall ensure that there are at least two barriers in place to control the growth and toxin formation of C. botulinum. (B) A food establishment that packages food using a reduced oxygen packaging method and Clostridium botulinum is identified as a microbiological hazard in the final packaged form shall have a HACCP plan that contains the information specified under §229.171(d)(2)(D) of this title, and that: (i) identifies the food to be packaged; (ii) limits the food packaged to a food that does not support the growth of Clostridium botulinum because it complies with one of the following: (I) has an aw of 0.91 or less; (II) has a pH of 4.6 or less; 65 §229.164(p) §229.164(p) (III) is a meat or poultry product cured at a food processing plant regulated by the USDA or the department using substances specified in 9 CFR §424.21, Use of food ingredients and sources of radiation, and is received in an intact package; or (IV) is a food with a high level of competing organisms such as raw meat or raw poultry; (iii) specifies methods for maintaining food at 5 degrees Celsius (41 degrees Fahrenheit) or below; (iv) describes how the packages shall be prominently and conspicuously labeled on the principal display panel in bold type on a contrasting background, with instructions to: (I) maintain the food at 5 degrees Celsius (41 degrees Fahrenheit) or below; and (II) for food held at refrigeration temperatures, discard the food if within 14 calendar days of its packaging it is not served for on-premises consumption, or consumed if served or sold for off-premises consumption; (v) limits the refrigerated shelf life to no more than 14 calendar days from packaging to consumption, except the time the product is maintained frozen, or the original manufacturers sell by or use by date, whichever occurs first; (vi) includes operational procedures that: (I) prohibit contacting food with bare hands; (II) identify a designated area and the method by which: (-a-) physical barriers or methods of separation of raw foods and ready-to-eat foods minimize cross contamination; and (-b-) access to the processing equipment is limited to responsible trained personnel familiar with the potential hazards of the operation; and (III) delineate cleaning and sanitization procedures for food-contact surfaces; and (vii) describes the training program that ensures that the individual responsible for the reduced oxygen packaging operation understands the: (I) concepts required for a safe operation; 66 §229.164(p) §229.164(r) (II) equipment and facilities; and (III) procedures specified under clause (vi) of this subparagraph and §229.171(d)(2)(D) of this title. (C) Except for fish that is frozen before, during, and after packaging, a food establishment may not package fish using a reduced oxygen packaging method. (q) Food identity, accurate representation. (1) Standards of identity. Packaged food shall comply with standard of identity requirements in 21 CFR 131-169, and 9 CFR 319, Definitions and Standards of Identity or Composition, and the general requirements in 21 CFR 130, Food Standards: General, and 9 CFR 319, Subpart A, General. (2) Honestly presented. (A) Food shall be offered for human consumption in a way that does not mislead or misinform the consumer. (B) Food or color additives, colored overwraps, or lights may not be used to misrepresent the true appearance, color, or quality of a food. (r) Labeling. (1) Food labels. (A) Food packaged in a food establishment, shall be labeled as specified in law, including 21 CFR 101, Food Labeling, 9 CFR 317, Labeling, Marking Devices, and Containers, and 9 CFR 381, Subpart N, Labeling and Containers. (B) Label information shall include: (i) the common name of the food, or absent a common name, an adequately descriptive identity statement; (ii) if made from two or more ingredients, a list of ingredients in descending order of predominance by weight, including a declaration of artificial color or flavor and chemical preservatives, if contained in the food; (iii) an accurate declaration of the quantity of contents; (iv) the name and place of business of the manufacturer, packer, or distributor; 67 §229.164(r) §229.164(r) (v) except as exempted in the Federal Food, Drug, and Cosmetic Act §403(Q)(3)-(5), nutrition labeling as specified in 21 CFR 101, Food Labeling, and 9 CFR 317, Subpart B, Nutrition Labeling; and (vi) for any salmonid fish containing canthaxanthin as a color additive, the labeling of the bulk fish container, including a list of ingredients, displayed on the retail container or by other written means, such as a counter card, that discloses the use of canthaxanthin. (C) Bulk food that is available for consumer self-dispensing shall be prominently labeled with the following information in plain view of the consumer: (i) the manufacturers or processors label that was provided with the food; or (ii) a card, sign, or other method of notification that includes the information specified under subparagraph (B)(i), (ii), and (v) of this paragraph. (D) Bulk, unpackaged foods such as bakery products and unpackaged foods that are portioned to consumer specification need not be labeled if: (i) a health, nutrient content, or other claim is not made; (ii) the food is manufactured or prepared on the premises of the food establishment or at another food establishment or a food processing plant that is owned by the same person and is regulated by the food regulatory agency that has jurisdiction; and (iii) ingredients contained in the food, including potential allergens, are provided to the consumer on request from a recipe book or by other means. (E) Menu claims. (i) If a nutrient content claim or health claim is made, such claims shall conform to the definitions of such terms found in 21 CFR 101. (ii) Claims must be capable of being substantiated. Substantiation may be based upon a recipe for the food, or a database developed and tested nationally and acceptable to the regulatory authority. Evidence of substantiation must be supplied to the regulatory authority upon request. (iii) Nutritional information must be available to the consumer upon request for any food for which a nutrient content claim or health claim is made. (2) Other forms of information. 68 §229.164(r) §229.164(t) (A) If required by law, consumer warnings shall be provided. (B) Food establishment or manufacturers’ dating information on foods may not be concealed or altered. (s) Consumer advisory. (1) Except as specified in subsection (k)(1)(C) of this section and under subsection (u)(3) of this section, if an animal food such as beef, eggs, fish, lamb, milk, pork, poultry, or shellfish is served or sold raw, undercooked, or without otherwise being processed to eliminate pathogens, either in ready-to-eat form or as an ingredient in another ready-to-eat food, the permit holder shall inform consumers of the significantly increased risk of consuming such foods by way of a disclosure and reminder, as specified in paragraphs (2) and (3) of this subsection, using brochures, deli case or menu advisories, label statements, table tents, placards, or other effective written means. (2) Disclosure shall include: (A) a description of the animal-derived foods, such as oysters on the half shell (raw oysters), raw-egg Caesar salad, and hamburgers (can be cooked to order); or (B) identification of the animal-derived foods by asterisking them to a footnote that states that the items are served raw or undercooked, or contain (or may contain) raw or undercooked ingredients. (3) Reminder shall include asterisking the animal-derived foods requiring disclosure to a footnote that states: (A) regarding the safety of these items, written information is available upon request; (B) consuming raw or undercooked meats, poultry, seafood, shellfish, or eggs may increase your risk of foodborne illness; or (C) consuming raw or undercooked meats, poultry, seafood, shellfish, or eggs may increase your risk of foodborne illness, especially if you have certain medical conditions (t) Disposition, contaminated food. (1) A food that is unsafe, adulterated, or not honestly presented as specified under subsection (a) of this section shall be reconditioned according to an approved procedure or discarded. 69 §229.164(t) §229.164(u) (2) Food that is not from an approved source as specified under subsection (b)(1)- (7) of this section shall be discarded. (3) Ready-to-eat food that may have been contaminated by an employee who has been restricted or excluded as specified under §229.163(d)(2) of this title (relating to Management and Personnel) shall be discarded. (4) Food that is contaminated by food employees, consumers, or other persons through contact with their hands, bodily discharges, such as nasal or oral discharges, or other means shall be discarded. (u) Additional safeguards, requirements for food establishments serving highly susceptible populations. Pasteurized foods and prohibited food. In a food establishment that serves a highly susceptible population: (1) the following criteria shall apply to juice: (A) for the purposes of this paragraph only, children who are age nine or less and receive food in a school, day care setting or similar facility that provides custodial care are included as highly susceptible populations; (B) prepackaged juice or a prepackaged beverage containing juice, that bears a warning label as specified in 21 CFR §101.17(g), Food Labeling, or packaged juice or beverage containing juice, that bears a warning label as specified under subsection (n)(2) of this section may not be served or offered for sale; and (C) unpackaged juice that is prepared on the premises for service or sale in a ready-to-eat form shall be processed under a HACCP plan that contains the information specified in §229.171(d)(2)(B)-(E) of this title, and as specified under 21 CFR 120, Hazard Analysis And Critical Control Point (HACCP) Systems, §120.24, Process Controls; (2) pasteurized shell eggs or pasteurized liquid, frozen, or dry eggs or egg products shall be substituted for raw shell eggs in the preparation of: (A) foods such as Caesar salad, hollandaise or bØarnaise sauce, mayonnaise, eggnog, ice cream, and egg-fortified beverages; and (B) except as specified in paragraph (5) of this subsection, recipes in which more than one egg is broken and the eggs are combined; (3) the following foods may not be served or offered for sale in a ready-to-eat form: 70 §229.164(u) §229.164(u) (A) raw animal foods such as raw fish, raw-marinated fish, raw molluscan shellfish, and steak tartare; (B) a partially cooked animal food such as lightly cooked fish, rare meat, soft-cooked eggs that are made from raw shell eggs, and meringue; and (C) raw seed sprouts; (4) food employees may not contact ready-to-eat food as specified under subsection (e)(1)(B) and (D) of this section; (5) time only, as the public health control as specified under subsection (o)(9)(B) of this section, may not be used for raw eggs; (6) paragraph (2)(B) of this subsection does not apply if: (A) the raw eggs are combined immediately before cooking for one consumers serving at a single meal, cooked as specified under subsection (k)(1)(A)(i) of this section, and served immediately, such as an omelet, soufflØ, or scrambled eggs; (B) the raw eggs are combined as an ingredient immediately before baking and the eggs are thoroughly cooked to a ready-to-eat form, such as a cake, muffin, or bread; or (C) the preparation of the food is conducted under a HACCP plan that: (i) identifies the food to be prepared; (ii) prohibits contacting ready-to-eat food with bare hands; (iii) includes specifications and practices that ensure: (I) Salmonella Enteritidis growth is controlled before and after cooking; and (II) Salmonella Enteritidis is destroyed by cooking the eggs according to the temperature and time specified in subsection (k)(1)(A)(ii) of this section; (iv) contains the information specified under §229.171(d)(2)(D) of this title (relating to Compliance and Enforcement) including procedures that: (I) control cross contamination of ready-to-eat food with raw eggs; and 71 §229.164(u) §229.164(v) (II) delineate cleaning and sanitization procedures for food- contact surfaces; and (v) describes the training program that ensures that the food employee responsible for the preparation of the food understands the procedures to be used; (7) except as specified in paragraph (8) of this subsection, food may be re-served as specified under subsection (j)(4)(B)(i) and (ii) of this section; and (8) food may not be re-served under the following conditions: (A) any food served to patients or clients who are under contact precautions in medical isolation or quarantine, protective environmental isolation may not be reserved to others outside; and (B) packages of food from any patients, client, or other consumers should not be re-served to persons in protective environment isolation. (v) Donation of foods. (1) Previous service. Foods which have been previously served to a consumer may not be donated. (2) Potentially hazardous foods. A potentially hazardous food may be donated if: (A) the food has been kept at or above 57 degrees Celsius (135 degree Fahrenheit) during hot holding and service, and subsequently refrigerated to meet the time and temperature requirements under subsection (o)(4) and (5) of this section; (B) the donor can substantiate that the food recipient has the facilities to meet the transportation, storage, and reheating requirements of these rules; (C) the temperature of the food is at or below 5 degrees Celsius (41 degrees Fahrenheit) at the time of donation, and is protected from contamination; and (D) if the food is to be transported by the recipient directly to a consumer, the recipient need meet only the transportation requirements, including holding temperatures, under these rules. (3) Labeling. Donated foods shall be labeled with the name of the food, the source of the food, and the date of preparation. (4) Shelf life. Donated potentially hazardous foods may not exceed the shelf life for leftover foods outlined in these rules. 72 §229.164(v) §229.164(v) (5) Damaged foods. Heavily rim or seam-dented canned foods, or packaged foods without the manufacturers complete labeling, shall not be donated. (6) Distressed foods. Foods which are considered distressed, such as foods which have been subjected to fire, flooding, excessive heat, smoke, radiation, other environmental contamination, or prolonged storage shall not be directly donated for consumption by the consumer. Such foods may be sold or donated to a licensed food salvage establishment if permitted under the provisions of the Health and Safety Code, Chapter 432. 73 §229.165(a) §229.165(a) §229.165. Equipment, Utensils, and Linens. (a) Multiuse materials. (1) Characteristics. Materials that are used in the construction of utensils and food-contact surfaces of equipment may not allow the migration of deleterious substances or impart colors, odors, or tastes to food and under normal use conditions shall be: (A) safe; (B) durable, corrosion-resistant, and nonabsorbent; (C) sufficient in weight and thickness to withstand repeated warewashing; (D) finished to have a smooth, easily cleanable surface; and (E) resistant to pitting, chipping, crazing, scratching, scoring, distortion, and decomposition. (2) Cast iron, use limitation. (A) Except as specified in subparagraphs (B) and (C) of this paragraph, cast iron may not be used for utensils or food-contact surfaces of equipment. (B) Cast iron may be used as a surface for cooking. (C) Cast iron may be used in utensils for serving food if the utensils are used only as part of an uninterrupted process from cooking through service. (3) Lead in ceramic, china, and crystal utensils, use limitation. Ceramic, china, crystal utensils, and decorative utensils such as hand-painted ceramic or china that are used in contact with food shall be lead-free or contain levels of lead not exceeding the limits in the following table: 74 §229.165(a) §229.165(a) Figure: 25 TAC §229.165(a)(3) Utensil Category Description Maximum Lead mg/L Hot Beverage Mugs Coffee Mugs 0.5 Large Hollowware Bowls greater than or equal to 1.1 L (1.16 QT) 1 Small Hollowware Bowls < 1.1 L (1.16 QT) 2.0 Flat Utensils Plates, Saucers 3.0 (4) Copper, use limitation. (A) Except as specified in subparagraph (B) of this paragraph, copper and copper alloys such as brass may not be used in contact with a food that has a pH below 6 such as vinegar, fruit juice, or wine or for a fitting or tubing installed between a backflow prevention device and a carbonator. (B) Copper and copper alloys may be used in contact with beer brewing ingredients that have a pH below 6 in the prefermentation and fermentation steps of a beer brewing operation such as a brewpub or microbrewery. (5) Galvanized metal, use limitation. Galvanized metal may not be used for utensils or food-contact surfaces of equipment that are used in contact with acidic food. (6) Sponges, use limitation. Sponges may not be used in contact with cleaned and sanitized or in-use food-contact surfaces. (7) Lead in pewter alloys, use limitation. Pewter alloys containing lead in excess of 0.05% may not be used as a food-contact surface. (8) Lead in solder and flux, use limitation. Solder and flux containing lead in excess of 0.2% may not be used as a food-contact surface. (9) Wood, use limitation. (A) Except as specified in subparagraphs (B)-(D) of this paragraph, wood and wood wicker may not be used as a food-contact surface. (B) Hard maple or an equivalently hard, close-grained wood may be used for: 75 §229.165(a) §229.165(c) (i) cutting boards; cutting blocks; bakers tables; and utensils such as rolling pins, doughnut dowels, salad bowls, and chopsticks; and (ii) wooden paddles used in confectionery operations for pressure scraping kettles when manually preparing confections at a temperature of 110 degrees Celsius (230 degrees Fahrenheit) or above. (C) Whole, uncut, raw fruits and vegetables, and nuts in the shell may be kept in the wood shipping containers in which they were received, until the fruits, vegetables, or nuts are used. (D) If the nature of the food requires removal of rinds, peels, husks, or shells before consumption, the whole, uncut, raw food may be kept in: (i) untreated wood containers; or (ii) treated wood containers if the containers are treated with a preservative that meets the requirements specified in 21 CFR §178.3800, Preservatives for Wood. (10) Nonstick coatings, use limitation. Multiuse kitchenware such as frying pans, griddles, sauce pans, cookie sheets, and waffle bakers that have a perfluorocarbon resin coating shall be used with nonscoring or nonscratching utensils and cleaning aids. (11) Nonfood-contact surfaces. Nonfood-contact surfaces of equipment that are exposed to splash, spillage, or other food soiling or that require frequent cleaning shall be constructed of a corrosion-resistant, nonabsorbent, and smooth material. (b) Single-service and single-use, characteristics. Materials that are used to make single- service and single-use articles: (1) may not: (A) allow the migration of deleterious substances; or (B) impart colors, odors, or tastes to food; and (2) shall be: (A) safe; and (B) clean. (c) Durability and strength. 76 §229.165(c) §229.165(d) (1) Equipment and utensils. Equipment and utensils shall be designed and constructed to be durable and to retain their characteristic qualities under normal use conditions. (2) Food temperature measuring devices. Food temperature measuring device may not have sensors or stems constructed of glass, except that thermometers with glass sensors or stems that are encased in a shatterproof coating such as candy thermometers may be used. (d) Cleanability. (1) Food-contact surfaces. Multiuse food-contact surfaces shall be: (A) smooth; (B) free of breaks, open seams, cracks, chips, inclusions, pits, and similar imperfections; (C) free of sharp internal angles, corners, and crevices; (D) finished to have smooth welds and joints; and (E) except as specified in subparagraph (B) of this paragraph, accessible for cleaning and inspection by one of the following methods: (i) without being disassembled; (ii) by disassembling without the use of tools; or (iii) by easy disassembling with the use of handheld tools commonly available to maintenance and cleaning personnel such as screwdrivers, pliers, and wrenches. (2) Paragraph (5) of this subsection does not apply to cooking oil storage tanks, distribution lines for cooking oils, or beverage syrup lines or tubes. (3) Cleaned in place (CIP) equipment. (A) CIP equipment shall meet the characteristics specified under paragraph (1) of this subsection and shall be designed and constructed so that: (i) cleaning and sanitizing solutions circulate throughout a fixed system and contact all interior food-contact surfaces; and (ii) the system is self-draining or capable of being completely drained of cleaning and sanitizing solutions; and 77 §229.165(d) §229.165(e) (B) CIP equipment that is not designed to be disassembled for cleaning shall be designed with inspection access points to ensure that all interior food-contact surfaces throughout the fixed system are being effectively cleaned. (4) V threads, use limitation. Except for hot oil cooking or filtering equipment, V type threads may not be used on food-contact surfaces. (5) Hot oil filtering equipment. Hot oil filtering equipment shall meet the characteristics specified under paragraph (1) or (2) of this subsection and shall be readily accessible for filter replacement and cleaning of the filter. (6) Can openers. Cutting or piercing parts of can openers shall be readily removable for cleaning and for replacement. (7) Nonfood-contact surfaces. Nonfood-contact surfaces shall be free of unnecessary ledges, projections, and crevices, and designed and constructed to allow easy cleaning and to facilitate maintenance. (8) Kick plates, removable. Kick plates shall be designed so that the areas behind them are accessible for inspection and cleaning by being: (A) removable by one of the methods specified under paragraph (1)(E) of this subsection or capable of being rotated open; and (B) removable or capable of being rotated open without unlocking equipment doors. (9) Ventilation hood systems, filters. Filters or other grease extracting equipment shall be designed to be readily removable for cleaning and replacement if not designed to be cleaned in place. (e) Accuracy of temperature measuring devices, food. (1) Temperature measuring device, food. (A) Food temperature measuring device that are scaled only in Celsius or dually scaled in Celsius and Fahrenheit shall be accurate to –1 degrees Celsius in the intended range of use. (B) Food temperature measuring device that are scaled only in Fahrenheit shall be accurate to –2 degrees Fahrenheit in the intended range of use. (2) Temperature measuring devices, ambient air and water. 78 §229.165(e) §229.165(f) (A) Ambient air and water temperature measuring device that are scaled in Celsius or dually scaled in Celsius and Fahrenheit shall be designed to be easily readable and accurate to –1.5 degrees Celsius in the intended range of use. (B) Ambient air and water temperature measuring device that are scaled only in Fahrenheit shall be accurate to –3 degrees Fahrenheit in the intended range of use. (3) Pressure measuring devices, mechanical warewashing equipment. Pressure measuring devices that display the pressures in the water supply line for the fresh hot water sanitizing rinse shall have increments of 7 kilopascals (1 pounds per square inch) or smaller and shall be accurate to – 14 kilopascals (– 2 pounds per square inch) in the 100-170 kilopascals (15- 25 pounds per square inch) range. (f) Functionality of equipment. (1) Ventilation hood systems, drip prevention. Exhaust ventilation hood systems in food preparation and warewashing areas including components such as hoods, fans, guards, and ducting shall be designed to prevent grease or condensation from draining or dripping onto food, equipment, utensils, linens, and single-service and single-use articles. (2) Equipment openings, closures and deflectors. (A) A cover or lid for equipment shall overlap the opening and be sloped to drain. (B) An opening located within the top of a unit of equipment that is designed for use with a cover or lid shall be flanged upward at least 5 millimeters (two-tenths of an inch). (C) Except as specified under subparagraph (D) of this paragraph, fixed piping, temperature measuring device, rotary shafts, and other parts extending into equipment shall be provided with a watertight joint at the point where the item enters the equipment. (D) If a watertight joint is not provided: (i) the piping, temperature measuring device, rotary shafts, and other parts extending through the openings shall be equipped with an apron designed to deflect condensation, drips, and dust from openings into the food; and (ii) the opening shall be flanged as specified under subparagraph (B) of this paragraph. (3) Dispensing equipment, protection of equipment and food. In equipment that dispenses or vends liquid food or ice in unpackaged form: 79 §229.165(f) §229.165(f) (A) the delivery tube, chute, orifice, and splash surfaces directly above the container receiving the food shall be designed in a manner, such as with barriers, baffles, or drip aprons, so that drips from condensation and splash are diverted from the opening of the container receiving the food; (B) the delivery tube, chute, and orifice shall be protected from manual contact such as by being recessed; (C) the delivery tube or chute and orifice of equipment used to vend liquid food or ice in unpackaged form to self-service consumers shall be designed so that the delivery tube or chute and orifice are protected from dust, insects, rodents, and other contamination by a self-closing door if the equipment is: (i) located in an outside area that does not otherwise afford the protection of an enclosure against the rain, windblown debris, insects, rodents, and other contaminants that are present in the environment; or (ii) available for self-service during hours when it is not under the full-time supervision of a food employee; and (D) the dispensing equipment actuating lever or mechanism and filling device of consumer self-service beverage dispensing equipment shall be designed to prevent contact with the lip-contact surface of glasses or cups that are refilled. (4) Vending machine, vending stage closure. The dispensing compartment of a vending machine including a machine that is designed to vend prepackaged snack food that is not potentially hazardous such as chips, party mixes, and pretzels shall be equipped with a self- closing door or cover if the machine is: (A) located in an outside area that does not otherwise afford the protection of an enclosure against the rain, windblown debris, insects, rodents, and other contaminants that are present in the environment; or (B) available for self-service during hours when it is not under the full- time supervision of a food employee. (5) Bearings and gear boxes, leakproof. Equipment containing bearings and gears that require lubricants shall be designed and constructed so that the lubricant can not leak, drip, or be forced into food or onto food-contact surfaces. (6) Beverage tubing, separation. Beverage tubing and cold-plate beverage cooling devices may not be installed in contact with stored ice. This section does not apply to cold plates that are constructed integrally with an ice storage bin. 80 §229.165(f) §229.165(f) (7) Ice units, separation of drains. Liquid waste drain lines may not pass through an ice machine or ice storage bin. (8) Condenser unit, separation. If a condenser unit is an integral component of equipment, the condenser unit shall be separated from the food and food storage space by a dustproof barrier. (9) Can openers on vending machines. Cutting or piercing parts of can openers on vending machines shall be protected from manual contact, dust, insects, rodents, and other contamination. (10) Molluscan shellfish tanks. (A) Except as specified under subparagraph (B) of this paragraph, molluscan shellfish life support system display tanks may not be used to display shellfish that are offered for human consumption and shall be conspicuously marked so that it is obvious to the consumer that the shellfish are for display only. (B) Molluscan shellfish life-support system display tanks that are used to store and display shellfish that are offered for human consumption shall be operated and maintained in accordance with a HACCP plan that: (i) is submitted by the permit holder and approved by the regulatory authority as specified under §229.171(c) of this title (relating to Compliance and Enforcement); and (ii) ensures that: (I) water used with fish other than molluscan shellfish does not flow into the molluscan tank; (II) the safety and quality of the shellfish as they were received are not compromised by the use of the tank; and (III) the identity of the source of the shellstock is retained as specified under §229.164(d)(5) of this title (relating to Food), and the source information is displayed with the shellstock as required in §229.164(c)(8) of this title. (11) Vending machines, automatic shutoff. (A) A machine vending potentially hazardous food shall have an automatic control that prevents the machine from vending food: 81 §229.165(f) §229.165(f) (i) if there is a power failure, mechanical failure, or other condition that results in an internal machine temperature that can not maintain food temperatures as specified under §229.164 of this title; and (ii) if a condition specified under clause (i) of this subparagraph occurs, until the machine is serviced and restocked with food that has been maintained at temperatures specified under Chapter 3. (B) When the automatic shutoff within a machine vending potentially hazardous food is activated: (i) in a refrigerated vending machine, the ambient temperature may not exceed any time/temperature combination as specified under §229.164(o)(6)(B) of this title for more than 30 minutes immediately after the machine is filled, serviced, or restocked; or (ii) in a hot holding vending machine, the ambient temperature may not be less than 57 degrees Celsius (135 degrees Fahrenheit) for more than 120 minutes immediately after the machine is filled, serviced, or restocked. (12) Temperature measuring devices. (A) In a mechanically refrigerated or hot food storage unit, the sensor of a temperature measuring device shall be located to measure the air temperature or a simulated product temperature in the warmest part of a mechanically refrigerated unit and in the coolest part of a hot food storage unit. (B) Except as specified in subparagraph (C) of this paragraph, cold or hot holding equipment used for potentially hazardous food shall be designed to include and shall be equipped with at least one integral or permanently affixed temperature measuring device that is located to allow easy viewing of the device’s temperature display. (C) Subparagraph (B) of this paragraph does not apply to equipment for which the placement of a temperature measuring device is not a practical means for measuring the ambient air surrounding the food because of the design, type, and use of the equipment, such as calrod units, heat lamps, cold plates, bainmaries, steam tables, insulated food transport containers, and salad bars. (D) Temperature measuring devices shall be designed to be easily readable. (E) Food temperature measuring device and water temperature measuring device on warewashing machines shall have a numerical scale, printed record, or digital readout in increments no greater than 1 degrees Celsius or 2 degrees Fahrenheit in the intended range of use. 82 §229.165(f) §229.165(f) (13) Warewashing machine, data plate operating specifications. A warewashing machine shall be provided with an easily accessible and readable data plate affixed to the machine by the manufacturer that indicates the machines design and operating specifications including the: (A) temperatures required for washing, rinsing, and sanitizing; (B) pressure required for the fresh water sanitizing rinse unless the machine is designed to use only a pumped sanitizing rinse; and (C) conveyor speed for conveyor machines or cycle time for stationary rack machines. (14) Warewashing machines, internal baffles. Warewashing machine wash and rinse tanks shall be equipped with baffles, curtains, or other means to minimize internal cross contamination of the solutions in wash and rinse tanks. (15) Warewashing machines, temperature measuring devices. A warewashing machine shall be equipped with a temperature measuring device that indicates the temperature of the water: (A) in each wash and rinse tank; and (B) as the water enters the hot water sanitizing final rinse manifold or in the chemical sanitizing solution tank. (16) Manual warewashing equipment, heaters and baskets. If hot water is used for sanitization in manual warewashing operations, the sanitizing compartment of the sink shall be: (A) designed with an integral heating device that is capable of maintaining water at a temperature not less than 77 degrees Celsius (171 degrees Fahrenheit ); and (B) provided with a rack or basket to allow complete immersion of equipment and utensils into the hot water. (17) Warewashing machines, automatic dispensing of detergents and sanitizers. A warewashing machine that is installed after adoption of these rules by the regulatory authority, shall be equipped to: (A) automatically dispense detergents and sanitizers; and 83 §229.165(f) §229.165(f) (B) incorporate a visual means to verify that detergents and sanitizers are delivered or a visual or audible alarm to signal if the detergents and sanitizers are not delivered to the respective washing and sanitizing cycles. (18) Warewashing machines, flow pressure device. (A) Warewashing machines that provide a fresh hot water sanitizing rinse shall be equipped with a pressure gauge or similar device such as a transducer that measures and displays the water pressure in the supply line immediately before entering the warewashing machine. (B) If the flow pressure measuring device is upstream of the fresh hot water sanitizing rinse control valve, the device shall be mounted in a 6.4 millimeter or one-fourth inch Iron Pipe Size (IPS) valve. (C) Subparagraphs (A) and (B) of this paragraph do not apply to a machine that uses only a pumped or recirculated sanitizing rinse. (19) Warewashing sinks and drainboards, self-draining. Sinks and drainboards of warewashing sinks and machines shall be self-draining. (20) Equipment compartments, drainage. Equipment compartments that are subject to accumulation of moisture due to conditions such as condensation, food or beverage drip, or water from melting ice shall be sloped to an outlet that allows complete draining. (21) Vending machines, liquid waste products. (A) Vending machines designed to store beverages that are packaged in containers made from paper products shall be equipped with diversion devices and retention pans or drains for container leakage. (B) Vending machines that dispense liquid food in bulk shall be: (i) provided with an internally mounted waste receptacle for the collection of drip, spillage, overflow, or other internal wastes; and (ii) equipped with an automatic shutoff device that will place the machine out of operation before the waste receptacle overflows. (C) Shutoff devices specified under subparagraph (B)(ii) of this paragraph shall prevent water or liquid food from continuously running if there is a failure of a flow control device in the water or liquid food system or waste accumulation that could lead to overflow of the waste receptacle. 84 §229.165(f) §229.165(g) (22) Case lot handling equipment, moveability. Equipment, such as dollies, pallets, racks, and skids used to store and transport large quantities of packaged foods received from a supplier in a cased or overwrapped lot, shall be designed to be moved by hand or by conveniently available equipment such as hand trucks and forklifts. (23) Vending machine doors and openings. (A) Vending machine doors and access opening covers to food and container storage spaces shall be tight-fitting so that the space along the entire interface between the doors or covers and the cabinet of the machine, if the doors or covers are in a closed position, is no greater than 1.5 millimeters or one-sixteenth inch by: (i) being covered with louvers, screens, or materials that provide an equivalent opening of not greater than 1.5 millimeters or one-sixteenth inch. Screening of 12 or more mesh to 2.5 centimeters (12 mesh to 1 inch) meets this requirement; (ii) being effectively gasketed; (iii) having interface surfaces that are at least 13 millimeters or one-half inch wide; or (iv) jambs or surfaces used to form an L-shaped entry path to the interface. (B) Vending machine service connection openings through an exterior wall of a machine shall be closed by sealants, clamps, or grommets so that the openings are no larger than 1.5 millimeters or one-sixteenth inch. (24) Food equipment certification, classification, acceptability. Food equipment that is certified or classified for sanitation by an American National Standards Institute (ANSI)- accredited certification program will be deemed to comply with subsections (a)-(f) of this section. (g) Equipment, numbers and capacities. (1) Cooling, heating, and holding capacities. Equipment for cooling and heating food, and holding cold and hot food, shall be sufficient in number and capacity to provide food temperatures as specified under §229.164 of this title. (2) Manual warewashing, sink compartment requirements. (A) Except as specified in subparagraph (C) of this paragraph, a sink with at least three compartments shall be provided for manually washing, rinsing, and sanitizing equipment and utensils. 85 §229.165(g) §229.165(g) (B) Sink compartments shall be large enough to accommodate immersion of the largest equipment and utensils. If equipment or utensils are too large for the warewashing sink, a warewashing machine or alternative equipment as specified in subparagraph (C) of this paragraph shall be used. (C) Alternative manual warewashing equipment may be used when there are special cleaning needs or constraints and its use is approved. Alternative manual warewashing equipment may include: (i) high-pressure detergent sprayers; (ii) low- or line-pressure spray detergent foamers; (iii) other task-specific cleaning equipment; (iv) brushes or other implements; (v) two-compartment sinks as specified under subparagraphs (D) and (E) of this paragraph; or (vi) receptacles that substitute for the compartments of a multicompartment sink. (D) Before a two-compartment sink is used: (i) it must be approved by the regulatory authority; and (ii) the permit holder shall limit the number of kitchenware items cleaned and sanitized in the two-compartment sink, and shall limit warewashing to batch operations for cleaning kitchenware such as between cutting one type of raw meat and another or cleanup at the end of a shift, and shall: (I) make up the cleaning and sanitizing solutions immediately before use and drain them immediately after use; and (II) use a detergent-sanitizer to sanitize and apply the detergent-sanitizer in accordance with the manufacturer’s label instructions and as specified under subsection (k)(15) of this section; or (III) use a hot water sanitization immersion step as specified under subsection (o)(6)(C) of this section. 86 §229.165(g) §229.165(i) (E) A two-compartment sink may not be used for warewashing operations where cleaning and sanitizing solutions are used for a continuous or intermittent flow of kitchenware or tableware in an ongoing warewashing process. (3) Drainboards. Drainboards, utensil racks, or tables large enough to accommodate all soiled and cleaned items that may accumulate during hours of operation shall be provided for necessary utensil holding before cleaning and after sanitizing. (4) Ventilation hood systems, adequacy. Ventilation hood systems and devices shall be sufficient in number and capacity to prevent grease or condensation from collecting on walls and ceilings. (5) Clothes washers and dryers. (A) Except as specified in subparagraph (B) of this paragraph, if work clothes or linens are laundered on the premises, a mechanical clothes washer and dryer shall be provided and used. (B) If on-premises laundering is limited to wiping cloths intended to be used moist, or wiping cloths are air-dried as specified under subsection (n)(2) of this section, a mechanical clothes washer and dryer need not be provided. (h) Utensils, temperature measuring devices, and testing devices. (1) Utensils, consumer self-service. A food dispensing utensil shall be available for each container displayed at a consumer self-service unit such as a buffet or salad bar. (2) Food temperature measuring devices. Food temperature measuring device shall be provided and readily accessible for use in ensuring attainment and maintenance of food temperatures as specified under §229.164 of this title. (3) A temperature measuring device with a suitable small-diameter probe that is designed to measure the temperature of thin masses shall be provided and readily accessible to accurately measure the temperature in thin foods such as meat patties and fish filets. (4) Temperature measuring devices, manual warewashing. In manual warewashing operations, a temperature measuring device shall be provided and readily accessible for frequently measuring the washing and sanitizing temperatures. (5) Sanitizing solutions, testing devices. A test kit or other device that accurately measures the concentration in mg/L of sanitizing solutions shall be provided. (i) Location of equipment, clothes washers and dryers, and storage cabinets. 87 §229.165(i) §229.165(j) (1) Except as specified in paragraph (2) of this subsection, equipment, a cabinet used for the storage of food, or a cabinet that is used to store cleaned and sanitized equipment, utensils, laundered linens, and single-service and single-use articles may not be located: (A) in locker rooms; (B) in toilet rooms; (C) in garbage rooms; (D) in mechanical rooms; (E) under sewer lines that are not shielded to intercept potential drips; (F) under leaking water lines including leaking automatic fire sprinkler heads or under lines on which water has condensed; (G) under open stairwells; or (H) under other sources of contamination. (2) Linen, single-service, single-use item exception. A storage cabinet used for linens or single-service or single-use articles may be stored in a locker room. (3) Clothes washer and dryer location requirements. If a mechanical clothes washer or dryer is provided, it shall be located so that the washer or dryer is protected from contamination and only where there is no exposed food; clean equipment, utensils, and linens; and unwrapped single-service and single-use articles. (j) Installation, fixed equipment. (1) Fixed equipment, spacing or sealing. (A) Equipment that is fixed because it is not easily movable shall be installed so that it is: (i) spaced to allow access for cleaning along the sides, behind, and above the equipment; (ii) spaced from adjoining equipment, walls, and ceilings a distance of not more than one millimeter or one thirty-second inch; or (iii) sealed to adjoining equipment or walls, if the equipment is exposed to spillage or seepage. 88 §229.165(j) §229.165(k) (B) Table-mounted equipment that is not easily movable shall be installed to allow cleaning of the equipment and areas underneath and around the equipment by being: (i) sealed to the table; or (ii) elevated on legs as specified under paragraph (2)(D) of this subsection. (2) Fixed equipment, elevation or sealing. (A) Except as specified in subparagraphs (B) and (C) of this paragraph, floor-mounted equipment that is not easily movable shall be sealed to the floor or elevated on legs that provide at least a 15-centimeter (6-inch) clearance between the floor and the equipment. (B) If no part of the floor under the floor-mounted equipment is more than 15 centimeters (6 inches) from the point of cleaning access, the clearance space may be only 10 centimeters (4 inches). (C) This section does not apply to display shelving units, display refrigeration units, and display freezer units located in the consumer shopping areas of a retail food store, if the floor under the units is maintained clean. (D) Except as specified in subparagraph (E) of this paragraph, table- mounted equipment that is not easily movable shall be elevated on legs that provide at least a 10- centimeter (4-inch) clearance between the table and the equipment. (E) The clearance space between the table and table-mounted equipment may be: (i) 7.5 centimeters (3 inches) if the horizontal distance of the table top under the equipment is no more than 50 centimeters (20 inches) from the point of access for cleaning; or (ii) 5 centimeters (2 inches) if the horizontal distance of the table top under the equipment is no more than 7.5 centimeters (3 inches) from the point of access for cleaning. (k) Equipment, maintenance and operation. (1) Good repair and proper adjustment. (A) Equipment shall be maintained in a state of repair and condition that meets the requirements specified under subsections (a) and (b) of this section. 89 §229.165(k) §229.165(k) (B) Equipment components such as doors, seals, hinges, fasteners, and kick plates shall be kept intact, tight, and adjusted in accordance with manufacturers specifications. (C) Cutting or piercing parts of can openers shall be kept sharp to minimize the creation of metal fragments that can contaminate food when the container is opened. (2) Cutting surfaces. Surfaces such as cutting blocks and boards that are subject to scratching and scoring shall be resurfaced if they can no longer be effectively cleaned and sanitized, or discarded if they are not capable of being resurfaced. (3) Microwave ovens. Microwave ovens shall meet the safety standards specified in 21 CFR §1030.10, Microwave Ovens. (4) Warewashing equipment, cleaning frequency. A warewashing machine; the compartments of sinks, basins, or other receptacles used for washing and rinsing equipment, utensils, or raw foods, or laundering wiping cloths; and drainboards or other equipment used to substitute for drainboards as specified under subsection (g)(3) of this section shall be cleaned: (A) before use; (B) throughout the day at a frequency necessary to prevent recontamination of equipment and utensils and to ensure that the equipment performs its intended function; and (C) if used, at least every 24 hours. (5) Warewashing machines, manufacturers operating instructions. (A) A warewashing machine and its auxiliary components shall be operated in accordance with the machines data plate and other manufacturer’s instructions. (B) A warewashing machines conveyor speed or automatic cycle times shall be maintained accurately timed in accordance with manufacturers specifications. (6) Warewashing sinks, use limitation. (A) A warewashing sink may not be used for handwashing as specified under §229.163(i) of this title (relating to Management and Personnel) or dumping mop water. (B) If a warewashing sink is used to wash wiping cloths, wash produce, or thaw food, the sink shall be cleaned as specified under paragraph (4) of this section before and after each time it is used to wash wiping cloths or wash produce or thaw food. Sinks used to 90 §229.165(k) §229.165(k) wash or thaw food shall be sanitized as specified under subsections (p)-(r) of this section before and after using the sink to wash produce or thaw food. (7) Warewashing equipment, cleaning agents. When used for warewashing, the wash compartment of a sink, mechanical warewasher, or wash receptacle of alternative manual warewashing equipment as specified in subsection (g)(2)(C) of this section, shall contain a wash solution of soap, detergent, acid cleaner, alkaline cleaner, degreaser, abrasive cleaner, or other cleaning agent according to the cleaning agent manufacturers label instructions. (8) Warewashing equipment, clean solutions. The wash, rinse, and sanitize solutions shall be maintained clean. (9) Manual warewashing equipment, wash solution temperature. The temperature of the wash solution in manual warewashing equipment shall be maintained at not less than 43 degrees Celsius (110 degrees Fahrenheit) or the temperature specified on the cleaning agent manufacturer’s label instructions. (10) Mechanical warewashing equipment, wash solution temperature. (A) The temperature of the wash solution in spray type warewashers that use hot water to sanitize may not be less than: (i) for a stationary rack, single temperature machine, 74 degrees Celsius (165 degrees Fahrenheit ); (ii) for a stationary rack, dual temperature machine, 66 degrees Celsius (150 degrees Fahrenheit ); (iii) for a single tank, conveyor, dual temperature machine, 71 degrees Celsius (160 degrees Fahrenheit ); or (iv) for a multitank, conveyor, multitemperature machine, 66 degrees Celsius (150 degrees Fahrenheit ). (B) The temperature of the wash solution in spray-type warewashers that use chemicals to sanitize may not be less than 49 degrees Celsius (120 degrees Fahrenheit ). (11) Manual warewashing equipment, hot water sanitization temperatures. If immersion in hot water is used for sanitizing in a manual operation, the temperature of the water shall be maintained at 77 degrees Celsius (171 degrees Fahrenheit ) or above. (12) Mechanical warewashing equipment, hot water sanitization temperatures. 91 §229.165(k) §229.165(k) (A) Except as specified in subparagraph (B) of this paragraph, in a mechanical operation, the temperature of the fresh hot water sanitizing rinse as it enters the manifold may not be more than 90 degrees Celsius (194 degrees Fahrenheit ), or less than: (i) for a stationary rack, single temperature machine, 74 degrees Celsius (165 degrees Fahrenheit ); or (ii) for all other machines, 82 degrees Celsius (180 degrees Fahrenheit ). (B) The maximum temperature specified under subparagraph (A) of this paragraph, does not apply to the high pressure and temperature systems with wand-type, hand- held, spraying devices used for the in-place cleaning and sanitizing of equipment such as meat saws. (13) Mechanical warewashing equipment, sanitization pressure. The flow pressure of the fresh hot water sanitizing rinse in a warewashing machine may not be less than 100 kilopascals (15 pounds per square inch) or more than 170 kilopascals (25 pounds per square inch) as measured in the water line immediately downstream or upstream from the fresh hot water sanitizing rinse control valve. (14) Manual and mechanical warewashing equipment, chemical sanitization temperature, pH, concentration, and hardness. A chemical sanitizer used in a sanitizing solution for a manual or mechanical operation at exposure times specified under subsection (r)(3) of this section shall be listed in 21 CFR §178.1010, Sanitizing Solutions, shall be used in accordance with the EPA-approved manufacturer’s label use instructions, and shall be used as follows: (A) a chlorine solution shall have a minimum temperature based on the concentration and pH of the solution as listed in the following chart; Figure: 25 TAC §229.165(k)(14)(A) Minimum Concentration Minimum Temperature mg/L pH 10 or less ”C (”F ) pH 8 or less ”C (”F ) 25 49 (120) 49 (120) 50 38 (100) 24 (75) 100 13 (55) 13 (55) 92 §229.165(k) §229.165(l) (B) an iodine solution shall have a: (i) minimum temperature of 24 degrees Celsius (75 degrees Fahrenheit); (ii) pH of 5.0 or less or a pH no higher than the level for which the manufacturer specifies the solution is effective; and (iii) concentration between 12.5 mg/L and 25 mg/L; (C) a quaternary ammonium compound solution shall: (i) have a minimum temperature of 24 degrees Celsius (75 degrees Fahrenheit); (ii) have a concentration as specified under §229.168(f)(1) of this title (relating to Poisonous or Toxic Materials) and as indicated by the manufacturer’s use directions included in the labeling; and (iii) be used only in water with 500 mg/L hardness or less or in water having a hardness no greater than specified by the manufacturers label; (D) if another solution of a chemical specified under subparagraphs (A)- (C) of this paragraph is used, the permit holder shall demonstrate to the regulatory authority that the solution achieves sanitization and the use of the solution shall be approved; or (E) if a chemical sanitizer other than chlorine, iodine, or a quaternary ammonium compound is used, it shall be applied in accordance with the manufacturers use directions included in the labeling. (15) Manual warewashing equipment, chemical sanitization using detergent- sanitizers. If a detergent-sanitizer is used to sanitize in a cleaning and sanitizing procedure where there is no distinct water rinse between the washing and sanitizing steps, the agent applied in the sanitizing step shall be the same detergent-sanitizer that is used in the washing step. (16) Warewashing equipment, determining chemical sanitizer concentration. Concentration of the sanitizing solution shall be accurately determined by using a test kit or other device. (l) Utensils and temperature and pressure measuring devices. (1) Good repair and calibration. 93 §229.165(l) §229.165(n) (A) Utensils shall be maintained in a state of repair or condition that complies with the requirements specified under subsections (a) - (f) of this section or shall be discarded. (B) Food temperature measuring device shall be calibrated in accordance with manufacturer’s specifications as necessary to ensure their accuracy. (C) Ambient air temperature, water pressure, and water temperature measuring device shall be maintained in good repair and be accurate within the intended range of use. (2) Single-service and single-use articles, required use. A food establishment without facilities specified under subsections (m) - (r) of this section for cleaning and sanitizing kitchenware and tableware shall provide only single-use kitchenware, single-service articles, and single-use articles for use by food employees and single-service articles for use by consumers. (3) Single-service and single-use articles, use limitation. (A) Single-service and single-use articles may not be reused. (B) The bulk milk container dispensing tube shall be cut on the diagonal leaving no more than one inch protruding from the chilled dispensing head. (4) Shells, use limitation. Mollusk and crustacea shells may not be used more than once as serving containers. (m) Cleaning of equipment and utensils. (1) Equipment, food-contact surfaces, nonfood-contact surfaces, and utensils. (A) Equipment food-contact surfaces and utensils shall be clean to sight and touch. (B) The food-contact surfaces of cooking equipment and pans shall be kept free of encrusted grease deposits and other soil accumulations. (2) Nonfood-contact surfaces of equipment shall be kept free of an accumulation of dust, dirt, food residue, and other debris. (n) Frequency of cleaning. (1) Equipment food-contact surfaces and utensils. (A) Equipment food-contact surfaces and utensils shall be cleaned: 94 §229.165(n) §229.165(n) (i) except as specified in subparagraph (B) of this paragraph, before each use with a different type of raw animal food such as beef, fish, lamb, pork, or poultry; (ii) each time there is a change from working with raw foods to working with ready-to-eat foods; (iii) between uses with raw fruits and vegetables and with potentially hazardous food; (iv) before using or storing a food temperature measuring device; and (v) at any time during the operation when contamination may have occurred. (B) Subparagraph (A)(i) of this paragraph does not apply if the food- contact surface or utensil is in contact with a succession of different raw animal foods each requiring a higher cooking temperature as specified under §229.164(k)(1)(A)(iii) of this title than the previous food, such as preparing raw fish followed by cutting raw poultry on the same cutting board. (C) Except as specified in subparagraph (D) of this paragraph, if used with potentially hazardous food, equipment food-contact surfaces and utensils shall be cleaned throughout the day at least every four hours. (D) Surfaces of utensils and equipment contacting potentially hazardous food may be cleaned less frequently than every four hours if: (i) in storage, containers of potentially hazardous food and their contents are maintained at temperatures specified under §229.164 of this title and the containers are cleaned when they are empty; (ii) utensils and equipment are used to prepare food in a refrigerated room or area that is maintained at one of the temperatures in the following chart and: (I) the utensils and equipment are cleaned at the frequency in the following chart that corresponds to the temperature; and 95 §229.165(n) §229.165(n) Figure: 25 TAC §229.165(n)(1)(D)(ii)(I) Temperature Cleaning Frequency 5.0 ”C (41 ”F ) or less 24 hours >5.0 ”C - 7.2 ”C (>41 ”F - 45 ”F ) 20 hours >7.2 ”C - 10.0 ”C (>45 ”F - 50 ”F ) 16 hours >10.0 ”C - 12.8 ”C (>50 ”F - 55 ”F ) 10 hours (II) the cleaning frequency based on the ambient temperature of the refrigerated room or area is documented in the food establishment; (iii) containers in serving situations such as salad bars, delis, and cafeteria lines hold ready-to-eat potentially hazardous food that is maintained at the temperatures specified under §229.164 of this title, are intermittently combined with additional supplies of the same food that is at the required temperature, and the containers are cleaned at least every 24 hours; (iv) temperature measuring devices are maintained in contact with food, such as when left in a container of deli food or in a roast, held at temperatures specified under §229.164 of this title; (v) equipment is used for storage of packaged or unpackaged food such as a reach-in refrigerator and the equipment is cleaned at a frequency necessary to preclude accumulation of soil residues; (vi) the cleaning schedule is approved based on consideration of: (I) the characteristics of the equipment and its use; (II) the type of food involved; (III) the amount of food residue accumulation; and 96 §229.165(n) §229.165(o) (IV) the temperature at which the food is maintained during the operation and the potential for the rapid and progressive multiplication of pathogenic or toxigenic microorganisms that are capable of causing foodborne disease; or (vii) in-use utensils are intermittently stored in a container of water in which the water is maintained at 57 degrees Celsius (135 degrees Fahrenheit) or more and the utensils and container are cleaned at least every 24 hours or at a frequency necessary to preclude accumulation of soil residues. (E) Except when dry cleaning methods are used as specified under subsection (o)(1) of this section, surfaces of utensils and equipment contacting food that is not potentially hazardous shall be cleaned: (i) at any time when contamination may have occurred; (ii) at least every 24 hours for iced tea dispensers and consumer self-service utensils such as tongs, scoops, or ladles; (iii) before restocking consumer self-service equipment and utensils such as condiment dispensers and display containers; and (iv) in equipment such as ice bins and beverage dispensing nozzles and enclosed components of equipment such as ice makers, cooking oil storage tanks and distribution lines, beverage and syrup dispensing lines or tubes, coffee bean grinders, and water vending equipment: (I) at a frequency specified by the manufacturer; or (II) absent manufacturer specifications, at a frequency necessary to preclude accumulation of soil or mold. (2) Cooking and baking equipment. (A) The food-contact surfaces of cooking and baking equipment shall be cleaned at least every 24 hours. This section does not apply to hot oil cooking and filtering equipment if it is cleaned as specified in paragraph (1)(D)(vi) of this subsection. (B) The cavities and door seals of microwave ovens shall be cleaned at least every 24 hours by using the manufacturers recommended cleaning procedure. (3) Nonfood-contact surfaces. Nonfood-contact surfaces of equipment shall be cleaned at a frequency necessary to preclude accumulation of soil residues. (o) Methods of cleaning. 97 §229.165(o) §229.165(o) (1) Dry cleaning. (A) If used, dry cleaning methods such as brushing, scraping, and vacuuming shall contact only surfaces that are soiled with dry food residues that are not potentially hazardous. (B) Cleaning equipment used in dry cleaning food-contact surfaces may not be used for any other purpose. (2) Precleaning. (A) Food debris on equipment and utensils shall be scrapped over a waste disposal unit or garbage receptacle or shall be removed in a warewashing machine with a prewash cycle. (B) If necessary for effective cleaning, utensils and equipment shall be preflushed, presoaked, or scrubbed with abrasives. (3) Loading of soiled items, warewashing machines. Soiled items to be cleaned in a warewashing machine shall be loaded into racks, trays, or baskets or onto conveyors in a position that: (A) exposes the items to the unobstructed spray from all cycles; and (B) allows the items to drain. (4) Wet cleaning. (A) Equipment food-contact surfaces and utensils shall be effectively washed to remove or completely loosen soils by using the manual or mechanical means necessary such as the application of detergents containing wetting agents and emulsifiers; acid, alkaline, or abrasive cleaners; hot water; brushes; scouring pads; high-pressure sprays; or ultrasonic devices. (B) The washing procedures selected shall be based on the type and purpose of the equipment or utensil, and on the type of soil to be removed. (5) Washing, procedures for alternative manual warewashing equipment. If washing in sink compartments or a warewashing machine is impractical such as when the equipment is fixed or the utensils are too large, washing shall be done by using alternative manual warewashing equipment as specified in subsection (g)(2)(C) of this section in accordance with the following procedures: 98 §229.165(o) §229.165(o) (A) equipment shall be disassembled as necessary to allow access of the detergent solution to all parts; (B) equipment components and utensils shall be scrapped or rough cleaned to remove food particle accumulation; and (C) equipment and utensils shall be washed as specified under paragraph (4)(A) of this subsection. (6) Rinsing procedures. Washed utensils and equipment shall be rinsed so that abrasives are removed and cleaning chemicals are removed or diluted through the use of water or a detergent-sanitizer solution by using one of the following procedures: (A) use of a distinct, separate water rinse after washing and before sanitizing if using: (i) a three-compartment sink; (ii) alternative manual warewashing equipment equivalent to a three-compartment sink as specified in subsection (g)(2)(C) of this section; or (iii) a three-step washing, rinsing, and sanitizing procedure in a warewashing system for CIP equipment; (B) use of a detergent-sanitizer as specified under subsection (k)(15) of this section if using: (i) alternative warewashing equipment as specified in subsection (g)(2)(C) of this section that is approved for use with a detergent-sanitizer; or (ii) a warewashing system for CIP equipment; (C) use of a nondistinct water rinse that is integrated in the hot water sanitization immersion step of a two-compartment sink operation; (D) if using a warewashing machine that does not recycle the sanitizing solution as specified under subparagraph (E) of this paragraph, or alternative manual warewashing equipment such as sprayers, use of a nondistinct water rinse that is: (i) integrated in the application of the sanitizing solution; and (ii) washed immediately after each application; or 99 §229.165(o) §229.165(q) (E) if using a warewashing machine that recycles the sanitizing solution for use in the next wash cycle, use of a nondistinct water rinse that is integrated in the application of the sanitizing solution. (7) Returnables, cleaning for refilling. (A) Except as specified in subparagraphs (B) and (C) of this paragraph, returned empty containers intended for cleaning and refilling with food shall be cleaned and refilled in a regulated food processing plant. (B) A food-specific container for beverages may be refilled at a food establishment if: (i) only a beverage that is not a potentially hazardous food is used as specified under §229.164(h)(7)(A) of this title; (ii) the design of the container and of the rinsing equipment and the nature of the beverage, when considered together, allow effective cleaning at home or in the food establishment; (iii) facilities for rinsing before refilling returned containers with fresh, hot water that is under pressure and not recirculated are provided as part of the dispensing system; (iv) the consumer-owned container returned to the food establishment for refilling is refilled for sale or service only to the same consumer; and (v) the container is refilled by: (I) an employee of the food establishment, or (II) the owner of the container if the beverage system includes a contamination-free transfer process that can not be bypassed by the container owner. (C) Consumer-owned containers that are not food-specific may be filled at a water vending machine or system. (p) Sanitization, food-contact surfaces and utensils. Equipment food-contact surfaces and utensils shall be sanitized. (q) Sanitization frequency before use after cleaning. Utensils and food-contact surfaces of equipment shall be sanitized before use after cleaning. 100 §229.165(r) §229.165(t) (r) Sanitization methods, hot water and chemical. After being cleaned, equipment food- contact surfaces and utensils shall be sanitized in: (1) hot water manual operations by immersion for at least 30 seconds and as specified under subsection (k)(11) of this section; (2) hot water mechanical operations by being cycled through equipment that is set up as specified under subsection (k)(5), (12) and (13) of this section and achieving a utensil surface temperature of 71 degrees Celsius (160 degrees Fahrenheit) as measured by an irreversible registering temperature indicator; or (3) chemical manual or mechanical operations, including the application of sanitizing chemicals by immersion, manual swabbing, brushing, or pressure spraying methods, using a solution as specified under subsection (k)(14) of this section by providing: (A) except as specified under subparagraph (C) of this paragraph, an exposure time of at least 10 seconds for a chlorine solution specified under subsection (k)(14)(A) of this section; (B) an exposure time of at least 7 seconds for a chlorine solution of 50 mg/L that has a pH of 10 or less and a temperature of at least 38 degrees Celsius (100 degrees Fahrenheit) or a pH of 8 or less and a temperature of at least 24 degrees Celsius (75 degrees Fahrenheit); (C) An exposure time of at least 30 seconds for other chemical sanitizing solutions; or (D) An exposure time used in relationship with a combination of temperature, concentration, and pH that, when evaluated for efficacy, yields sanitization as defined in §229.162(91) of this title (relating to Definitions). (s) Laundering, clean linens. Clean linens shall be free from food residues and other soiling matter. (t) Laundering, frequency. (1) Linens that do not come in direct contact with food shall be laundered between operations if they become wet, sticky, or visibly soiled. (2) Cloth gloves used as specified in §229.164(h)(5)(D) of this title shall be laundered before being used with a different type of raw animal food such as beef, lamb, pork, and fish. 101 §229.165(t) §229.165(v) (3) Linens and napkins that are used as specified under §229.164(h)(4) of this title and cloth napkins shall be laundered between each use. (4) Wet wiping cloths shall be laundered daily. (5) Dry wiping cloths shall be laundered as necessary to prevent contamination of food and clean serving utensils. (u) Laundering, methods. (1) Storage of soiled linens. Soiled linens shall be kept in clean, nonabsorbent receptacles or clean, washable laundry bags and stored and transported to prevent contamination of food, clean equipment, clean utensils, and single-service and single-use articles. (2) Mechanical washing. (A) Except as specified in subparagraph (B) of this paragraph, linens shall be mechanically washed. (B) In food establishments in which only wiping cloths are laundered as specified in subsection (g)(5)(B) of this section, the wiping cloths may be laundered in a mechanical washer, sink designated only for laundering wiping cloths, or a warewashing or food preparation sink that is cleaned as specified under subsection (k)(14) of this section. (3) Use of laundry facilities. (A) Except as specified in subparagraph (B) of this paragraph, laundry facilities on the premises of a food establishment shall be used only for the washing and drying of items used in the operation of the establishment. (B) Separate laundry facilities located on the premises for the purpose of general laundering such as for institutions providing boarding and lodging may also be used for laundering food establishment items. (v) Drying, equipment and utensils. (1) Equipment and utensils, air-drying required. After cleaning and sanitizing, equipment and utensils: (A) shall be air-dried or used after adequate draining as specified in paragraph (a) of 21 CFR §178.1010, Sanitizing Solutions, before contact with food; and (B) may not be cloth dried except that utensils that have been air-dried may be polished with cloths that are maintained clean and dry. 102 §229.165(v) §229.165(x) (2) Wiping cloths, air-drying locations. Wiping cloths laundered in a food establishment that does not have a mechanical clothes dryer as specified in subsection (g)(5)(B) of this section shall be air-dried in a location and in a manner that prevents contamination of food, equipment, utensils, linens, and single-service and single-use articles and the wiping cloths. This section does not apply if wiping cloths are stored after laundering in a sanitizing solution as specified under subsection (k)(14) of this section. (w) Lubricating and reassembling of food-contact surfaces, equipment. (1) Food-contact surfaces. Lubricants shall be applied to food-contact surfaces that require lubrication in a manner that does not contaminate food-contact surfaces. (2) Equipment. Equipment shall be reassembled so that food-contact surfaces are not contaminated. (x) Storage. (1) Equipment, utensils, linens, and single-service and single-use articles. (A) Except as specified in subparagraph (D) of this paragraph, cleaned equipment and utensils, laundered linens, and single-service and single-use articles shall be stored: (i) in a clean, dry location; (ii) where they are not exposed to splash, dust, or other contamination; and (iii) at least 15 cm (6 inches) above the floor. (B) Clean equipment and utensils shall be stored as specified under subparagraph (A) of this paragraph and shall be stored: (i) in a self-draining position that allows air drying; and (ii) covered or inverted. (C) Single-service and single-use articles shall be stored as specified under subparagraph (A) of this paragraph and shall be kept in the original protective package or stored by using other means that afford protection from contamination until used. (D) Items that are kept in closed packages may be stored less than 15 cm (6 inches) above the floor on dollies, pallets, racks, and skids that are designed as specified under subsection (f)(22) of this section. 103 §229.165(x) §229.165(y) (2) Storage prohibitions. (A) Except as specified in subparagraph (B) of this paragraph, cleaned and sanitized equipment, utensils, laundered linens, and single-service and single-use articles may not be stored: (i) in locker rooms; (ii) in toilet rooms; (iii) in garbage rooms; (iv) in mechanical rooms; (v) under sewer lines that are not shielded to intercept potential drips; (vi) under leaking water lines including leaking automatic fire sprinkler heads or under lines on which water has condensed; (vii) under open stairwells; or (viii) under other sources of contamination. (B) Laundered linens and single-service and single-use articles that are packaged or in a facility such as a cabinet may be stored in a locker room. (y) Handling of utensils, single service articles. (1) Kitchenware and tableware. (A) Single-service and single-use articles and cleaned and sanitized utensils shall be handled, displayed, and dispensed so that contamination of food- and lip-contact surfaces is prevented. (B) Knives, forks, and spoons that are not prewrapped shall be presented so that only the handles are touched by employees and by consumers if consumer self-service is provided. (C) Except as specified under subparagraph (B) of this paragraph, single- service articles that are intended for food- or lip-contact shall be furnished for consumer self- service with the original individual wrapper intact or from an approved dispenser. 104 §229.165(y) §229.165(y) (2) Soiled and clean tableware. Soiled tableware shall be removed from consumer eating and drinking areas and handled so that clean tableware is not contaminated. (3) Preset tableware. If tableware is preset: (A) it shall be protected from contamination by being wrapped, covered, or inverted; (B) exposed, unused settings shall be removed when a consumer is seated; or (C) exposed, unused settings shall be cleaned and sanitized before further use if the settings are not removed when a consumer is seated. 105 §229.166(a) §229.166(b) §229.166. Water, Plumbing, and Waste. (a) Source. (1) Approved system. Drinking water shall be obtained from an approved source that is: (A) a public water system; or (B) a nonpublic water system that is constructed, maintained, and operated according to law. (2) System flushing and disinfection. A drinking water system shall be flushed and disinfected before being placed in service after construction, repair, or modification and after an emergency situation, such as a flood, that may introduce contaminants to the system. (3) Bottled drinking water. Bottled drinking water used or sold in a food establishment shall be obtained from approved sources in accordance with 21 CFR 129 - Processing and Bottling of Bottled Drinking Water. (b) Water quality standards. (1) Public and private water systems. Except as specified under §229.166(b)(2): (A) Water from a public water system shall meet 40 CFR 141 - National Primary Drinking Water Regulations, and state drinking water quality standards in accordance with 30 TAC §§290.101 - 290.114, 290.117 - 290.119, 290.121, and 290.122 (Drinking Water Standards Governing Drinking Water Quality and Reporting Requirement for Public Water Systems); and (B) Water from a nonpublic water system shall meet state drinking water quality standards. (2) Nondrinking water. (A) A nondrinking water supply shall be used only if its use is approved by the regulatory authority. (B) Nondrinking water shall be used only for nonculinary purposes such as air conditioning, nonfood equipment cooling, fire protection, and irrigation. (3) Sampling. Except when used as specified under paragraph (2) of this subsection, water from a nonpublic water system shall be sampled and tested at least annually and as required by state water quality regulations. 106 §229.166(b) §229.166(d) (4) Sample report. The most recent sample report for the nonpublic water system shall be retained on file in the food establishment or the report shall be maintained as specified by state water quality regulations. (c) Water quantity and availability. (1) Capacity. The water source and system shall be of sufficient capacity to meet the peak water demands of the food establishment. (2) Pressure. Water under pressure shall be provided to all fixtures, equipment, and nonfood equipment that are required to use water except that water supplied as specified under subsection (d)(2)(A) and (B) of this section to a temporary food establishment or in response to a temporary interruption of a water supply need not be under pressure. (3) Hot water. Hot water generation and distribution systems shall be sufficient to meet the peak hot water demands throughout the food establishment. (d) Water distribution, delivery, and retention systems. (1) Distribution. Water shall be received from the source through the use of: (A) an approved public water main; or (B) one or more of the following that shall be constructed, maintained, and operated according to law: (i) nonpublic water main, water pumps, pipes, hoses, connections, and other appurtenances; (ii) water transport vehicles; and (iii) water containers. (2) Alternative water supply. Water meeting the requirements specified under subsections (a) - (c) of this section shall be made available for a mobile facility, for a temporary food establishment without a permanent water supply, and for a food establishment with a temporary interruption of its water supply through: (A) a supply of containers of commercially bottled drinking water; (B) one or more closed portable water containers; (C) an enclosed vehicular water tank; 107 §229.166(d) §229.166(f) (D) an on-premises water storage tank; or (E) piping, tubing, or hoses connected to an adjacent approved source. (e) Plumbing systems, approved materials. (1) Construction. A plumbing system and hoses conveying water shall be constructed and repaired with approved materials according to law. (2) Water filter. A water filter shall be made of safe materials. (f) Plumbing design, construction, and installation. (1) Approved system and cleanable fixtures. (A) A plumbing system shall be designed, constructed, and installed according to law. (B) A plumbing fixture such as a handwashing facility, toilet, or urinal shall be easily cleanable. (2) Handwashing facility, installation. (A) A handwashing lavatory shall be equipped to provide water at a temperature of at least 38 degrees Celsius (100 degrees Fahrenheit) through a mixing valve or combination faucet. (B) A steam mixing valve may not be used at a handwashing lavatory. (C) A self-closing, slow-closing, or metering faucet shall provide a flow of water for at least 15 seconds without the need to reactivate the faucet. (3) An automatic handwashing facility shall be installed in accordance with manufacturer’s instructions. (4) Backflow prevention, air gap. An air gap between the water supply inlet and the flood level rim of the plumbing fixture, equipment, or nonfood equipment shall be at least twice the diameter of the water supply inlet and may not be less than 25 mm (1 inch). (5) Backflow prevention device, design standard. A backflow or backsiphonage prevention device installed on a water supply system shall meet American Society of Sanitary Engineering (ASSE) standards for construction, installation, maintenance, inspection, and testing for that specific application and type of device. 108 §229.166(f) §229.166(g) (6) Conditioning device, design. A water filter, screen, and other water conditioning device installed on water lines shall be designed to facilitate disassembly for periodic servicing and cleaning. A water filter element shall be of the replaceable type. (g) Plumbing, numbers and capacities. (1) Handwashing facilities. (A) Except as specified in subparagraph (B) of this paragraph, at least one handwashing lavatory, a number of handwashing lavatories necessary for their convenient use by employees in areas specified under subsection (h)(1) of this section, and not fewer than the number of handwashing lavatories required by law shall be provided. (B) If approved and capable of removing the types of soils encountered in the food operations involved, automatic handwashing facilities may be substituted for handwashing lavatories in a food establishment that has at least one handwashing lavatory. (2) Toilets and urinals. At least one toilet and not fewer than the toilets required by law shall be provided. If authorized by law and urinals are substituted for toilets, the substitution shall be done as specified in law. (3) Service sink. At least one service sink or one curbed cleaning facility equipped with a floor drain shall be provided and conveniently located for the cleaning of mops or similar wet floor cleaning tools and for the disposal of mop water and similar liquid waste. (4) Backflow prevention device, when required. A plumbing system shall be installed to preclude backflow of a solid, liquid, or gas contaminant into the water supply system at each point of use at the food establishment, including on a hose bibb if a hose is attached or on a hose bibb if a hose is not attached and backflow prevention is required by law, by: (A) providing an air gap as specified under subsection (f)(4) of this section; or (B) installing an approved backflow prevention device as specified under subsection (f)(5) of this section. (5) Backflow prevention device, carbonator. (A) If not provided with an air gap as specified under subsection (f)(4) of this section, a double check valve with an intermediate vent preceded by a screen of not less than 100 mesh to 25.4mm (100 mesh to 1 inch) shall be installed upstream from a carbonating device and downstream from any copper in the water supply line. 109 §229.166(g) §229.166(i) (B) A single or double check valve attached to the carbonator need not be of the vented type if an air gap or vented backflow prevention device has been otherwise provided as specified under subparagraph (A) of this paragraph. (h) Plumbing, location and placement. (1) Handwashing facilities. A handwashing facility shall be located: (A) to allow convenient use by employees in food preparation, food dispensing, and warewashing areas; and (B) in, or immediately adjacent to, toilet rooms. (2) Backflow prevention device, location. A backflow prevention device shall be located so that it may be serviced and maintained. (3) Conditioning device, location. A water filter, screen, and other water conditioning device installed on water lines shall be located to facilitate disassembly for periodic servicing and cleaning. (i) Plumbing, operation and maintenance. (1) Using a handwashing facility. (A) A handwashing facility shall be maintained so that it is accessible at all times for employee use. (B) A handwashing facility may not be used for purposes other than handwashing. (C) An automatic handwashing facility shall be used in accordance with manufacturer’s instructions. (2) Prohibiting a cross connection. (A) Except as specified in 9 CFR §308.3(d), and 30 TAC §290.44(h) for firefighting, a person may not create a cross connection by connecting a pipe or conduit between the drinking water system and a nondrinking water system or a water system of unknown quality. (B) The piping of a nondrinking water system shall be durably identified so that it is readily distinguishable from piping that carries drinking water. (3) Scheduling inspection and service for a water system device. A device such as a water treatment device or backflow preventer shall be scheduled for inspection and service, in 110 §229.166(i) §229.166(i) accordance with manufacturer’s instructions and as necessary to prevent device failure based on local water conditions, and records demonstrating inspection and service shall be maintained by the person in charge. (4) Water reservoir of fogging devices, cleaning. (A) A reservoir that is used to supply water to a device such as a produce fogger shall be: (i) maintained in accordance with manufacturer’s specifications; and (ii) cleaned in accordance with manufacturer’s specifications or according to the procedures specified under subparagraph (B) of this paragraph, whichever is more stringent. (B) Cleaning procedures shall include at least the following steps and shall be conducted at least once a week: (i) draining and complete disassembly of the water and aerosol contact parts; (ii) brush-cleaning the reservoir, aerosol tubing, and discharge nozzles with a suitable detergent solution; (iii) flushing the complete system with water to remove the detergent solution and particulate accumulation; and (iv) rinsing by immersing, spraying, or swabbing the reservoir, aerosol tubing, and discharge nozzles with at least 50 mg/L hypochlorite solution. (5) System maintained in good repair. A plumbing system shall be: (A) repaired according to law; and (B) maintained in good repair. (6) Mobile water tank and mobile food establishment water tank. (A) Materials, approved. Materials that are used in the construction of a mobile water tank, mobile food establishment water tank, and appurtenances shall be: (i) safe; 111 §229.166(i) §229.166(i) (ii) durable, corrosion-resistant, and nonabsorbent; and (iii) finished to have a smooth, easily cleanable surface. (B) Tank design and construction. A mobile water tank shall be: (i) enclosed from the filling inlet to the discharge outlet; and (ii) sloped to an outlet that allows complete drainage of the tank. (C) Tank inspection and cleaning port, protected and secured. If a water tank is designed with an access port for inspection and cleaning, the opening shall be in the top of the tank and: (i) flanged upward at least 13 mm (one-half inch); and (ii) equipped with a port cover assembly that is: (I) provided with a gasket and a device for securing the cover in place; and (II) flanged to overlap the opening and sloped to drain. (D) "V" type threads, use limitation. A fitting with "V" type threads on a water tank inlet or outlet shall be allowed only when a hose is permanently attached. (E) Tank vent, protected. If provided, a water tank vent shall terminate in a downward direction and shall be covered with: (i) 16 mesh to 25.4 mm (16 mesh to 1 inch) screen or equivalent when the vent is in a protected area; or (ii) a protective filter when the vent is in an area that is not protected from windblown dirt and debris. (F) Tank inlet and outlet, sloped to drain. (i) A water tank and its inlet and outlet shall be sloped to drain. (ii) A water tank inlet shall be positioned so that it is protected from contaminants such as waste discharge, road dust, oil, or grease. (G) Tank hose, construction and identification. A hose used for conveying drinking water from a water tank shall be: 112 §229.166(i) §229.166(i) (i) safe; (ii) durable, corrosion-resistant, and nonabsorbent; (iii) resistant to pitting, chipping, crazing, scratching, scoring, distortion, and decomposition; (iv) finished with a smooth interior surface; and (v) clearly and durably identified as to its use if not permanently attached. (H) Tank filter, compressed air. A filter that does not pass oil or oil vapors shall be installed in the air supply line between the compressor and drinking water system when compressed air is used to pressurize the water tank system. (I) Protective cover or device. A cap and keeper chain, closed cabinet, closed storage tube, or other approved protective cover or device shall be provided for a water inlet, outlet, and hose. (J) Mobile food establishment tank inlet. A mobile food establishment’s water tank inlet shall be: (i) 19.1 mm (three-fourths inch) in inner diameter or less; and (ii) provided with a hose connection of a size or type that will prevent its use for any other service. (K) Operation and maintenance, system flushing and disinfection. A water tank, pump, and hoses shall be flushed and sanitized before being placed in service after construction, repair, modification, and periods of nonuse. (L) Using a pump and hoses, backflow prevention. A person shall operate a water tank, pump, and hoses so that backflow and other contamination of the water supply are prevented. (M) Protecting inlet, outlet, and hose fitting. If not in use, a water tank and hose inlet and outlet fitting shall be protected using a cover or device as specified in subparagraph (I) of this paragraph. (N) Tank, pump, and hoses, dedication. 113 §229.166(i) §229.166(k) (i) Except as specified in subparagraph (B) of this paragraph, a water tank, pump, and hoses used for conveying drinking water shall be used for no other purpose. (ii) Water tanks, pumps, and hoses approved for liquid foods may be used for conveying drinking water if they are cleaned and sanitized before they are used to convey water. (j) Sewage retention, drainage, and delivery. (1) Food establishment drainage systems, including grease traps, that convey sewage shall be designed and installed as specified under subsection (f)(1)(A) of this section. (2) Backflow prevention. (A) Except as specified in subparagraphs (B) and (C) of this paragraph, a direct connection may not exist between the sewage system and a drain originating from equipment in which food, portable equipment, or utensils are placed. (B) If allowed by law, a warewashing machine may have a direct connection between its waste outlet and a floor drain when the machine is located within 1.5 m (5 feet) of a trapped floor drain and the machine outlet is connected to the inlet side of a properly vented floor drain trap. (C) If allowed by law, a warewashing or culinary sink may have a direct connection. (3) Grease trap. If used, a grease trap shall be located to be easily accessible for cleaning, operation, and maintenance. (4) Conveying sewage. Sewage shall be conveyed to the point of disposal through an approved sanitary sewage system or other system, including use of sewage transport vehicles, waste retention tanks, pumps, pipes, hoses, and connections that are constructed, maintained, and operated according to law. (k) Disposal facility. (1) Approved sewage disposal system. Sewage shall be disposed through an approved facility that is: (A) a public sewage treatment plant; or (B) an individual sewage disposal system that is sized, constructed, maintained, and operated according to law. 114 §229.166(k) §229.166(l) (2) Other liquid wastes and rainwater. Condensate drainage and other nonsewage liquids and rainwater shall be drained from point of discharge to disposal according to law. (l) Storage facilities on the premises. (1) Indoor storage area. If located within the food establishment, a storage area for refuse, recyclables, and returnables shall meet the requirements specified under §229.167(a), (c)(1) - (8), (d)(5) and (6) of this title (relating to Physical Facilities). (2) Outdoor storage surface. An outdoor storage surface for refuse, recyclables, and returnables shall be constructed of nonabsorbent material such as concrete or asphalt and shall be smooth, durable, and sloped to drain. (3) Outdoor enclosure. If used, an outdoor enclosure for refuse, recyclables, and returnables shall be constructed of durable and cleanable materials. (4) Receptacles. (A) Except as specified in subparagraph (B) of this paragraph, receptacles and waste handling units for refuse, recyclables, and returnables and for use with materials containing food residue shall be durable, cleanable, insect and rodent-resistant, leakproof, and nonabsorbent. (B) Plastic bags and wet strength paper bags may be used to line receptacles for storage inside the food establishment, or within closed outside receptacles. (5) Receptacles in vending machines. A refuse receptacle may not be located within a vending machine, except that a receptacle for beverage bottle crown closures may be located within a vending machine. (6) Outside receptacles. (A) Receptacles and waste handling units for refuse, recyclables, and returnables used with materials containing food residue and used outside the food establishment shall be designed and constructed to have tight-fitting lids, doors, or covers. (B) Receptacles and waste handling units for refuse and recyclables such as an on-site compactor shall be installed so that accumulation of debris and insect and rodent attraction and harborage are minimized and effective cleaning is facilitated around and, if the unit is not installed flush with the base pad, under the unit. (7) Storage areas, rooms, and receptacles, capacity and availability. 115 §229.166(l) §229.166(l) (A) An inside storage room and area and outside storage area and enclosure, and receptacles shall be of sufficient capacity to hold refuse, recyclables, and returnables that accumulate. (B) A receptacle shall be provided in each area of the food establishment or premises where refuse is generated or commonly discarded, or where recyclables or returnables are placed. (C) If disposable towels are used at handwashing lavatories, a waste receptacle shall be located at each lavatory or group of adjacent lavatories. (8) Toilet room receptacle, covered. A toilet room used by females shall be provided with a covered receptacle for sanitary napkins. (9) Cleaning implements and supplies. (A) Except as specified in subparagraph (B) of this paragraph, suitable cleaning implements and supplies such as high pressure pumps, hot water, steam, and detergent shall be provided as necessary for effective cleaning of receptacles and waste handling units for refuse, recyclables, and returnables. (B) If approved, off-premises-based cleaning services may be used if on- premises cleaning implements and supplies are not provided. (10) Storage areas, redeeming machines, receptacles and waste handling units, location. (A) An area designated for refuse, recyclables, returnables, and, except as specified in subparagraph (B) of this paragraph, a redeeming machine for recyclables or returnables shall be located so that it is separate from food, equipment, utensils, linens, and single-service and single-use articles and a public health hazard or nuisance is not created. (B) A redeeming machine may be located in the packaged food storage area or consumer area of a food establishment if food, equipment, utensils, linens, and single- service and single-use articles are not subject to contamination from the machines and a public health hazard or nuisance is not created. (C) The location of receptacles and waste handling units for refuse, recyclables, and returnables may not create a public health hazard or nuisance or interfere with the cleaning of adjacent space. (11) Storing refuse, recyclables, and returnables. Refuse, recyclables, and returnables shall be stored in receptacles or waste handling units so that they are inaccessible to insects and rodents. 116 §229.166(l) §229.166(l) (12) Areas, enclosures, and receptacles, good repair. Storage areas, enclosures, and receptacles for refuse, recyclables, and returnables shall be maintained in good repair. (13) Outside storage prohibitions. (A) Except as specified in subparagraph (B) of this paragraph, refuse receptacles not meeting the requirements specified under subsection (l)(4)(A) of this section such as receptacles that are not rodent-resistant, unprotected plastic bags and paper bags, or baled units that contain materials with food residue may not be stored outside. (B) Cardboard or other packaging material that does not contain food residues and that is awaiting regularly scheduled delivery to a recycling or disposal site may be stored outside without being in a covered receptacle if it is stored so that it does not create a rodent harborage problem. (14) Covering receptacles. Receptacles and waste handling units for refuse, recyclables, and returnables shall be kept covered: (A) inside the food establishment if the receptacles and units: (i) contain food residue and are not in continuous use; or (ii) after they are filled; and (B) with tight-fitting lids or doors if kept outside the food establishment. (15) Using drain plugs. Drains in receptacles and waste handling units for refuse, recyclables, and returnables shall have drain plugs in place. (16) Maintaining refuse areas and enclosures. A storage area and enclosure for refuse, recyclables, or returnables shall be maintained free of unnecessary items, as specified under §229.167(p)(15) of this title, and clean. (17) Cleaning receptacles. (A) Receptacles and waste handling units for refuse, recyclables, and returnables shall be thoroughly cleaned in a way that does not contaminate food, equipment, utensils, linens, or single-service and single-use articles, and waste water shall be disposed of as specified under subsection (j)(4) of this section. (B) Soiled receptacles and waste handling units for refuse, recyclables, and returnables shall be cleaned at a frequency necessary to prevent them from developing a buildup of soil or becoming attractants for insects and rodents. 117 §229.166(m) §229.166(m) (m) Refuse removal. (1) Frequency. Refuse, recyclables, and returnables shall be removed from the premises at a frequency that will minimize the development of objectionable odors and other conditions that attract or harbor insects and rodents. (2) Receptacles or vehicles. Refuse, recyclables, and returnables shall be removed from the premises by way of: (A) portable receptacles that are constructed and maintained according to law; or (B) a transport vehicle that is constructed, maintained, and operated according to law. (n) Facilities for disposal and recycling, community or individual facility. Solid waste not disposed of through the sewage system such as through grinders and pulpers shall be recycled or disposed of in an approved public or private community recycling or refuse facility; or solid waste shall be disposed of in an individual refuse facility such as a landfill or incinerator which is sized, constructed, maintained, and operated according to law. 118 §229.167(a) §229.167(c) §229.167. Physical Facilities. (a) Indoor areas, surface characteristics. Materials for indoor floor, wall, and ceiling surfaces under conditions of normal use shall be: (1) smooth, durable, and easily cleanable for areas where food establishment operations are conducted; (2) closely woven and easily cleanable carpet for carpeted areas; and (3) nonabsorbent for areas subject to moisture such as food preparation areas, walk-in refrigerators, warewashing areas, toilet rooms, mobile food establishment servicing areas, and areas subject to flushing or spray cleaning methods. (b) Outdoor areas, surface characteristics. (1) Walking and driving areas. The outdoor walking and driving areas shall be surfaced with concrete, asphalt, or gravel or other materials that have been effectively treated to minimize dust, facilitate maintenance, and prevent muddy conditions. (2) Exterior surfaces. Exterior surfaces of buildings and mobile food establishments shall be of weather-resistant materials and shall comply with law. (3) Storage areas. Outdoor storage areas for refuse, recyclables, or returnables shall be of materials specified under §229.166(l)(2) and (3) of this title (relating to Water, Plumbing and Waste). (c) Floors, walls, and ceilings. (1) Cleanability. Except as specified under paragraph (4) of this subsection, the floors, floor coverings, walls, wall coverings, and ceilings shall be designed, constructed, and installed so they are smooth and easily cleanable, except that antislip floor coverings or applications may be used for safety reasons. (2) Floors, walls, and ceilings, utility lines. (A) Utility service lines and pipes may not be unnecessarily exposed. (B) Exposed utility service lines and pipes shall be installed so they do not obstruct or prevent cleaning of the floors, walls, or ceilings. (C) Exposed horizontal utility service lines and pipes may not be installed on the floor. 119 §229.167(c) §229.167(c) (3) Floor and wall junctures, coved, and enclosed or sealed. (A) In food establishments in which cleaning methods other than water flushing are used for cleaning floors, the floor and wall junctures shall be coved and closed to no larger than 1 mm (one thirty-second inch). (B) The floors in food establishments in which water flush cleaning methods are used shall be provided with drains and be graded to drain, and the floor and wall junctures shall be covered and sealed. (4) Floor carpeting, restrictions and installation. (A) A floor covering such as carpeting or similar material may not be installed as a floor covering in food preparation areas, walk-in refrigerators, warewashing areas, toilet room areas where handwashing lavatories, toilets, and urinals are located, refuse storage rooms, or other areas where the floor is subject to moisture, flushing, or spray cleaning methods. (B) If carpeting is installed as a floor covering in areas other than those specified under subparagraph (A) of this paragraph, it shall be: (i) securely attached to the floor with a durable mastic, by using a stretch and tack method, or by another method; and (ii) installed tightly against the wall under the coving or installed away from the wall with a space between the carpet and the wall and with the edges of the carpet secured by metal stripping or some other means. (5) Floor covering, mats and duckboards. Mats and duckboards shall be designed to be removable and easily cleanable. (6) Wall and ceiling coverings and coatings. (A) Wall and ceiling covering materials shall be attached so that they are easily cleanable. (B) Except in areas used only for dry storage, concrete, porous blocks, or bricks used for indoor wall construction shall be finished and sealed to provide a smooth, nonabsorbent, easily cleanable surface. (7) Walls and ceilings, attachments. (A) Except as specified in subparagraph (B) of this paragraph, attachments to walls and ceilings such as light fixtures, mechanical room ventilation system components, 120 §229.167(c) §229.167(d) vent covers, wall mounted fans, decorative items, and other attachments shall be easily cleanable. (B) In a consumer area, wall and ceiling surfaces and decorative items and attachments that are provided for ambiance need not meet this requirement if they are kept clean. (8) Walls and ceilings, studs, joists, and rafters. Studs, joists, and rafters may not be exposed in areas subject to moisture. This requirement does not apply to temporary food establishments. (d) Functionality. (1) Light bulbs, protective shielding. (A) Except as specified in subparagraph (B) of this paragraph, light bulbs shall be shielded, coated, or otherwise shatter-resistant in areas where there is exposed food; clean equipment, utensils, and linens; or unwrapped single-service and single-use articles. (B) Shielded, coated, or otherwise shatter-resistant bulbs need not be used in areas used only for storing food in unopened packages; if: (i) the integrity of the packages can not be affected by broken glass falling onto them; and (ii) the packages are capable of being cleaned of debris from broken bulbs before the packages are opened. (C) An infrared or other heat lamp shall be protected against breakage by a shield surrounding and extending beyond the bulb so that only the face of the bulb is exposed. (2) Heating, ventilating, air conditioning system vents. Heating, ventilating, and air conditioning systems shall be designed and installed so that make-up air intake and exhaust vents do not cause contamination of food, food-contact surfaces, equipment, or utensils. (3) Insect control devices, design and installation. (A) Insect control devices that are used to electrocute or stun flying insects shall be designed to retain the insect within the device. (B) Insect control devices shall be installed so that: (i) the devices are not located over a food preparation area; and 121 §229.167(d) §229.167(d) (ii) dead insects and insect fragments are prevented from being impelled onto or falling on exposed food; clean equipment, utensils, and linens; and unwrapped single-service and single-use articles. (4) Toilet rooms, enclosed. A toilet room located on the premises shall be completely enclosed and provided with a tight-fitting and self-closing door except that this requirement does not apply to a toilet room that is located outside a food establishment and does not open directly into the food establishment such as a toilet room that is provided by the management of a shopping mall. (5) Outer openings, protected. (A) Except as specified in subparagraphs (B) - (E) of this paragraph, outer openings of a food establishment shall be protected against the entry of insects and rodents by: (i) filling or closing holes and other gaps along floors, walls, and ceilings; (ii) closed, tight-fitting windows; and (iii) solid, self-closing, tight-fitting doors. (B) Subparagraph (A) of this paragraph does not apply if a food establishment opens into a larger structure, such as a mall, airport, or office building, or into an attached structure, such as a porch, and the outer openings from the larger or attached structure are protected against the entry of insects and rodents. (C) Exterior doors used as exits need not be self-closing if they are: (i) solid and tight-fitting; (ii) designated for use only when an emergency exists, by the fire protection authority that has jurisdiction over the food establishment; and (iii) limited-use so they are not used for entrance or exit from the building for purposes other than the designated emergency exit use. (D) Except as specified in subparagraphs (B) and (E) of this paragraph, if the windows or doors of a food establishment, or of a larger structure within which a food establishment is located, are kept open for ventilation or other purposes or a temporary food establishment is not provided with windows and doors as specified under subparagraph (A) of this paragraph, the openings shall be protected against the entry of insects and rodents by: 122 §229.167(d) §229.167(e) (i) 16 mesh to 25.4mm (16 mesh to 1 inch) screens; (ii) properly designed and installed air curtains to control flying insects; or (iii) other effective means. (E) Subparagraph (D) of this paragraph does not apply if flying insects and other pests are absent due to the location of the establishment, the weather, or other limiting condition. (6) Exterior walls and roofs, protective barrier. Perimeter walls and roofs of a food establishment shall effectively protect the establishment from the weather and the entry of insects, rodents, and other animals. (7) Outdoor food vending areas, overhead protection. If located outside, a machine used to vend food shall be provided with overhead protection except that machines vending canned beverages need not meet this requirement. (8) Outdoor walking and driving surfaces, graded to drain. Exterior walking and driving surfaces shall be graded to drain. (9) Outdoor refuse areas, curbed and graded to drain. Outdoor refuse areas shall be constructed in accordance with law and shall be curbed and graded to drain to collect and dispose of liquid waste that results from the refuse and from cleaning the area and waste receptacles. (10) Private homes and living or sleeping quarters, use prohibition. A private home, a room used as living or sleeping quarters, or an area directly opening into a room used as living or sleeping quarters may not be used for conducting food establishment operations. (11) Living or sleeping quarters, separation. Living or sleeping quarters located on the premises of a food establishment such as those provided for lodging registration clerks or resident managers shall be separated from rooms and areas used for food establishment operations by complete partitioning and solid self-closing doors. (e) Handwashing facilities. (1) Minimum number. Handwashing facilities shall be provided as specified under §229.166(g)(1) of this title. (2) Handwashing cleanser, availability. Each handwashing lavatory or group of 2 adjacent lavatories shall be provided with a supply of hand cleaning liquid, powder, or bar soap. 123 §229.167(e) §229.167(g) (3) Hand drying provision. Each handwashing lavatory or group of adjacent lavatories shall be provided with: (A) individual, disposable towels; (B) a continuous towel system that supplies the user with a clean towel; or (C) a heated-air hand drying device. (4) Handwashing aids and devices, use restrictions. A sink used for food preparation or utensil washing, or a service sink or curbed cleaning facility used for the disposal of mop water or similar wastes, may not be provided with the handwashing aids and devices required for a handwashing lavatory as specified in paragraphs (2) and (3) of this subsection and §229.166(l)(7)(C) of this title. (5) Handwashing signage. A sign, icon, or poster that notifies food employees to wash their hands shall be provided at all handwashing lavatories used by food employees and shall be clearly visible to food employees. (6) Disposable towels, waste receptacle. A handwashing lavatory or group of adjacent lavatories that is provided with disposable towels shall be provided with a waste receptacle as specified under §229.166(l)(7)(C) of this title. (f) Toilets and urinals. (1) Minimum number. Toilets and urinals shall be provided as specified under §229.166(g)(2) of this title. (2) Toilet tissue, availability. A supply of toilet tissue shall be available at each toilet. (g) Lighting, intensity. The light intensity shall be: (1) at least 110 lux (10 foot candles) at a distance of 75 cm (30 inches) above the floor, in walk-in refrigeration units and dry food storage areas and in other areas and rooms during periods of cleaning; (2) at least 220 lux (20 foot candles): (A) at a surface where food is provided for consumer self-service such as buffets and salad bars or where fresh produce or packaged foods are sold or offered for consumption; (B) inside equipment such as reach-in and under-counter refrigerators; 124 §229.167(g) §229.167(n) (C) at a distance of 75 cm (30 inches) above the floor in areas used for handwashing, warewashing, and equipment and utensil storage, and in toilet rooms; and (3) at least 540 lux (50 foot candles) at a surface where a food employee is working with food or working with utensils or equipment such as knives, slicers, grinders, or saws where employee safety is a factor. (h) Ventilation, mechanical. If necessary to keep rooms free of excessive heat, steam, condensation, vapors, obnoxious odors, smoke, and fumes, mechanical ventilation of sufficient capacity shall be provided. (i) Dressing areas and lockers, designation. (1) Dressing rooms or dressing areas shall be designated if employees routinely change their clothes in the establishment. (2) Lockers or other suitable facilities shall be provided for the orderly storage of employees’ clothing and other possessions. (j) Service sinks, availability. A service sink or curbed cleaning facility shall be provided as specified under §229.166(g)(3) of this title. (k) Handwashing facilities, conveniently located. Handwashing facilities shall be conveniently located as specified under §229.166(h)(1) of this title. (l) Toilet rooms, convenience and accessibility. Toilet rooms shall be conveniently located and accessible to employees during all hours of operation. (m) Employee accommodations, designated areas. (1) Areas designated for employees to eat, drink, and use tobacco shall be located so that food, equipment, linens, and single-service and single-use articles are protected from contamination. (2) Lockers or other suitable facilities shall be located in a designated room or area where contamination of food, equipment, utensils, linens, and single-service and single-use articles cannot occur. (n) Distressed merchandise, segregation and location. Products that are held by the permit holder for credit, redemption, or return to the distributor, such as damaged, spoiled, or recalled products, shall be segregated and held in designated areas that are separated from food, equipment, utensils, linens, and single-service and single-use articles. 125 §229.167(o) §229.167(p) (o) Receptacles, waste handling units, and designated storage areas. Units, receptacles, and areas designated for storage of refuse and recyclable and returnable containers shall be located as specified under §229.166(l)(10)(A) of this title. (p) Premises, buildings, systems, rooms, fixtures, equipment, devices, and materials. (1) Repairing. The physical facilities shall be maintained in good repair. (2) Cleaning, frequency and restrictions. (A) The physical facilities shall be cleaned as often as necessary to keep them clean. (B) Cleaning shall be done during periods when the least amount of food is exposed such as after closing. This requirement does not apply to cleaning that is necessary due to a spill or other accident. (3) Cleaning floors, dustless methods. (A) Except as specified in subparagraph (B) of this paragraph, only dustless methods of cleaning shall be used, such as wet cleaning, vacuum cleaning, mopping with treated dust mops, or sweeping using a broom and dust-arresting compounds. (B) Spills or drippage on floors that occur between normal floor cleaning times may be cleaned: (i) without the use of dust-arresting compounds; and (ii) in the case of liquid spills or drippage, with the use of a small amount of absorbent compound such as sawdust or diatomaceous earth applied immediately before spot cleaning. (4) Cleaning ventilation systems, nuisance and discharge prohibition. (A) Intake and exhaust air ducts shall be cleaned and filters changed so they are not a source of contamination by dust, dirt, and other materials. (B) If vented to the outside, ventilation systems may not create a public health hazard or nuisance or unlawful discharge. (5) Cleaning maintenance tools, preventing contamination. Food preparation sinks, handwashing lavatories, and warewashing equipment may not be used for the cleaning of maintenance tools, the preparation or holding of maintenance materials, or the disposal of mop water and similar liquid wastes. 126 §229.167(p) §229.167(p) (6) Drying mops. After use, mops shall be placed in a position that allows them to air-dry without soiling walls, equipment, or supplies. (7) Absorbent materials on floors, use limitation. Except as specified in paragraph (3)(A) of this subsection, sawdust, wood shavings, granular salt, baked clay, diatomaceous earth, or similar materials may not be used on floors. (8) Maintaining and using handwashing facilities. Handwashing facilities shall be kept clean, and maintained and used as specified under §229.166(i)(1)(A) of this title. (9) Closing toilet room doors. Toilet room doors as specified under subsection (d)(4) of this section shall be kept closed except during cleaning and maintenance operations. (10) Using dressing rooms and lockers. (A) Dressing rooms shall be used by employees if the employees regularly change their clothes in the establishment. (B) Lockers or other suitable facilities shall be used for the orderly storage of employee clothing and other possessions. (11) Controlling pests. The presence of insects, rodents, and other pests shall be controlled to minimize their presence within the physical facility and its contents, and on the contiguous land or property under the control of the permit holder by: (A) routinely inspecting incoming shipments of food and supplies; (B) routinely inspecting the premises for evidence of pests; (C) using methods, if pests are found, such as trapping devices or other means of pest control as specified under §§229.168(d)(2), (h)(2), and (h)(3)(A) of this title (relating to Poisonous or Toxic Materials); and (D) eliminating harborage conditions. (12) Removing dead or trapped birds, insects, rodents, and other pests. Dead or trapped birds, insects, rodents, and other pests shall be removed from control devices and the premises at a frequency that prevents their accumulation, decomposition, or the attraction of pests. (13) Storing maintenance tools. Maintenance tools such as brooms, mops, vacuum cleaners, and similar items shall be: 127 §229.167(p) §229.167(p) (A) stored so they do not contaminate food, equipment, utensils, linens, and single-service and single-use articles; and (B) stored in an orderly manner that facilitates cleaning the area used for storing the maintenance tools. (14) Maintaining premises, unnecessary items and litter. The premises shall be free of: (A) items that are unnecessary to the operation or maintenance of the establishment such as equipment that is nonfunctional or no longer used; and (B) litter. (15) Prohibiting animals. (A) Except as specified in subparagraphs (B) and (C) of this paragraph, live animals may not be allowed on the premises of a food establishment. (B) Live animals may be allowed in the following situations if the contamination of food, clean equipment, utensils, linens, and unwrapped single-service and single-use articles cannot result: (i) edible fish or decorative fish in aquariums, shellfish or crustacea on ice or under refrigeration, and shellfish and crustacea in display tank systems; (ii) patrol dogs accompanying police or security officers in offices and dining, sales, and storage areas, and sentry dogs running loose in outside fenced areas; (iii) in areas that are not used for food preparation and that are usually open for customers, such as dining and sales areas, service animals that are controlled by the disabled employee or person, or service animals in training when accompanied by an approved trainer, if a health or safety hazard will not result from the presence or activities of the service animal; (iv) pets in the common dining areas of institutional care facilities such as nursing homes, assisted living facilities, group homes, or residential care facilities at times other than during meals if: (I) effective partitioning and self-closing doors separate the common dining areas from food storage or food preparation areas; (II) condiments, equipment, and utensils are stored in enclosed cabinets or removed from the common dining areas when pets are present; and 128 §229.167(p) §229.167(p) (III) dining areas including tables, countertops, and similar surfaces are effectively cleaned before the next meal service; and (v) in areas that are not used for food preparation, storage, sales, display, or dining, in which there are caged animals or animals that are similarly confined, such as in a variety store that sells pets or a tourist park that displays animals. (C) Live or dead fish bait may be stored if contamination of food, clean equipment, utensils, linens, and unwrapped single-service and single-use articles cannot result. 129 §229.168(a) §229.168(d) §229.168. Poisonous or Toxic Materials. (a) Original containers, identifying information, prominence. Containers of poisonous or toxic materials and personal care items shall bear a legible manufacturer’s label. (b) Working containers, common name. Working containers used for storing poisonous or toxic materials such as cleaners and sanitizers taken from bulk supplies shall be clearly and individually identified with the common name of the material. (c) Storage, separation. Poisonous or toxic materials shall be stored so they cannot contaminate food, equipment, utensils, linens, and single-service and single-use articles by: (1) separating the poisonous or toxic materials by spacing or partitioning; and (2) Locating the poisonous or toxic materials in an area that is not above food, equipment, utensils, linens, and single-service or single-use articles. This paragraph does not apply to equipment and utensil cleaners and sanitizers that are stored in warewashing areas for availability and convenience if the materials are stored to prevent contamination of food, equipment, utensils, linens, and single-service and single-use articles. (d) Presence and use. (1) Restriction. (A) Only those poisonous or toxic materials that are required for the operation and maintenance of a food establishment, such as for the cleaning and sanitizing of equipment and utensils and the control of insects and rodents, shall be allowed in a food establishment. (B) Subparagraph (A) of this paragraph does not apply to packaged poisonous or toxic materials that are for retail sale. (2) Conditions of use. Poisonous or toxic materials shall be: (A) used according to: (i) law and these rules; (ii) manufacturer’s use directions included in labeling, and, for a pesticide, manufacturer’s label instructions that state that use is allowed in a food establishment; (iii) the conditions of certification, if certification is required, for use of the pest control materials; and 130 §229.168(d) §229.168(f) (iv) additional conditions that may be established by the regulatory authority; and (B) applied so that: (i) a hazard to employees or other persons is not constituted; and (ii) contamination including toxic residues due to drip, drain, fog, splash or spray on food, equipment, utensils, linens, and single-service and single-use articles is prevented, and for a restricted use pesticide, this is achieved by: (I) removing the items; (II) covering the items with impermeable covers; or (III) taking other appropriate preventive actions; and (IV) cleaning and sanitizing equipment and utensils after the application. (C) A restricted use pesticide shall be applied only by an applicator certified as defined in 7 USC 136(e), Certified Applicator of the Federal Insecticide, Fungicide and Rodenticide Act, or a person under the direct supervision of a certified applicator. (e) Container prohibitions, poisonous or toxic material containers. A container previously used to store poisonous or toxic materials may not be used to store, transport, or dispense food. (f) Chemicals. (1) Sanitizers, criteria. Chemical sanitizers and other chemical antimicrobials applied to food-contact surfaces shall meet the requirements specified in 21 CFR §178.1010, Sanitizing Solutions. (2) Chemicals for washing fruits and vegetables, criteria. Chemicals used to wash or peel raw, whole fruits and vegetables shall meet the requirements specified in 21 CFR §173.315, Chemicals used in washing or to assist in the lye peeling of fruits and vegetables. (3) Boiler water additives, criteria. Chemicals used as boiler water additives shall meet the requirements specified in 21 CFR §173.310, Boiler Water Additives. (4) Drying agents, criteria. Drying agents used in conjunction with sanitization shall: (A) contain only components that are listed as one of the following: 131 §229.168(f) §229.168(h) (i) generally recognized as safe for use in food as specified in 21 CFR 182, Substances Generally Recognized as Safe, or 21 CFR 184, Direct Food Substances Affirmed as Generally Recognized as Safe; (ii) generally recognized as safe for the intended use as specified in 21 CFR 186, Indirect Food Substances Affirmed as Generally Recognized as Safe; (iii) approved for use as a drying agent under a prior sanction specified in 21 CFR 181, Prior-Sanctioned Food Ingredients; (iv) specifically regulated as an indirect food additive for use as a drying agent as specified in 21 CFR 175 - 178; or (v) approved for use as a drying agent under the threshold of regulation process established by 21 CFR §170.39, Threshold of regulation for substances used in food-contact articles; and (B) when sanitization is with chemicals, the approval required under subparagraph (A)(iii) or (v) of this paragraph or the regulation as an indirect food additive required under subparagraph (A)(iv) of this paragraph, shall be specifically for use with chemical sanitizing solutions. (g) Lubricants, incidental food contact, criteria. Lubricants shall meet the requirements specified in 21 CFR §178.3570, Lubricants with incidental food contact, if they are used on food-contact surfaces, on bearings and gears located on or within food-contact surfaces, or on bearings and gears that are located so that lubricants may leak, drip, or be forced into food or onto food-contact surfaces. (h) Pesticides. (1) Restricted use pesticides, criteria. Restricted use pesticides specified in subsection (d)(2)(C) of this section shall meet the requirements specified in 40 CFR 152, Subpart I, Classification of Pesticides. (2) Rodent bait stations. Rodent bait shall be contained in a covered, tamper- resistant bait station. (3) Tracking powders, pest control and monitoring. (A) A tracking powder pesticide may not be used in a food establishment. (B) If used, a nontoxic tracking powder such as talcum or flour may not contaminate food, equipment, utensils, linens, and single-service and single-use articles. 132 §229.168(i) §229.168(l) (i) Medicines. (1) Restriction and storage. (A) Only those medicines that are necessary for the health of employees shall be allowed in a food establishment. This section does not apply to medicines that are stored or displayed for retail sale. (B) Medicines that are in a food establishment for the employees’ use shall be labeled as specified in subsection (a) of this section and located to prevent the contamination of food, equipment, utensils, linens, and single-service and single-use articles. (2) Refrigerated medicines, storage. Medicines belonging to employees or to children in a day care center that require refrigeration and are stored in a food refrigerator shall be: (A) stored in a package or container and kept inside a covered, leakproof container that is identified as a container for the storage of medicines; and (B) located so they are inaccessible to children. (j) First aid supplies, storage. First aid supplies that are in a food establishment for the employees’ use shall be: (1) labeled as specified under subsection (a) of this section; and (2) stored in a kit or a container that is located to prevent the contamination of food, equipment, utensils, and linens, and single-service and single-use articles. (k) Other personal care items, storage. Except as specified in subsections (i)(2) and (j) of this section, employees shall store their personal care items in facilities as specified under §229.167(i)(2) of this title (relating to Physical Facilities). (l) Storage and display, separation. Poisonous or toxic materials shall be stored and displayed for retail sale so they cannot contaminate food, equipment, utensils, linens, and single- service and single-use articles by: (1) separating the poisonous or toxic materials by spacing or partitioning; and (2) locating the poisonous or toxic materials in an area that is not above food, equipment, utensils, linens, and single-service or single-use articles. 133 §229.169(a) §229.169(a) §229.169. Mobile Food Establishments. (a) Mobile food establishment provisions. (1) General. Mobile food establishments shall comply with the requirements of these rules, except as otherwise provided in this paragraph and in paragraph (2) of this subsection. The regulatory authority may impose additional requirements to protect against health hazards related to the conduct of the food establishment as a mobile operation, may prohibit the sale of some or all potentially hazardous food, and when no health hazard will result, may waive or modify requirements of this rule relating to physical facilities, except those requirements as specified in paragraphs (5) and (6) of this subsection; subsection (c)(1)(A)-(E) of this section and §229.164(k)-(o) of this title (relating to Food). The regulatory authority may require a mobile food establishment operator to demonstrate that the vehicle is readily moveable. (2) Restricted operation. Mobile food establishments that serve only food that is prepared, packaged in individual servings, transported and stored under conditions meeting the requirements of these sections, or beverages that are not potentially hazardous and are dispensed from covered urns or other protected equipment, need not comply with the requirements of these rules pertaining to the necessity of water and sewage systems nor to those requirements pertaining to the cleaning and sanitization of equipment and utensils if the required equipment for cleaning and sanitization exists at its central preparation facility. (3) Single-service articles. Mobile food establishments shall provide only single service articles for use by the consumer. (4) Existing refrigeration equipment. Existing refrigeration equipment will be upgraded to meet the 41 degree Fahrenheit requirement and countertop, under-counter and open- top refrigeration units shall be upgraded or replaced, as specified in §229.164(o)(6)(B)(ii) of this title. (5) Mobile water system materials, design, and operation. Mobile food establishment water systems shall meet the requirements of §229.166(i)(6) of this title (relating to Water, Plumbing, and Waste). (6) Mobile food establishment tank inlet. A mobile food establishment’s water tank inlet shall be: (A) 19.1 mm (3/4 inch) in inner diameter or less; and (B) provided with a hose connection of a size or type that will prevent its use for any other service. (7) Readily moveable. The regulatory authority may prohibit alteration, removal, attachments, placement or change in, under, or upon the mobile food establishment that would 134 §229.169(a) §229.169(a) prevent or otherwise reduce ready mobility. A regulatory authority may require a mobile food establishment to come, on an annual basis, to a location designated by the regulatory authority as proof that the mobile food establishment is readily moveable. A regulatory authority may require that mobile food establishments that violate this section go for re-inspections to a location designated by the regulatory authority. (8) Sewage, other liquid waste, and rainwater. (A) Waste retention. If liquid waste results from operation of a mobile food establishment, the waste shall be stored in a permanently installed retention tank. (B) Capacity and drainage. A sewage holding tank in a mobile food establishment shall be: (i) sized at least 15% larger in capacity than the water supply tank; and (ii) sloped to a drain that is 25 millimeters (1 inch) in inner diameter or greater, equipped with a shut-off valve. (C) All connections on the vehicle for servicing the mobile food establishment waste disposal facilities shall be of a different size or type than those used for supplying potable water to the mobile food establishment. (D) Discharge liquid waste shall not be discharged from the retention tank while the mobile food establishment is in motion. (E) Flushing a waste retention tank. A tank for liquid waste retention shall be thoroughly flushed and drained in a sanitary manner. (F) Removing mobile food establishment wastes. Sewage and other liquid wastes shall be removed from a mobile food establishment at an approved waste servicing area or by a sewage transport vehicle in such a way that a public health hazard or nuisance is not created. (9) Mobile food establishment water and wastewater exemption. (A) A roadside vendor that sells only prepackaged food is exempt from these rules pertaining to water and wastewater. (B) A mobile food establishment that prepares food requiring no water for operations and no hand contact with food is exempt from these rules pertaining to water and wastewater if the required cleaning and sanitization equipment exist at its central preparation facility. 135 §229.169(b) §229.169(c) (b) Central preparation facility. (1) Supplies, cleaning, and servicing operations. Mobile food establishments shall operate from a central preparation facility or other fixed food establishment and shall report to such location for supplies and for cleaning and servicing operations. (2) Construction. The central preparation facility or other fixed food service establishment, used as a base of operation for mobile food establishments, shall be constructed and operated in compliance with the requirements of these rules. (c) Servicing area and operations. (1) Protection. (A) A mobile food establishment servicing area shall be provided and shall include at least overhead protection for any supplying, cleaning, or servicing operation except those areas used only for the loading of water and/or the discharge of sewage and other liquid waste, through the use of a closed system of hoses, need not be provided with overhead protection. (B) Within this servicing area, a location provided for the flushing and drainage of liquid wastes shall be separate from the location provided for water servicing and for the loading and unloading of food and related supplies. (C) This servicing area will not be required where only packaged food is placed on the mobile food establishment or where mobile food establishments do not contain waste retention tanks. (D) The surface of the servicing area shall be constructed of a smooth nonabsorbent material, such as concrete or machine-laid asphalt and shall be maintained in good repair, kept clean, and be graded to drain. (E) Potable water servicing equipment shall be installed in the servicing area according to law and stored and handled in a way that protects the water and equipment from contamination. (2) Construction exemption. The construction of the walls and ceilings of the servicing area is exempted from the provisions of §229.167(c)(1) of this title (relating to Physical Facilities). 136 §229.170(a) §229.170(f) §229.170. Temporary Food Establishments. (a) General. A temporary food establishment shall comply with the requirements of these rules except as otherwise provided in this section. The regulatory authority may impose additional requirements to protect against health hazards related to the conduct of the temporary food establishment, may prohibit the sale of some or all potentially hazardous foods, and when no health hazard will result, may waive or modify requirements of these rules. (b) Food temperatures. All food temperature requirements shall be met as contained in §229.164(k) - (o) of this title (relating to Food). (c) Ice. Ice that is consumed or that contacts food shall have been made under conditions meeting the requirements of these rules. The ice shall be obtained only in chipped, crushed, or cubed form and in single-use safe plastic or wet-strength paper bags filled and sealed at the point of manufacture. Ice for consumption shall be held in their bags until it is dispensed in a way that protects it from contamination. (d) Equipment. (1) Design and construction. Equipment and utensils shall be designed and constructed to be durable and to retain their characteristic qualities under normal use conditions. (2) Location and installation. Equipment shall be located and installed and cleaned in a way that prevents food contamination and that also facilitates cleaning of the establishment. (3) Hot and cold holding equipment. Equipment for cooling or heating food, and holding cold or hot food shall be adequate in number and capacity to provide food temperatures as specified under §229.164(k) - (o) of this title. (4) Protection from contamination. Food-contact surfaces of equipment shall be protected from contamination by consumers and other contamination sources. Where necessary to prevent contamination, effective shields for such equipment shall be provided. (5) Alternative manual warewashing. Alternative manual warewashing equipment, such as receptacles that substitute for the compartments of a multi-compartment sink, may be used when there are special cleaning needs or constraints and the regulatory authority has approved the use of alternative equipment. (e) Single-service articles. A temporary food establishment shall provide only single- service articles for use by the consumer. (f) Water. Water from an approved source shall be made available in a temporary food establishment for food preparation, handwashing, and for cleaning and sanitizing utensils and 137 §229.170(f) §229.170(k) equipment. Water need not be under pressure but shall come from approved sources which include: commercially bottled drinking water, closed portable water containers, enclosed vehicular water tanks, on-premise water storage tanks, or piping, tubing or hoses connected to an approved source. (g) Wet storage. Packaged food may not be stored in direct contact with ice or water if the food is subject to the entry of water because of the nature of its packaging, wrapping, or container or its positioning in the ice or water. (h) Sewage. All waste water and sewage generated from the establishment shall be disposed of through an approved sanitary sewage system that is constructed, maintained and operated according to law. (i) Handwashing. Handwash facilities shall include an insulated container with a spigot that can be turned on to allow potable, clean, warm water to flow; a wastewater container; soap; disposable towels; and a waste receptacle. Handwash facilities are not required if the only food items offered are commercially pre-packaged foods that are dispensed in their original containers. (j) Floors. If graded to drain, a floor may be concrete, machine-laid asphalt, dirt, or gravel if it is covered with mats, removable platforms, duckboards, or other suitable materials approved by the regulatory authority that are effectively treated to control dust and mud. (k) Ceilings and outer openings of food preparation areas. (1) Ceilings. Ceilings shall be made of wood, canvas, or other materials that protect the interior of the establishment from the weather, windblown dust, birds, and debris. (2) Outer openings. The outer openings shall be protected against entry of insects and rodents by: (A) 16 mesh to 25.4 millimeters (16 mesh to 1 inch) screens; (B) properly designed and installed air curtains; or (C) other effective means. (3) Exclusion provision. Paragraph (2) of this subsection does not apply if flying insects and other pests are absent due to the location of the establishment or other limiting condition. 138 §229.171(a) §229.171(c) §229.171. Compliance and Enforcement. (a) Use for intended purpose, public health protection. (1) Safeguarding public health. The regulatory authority shall apply these rules to promote its underlying purpose, as specified in §229.161 of this title (relating to Purpose), of safeguarding public health and ensuring that food is safe, unadulterated, and honestly presented when offered to the consumer. (2) Assessment of existing facilities. In enforcing the provisions of these rules, the regulatory authority shall assess existing facilities or equipment that were in use before the effective date of these rules based on the following considerations: (A) whether the facilities or equipment are in good repair and capable of being maintained in a sanitary condition; (B) whether food-contact surfaces comply with §229.165(a) of this title (relating to Equipment, Utensils, and Linens); and (C) whether the capacities of cooling, heating, and holding equipment are sufficient to comply with §229.165(g)(1) of this title. (b) Additional requirements, preventing health hazards, provision for conditions not addressed. (1) Option to impose additional requirements. If necessary to protect against public health hazards or nuisances, the regulatory authority may impose specific requirements in addition to the requirements contained in these rules that are authorized by law. (2) Required documentation. The regulatory authority shall document the conditions that necessitate the imposition of additional requirements and the underlying public health rationale. The documentation shall be provided to the permit applicant or permit holder and a copy shall be maintained in the regulatory authority’s file for the food establishment. (c) Variances. (1) Modifications and waivers. The regulatory authority may grant a variance by modifying or waiving the requirements of these rules if in the opinion of the regulatory authority a health hazard or nuisance will not result from the variance. If a variance is granted, the regulatory authority shall retain the information specified in paragraph (2) of this subsection in its records for the food establishment. (2) Documentation of proposed variance and justification. Before a variance from a requirement of these rules is approved, the information that shall be provided by the person 139 §229.171(c) §229.171(d) requesting the variance and retained in the regulatory authority’s file on the food establishment includes: (A) a statement of the proposed variance of the rule requirement citing relevant rule section numbers; (B) an analysis of the rationale for how the potential public health hazards and nuisances addressed by the relevant rule sections will be alternatively addressed by the proposal; and (C) a HACCP plan if required as specified in subsection (d)(1)(A) of this section that includes the information specified in subsection (d)(2)(A) of this section, as it is relevant to the variance requested. (3) Conformance with approved procedures. If the regulatory authority grants a variance as specified in paragraph (1) of this subsection, or a HACCP plan is otherwise required as specified in subsection (d)(1) of this section, the food establishment shall: (A) comply with the HACCP plans and procedures that are submitted and approved as specified in subsection (d)(2) of this section as a basis for the modification or waiver; and (B) maintain and provide to the regulatory authority, upon request, records specified in subsection (d)(2)(D) and (E) of this section that demonstrate that the following are routinely employed: (i) procedures for monitoring critical control points; (ii) monitoring of the critical control points; (iii) verification of the effectiveness of an operation or process; and (iv) necessary corrective actions if there is failure at a critical control point. (d) HACCP plan requirements. (1) When a HACCP plan is required. (A) Before engaging in an activity that requires a HACCP plan, a food establishment shall submit to the regulatory authority for approval a properly prepared HACCP plan as specified under paragraph (2) of this subsection and the relevant provisions of these rules if: 140 §229.171(d) §229.171(d) (i) submission of a HACCP plan is required according to law; (ii) a variance is required as specified under §§229.164(k)(1)(D)(iii) and (p)(1)(A)(H), or 229.165(f)(10)(B) of this title; or (iii) the regulatory authority determines that a food preparation or processing method requires a variance based on an inspectional finding or a variance request. (B) A food establishment shall have a properly prepared HACCP plan as specified under §229.164(o)(2) of this title. (2) Contents of a HACCP plan. For a food establishment that is required under paragraph (1) of this subsection to have a HACCP plan, the plan and specifications shall indicate: (A) a categorization of the types of potentially hazardous foods that are specified in the menu such as soups and sauces, salads, and bulk, solid foods such as meat roasts, or of other foods that are specified by the regulatory authority; (B) a flow diagram by specific food or category type identifying critical control points and providing information on the following: (i) ingredients, materials, and equipment used in the preparation of that food; and (ii) formulations or recipes that delineate methods and procedural control measures that address the food safety concerns involved; (C) food employee and supervisory training plan that addresses the food safety issues of concern; (D) a statement of standard operating procedures for the plan under consideration including clearly identifying: (i) each critical control point; (ii) the critical limits for each critical control point; (iii) the method and frequency for monitoring and controlling each critical control point by the food employee designated by the person in charge; (iv) the method and frequency for the person in charge to routinely verify that the food employee is following standard operating procedures and monitoring critical control points; 141 §229.171(d) §229.171(g) (v) action to be taken by the person in charge if the critical limits for each critical control point are not met; and (vi) records to be maintained by the person in charge to demonstrate that the HACCP plan is properly operated and managed; and (E) additional scientific data or other information, as required by the regulatory authority, supporting the determination that food safety is not compromised by the proposal. (e) Confidentiality, trade secrets. The regulatory authority shall treat as confidential in accordance with the requirements of the Public Information Act, Texas Government Code, Chapter 552, information that meets the criteria specified in law for a trade secret and is contained on inspection report forms and in the plans and specifications submitted as specified in subsection (d)(2) of this section. (f) Permit requirement, prerequisite for operation. A person may not operate a food establishment without a valid permit or license to operate issued by the regulatory authority. (g) Conditions of retention, responsibilities of the permit holder. Upon acceptance of the permit issued by the regulatory authority, the permit holder in order to retain the permit shall: (1) post the permit in a location in the food establishment that is conspicuous to consumers; (2) comply with the provisions of these rules including the conditions of a granted variance as specified under subsection (c)(3) of this section; (3) if a food establishment is required under subsection (d)(1) of this section to operate under a HACCP plan, comply with the plan as specified under subsection (c)(3) of this section; (4) immediately contact the regulatory authority to report an illness of a food employee as specified under §229.163(d)(5) of this title (relating to Management and Personnel); (5) immediately discontinue operations and notify the regulatory authority if an imminent health hazard may exist as specified under subsection (k) of this section; (6) allow representatives of the regulatory authority access to the food establishment as specified under subsection (i)(1) of this section; (7) except as specified under paragraph (8) of this section, replace existing facilities and equipment specified in subsection (a) of this section with facilities and equipment that comply with these rules if: 142 §229.171(g) §229.171(h) (A) the regulatory authority directs the replacement because the facilities and equipment constitute a public health hazard or nuisance or no longer comply with the criteria upon which the facilities and equipment were accepted; (B) the regulatory authority directs the replacement of the facilities and equipment because of a change of ownership; or (C) the facilities and equipment are replaced in the normal course of operation; (8) upgrade or replace countertop, under-counter and open-top refrigeration units located in the food preparation area as specified under §229.164(o)(6)(B)(ii) of this title, if the circumstances specified under paragraph (7)(A)-(C) of this subsection do not occur first; (9) comply with directives of the regulatory authority including time frames for corrective actions specified in inspection reports, notices, orders, warnings, and other directives issued by the regulatory authority in regard to the permit holder’s food establishment or in response to community emergencies; (10) accept notices issued and served by the regulatory authority according to law; and (11) be subject to the administrative, civil, injunctive, and criminal remedies authorized in law for failure to comply with these rules or a directive of the regulatory authority, including time frames for corrective actions specified in inspection reports, notices, orders, warnings, and other directives. (h) Inspection frequency, performance-based and risk based. The regulatory authority should inspect each food establishment at least once every six months. If the regulatory authority cannot meet this frequency, inspection frequency shall be prioritized based upon assessment of a food establishments history of compliance with these rules and the potential for causing foodborne illness by evaluating: (1) past performance, for nonconformance with these rules or HACCP plan requirements that are critical; (2) past performance, for numerous or repeat violations of these rules or HACCP plan requirements that are noncritical; (3) past performance, for complaints investigated and found to be valid; (4) the hazards associated with the particular foods that are prepared, stored, or served; 143 §229.171(h) §229.171(i) (5) the type of operation including the methods and extent of food storage, preparation, and service; (6) the number of people served; (7) whether the population served is a highly susceptible population; and (8) any other risk factor deemed relevant to the operation by the regulatory authority. (i) Competency and access. (1) Competency of inspectors. An individual conducting inspections of retail food establishments should be a Registered Professional Sanitarian in Texas or a Sanitarian-in- Training in Texas, as defined in §265.142 of this title (relating to Definitions), or should meet the FDA Voluntary National Retail Food Regulatory Program Standards basic curriculum and field training elements in order to: (A) assure application of basic scientific principles, including HACCP principles of food safety, during inspections; (B) properly conduct foodborne illness investigations; (C) assure uniformity in the interpretations of these rules; and (D) assure fair and uniform enforcement of these rules. (2) Access allowed at reasonable times after due notice. After the regulatory authority presents official credentials and provides notice of the purpose of, and an intent to conduct, an inspection, the person in charge shall allow the regulatory authority to determine if the food establishment is in compliance with these rules by allowing access to the establishment, allowing inspection, and providing information and records specified in these rules and to which the regulatory authority is entitled according to law, during the food establishment’s hours of operation and other reasonable times. (3) Refusal, notification of right to access, and final request for access. If a person denies access to the regulatory authority, the regulatory authority shall: (A) inform the person that: (i) the food establishment is required to allow access to the regulatory authority as specified under this subsection; 144 §229.171(i) §229.171(j) (ii) access is a condition of the acceptance and retention of a food establishment permit to operate as specified under subsection (g)(6) of this section; and (iii) if access is denied, an order issued by the appropriate authority allowing access, hereinafter referred to as an inspection warrant, may be obtained according to law; and (B) make a final request for access. (4) Refusal, reporting. If after the regulatory authority presents credentials and provides notice as specified under paragraph (2) of this subsection, explains the authority upon which access is requested, and makes a final request for access as specified in paragraph (3) of this subsection, the person in charge continues to refuse access, the regulatory authority shall provide details of the denial of access on an inspection report form. (5) Inspection warrant to gain access. If denied access to a food establishment for an authorized purpose and after complying with paragraph (2) of this subsection, the regulatory authority may issue, or apply for the issuance of, an inspection warrant to gain access as provided in law. (j) Report of findings. (1) Documenting information and observations. The regulatory authority shall document on an inspection report form: (A) administrative information about the food establishments legal identity, street and mailing addresses, inspection date, and other information such as status of the permit, and personnel certificates that may be required; and (B) specific factual observations of violative conditions or other deviations from these rules that require correction by the permit holder including: (i) failure of the person in charge to demonstrate the knowledge of foodborne illness prevention, application of HACCP principles, and the requirements of these rules specified under §229.163(b) of this title; (ii) failure of food employees and the person in charge to demonstrate their knowledge of their responsibility to report a disease or medical condition as specified under §§229.163(d)(4)(A)-(B) and (d)(5) of this title; (iii) nonconformance with critical items of these rules; (iv) failure of the appropriate food employees to demonstrate their knowledge of, and ability to perform in accordance with, the procedural, monitoring, 145 §229.171(j) §229.171(j) verification, and corrective action practices required by the regulatory authority as specified under subsection (c)(3) of this section; (v) failure of the person in charge to provide records required by the regulatory authority for determining conformance with a HACCP plan as specified under subsection (d)(2)(D)(vi) of this section; and (vi) nonconformance with critical limits of a HACCP plan; and (C) a summary of the inspectional findings that totals weighted demerit values for the inspection items. (2) Specifying time frame for corrections. The regulatory authority shall specify on the inspection report form the time frame for correction of the violations as specified under subsections (k)(1), (l)(1), and (m) of this section. (3) Issuing report and obtaining acknowledgment of receipt. At the conclusion of the inspection and according to law, the regulatory authority shall provide a copy of the completed inspection report and the notice to correct violations to the permit holder or to the person in charge, and request a signed acknowledgment of receipt. (4) Refusal to sign acknowledgment. The regulatory authority shall: (A) inform a person who declines to sign an acknowledgment of receipt of inspectional findings as specified in paragraph (3) of this subsection that: (i) an acknowledgment of receipt is not an agreement with findings; (ii) refusal to sign an acknowledgment of receipt will not affect the permit holder’s obligation to correct the violations noted in the inspection report within the time frames specified; and (iii) a refusal to sign an acknowledgment of receipt is noted in the inspection report and conveyed to the regulatory authority’s historical record for the food establishment; and (B) make a final request that the person in charge sign an acknowledgment receipt of inspectional findings. (5) Public information. Except as specified in subsection (e) of this section, the regulatory authority shall treat the inspection report as a public document and shall make it available for disclosure to a person who requests it as provided in law. 146 §229.171(j) §229.171(j) (6) Inspection reports. For the purposes of Chapter 437, Texas Health and Safety Code, the department adopts the Retail Food Establishment Inspection Report form as specified in the following figure: Figure: 25 TAC, §229.171(j)(6) 147 San Code Date Time In Time Out Establishment Number Permit Number Risk Category Purpose of Inspection: 1-Compliance 2-Routine 3-Field Investigation 4-Visit 5-Other Establishment: Owner: Physical Address: Zip: Phone: ( ) OUT 5 Pts IN NA NO CO S Food Temperature/Time Requirements Violations Require Immediate Corrective Action Remarks 1. Proper Cooling for Cooked/Prepared Food 2. Cold Hold (41 degrees Fahrenheit /45 degrees Fahrenheit) 3. Hot Hold (135 degrees Fahrenheit) 4. Proper Cooking Temperatures 5. Rapid Reheating (165 degrees Fahrenheit in 2 Hrs) Item/Location/Temperature OUT 4 Pts IN NA NO CO S Personnel/Handling/Source Requirements Violations Require Immediate Corrective Action Remarks 6. Personnel with Infections Restricted/Excluded 7. Proper/Adequate Handwashing 8. Good Hygienic Practices (Eating/Drinking/Smoking/Other) 9. Approved Source/Labeling 10. Sound Condition 11. Proper Handling of Ready-To-Eat Foods 12. Cross-contamination of Raw/Cooked Foods/Other 13. Approved Systems (HACCP Plans/Time as Public Health Control) 14. Water Supply Approved Sources/Sufficient Capacity/Hot and Cold Under Pressure OUT 3 Pts IN NA NO CO S Facility and Equipment Requirements Violations Require Immediate Correction, Not To Exceed 10 Days Remarks 15. Equipment Adequate to Maintain Product Temperature 16. Handwash Facilities Adequate and Accessible 17. Handwash Facilities with Soap and Towels 18. No Evidence of Insect Contamination 19. No Evidence of Rodents/Other Animals 20. Toxic Items Properly Labeled/Stored/Used 21. Manual/Mechanical Warewashing and Sanitizing at ( )ppm/temperature 22. Manager Demonstration of Knowledge/Certified Food Manager 23. Approved Sewage/Wastewater Disposal System, Proper Disposal 24. Thermometers Provided/Accurate/Properly Calibrated (–2 degrees Fahrenheit) 25. Food Contact Surfaces of Equipment and Utensils Cleaned/Sanitized/Good Repair 26. Posting of Consumer Advisories (Heimlich/Disclosure/Reminder/Buffet Plate) 27. Food Establishment Permit Subtotal Other Violations Require Corrective Action, Not to Exceed 90 Days or the Next Inspection, Whichever Comes First 5pt 4pt 3pt Total Inspected by: Print: F/U Yes/ No Received by: Print: Title: Retail Food Establishment Inspection Report 148 §229.171(j) §229.171(j) Corrective Actions to Ensure Safe Food Page 2 of 2 Item No. 1 Cooling • PHF/TCS* food cooled from 135 F to 70 F more than 2 hours OR 135 F to 41 F (45 F) more than 6 hours; OR prepared food cooled to 41 F (45 F) more than 4 hours: Action: Voluntary destruction, rapid reheating of cooked foods if less than 4 hours 2 Cold Hold • PHF/TCS food held above 41 F (45 F) more than 4 hours: Action: Voluntary destruction • PHF/TCS food held above 41 F (45 F) less than 4 hours: Action: Rapid cool (e.g. ice bath) 3 Hot Hold • PHF/TCS food held below 135 F more than 4 hours: Action: Voluntary destruction • PHF/TCS food held below 135 F less than 4 hours: Action: Rapid reheat to 165 F or more 4 Cooking • PHF/TCS food undercooked: Action: Re-cook to proper temperature 5 Rapid Reheating • Cold PHF/TCS food improperly reheated: Action: Reheat rapidly to 165 F 7 Handwashing • Food employees observed not washing hands: Action: Instruct employees to wash hands as specified in the Rules. 9, 10 Approved Source/Sound Condition • Foods from unapproved sources/unsound condition: Action: Voluntary destruction 11 Proper Handling of Ready-to-Eat Foods • Employee did not properly wash and sanitize hands before touching ready-to-eat food with bare hands: 149 §229.171(j) §229.171(l) Action: Voluntary destruction 12 Cross-Contamination of Raw/Cooked Foods • Ready-To-Eat food contaminated by raw PHF/TCS food: Action: Voluntary destruction of ready-to-eat foods 14 Water Supply • Facility does not have water for washing hands, preparing food, or cleaning equipment/utensils: Action: Voluntary suspension of food preparation *Potentially Hazardous Food (PHF) / Time/Temperature Control for Safety (TCS) (k) Imminent health hazard. (1) Ceasing operations and reporting. (A) Except as specified in subparagraph (B) of this paragraph, a food establishment shall immediately discontinue operations and notify the regulatory authority if an imminent health hazard may exist because of an emergency such as a fire, flood, extended interruption of electrical or water service, sewage backup, misuse of poisonous or toxic materials, onset of an apparent foodborne illness outbreak, gross insanitary occurrence or condition, or other circumstance that may endanger public health. (B) A permit holder need not discontinue operations in an area of an establishment that is unaffected by the imminent health hazard. (2) Resumption of operations. If operations are discontinued as specified under paragraph (1) of this subsection or otherwise according to law, the permit holder shall obtain approval from the regulatory authority before resuming operations. (l) Critical violations, time frame for correction. (1) Timely correction. (A) Except as specified in subparagraph (B) of this paragraph, the food establishment shall at the time of inspection implement immediate corrective actions of a critical violation of these rules and implement corrective actions for a HACCP plan provision that is not in compliance with its critical limit. (B) Considering the nature of the potential hazard involved and the complexity of the corrective action needed, the regulatory authority may agree to or specify a longer time frame, not to exceed 10 calendar days after the inspection, for the food establishment to correct critical rule violations or HACCP plan deviations. 150 §229.171(l) §229.171(n) (2) Verification and documentation of correction. (A) After observing at the time of inspection a correction of a critical violation or deviation, the regulatory authority shall enter the violation and information about the corrective action on the inspection report. (B) As specified under paragraph (1)(B) of this subsection, after receiving notification that the food establishment has corrected a critical violation or HACCP plan deviation, or at the end of the specified period of time, the regulatory authority shall verify correction of the violation, document the information on an inspection report, and enter the report in the regulatory authoritys records. (C) When the total cumulative demerit value of an establishment exceeds 30 demerits, the establishment shall initiate immediate corrective action on all identified critical violations and shall initiate corrective action on all other violations within 48 hours. One or more reinspections shall be conducted at reasonable time intervals to assure correction. (D) In the case of temporary food establishments, all critical violations must be corrected immediately and other violations must be corrected within 24 hours or sooner if required by the regulatory authority. If violations are not corrected, the establishment shall immediately cease food operations until authorized to resume by the regulatory authority. (m) Other violations, time frame for correction. (1) Time frame. Except as specified in paragraph (2) of this section, the food establishment shall correct other violations by a date and time agreed to or specified by the regulatory authority but no later than 90 calendar days after the inspection. (2) Extension of compliance schedule. The regulatory authority may approve a compliance schedule that extends beyond the time limits specified under paragraph (1) of this subsection if a written schedule of compliance is submitted by the food establishment and no health hazard exists or will result from allowing an extended schedule for compliance. (n) Examination and detention of food. The regulatory authority may examine and collect samples of food as often as necessary for the enforcement of these rules. A receipt for samples shall be issued by the regulatory authority. The department shall, upon written notice to the owner or person in charge specifying the reason therefore, place under detention any food which it has probable cause to believe is adulterated or misbranded in accordance with the provisions of the Texas Food, Drug, and Cosmetic Act, Texas Health and Safety Code, Chapter 431. 151 §229.171(o) §229.171(o) (o) Investigation and control. (1) Obtaining information: personal history of illness, medical examination, and specimen analysis. The regulatory authority shall act when it has reasonable cause to believe that a food employee has possibly transmitted disease; may be infected with a disease in a communicable form that is transmissible through food; may be a carrier of infectious agents that cause a disease that is transmissible through food; or is affected with a boil, an infected wound, or acute respiratory infection, by: (A) securing a confidential medical history of the employee suspected of transmitting disease or making other investigations as deemed appropriate; and (B) requiring appropriate medical examinations, including collection of specimens for laboratory analysis, of a suspected employee and other employees. (2) Restriction or exclusion of food employee, or summary suspension of permit. Based on the findings of an investigation related to a food employee who is suspected of being infected or diseased, the regulatory authority may issue an order to the suspected food employee or permit holder instituting one or more of the following control measures: (A) restricting the food employee; (B) excluding the food employee; or (C) closing the food establishment by summarily suspending a permit to operate in accordance with law. (3) Restriction or exclusion order: warning or hearing not required, information required in order. Based on the findings of the investigation as specified in paragraph (1) of this subsection and to control disease transmission, the regulatory authority may issue an order of restriction or exclusion to a suspected food employee or the permit holder without prior warning, notice of a hearing, or a hearing if the order: (A) states the reasons for the restriction or exclusion that is ordered; (B) states the evidence that the food employee or permit holder shall provide in order to demonstrate that the reasons for the restriction or exclusion are eliminated; (C) states that the suspected food employee or the permit holder may request an appeal hearing by submitting a timely request as provided in law; and (D) provides the name and address of the regulatory authority representative to whom a request for an appeal hearing may be made. 152 §229.171(o) §229.171(p) (4) Release of food employee from restriction or exclusion. The regulatory authority shall release a food employee from restriction or exclusion according to Texas Health and Safety Code, Chapter 438, §438.033, and the following conditions: (A) a food employee who was infected with Salmonella typhi if the food employee’s stools are negative for S. typhi based on testing of at least three consecutive stool specimen cultures that are taken: (i) not earlier than one month after onset; (ii) at least 48 hours after discontinuance of antibiotics; and (iii) at least 24 hours apart; (B) if one of the cultures taken as specified in subparagraph (A) of this paragraph is positive, repeat cultures are taken at intervals of one month until at least three consecutive negative stool specimen cultures are obtained; (C) a food employee who was infected with Shigella spp. or Shiga toxin- producing Escherichia coli if the employee’s stools are negative for Shigella spp. or Shiga toxin- producing Escherichia coli based on testing of two consecutive stool specimen cultures that are taken: (i) not earlier than 48 hours after discontinuance of antibiotics; and (ii) at least 24 hours apart; and (D) a food employee who was infected with hepatitis A virus if: (i) symptoms cease; or (ii) at least two blood tests show falling liver enzymes. (p) Reporting of communicable diseases. (1) Who shall report. Certain persons, as required in §97.2 of this title (relating to Who Shall Report), shall report certain confirmed and suspected foodborne diseases. (2) What to report. Confirmed and suspected cases of the following diseases, including, but not limited to the following, are reportable: botulism; campylobacteriosis; cryptosporidiosis; Escherichia coli 0157:H7; hepatitis A, acute viral; listeriosis; salmonellosis; shigellosis; trichinosis; and Vibrio infection. 153 §229.171(p) §229.171(p) (3) When to report. Reporting of communicable diseases shall be done in accordance with §97.4 of this title (relating to When To Report a Condition or Isolate; Where to Submit an Isolate; Where to Report a Condition or Isolate). (4) Where to report. Persons required to report communicable diseases shall report to the local health authority, or in the case where there is no local health authority, the report shall be made to the departments Regional Director as required in §97.5 of this title (relating to Where To Report a Condition or Isolate; Where To Submit an Isolate). (5) Reporting and other duties of local health authorities and regional directors. Local health authorities and regional directors shall report communicable diseases to the department as provided for in §97.6 of this title (relating to Reporting and Other Duties of Local Health Authorities and Regional Directors). 154 §229.173(a) §229.173(c) §229.173. Heimlich Maneuver Poster. (a) Purpose. The purpose of this section is to establish the requirements for signs depicting the Heimlich Maneuver for dislodging an obstruction from a choking person. (b) Placement. All food establishments at which space for eating is designed or designated shall post the sign in a place conspicuous to employees or customers. (c) Specifications. The sign shall meet the following requirements: (1) the sign shall be printed on white paper and shall be no smaller than 11 inches wide by 17 inches long; (2) the sign shall be printed in English and Spanish and in at least two conspicuous contrasting colors. Major title and figure blocks shall be in contrasting color to remaining copy blocks; (3) major headings shall be a minimum Bengeat Bold 72 point or equivalent; (4) subheadings shall be a minimum Bengeat Bold Italic 60 point or equivalent; (5) remaining subheadings shall be a minimum Bengeat Bold 24 point or equivalent; and (6) body copy shall be Helios Bold 14 point or equivalent. 155 §229.174(a) §229.174(h) §229.174. Bed and Breakfast Extended Establishments. (a) General. Bed and breakfast extended establishments shall comply with these minimum requirements of this section. (b) Food supplies. Food shall be obtained from approved sources, shall be in sound condition, and be safe for human consumption. (c) Food preparation and protection. (1) Food preparation and protection. Food shall be prepared and protected in accordance with these rules. (2) Temperature requirements. All food temperature requirements shall be met as contained in §229.164(k) - (o) of this title (relating to Food). (d) Cleaning and sanitizing. (1) Manual. A three compartment sink shall be used if washing, rinsing and sanitizing of utensils and equipment is done manually; or a two compartment sink may be utilized if single service tableware is provided, and if an approved detergent sanitizer is used. (2) Mechanical. Cleaning and sanitizing may be done by spray-type or immersion dishwashing machines or by any other type of machine or device if it is demonstrated that it thoroughly cleans and sanitizes equipment and utensils either by chemical or mechanical sanitization. (e) Personal hygiene. Employees shall conform to good hygienic practices as required in these rules. (f) Employee restrooms. A restroom shall be available for use by employees. (g) Equipment and utensil design and construction. All equipment and utensils shall be constructed of safe materials and maintained in good repair. (h) Handsinks. (1) Location. An accessible and conveniently located handwash sink shall be provided in or immediately adjacent to food preparation areas. (2) Intended use. Handsink(s) shall be used for no other purpose other than handwashing. 156 §229.174(i) §229.174(n) (i) Food-contact surfaces. All food contact surfaces, counters, or work surfaces in the establishment shall be smooth, non-absorbent and easily cleanable. (j) Insect proof/rodent proof. (1) Construction. Food service preparation and storage areas shall be constructed and maintained to prevent the entry of pests and other vermin. (2) Chemical control. Pesticides and rodenticides shall be applied according to law. (k) Equipment. Equipment shall be provided to maintain potentially hazardous foods at the temperatures required by these rules. (l) Garbage receptacles. Impervious receptacles shall be provided for storage of garbage and refuse. (m) Sewage. Sewage shall be disposed through an approved facility that is: (1) a public sewage treatment plant; or (2) an individual sewage disposal system that is sized, constructed, maintained, and operated according to law. (n) Water supply. Hot and cold water under pressure shall be provided and shall be from an approved source. 157 §229.175(a) §229.175(h) §229.175. Outfitter Operations. (a) General. Requirements in this section are specific for Outfitter Operations. The regulatory authority may impose additional requirements to protect against health hazards that may be specific to these operations. (b) Food supplies. Food supplies, including ice, shall be obtained from approved sources. No home prepared products shall be offered. (c) Food temperatures. All food temperature requirements shall be met as contained in §229.164(k) - (o) of this title (relating to Food). (d) Warewashing. Alternative manual warewashing equipment, such as receptacles that substitute for the compartments of a multi-compartment sink, may be used for washing and sanitizing utensils when approved by the regulatory authority. Outfitters without effective facilities for cleaning and sanitizing tableware shall only provide single-service articles for use by food employees and consumers. (e) Ice usage. Ice that is used for cooling food may not be used for human consumption. (f) Potable water. Potable water shall be used on excursions for food preparation, handwashing, and for cleaning and sanitizing utensils and equipment. (g) Handwashing. Handwash facilities shall include an insulated container with a spigot that can be turned on to allow potable, clean, warm water to flow; a wastewater container; soap; disposable towels; and a waste receptacle. Handwash facilities are not required if the only food items offered are commercially prepackaged foods that are dispensed in their original containers. (h) Equipment. All equipment and utensils intended for food contact shall be approved for food use. Annex 1 ANNEX NUMERICALLY SEQUENTIAL INDEX BY PARAGRAPH §229.161 Purpose ..........................................................................................................1 §229.162 Definitions ..........................................................................................................1 §229.163 Management and Personnel ..........................................................................................20 (a) Responsibility, assignment.....................................................................................20 (b) Knowledge, demonstration.....................................................................................20 (1) Complying with rules .................................................................................20 (2) Being a certified food protection manager ..................................................20 (3) Responding correctly to inspectors questions.............................................20 (c) Duties, person in charge.........................................................................................22 (1) Food establishment operations not conducted in a private home .................22 (2) Persons unnecessary to the operation not allowed.......................................22 (3) Employees and other persons comply with these rules................................22 (4) Employees are effectively cleaning their hands...........................................22 (5) Employees are visibly observing received foods.........................................22 (6) Employees are properly cooking potentially hazardous food.......................22 (7) Employees are using proper methods to rapidly cool potentially hazardous food..........................................................................22 (8) Consumers who order raw or partially cooked foods of animal origin are informed.....................................................................................22 (9) Employees are properly sanitizing cleaned multiuse equipment..................23 (10) Consumers are notified to use clean tableware............................................23 (11) Employees are preventing cross-contamination...........................................23 (12) Employees are properly trained in food safety............................................23 (d) Disease or medical condition..................................................................................23 (1) Responsibility of the person in charge to require reporting by food employees and applicants ...............................................23 (2) Exclusions and restrictions .........................................................................25 (3) Removal of exclusions and restrictions.......................................................26 (4) Responsibility of a food employee or an applicant to to report to the person in charge..................................................................28 (e) Hands and arms, clean condition............................................................................28 (f) Hands and arms cleaning procedure.......................................................................28 (1) Food employees shall clean their hands and exposed portions of their arms for at least 20 seconds..............................................28 (2) Food employees shall use the following cleaning procedure.......................28 (3) Food employees shall pay particular attention to the areas underneath the fingernails...........................................................................28 (4) An automatic handwashing facility may be used.........................................29 (g) Special handwash procedures.................................................................................29 Annex 2 (h) When to wash .......................................................................................................29 (1) After touching bare human body parts other than hands..............................29 (2) After using the toilet room..........................................................................29 (3) After caring for or handling service animals or aquatic animals..................29 (4) After coughing, sneezing, using a handkerchief or disposable tissue, using tobacco, eating, or drinking ....................................................29 (5) After handling soiled equipment or utensils................................................29 (6) As often as necessary to remove soil and contamination .............................29 (7) When switching between working with raw food and working with ready-to-eat food ................................................................................29 (8) Before donning gloves for working with food.............................................29 (9) After engaging in other activities that contaminate the hands......................29 (i) Where to wash.......................................................................................................29 (j) Hand sanitizers.......................................................................................................29 (1) A hand sanitizer and a chemical hand sanitizing solution shall....................30 (2) If a hand sanitizer or a chemical hand sanitizing solution used as a hand dip does not meet criteria ....................................................30 (3) A chemical hand sanitizing solution used as a hand dip ..............................30 (k) Fingernail maintenance..........................................................................................30 (1) Food employees shall keep their fingernails trimmed..................................31 (2) A food employee may not wear fingernail polish........................................31 (l) Jewelry prohibition ................................................................................................31 (m) Outer clothing, clean condition...............................................................................31 (n) Eating, drinking, or using tobacco ..........................................................................31 (1) An employee shall eat, drink, or use tobacco in designated areas ................31 (2) A food employee may drink from a closed beverage container ...................31 (o) Discharges from the eyes, nose, and mouth............................................................31 (p) Hair restraints, effectiveness...................................................................................31 (1) Food employees shall wear hair restraints...................................................31 (2) Food employees who are not required to wear hair restraints......................32 (q) Handling prohibition..............................................................................................32 (1) Food employees may not handle animals that may be present.....................32 (2) Food employees with assistance animals and fish in aquariums ..................32 §229.164 Food.............................................................................................................................33 (a) Condition safe, unadulterated, and honestly presented............................................33 (b) Approved sources...................................................................................................33 (1) Compliance with food law..........................................................................33 (2) Food in a hermetically sealed container ......................................................34 (3) Fluid milk and milk products......................................................................34 (4) Fish............................................................................................................34 (5) Molluscan shellfish.....................................................................................34 (6) Wild mushrooms........................................................................................35 (7) Exotic animals and game animals...............................................................35 (c) Specifications for receiving....................................................................................37 (1) Temperature...............................................................................................37 Annex 3 (2) Additives....................................................................................................38 (3) Shell eggs...................................................................................................38 (4) Eggs and milk products, pasteurized...........................................................38 (5) Package integrity........................................................................................38 (6) Ice..............................................................................................................38 (7) Shucked shellfish, packaging and identification..........................................38 (8) Shellstock identification .............................................................................39 (9) Shellstock, condition ..................................................................................40 (10) Juice treated................................................................................................40 (d) Molluscan shellfish, maintaining identification ......................................................40 (1) Molluscan shellfish may not be removed from container ............................40 (2) Shellstock may be removed from container for display...............................40 (3) Shucked shellfish may be removed from container for display....................41 (4) Label information for shucked shellfish removed from container................41 (5) Shellstock, tags...........................................................................................41 (e) Preventing contamination by employees.................................................................42 (1) Preventing contamination from hands.........................................................42 (2) Preventing contamination when tasting.......................................................43 (f) Preventing food and ingredient contamination........................................................43 (1) General.......................................................................................................43 (2) Packaged and unpackaged food - separation, packaging, and segregation...........................................................................................43 (3) Food storage containers, identified with common name of food..................45 (4) Pasteurized eggs, substitute for shell eggs for certain recipes......................45 (5) Protection from unapproved additives.........................................................45 (6) Washing fruits and vegetables ....................................................................46 (g) Preventing contamination from ice used as a coolant..............................................46 (1) Ice used as exterior coolant, prohibited as ingredient ..................................46 (2) Storage or display of food in contact with water or ice................................46 (h) Preventing contamination from equipment, utensils, and linens..............................46 (1) Food contact with equipment and utensils...................................................46 (2) In-use utensils, between-use storage...........................................................47 (3) Linens and napkins, use limitation..............................................................47 (4) Wiping cloths, use limitation .....................................................................47 (5) Gloves, use limitation.................................................................................48 (6) Using clean tableware for second portions and refills..................................48 (7) Refilling returnables...................................................................................49 (i) Preventing contamination from the premises..........................................................49 (1) Food Storage..............................................................................................49 (2) Food storage, prohibited areas ....................................................................49 (3) Vended potentially hazardous food, original container................................50 (4) Food preparation ........................................................................................50 (j) Preventing contamination by consumers.................................................................50 (1) Food display...............................................................................................50 (2) Condiments, protection...............................................................................50 (3) Consumer self-service operations ...............................................................50 Annex 4 (4) Returned food and reservice of food...........................................................51 (5) Preventing contamination from other sources .............................................52 (k) Cooking.................................................................................................................52 (1) Raw animal foods.......................................................................................52 (2) Microwave cooking....................................................................................55 (3) Plant food cooking for hot holding..............................................................55 (l) Freezing.................................................................................................................55 (1) Parasite destruction.....................................................................................55 (2) Tuna species served or sold without freezing..............................................56 (3) Records, creation and retention...................................................................56 (m) Reheating...............................................................................................................56 (1) Preparation for immediate service ...............................................................56 (2) Reheating for hot holding...........................................................................56 (n) Treating juice.........................................................................................................57 (1) Juice shall be treated under a HACCP plan.................................................57 (2) Juice shall be labeled if not treated .............................................................57 (o) Temperature and time control.................................................................................57 (1) Frozen food................................................................................................57 (2) Potentially hazardous food, slacking...........................................................57 (3) Thawing.....................................................................................................57 (4) Cooling ......................................................................................................58 (5) Cooling methods ........................................................................................59 (6) Potentially hazardous food, hot and cold holding........................................60 (7) Ready-to-eat potentially hazardous food, date marking...............................60 (8) Ready-to-eat potentially hazardous food, disposition..................................62 (9) Time as a public health control ...................................................................63 (p) Specialized processing methods.............................................................................63 (1) Variance requirement .................................................................................63 (2) Clostridium botulinum controls, reduced oxygen packaging, criteria ..........64 (q) Food identity, accurate representation ....................................................................66 (1) Standards of identity...................................................................................66 (2) Honestly presented.....................................................................................66 (r) Labeling.................................................................................................................66 (1) Food labels.................................................................................................66 (2) Other forms of information.........................................................................67 (s) Consumer advisory................................................................................................68 (1) Permit holder shall inform consumer of increased risk of consuming raw or undercooked animal food.................................................................68 (2) Disclosure shall include a description and identification.............................68 (3) Reminder shall include a footnote regarding safety and risk........................68 (t) Disposition, contaminated food..............................................................................68 (1) Unsafe, adulterated, or not honestly presented food....................................68 (2) Food from unapproved source ....................................................................69 (3) Ready-to-eat food contaminated by restricted or excluded employee ..........69 (4) Food contaminated by food employees or consumers .................................69 (u) Additional safeguards, requirements for food establishments Annex 5 serving highly susceptible populations ...................................................................69 (1) Criteria that shall apply to juice .............................................................69 (2) Pasteurized shell eggs or egg products shall be substituted..........................69 (3) Foods that shall not be served.....................................................................69 (4) Food employees may not contact ready-to-eat food ....................................70 (5) Time only, as the public health control, may not be used for raw eggs........70 (6) Requirements for using raw eggs................................................................70 (7) Food may be re-served................................................................................71 (8) Food may not be re-served under the following conditions .........................71 (v) Donation of foods ..................................................................................................71 (1) Previous service..........................................................................................71 (2) Potentially hazardous foods........................................................................71 (3) Labeling.....................................................................................................71 (4) Shelf life.....................................................................................................71 (5) Damaged foods...........................................................................................71 (6) Distressed foods ..................................................................................72 §229.165 Equipment, Utensils, and Linens ...................................................................................73 (a) Multiuse materials..................................................................................................73 (1) Characteristics............................................................................................73 (2) Cast iron, use limitation..............................................................................73 (3) Lead in ceramic, china, and crystal utensils, use limitation .........................73 (4) Copper, use limitation.................................................................................74 (5) Galvanized metal, use limitation.................................................................74 (6) Sponges, use limitation.........................................................................74 (7) Lead in pewter alloys, use limitation...........................................................74 (8) Lead in solder and flux, use limitation....................................................74 (9) Wood, use limitation ..................................................................................74 (10) Nonstick coatings, use limitation................................................................75 (11) Nonfood-contact surfaces...........................................................................75 (b) Single-service and single-use, characteristics .........................................................75 (1) Prohibitions of use......................................................................................75 (2) Requirements .............................................................................................75 (c) Durability and strength...........................................................................................75 (1) Equipment and utensils...............................................................................76 (2) Food temperature measuring devices..........................................................76 (d) Cleanability............................................................................................................76 (1) Food-contact surfaces.................................................................................76 (2) Exemption for cooking oil storage tanks and lines ......................................76 (3) Cleaned in place (CIP) equipment...............................................................76 (4) "V" threads, use limitation..........................................................................77 (5) Hot oil filtering equipment..........................................................................77 (6) Can openers................................................................................................77 (7) Nonfood-contact surfaces...........................................................................77 (8) Kick plates, removable ...............................................................................77 (9) Ventilation hood systems, filters.................................................................77 Annex 6 (e) Accuracy of temperature measuring devices...........................................................77 (1) Temperature measuring device, food..........................................................77 (2) Temperature measuring device, ambient air and water................................77 (3) Pressure measuring devices, mechanical warewashing equipment...............78 (f) Functionality of equipment.....................................................................................78 (1) Ventilation hood systems, drip prevention..................................................78 (2) Equipment openings, closures and deflectors..............................................78 (3) Dispensing equipment, protection of equipment and food...........................78 (4) Vending machine, vending stage closure ....................................................79 (5) Bearings and gear boxes, leakproof ............................................................79 (6) Beverage tubing, separation........................................................................79 (7) Ice units, separation of drains .....................................................................80 (8) Condenser unit, separation..........................................................................80 (9) Can openers on vending machines..............................................................80 (10) Molluscan shellfish tanks............................................................................80 (11) Vending machines, automatic shutoff.........................................................80 (12) Temperature measuring devices..................................................................81 (13) Warewashing machine, data plate operating specifications .........................82 (14) Warewashing machines, internal baffles.....................................................82 (15) Warewashing machines, temperature measuring devices ............................82 (16) Manual warewashing equipment, heaters and baskets.................................82 (17) Warewashing machines, sanitizer level indicator........................................82 (18) Warewashing machines, flow pressure device ............................................83 (19) Warewashing sinks and drain boards, self-draining.....................................83 (20) Equipment compartments, drainage............................................................83 (21) Vending machines, liquid waste products...................................................83 (22) Case lot handling equipment, moveability ..................................................84 (23) Vending machine doors and openings.........................................................84 (24) Food equipment certification, classification, acceptability ..........................84 (g) Equipment, numbers and capacities........................................................................84 (1) Cooling, heating, and holding capacities.....................................................84 (2) Manual warewashing, sink compartment requirements...............................84 (3) Drain boards...............................................................................................86 (4) Ventilation hood systems, adequacy...........................................................86 (5) Clothes washers and dryers.........................................................................86 (h) Utensils, temperature measuring devices, and testing devices.................................86 (1) Utensils, consumer self-service...................................................................86 (2) Food temperature measuring devices..........................................................86 (3) Temperature measuring device with a probe...............................................86 (4) Temperature measuring devices, manual warewashing...............................86 (5) Sanitizing solutions, testing devices............................................................86 (i) Location of equipment, clothes washers and dryers, and storage cabinets...............86 (1) Location requirements................................................................................87 (2) Linen, single-service, single-use item exception .........................................87 (3) Clothes washer and dryer location requirements.........................................87 (j) Installation, fixed equipment..................................................................................87 Annex 7 (1) Fixed equipment, spacing or sealing...........................................................87 (2) Fixed equipment, elevation or sealing.........................................................88 (k) Equipment, maintenance and operation..................................................................88 (1) Good repair and proper adjustment.............................................................88 (2) Cutting surfaces..........................................................................................89 (3) Microwave ovens .......................................................................................89 (4) Warewashing equipment, cleaning frequency.............................................89 (5) Warewashing machines, manufacturers’ operating instructions...................89 (6) Warewashing sinks, use limitation..............................................................89 (7) Warewashing equipment, cleaning agents...................................................90 (8) Warewashing equipment, clean solutions....................................................90 (9) Manual warewashing equipment, wash solution temperature......................90 (10) Mechanical warewashing equipment, wash solution temperature................90 (11) Manual warewashing equipment, hot water sanitization temperatures............................................................................90 (12) Mechanical warewashing equipment, hot water sanitization temperatures............................................................................90 (13) Mechanical warewashing equipment, sanitization pressure.........................91 (14) Manual and mechanical warewashing equipment, chemical sanitization - temperature, water activity (pH), concentration, and hardness...............................................................................................91 (15) Manual warewashing equipment, chemical sanitization using detergent-sanitizers ...........................................................................92 (16) Warewashing equipment, determining chemical sanitizer concentration..............................................................................................92 (l) Utensils and temperature measuring devices ..........................................................92 (1) Good repair and proper calibration ........................................................92 (2) Single-service and single-use articles, required use.....................................93 (3) Single-service and single-use articles, use limitation...................................93 (4) Shells, use limitation ..................................................................................93 (m) Cleaning of equipment and utensils........................................................................93 (1) Equipment, food-contact surfaces, nonfood-contact surfaces and utensils.................................................................................................93 (2) Nonfood-contact surfaces...........................................................................93 (n) Frequency of cleaning ............................................................................................93 (1) Equipment food-contact surfaces and utensils.............................................93 (2) Cooking and baking equipment ..................................................................96 (3) Nonfood-contact surfaces...........................................................................96 (o) Methods of cleaning...............................................................................................96 (1) Dry cleaning...............................................................................................97 (2) Precleaning.................................................................................................97 (3) Loading of soiled items, warewashing machines.........................................97 (4) Wet cleaning ..............................................................................................97 (5) Washing, procedures for alternative manual warewashing equipment .............................................................................97 (6) Rinsing procedures.....................................................................................98 Annex 8 (7) Returnables, cleaning for refilling...............................................................99 (p) Sanitization, food-contact surfaces and utensils......................................................99 (q) Sanitization frequency, before use after cleaning....................................................99 (r) Sanitization methods, hot water and chemical........................................................100 (1) Hot water manual operations ......................................................................100 (2) Hot water mechanical operations ................................................................100 (3) Chemical manual or mechanical operations................................................100 (s) Laundering, clean linens ........................................................................................100 (t) Laundering, frequency ...........................................................................................100 (1) Linens ........................................................................................................100 (2) Cloth gloves ...............................................................................................100 (3) Linens and napkins, specified use ..........................................................101 (4) Wet wiping cloths.......................................................................................101 (5) Dry wiping cloths.......................................................................................101 (u) Laundering, methods..............................................................................................101 (1) Storage of soiled linens...............................................................................101 (2) Mechanical washing...................................................................................101 (3) Use of laundry facilities ..............................................................................101 (v) Drying, equipment and utensils ..............................................................................101 (1) Equipment and utensils, air-drying required................................................101 (2) Wiping cloths, air-drying locations .............................................................102 (w) Lubricating and reassembling of food-contact surfaces, equipment ........................102 (1) Food-contact surfaces.................................................................................102 (2) Equipment ..................................................................................................102 (x) Storage ..................................................................................................................102 (1) Equipment, utensils, linens, and single-service and single-use articles.......................................................................................102 (2) Storage prohibitions....................................................................................103 (y) Handling of utensils, single-service articles............................................................103 (1) Kitchenware and tableware .........................................................................103 (2) Soiled and clean tableware..........................................................................104 (3) Preset tableware..........................................................................................104 §229.166 Water, Plumbing, and Waste.........................................................................................105 (a) Water source ..........................................................................................................105 (1) Approved system........................................................................................105 (2) System flushing and disinfection ................................................................105 (3) Bottled drinking water................................................................................105 (b) Water quality standards ..........................................................................................105 (1) Public and private water systems ................................................................105 (2) Nondrinking water......................................................................................105 (3) Sampling ....................................................................................................105 (4) Sample report .............................................................................................106 (c) Water quantity and availability...............................................................................106 (1) Capacity .....................................................................................................106 (2) Pressure ......................................................................................................106 Annex 9 (3) Hot water....................................................................................................106 (d) Water distribution, delivery, and retention systems.................................................106 (1) Distribution ................................................................................................106 (2) Alternative water supply .............................................................................106 (e) Plumbing systems, approved materials ...................................................................107 (1) Construction ...............................................................................................107 (2) Water filter .................................................................................................107 (f) Plumbing design, construction, and installation......................................................107 (1) Approved system and cleanable fixtures.....................................................107 (2) Handwashing facility, installation ...............................................................107 (3) Automatic handwashing facility..................................................................107 (4) Backflow prevention, air gap ......................................................................107 (5) Backflow prevention device, design standard..............................................107 (6) Conditioning device, design........................................................................108 (g) Plumbing, numbers and capacities..........................................................................108 (1) Handwashing facilities ...............................................................................108 (2) Toilets and urinals......................................................................................108 (3) Service sink ................................................................................................108 (4) Backflow prevention device, when required ...............................................108 (5) Backflow prevention device, carbonator.....................................................108 (h) Plumbing, location and placement ..........................................................................109 (1) Handwashing facilities ...............................................................................109 (2) Backflow prevention device, location .........................................................109 (3) Conditioning device, location .....................................................................109 (i) Plumbing, operation and maintenance ....................................................................109 (1) Using a handwashing facility ......................................................................109 (2) Prohibiting a cross connect ion ....................................................................109 (3) Scheduling inspection and service for a water system device ......................109 (4) Water reservoir of fogging devices, cleaning ..............................................110 (5) System maintained in good repair ...............................................................110 (6) Mobile water tank and mobile food establishment water tank .....................110 (j) Sewage retention, drainage, and delivery................................................................113 (1) Establishment drainage system ...................................................................113 (2) Backflow prevention ..................................................................................113 (3) Grease trap .................................................................................................113 (4) Conveying sewage......................................................................................113 (k) Disposal facility.....................................................................................................113 (1) Approved sewage disposal system ..............................................................113 (2) Other liquid wastes and rainwater ...............................................................114 (l) Storage facilities on the premises ...........................................................................114 (1) Indoor storage area.....................................................................................114 (2) Outdoor storage surface..............................................................................114 (3) Outdoor enclosure ......................................................................................114 (4) Receptacles ................................................................................................114 (5) Receptacles in vending machines ................................................................114 (6) Outside receptacles .....................................................................................114 Annex 10 (7) Storage areas, rooms, and receptacles, capacity and availability..................114 (8) Toilet room receptacle, covered ..................................................................115 (9) Cleaning implements and supplies ..............................................................115 (10) Storage areas, redeeming machines, receptacles, and waste handling units, location .....................................................................115 (11) Storing refuse, recyclables, and returnables ................................................115 (12) Areas, enclosures, and receptacles, good repair ...........................................116 (13) Outside storage prohibit ions .......................................................................116 (14) Covering receptacles ..................................................................................116 (15) Using drain plugs........................................................................................116 (16) Maintaining refuse areas and enclosures.....................................................116 (17) Cleaning receptacles ...................................................................................116 (m) Refuse removal......................................................................................................117 (1) Frequency...................................................................................................117 (2) Receptacles or vehicles ...............................................................................117 (n) Facilities for disposal and recycling, community or individual facility .................117 §229.167 Physical Facilities.........................................................................................................118 (a) Indoor areas, surface characteristics .......................................................................118 (1) Smooth, durable, and easily cleanable.........................................................118 (2) Closely woven and easily cleanable carpet..................................................118 (3) Nonabsorbent for areas subject to moisture.................................................118 (b) Outdoor areas, surface characteristics .....................................................................118 (1) Walking and driving areas ..........................................................................118 (2) Exterior surfaces.........................................................................................118 (3) Storage areas ..............................................................................................118 (c) Floors, walls, and ceilings ......................................................................................118 (1) Cleanability ................................................................................................118 (2) Floors, walls, and ceilings, utility lines.......................................................118 (3) Floor and wall junctures, coved, and enclosed or sealed ..............................119 (4) Floor carpeting, restrictions and installation................................................119 (5) Floor covering, mats and duckboards ..........................................................119 (6) Wall and ceiling coverings and coatings .....................................................119 (7) Walls and ceilings, attachments ..................................................................119 (8) Walls and ceilings, studs, joists, and rafters................................................120 (d) Functionality ..........................................................................................................120 (1) Light bulbs, protective shielding .................................................................120 (2) Heating, ventilating, air conditioning system vents.....................................120 (3) Insect control devices, design and installation.............................................120 (4) Toilet rooms, enclosed................................................................................121 (5) Outer openings, protected ...........................................................................121 (6) Exterior walls and roofs, protective barrier.................................................122 (7) Outdoor food vending areas, overhead protection.......................................122 (8) Outdoor walking and driving surfaces, graded to drain ...............................122 (9) Outdoor refuse areas, curbed and graded to drain........................................122 (10) Private homes and living or sleeping quarters, use prohibition ....................122 Annex 11 (11) Living or sleeping quarters, separation........................................................122 (e) Handwashing facilities...........................................................................................122 (1) Minimum number .......................................................................................122 (2) Handwashing cleanser, availability .............................................................122 (3) Hand drying provision................................................................................123 (4) Handwashing aids and devices, use restrictions ..........................................123 (5) Handwashing signage.................................................................................123 (6) Disposable towels, waste receptacle............................................................123 (f) Toilets and urinals..................................................................................................123 (1) Minimum number .......................................................................................123 (2) Toilet tissue, availability.............................................................................123 (g) Lighting, intensit y..................................................................................................123 (1) Specifications for 110 lux .....................................................................123 (2) Specifications for 220 lux ...........................................................................123 (3) Specifications for 540 lux ...........................................................................124 (h) Ventilation, mechanical..........................................................................................124 (i) Dressing areas and lockers, designation..................................................................124 (1) Provision for dressing rooms and areas .......................................................124 (2) Provision for lockers...................................................................................124 (j) Service sinks, availability .......................................................................................124 (k) Handwashing facilities, conveniently located.........................................................124 (l) Toilet rooms, convenience and accessibility...........................................................124 (m) Employee accommodations, designated areas.........................................................124 (1) Eating and tobacco areas.............................................................................124 (2) Location of lockers.....................................................................................124 (n) Distressed merchandise, segregation and location ..................................................124 (o) Receptacles, waste handling units, and designated storage areas.............................125 (p) Premises, buildings, systems, rooms, fixtures, equipment, devices, and materials ............................................................................................125 (1) Repairing ....................................................................................................125 (2) Cleaning, frequency and restrictions ...........................................................125 (3) Cleaning floors, dustless methods ...............................................................125 (4) Cleaning ventilation systems, nuisance and discharge prohibit ion ...............125 (5) Cleaning maintenance tools, preventing contamination...............................125 (6) Drying mops ...............................................................................................126 (7) Absorbent materials on floors, use limitation..............................................126 (8) Maintaining and using handwashing facilities.............................................126 (9) Closing toilet room doors ...........................................................................126 (10) Using dressing rooms and lockers ...............................................................126 (11) Controlling pest s ........................................................................................126 (12) Removing dead or trapped birds, insects, rodents, and other pests ...............126 (13) Storing maintenance tools ...........................................................................126 (14) Maintaining premises, unnecessary items and litter.....................................127 (15) Prohibit ing anima ls.....................................................................................127 §229.168 Poisonous or Toxic Materials........................................................................................129 Annex 12 (a) Original containers, identifying information, prominence .......................................129 (b) Working containers, common name .......................................................................129 (c) Storage, separation.................................................................................................129 (1) Separating poisonous or toxic materials......................................................129 (2) Locating poisonous or toxic materials.........................................................129 (d) Presence and use....................................................................................................129 (1) Restriction ..................................................................................................129 (2) Conditions of use........................................................................................129 (e) Container prohibitions, poisonous or toxic material containers ...............................130 (f) Chemicals ..............................................................................................................130 (1) Sanitizers, criteria.......................................................................................130 (2) Chemicals for washing fruits and vegetables, criteria..................................130 (3) Boiler water additives, criteria ....................................................................130 (4) Drying agents, criteria ................................................................................130 (g) Lubricants, incidental food contact, criteria............................................................131 (h) Pesticides...............................................................................................................131 (1) Restricted use pesticides, criteria ................................................................131 (2) Rodent bait stations ....................................................................................131 (3) Tracking powders, pest control and monitoring ..........................................131 (i) Medicines ..............................................................................................................132 (1) Restriction and storage ...............................................................................132 (2) Refrigerated medicines, storage ..................................................................132 (j) First aid supplies, storage .......................................................................................132 (1) Labeled ......................................................................................................132 (2) Storage requirements..................................................................................132 (k) Other personal care items, storage ..........................................................................132 (l) Storage and display, separation ........................................................................132 (1) Separating poisonous or toxic materials......................................................132 (2) Locating poisonous or toxic materials .........................................................132 §229.169 Mobile Food Establishments ..................................................................................133 (a) Mobile food establishment provisions ....................................................................133 (1) General .......................................................................................................133 (2) Restricted operation....................................................................................133 (3) Single-service articles.................................................................................133 (4) Existing refrigeration equipment .................................................................133 (5) Mobile water system materials, design, and operat ion.................................133 (6) Mobile food establishment tank inlet..........................................................133 (7) Readily moveable.......................................................................................133 (8) Sewage, other liquid waste, and rainwater ..................................................134 (9) Mobile food establishment water and wastewater exempt ion ......................134 (b) Central preparation facility .....................................................................................135 (1) Supplies, cleaning, and servicing operations...............................................135 (2) Construction ...............................................................................................135 (c) Servicing area and operat ions .................................................................................135 (1) Protect ion ...................................................................................................135 Annex 13 (2) Construction exempt ion ..............................................................................135 §229.170 Temporary Food Establishments ...................................................................................136 (a) General..................................................................................................................136 (b) Food temperatures..................................................................................................136 (c) Ice..........................................................................................................................136 (d) Equipment ..............................................................................................................136 (1) Design and construction .............................................................................136 (2) Location and installation.............................................................................136 (3) Hot and cold ho lding equipment .................................................................136 (4) Protection from contaminat ion....................................................................136 (5) Alternative manual warewashing ................................................................136 (e) Single-service articles ............................................................................................136 (f) Water.....................................................................................................................136 (g) Wet storage ............................................................................................................137 (h) Sewage ..................................................................................................................137 (i) Handwashing .........................................................................................................137 (j) Floors.....................................................................................................................137 (k) Ceilings and outer openings of food preparation areas ............................................137 (1) Ceilings ......................................................................................................137 (2) Outer openings ...........................................................................................137 (3) Exclusion provisio n....................................................................................137 §229.171 Compliance and Enforcement ................................................................................138 (a) Use for intended purpose, public health protection.................................................138 (1) Safeguarding public health .........................................................................138 (2) Assessment of existing facilities .................................................................138 (b) Additional requirements, preventing health hazards, provision for conditions not addressed ...................................................................................138 (1) Option to impose additional requirements...................................................138 (2) Required documentat ion .............................................................................138 (c) Variances...............................................................................................................138 (1) Modifications and waivers ..........................................................................138 (2) Documentation of proposed variance and just ificatio n................................138 (3) Conformance with approved procedures .....................................................139 (d) HACCP plan requirements .....................................................................................139 (1) When a HACCP plan is required ................................................................139 (2) Contents of a HACCP plan .........................................................................140 (e) Confidentiality, trade secrets ..................................................................................141 (f) Permit requirement, prerequisite for operation........................................................141 (g) Conditions of retention, responsibilities of the permit ho lder ..................................141 (1) Post the permit............................................................................................141 (2) Comply with rule provisions .......................................................................141 (3) Comply with HACCP plan, if required .......................................................141 (4) Contact the regulatory authority to report an illness ....................................141 (5) Discontinue operations if imminent health hazard may exist .......................141 Annex 14 (6) Allow representatives of the regulatory authority access .............................141 (7) Replace existing facilities and equipment ...................................................141 (8) Upgrade or replace countertop, under-counter and open-top refrigeration units.......................................................................................142 (9) Comply with the directives of the regulatory authority................................142 (10) Accept notices............................................................................................142 (11) Be subject to legal remedies for failure to comply.......................................142 (h) Inspection frequency, performance-based and risk-based .......................................142 (1) Past performance for nonconformance ........................................................142 (2) Past performance for numerous or repeat violations ....................................142 (3) Past performance for complaints .................................................................142 (4) Hazards associated with particular foods ....................................................142 (5) The type of operation..................................................................................143 (6) Number of people served ...........................................................................143 (7) Whether population served is a highly susceptible populat ion .....................143 (8) Other risk factors........................................................................................143 (i) Competency and access..........................................................................................143 (1) Competency of inspect ors...........................................................................143 (2) Access allowed at reasonable times after due notice....................................143 (3) Refusal, notification of right to access, and final request for access.............143 (4) Refusal, reporting.......................................................................................144 (5) Inspection warrant to gain access ................................................................144 (j) Report of findings..................................................................................................144 (1) Documenting informat ion and observations................................................144 (2) Specifying time frame for corrections .........................................................145 (3) Issuing report and obtaining acknowledgment of receipt .............................145 (4) Refusal to sign acknowledgment.................................................................145 (5) Public information......................................................................................145 (6) Inspection reports form ............................................................................146 (k) Imminent health hazards ........................................................................................149 (1) Ceasing operations and reporting ................................................................149 (2) Resumption of operations ...........................................................................149 (l) Critical violations, time frame for corrections.........................................................149 (1) Timely correction.......................................................................................149 (2) Verification and documentation of correction.............................................150 (m) Other violations, time frame for corrections ...........................................................150 (1) Time frame .................................................................................................150 (2) Extension of compliance schedule ..............................................................150 (n) Examination and detention of food .........................................................................150 (o) Investigation and control ........................................................................................151 (1) Obtaining information: personal history of illness, medical examination, and specimen analysis ..............................................151 (2) Restriction or exclusion of food employee, summary suspension ................151 (3) Restriction or exclusion order: warning or hearing not required, information required in order .......................................................151 (4) Release of employee from restriction or exclusion......................................152 Annex 15 (p) Reporting of communicable diseases ......................................................................152 (1) Who shall report.........................................................................................152 (2) What to report ............................................................................................152 (3) When to report............................................................................................153 (4) Where to report...........................................................................................153 (5) Reporting and other duties of local health authorities and regional directors.................................................................................153 §229.173 Heimlich Maneuver Poster .....................................................................................154 (a) Purpose..................................................................................................................154 (b) Placement ..............................................................................................................154 (c) Specifications .........................................................................................................154 (1) Printed on white paper ................................................................................154 (2) Printed in English and Spanish ...................................................................154 (3) Major headings ...........................................................................................154 (4) Subheadings ...............................................................................................154 (5) Remaining subheadings ..............................................................................154 (6) Body font requirements ..............................................................................154 §229.174 Bed and Breakfast Extended Establishments..........................................................155 (a) General..................................................................................................................155 (b) Food supplies .........................................................................................................155 (c) Food preparation and protection .............................................................................155 (1) Food preparation and protection .................................................................155 (2) Temperature requirements ..........................................................................155 (d) Cleaning and sanitizing..........................................................................................155 (1) Manual.......................................................................................................155 (2) Mechanical .................................................................................................155 (e) Personal hygiene....................................................................................................155 (f) Employee restrooms...............................................................................................155 (g) Equipment and utensil design and construction......................................................155 (h) Handsinks ..............................................................................................................155 (1) Location .....................................................................................................155 (2) Intended use ...............................................................................................155 (i) Food-contact surfaces.............................................................................................156 (j) Insect proof/rodent proof ........................................................................................156 (1) Construction ...............................................................................................156 (2) Chemical control........................................................................................156 (k) Equipment..............................................................................................................156 (l) Garbage receptacles ...............................................................................................156 (m) Sewage ..................................................................................................................156 (1) Public sewage treatment plant .....................................................................156 (2) Individual sewage disposal system..............................................................156 (n) Water supply ..........................................................................................................156 §229.175 Outfitter Operations ...............................................................................................157 Annex 16 (a) General..................................................................................................................157 (b) Food supplies .........................................................................................................157 (c) Food temperatures..................................................................................................157 (d) Warewashing .........................................................................................................157 (e) Ice usage................................................................................................................157 (f) Potable water .........................................................................................................157 (g) Handwashing facilities...........................................................................................157 (h) Equipment..............................................................................................................157 WORK SESSION CONSENT REGULAR DEPT: DATE: ITEM #: AGENDA REQUEST FORM ITEM TYPE: ITEM CAPTION: GOAL(S): EXECUTIVE SUMMARY: FINANCIAL COMMENTS: RECOMMENDED ACTION: ACTION TAKEN BY COUNCIL: Parks and Recreation October 24, 2006 11/I ✔ CONTRACT/BID or PROPOSAL Consider approval of renewing the annual Dallas County Health Services Agreement, effective October 1, 2006 through September 30, 2007, in the amount of $3,131.00, and authorizing the Mayor to sign. This is an annual Agreement between Dallas County Health and Human Services (DCHHS) and the city of Coppell whereby DCHHS agrees to provide Control Services related to Tuberculosis, Sexually Transmitted Diseases and Communicable Diseases, as well as Laboratory Services. For FY 2007, the Dallas County Commissioners Court elected not to increase the contract amount, therefore, the cost is based on the FY 2006 Agreement amount. Funds for this contract are budgeted in Environmental Health Other Professional Services. Staff recommends approval. ^Dallas County - 1 AR WORK SESSION CONSENT REGULAR DEPT: DATE: ITEM #: AGENDA REQUEST FORM ITEM TYPE: ITEM CAPTION: GOAL(S): EXECUTIVE SUMMARY: FINANCIAL COMMENTS: RECOMMENDED ACTION: ACTION TAKEN BY COUNCIL: ȱ City Manager October 24, 2006 12 ✔ ORDINANCE Consider approval of an Ordinance appointing a presiding municipal judge and alternate municipal judges of the Coppell Municipal Court of Record No. 1 of the city of Coppell, Texas; and authorizing the Mayor to sign. Staff Recommends approval. !Judges AN ORDINANCE OF THE CITY OF COPPELL, TEXAS ORDINANCE NO. ________ AN ORDINANCE OF THE CITY OF COPPELL, TEXAS, APPOINTING A PRESIDING MUNICIPAL JUDGE AND ALTERNATE MUNICIPAL JUDGES OF THE COPPELL MUNICIPAL COURT OF RECORD NO. 1 OF THE CITY OF COPPELL, TEXAS; PROVIDING A SEVERABILITY CLAUSE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, State law requires a municipality to enact ordinances for the appointment of judges and alternate judges; and WHEREAS, the term of the current Municipal Judge and Alternate Judges have expired; and WHEREAS, the Council desires to reappoint the current Municipal Judge and Alternate Municipal Judges. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF COPPELL, TEXAS: SECTION 1.That in accordance with the provisions of the City Charter and State law, the City Council hereby appoints Hon. Marian Moseley to serve as the Municipal Judge of the Coppell Municipal Court No. 1, and shall act as the presiding judge of said Court, and, the City Council hereby appoints Hon. Kim Nesbitt and Hon. Terry Landwehr and shall each serve as Alternate Municipal Judges. The Municipal Judge and Alternate Municipal Judges appointed herein shall each have and possess the authority, powers, rights, duties, and jurisdiction granted to and imposed on municipal judges of the Courts of Record of the State of Texas by the provisions of State law, City Charter and the ordinances of the City of Coppell. SECTION 2.That the Municipal Judge and the Alternate Municipal Judges appointed hereunder shall each serve a term of office of two (2) years commencing from the effective date hereof, unless sooner terminated according to the provisions of law. 2 SECTION 3.That the City Manager shall determine the appropriate compensation and negotiate with the foregoing persons such contracts and agreements as may be deemed necessary and appropriate and shall execute such contracts as the act and deed of the City. SECTION 4. That should any word, phrase, paragraph, section or phrase of this ordinance or of the Code of Ordinances, as amended hereby, be held to be unconstitutional, illegal or invalid, the same shall not affect the validity of this ordinance as a whole, or any part or provision thereof other than the part so decided to be unconstitutional, illegal or invalid, and shall not affect the validity of the Code of Ordinances as a whole. SECTION 5.That this ordinance shall take effect immediately from and after its passage and the publication, as the law and charter in such cases provide. DULY PASSED by the City Council of the City of Coppell, Texas, this the _______ day of ___________________, 2006. APPROVED: DOUGLAS N. STOVER, MAYOR ATTEST: LIBBY BALL, CITY SECRETARY APPROVED AS TO FORM: ___________________________________ ROBERT E. HAGER, CITY ATTORNEY WORK SESSION CONSENT REGULAR DEPT: DATE: ITEM #: AGENDA REQUEST FORM ITEM TYPE: ITEM CAPTION: GOAL(S): EXECUTIVE SUMMARY: FINANCIAL COMMENTS: RECOMMENDED ACTION: ACTION TAKEN BY COUNCIL: ȱ Planning October 24, 2006 13 ✔ PUBLIC HEARING (CONTINUATION) Consider approval of Case No. PD-214-TH-1, TH-2, C and SF-9, The Ellington, zoning change request from C (Commercial), R (Retail) and SF-9 (Single Family–9) to PD-214-TH-1, TH-2, C and SF-9 (Planned Development-214-Townhouse-1, Townhouse-2, Commercial and Single-Family), with a Concept Site Plan to allow the development of 125 townhouse units (67 TH-1 units on approximately 11.6 acres of Tract A.1 and 58 TH-2 units on approximately 7.5 acres of Tract A.2); Commercial uses on Tract A.3 (approximately 2 acres) along Sandy Lake Road; and on Tracts A.4 and A.5 (4.4 acres) along Denton Tap Road; SF-9 on 3.3 acres for park/open space, on Tract B for a total of approximately 29.05 acres of property located south of Sandy Lake Road, and west of Denton Tap Road. Council directed staff to bring back a traffic impact analysis, financial impact analysis, physical impact analysis, cost of service analysis & school impact analysis. The following P&Z conditions remain outstanding: 1. Include concept plans for the proposed commercial tracts on Sandy Lake and Denton Tap. 2. Indicate maximum number of townhouses to be 122 units. 3. Directive to staff to not include the illustration indicating 57 single-family lots that could be constructed at this same site. Decision of the P&Z Commission at the August 17th meeting: APPROVAL with Commissioners Borchgardt, Hall, McCaffrey, and Foreman voting in favor. Commissioners Kittrell and Reese voting in opposition. Commissioner Haas was absent. On September 12, 2006, Council TABLED consideration of this request until the October 10th Council meeting. On October 10, 2006, Council CONTINUED consideration of this request until the October 24th meeting. See attachments for additional information. @1PD-214-TH-1&2, C&SF-9, Elling, 1-AR Item # 10 Page 1 of 6 CITY OF COPPELL PLANNING DEPARTMENT STAFF REPORT Case No.: PD-214-TH-1, TH-2, C and SF-9, “The Ellington” NOTE: Comments in bold have been added since this case was taken under advisement on July 20, 2006. P&Z HEARING DATE: July 20, 2006 (Continued with the hearing left open to August 17) C.C. HEARING DATE: August 8, 2006 (Estimated reschedule date of Sept. 12) STAFF REP.: Gary L. Sieb, Planning Director LOCATION: South of Sandy Lake Road, and West of Denton Tap Road SIZE OF AREA: 29.05 acres CURRENT ZONING: C (Commercial), R (Retail) and SF-9 (Single Family-9) REQUEST: Zoning change request to PD-214-TH-1, TH-2, C and SF-9 (Planned Development-214-Townhouse-1, Townhouse-2, Commercial and Single Family-9) with a Concept Site Plan to allow the development of 128 townhouse units (67 TH-1 units on approximately 11.6 acres of Tract A.1 and 61 TH-2 units on approximately 7.5 acres of Tract A.2); Commercial uses on Tract A.3 (approximately 2 acres) along Sandy Lake Road and along Denton Tap Road (approximately 4.4 acres on Tracts A.4 and A.5); SF-9 zoning on 3.6 acres for park/open space use on Tract B. APPLICANT: JDB Real Estate Invest. Engineer: Dowdey, Anderson Darron Ash Matt Alexander 832 DeForest Road 5225 Village Creek Dr. Coppell, TX 75019 Suite 200 (214) 663-6878 Plano, TX 75093 FAX (972) 393-9292 (972) 931-0694 FAX (972) 931-9538 Item # 10 Page 2 of 6 HISTORY: There has been no recent zoning history on the subject tract although there have been numerous past development proposals that never resulted in a zoning application. TRANSPORTATION: Denton Tap Road is a P6D, improved, concrete, six-lane, divided thoroughfare contained within a 110-foot right-of-way; Sandy Lake Road is an existing asphalt two-lane road to eventually be improved to a C4D, 4-lane, divided thoroughfare contained within a 110-foot right-of-way. SURROUNDING LAND USE & ZONING: North – retail uses; “C”, Commercial South – single-family residential; PD-115 (SF-7) East – retail uses; “C”, Commercial West – residential/commercial uses; SF-12 and “R” Retail COMPREHENSIVE PLAN: The Coppell Comprehensive Plan of May 1966, as amended, shows this property to be developed in medium (generally in the neighborhood of 4-dwelling units per acre or less) density residential uses. DISCUSSION: (Because the Planning Commission continued this case to the August 17th hearing to give the applicant an opportunity to address staff concerns, the statements depicted in bold are responses based on applicants re-submittals) Over the last few years, staff has reviewed a number of land use proposals for this property, locally referred to as the “Ardinger parcel.” Back in 2001-2, staff recommended the property be rezoned to low density residential use of 3-4 dwelling units per acre, to be compatible with the surrounding residential density. Mr. Ardinger vigorously opposed that recommendation and promised a plan that would create an exciting mixed-use development of which the city would be proud. His representative likened it to a smaller Southlake Town Center. That development never materialized. Roughly three years ago, we were presented a plan for a townhouse project with density approaching 9-10 units per acre. That proposal was never formally submitted. In early 2006, staff informally reviewed a development containing all single family detached residences at less than 3 dwelling units per acre for a total of 57 homes which was enthusiastically received. We have attached a copy of that plan for your information and possible comparison purposes with the request before you. That plan did not proceed beyond casual discussion (for whatever reason—price, communication with owner, pending contract, etc.) which brings us to the case before you this evening. As you will recall, at the July 20th hearing a letter was submitted (attached) requesting the Commission and Council to disregard a low-density residential proposal submitted as a possible development scenario for the subject tract. Staff included that plan only to show the subject tract could be developed with much lower residential density. What is being proposed here is a mixed use Planned Development reflecting open space, 128 townhouses, commercial and retail uses. A number of exceptions have been taken with our townhouse development requirements including setbacks, densities, alley widths, circulation Item # 10 Page 3 of 6 patterns, lot coverage, among others. For instance, the northern parcel (Tract A.1) proposes 5- foot rear yard setbacks from garages/structures where 20 feet is required by ordinance. We are extremely concerned with this setback request, even with the 20-foot alleys the developer is proposing. In addition, lot depths are less than code (95 feet rather than 100 feet), lot widths do not comply (24 feet rather than 25 feet), front yard setbacks are less than code (10 feet vs. 20 to 25 feet). Also, the proposal allows 3-foot overhangs in the front yard resulting in only 7 feet of space between a unit and the street R.O.W. Side yard spacing is less than code (10 feet rather than the required 15 feet), and there are a number of “flag” lots that are discouraged from a safety, aesthetic and utility provision perspective. Also of concern is the amount of guest parking this plan proposes. Our ordinance states that .5 guest parking spaces must be provided per unit with a development of this magnitude. Tract A.2 provides this minimum (31 spaces), but Tract A.1 provides none. Following code would require 34 guest parking spaces being provided on this tract. A statement on the Plan requests guest parking for Tract A.1 be provided on street. This is totally unacceptable. Adequate guest parking can not be provided this way what with the narrow lots, the “flag” properties that have only 10 feet of frontage, the minimal front yards throughout the project, and the hazardous maneuvering which results if fire or emergency services are required by residents. The applicant has provided colored elevations of the townhouse product and, at first glance, these are attractive units. The two-story units, if limited to typical 2-story heights (35 feet), is appropriate for this area. We do, however, have concern with the three-story townhouses. When visualized in its true form, these are sizeable buildings, towering above 46 feet in height, and connected up to five in a row. To give a proper perspective to what the product would look like at completion, visit the new Lewisville project at the northwest corner of MacArthur Boulevard and Vista Ridge Mall Drive, Settlers Village. These are for sale townhouses--at a maximum of six units attached--to get a feel for the bulk, height, and massiveness of these buildings. Settlers Village building height (approximately 38 feet) is less than The Ellington’s by at least ten feet, but their appearance conveys buildings that would be out-of-scale with our surrounding residential community on both the south and west. Tree mitigation is another area that warrants careful review. This property is full of trees. Although the applicant has made some effort to recognize them, mitigation fees, reparation plans, and close review by the Parks Department is mandatory if this project proceeds. We take strong objection to the statement that the proposed open space areas of Tract B satisfy all tree mitigation and associated fee payments. Please see an updated response from Parks attached to this staff report dated August 10, 2006. The written PD Regulations exhibit essentially requests the standards we have objected to in the proceeding paragraphs. There are minor changes that need to be made to that document such as this property is located in Dallas not Denton County. Detached garages are not allowed in residential projects, the density figure for Tract A.1 needs to reflect 67 units, not 71. The same holds true for Tract A.2, density should be 61, not 63. As mentioned above, we take objection to the tree mitigation statements. Also, the statement referring to the Director of Development needs to be revised to refer to the Director of Planning. A final comment needs to be stated regarding circulation patterns proposed by this development. The Planning, Engineering and Fire Departments strongly recommend extension of Tealwood Drive into this property. This extension would do at least two things. It would give the Item # 10 Page 4 of 6 Wynnpage residents an alternate way in and out of their subdivision, and it would greatly enhance fire and emergency services access to both properties. In all fairness, and recognizing the applicant’s attempts to address many of our concerns, we have attached as an enclosure, his reply to our staff review labeled “Applicant’s Response Memo.” In parentheses we have summarized the issue at hand with regard to each specific rejoinder. Planned Development districts were established over 40 years ago to provide a means of developing land that could not conform to established building guidelines. It was initially conceived to offer a variety of mixed land uses that, if developed together, could result in a product from conventional standards just would not work; i.e., residential mixed with commercial/office/retail uses in a pattern that blended together. Over the years, the original concept has been modified to the point that today’s PD bears little resemblance to the initial offering. That is the case with this proposal. What we have here is a request to modify our residential guidelines to satisfy a particular land use proposal. There is no “blending” of a variety of land uses, no uniform design statement to bring a variety of land uses into one cohesive whole. The PD addresses only a residential component. As such, it takes a great deal of license with our established development standards with little justification for it other than a dwelling unit count needed to ensure an economic return. We cannot support this request in its present form. The revised plan makes the following changes: Tract A.1 density is decreased by one unit (now 66 du’s). Tract A.2 density is decreased by 5 units (now 56 du’s). Tract A.2 3-story units reduced to 2-story, elevations also modified. Commercial development has been reduced from 4.4 ac. to 3.6, eliminating possible development behind the KFC building preserving .8 ac. of added open space. A street connection has been made to Denton Tap on the south end of the project. A 28-foot access and utility easement reservation has been made at Tealwood. “Flag” or “dog leg” lots have been eliminated. Number of units reduced from 128 to 122 (their density reduced from 5.7 to 5.4 du/ac.—our site density is calculated at 6.4 du/ac.). Also noted is a statement on the Plan suggesting a possible dwelling unit count of 125 structures. RECOMMENDATION TO THE PLANNING AND ZONING COMMISSION: Staff is recommending DENIAL of this request, based upon the points stated above: It is too dense; it ignores most of our development guidelines; it does not provide satisfactory circulation; it creates serious health, safety and public welfare issues; it does not reflect community life style values; and it disregards the adjacent residential development patterns. A substantially lower density product, more closely aligned with our current development standards and respectful of the adjacent residential communities is encouraged for this site. There are still a number of concerns with this case. Density is still problematic, especially with the Plan note that states a possible 125 units. Development code Item # 10 Page 5 of 6 guidelines have not been met (i.e., lot depth should be 100’, they show 95’; minimum lot size should be 2500’, they show 2200’; lot width should be 25’, they show 24’; minimum garage setback should be 20’, they show 5’). Guest parking requirements have not been followed and they still show on-street parking as addressing this concern. There are a number of inconsistencies between the plan and the proposed PD regulations. A landscape plan must still be submitted before accurate tree mitigation fees can be calculated (see attached Parks Department memo). Given these concerns Staff still has serious reservations regarding this development. To gain our support, the following changes must be accomplished: • Reduce density to 5 du/ac. • Abide by Development Code guidelines (lot size, depth, width, etc.) • Specify maximum unit height of two stories or 35 feet • State minimum rear yard setbacks of 20 feet • Provide guest parking at code requirements • Eliminate on-street parking calculations for required parking • Correct tree mitigation calculations and pay fees • Meet City Codes relative to Driveway and circulation plan • Revise PD and Plan to be consistent with one another • Address DRC concerns • Reduce number of bedrooms to no more than two per unit • Remove “…area regulations for Alley Access dwellings…” from PD conditions • Submit conceptual elevations of non-residential uses proposed in PD • Provide color board showing building materials • Abide by departmental comments (Parks, Fire, Engineering) On Friday afternoon additional clarification regarding this case was submitted to staff. It was in the form of e-mail correspondence and is attached under New Attachment below. Because of the late time of submission, staff will be addressing any outstanding issues related to this message at the public hearing. ALTERNATIVES: 1) Recommend approval of the request 2) Recommend disapproval of the request 3) Recommend modification of the request 4) Take under advisement for reconsideration at a later date. ATTACHMENTS: 1) Departmental Comments (Fire, Engineering) 2) Applicant’s Response Memo 3) Suggested Planned Development Regulations 4) Zoning Exhibit (2 items) 5) Landscape Details (2 exhibits) 6) Full-colored Building Elevations (3 examples) Item # 10 Page 6 of 6 7) Colored Concept Plan 8) Floor Plan Set (2 sheets) 9) 57 Single Family Unit Plan NEW ATTACHMENTS: 1) Development package (zoning, concept plan, water/sewer, drainage. landscape exhibits) 2) Proposed Planned Development regulations 3) 25’ and 30’ street access elevations (two sheets, one colored, one b/w) 4) 25’ and 30’ street access floor plan 5) Reduced, colored site plan 6) Tree Mitigation memo (Parks) 7) Departmental comments (Fire, Engineering) 8) Property owner letter dated July 20, 2006 9) E-mail correspondence from applicant dated 8/11/06 Exhibit “A” Planned Development Regulations Development Standards Submitted: June 19, 2006 Revised: August 30, 2006 Owner: H.T. Ardinger 1990 Lake Pointe Drive Lewisville, Texas 75057 Developer/Applicant: JDB Real Estate Investments, LLC or Assigns 832 De Forest Road Coppell, Texas 75019 (214) 663-6878 (972) 393-9292 Fax Planner/Engineer/Surveyor: Dowdey, Anderson and Associates, Inc. 5225 Village Creek Drive Suite 200 Plano, Texas 75093 (972) 931-0694 (972) 931-9538 Fax Planned Development Regulations For a 25.422 acre tract (Tract A) and a 3.633 acre tract (Tract B) out of the Edward A. Crow Survey, Abstract No. 301 in the City of Coppell, Denton Counties, Texas. 1.0 Purpose The purpose of this PD is to create a neighborhood within a unique wooded environment with a blend of residential townhouse products and commercial/retail uses that are appealing and relevant to an exclusive and low-maintenance type life style. 2.0 Definitions: Definitions used herein shall be the same as those found in Article 42 of the Chapter 12 Zoning of the Code of Ordinances of the City of Coppell, Texas. 3.0 General Regulations 1. All regulations for Tracts A and B not redefined by this amendment shall default to the existing regulations set forth in the Coppell Zoning Ordinance, adopted by the City on April 4, 2002. 2. Any future modification to this adopted PD shall be limited to the specific sub-tracts being modified. 3. Two-Family dwellings are permitted and shall conform to the same area regulations described herein. 4. Detached garages are allowed by right and may or may not be connected to the main structure. In addition, all detached garage units may have a one (1) story habitable structure above them, provided it is connected to the main structure. 5. A property owners association shall be established and shall be responsible for the maintenance of all park/open space areas. 6. The building elevations provide in conjunction with this PD are representative of the architectural style and quality of the proposed Formatted: Bullets and Numbering Formatted: Bullets and Numbering Formatted: Bullets and Numbering Formatted: Bullets and Numbering Deleted: <#>For Tract A.1 and A.2, flag lots shall be allowed and the portion of the lot connecting to public right-of-way shall not be less than ten (10) feet.¶ townhome product. The final elevation of each independent townhome building is dependent on the number of townhome units grouped together, the number of stories (1, 2 & 3 stories) and the floor plan selected by the future resident, thus the final location of windows, doors, and building materials shown may vary, but the general quantity of materials grouped together, the quality of the materials represented and the architectural style (windows, doors, roof pitch, and building materials) of the building shall remain the same. 4.0 Use Regulations The permitted uses within Tract A and Tract B shall as follows: Tract A.1 (+/- 12 ac.): The permitted uses shall be those uses permitted by the Coppell Zoning District “TH-1” – Townhouse 1 as described in Article 15 of the Section 12 of the Zoning Ordinances for the City of Coppell, Texas. Tract A.2 (+/- 8 ac.): The permitted uses shall be those uses permitted by the Coppell Zoning Districts “TH-1 – Townhouse 1 or “TH-2” – Townhouse 2 as described in Article 16 of the Section 12 of the Zoning Ordinances for the City of Coppell, Texas. Tract A.3 (+/- 1.7 ac.): The permitted uses shall be those uses permitted by the Coppell Zoning District “C” - Commercial as described in Article 23 of the Section 12 of the Zoning Ordinances for the City of Coppell, Texas. Tract A.4 (+/- 0.8 ac): The permitted uses shall be those uses permitted by the Coppell Zoning District “C” – Commercial as described in Article 23 of the Section 12 of the Zoning Ordinances for the City of Coppell, Texas. Tract A.5 (+/-3.6 ac.): The permitted uses shall be those uses permitted by the Coppell Zoning District “C” – Commercial District as described in Article 24 of the Section 12 of the Zoning Ordinances for the City of Coppell, Texas. Tract B (+/- 3.3 ac.): The permitted uses shall be a private park. The zoning classification shall be Coppell Zoning District “SF-9” – Single Family 9 as described in Article 24 of the Section 12 of the Zoning Ordinances for the City of Coppell, Texas. For a visual illustration identifying the general location of the zoning classifications outlined above, see Exhibit “B.” 5.0 Area Regulations The following amended area regulations shall apply: Tract A.1 (Alley Access): Minimum Front Yard - The minimum depth of the front yard shall be fifteen (15) feet for rear-entry or alley served units. Minimum Rear Yard - The minimum depth of the rear yard shall be five (5) feet for rear-entry or alley served units. Maximum Lot Coverage - The maximum lot coverage shall not be greater than eighty (80) percent of the gross lot area. Maximum number of Dwelling Units- The maximum number of dwelling units shall be 67. Maximum building height: The maximum allowable building height shall not be greater than 41 feet, measured at the ridge line. For Tract A.2, brick ledges, 2nd and 3rd floor living areas, balcony’s, chimneys, and other ornamental projections or architectural features may project into the front yard a maximum of 3 feet, into the rear yard a maximum of three (3) feet and/or into the side yard a maximum of three (3) feet. Tract A.2 (Street Access): Minimum Lot Depth - The minimum lot depth shall be ninety-five (95) feet. Minimum Lot Area - The minimum lot area shall be 2,200 square feet. Maximum number of Dwelling Units- The maximum number of dwelling units shall be 58. Maximum building height: The maximum allowable building height shall not be greater than 41 feet, measured at the ridge line. For Tract A.1b, brick ledges, 2nd and 3rd floor living areas, balcony’s, chimneys, and other ornamental projections or architectural features may project into the front yard a maximum of 3 feet, into the rear yard a maximum of seven (7) feet and/or into the side yard a maximum of three (3) feet. Formatted: Indent: Left: 0", First line: 0.5" Deleted: ten (10) feet Deleted: Minimum Corner Side Yard -¶ The minimum side yard for a corner lot shall be ten (10) feet.¶ Minimum Building Separation -¶ The minimum building separation shall be ten (10) feet.¶ Minimum Lot Size-¶ The minimum Lot size shall be 2500 square feet.¶ Deleted: 71 Deleted: ¶ Deleted: Maximum Height Regulations -¶ The maximum allowable height shall not be greater than two¶ and a half stories of habitable structure nor more than¶ forty-six (46) feet, measured at the mid-point between the top¶ plate and the dominate roof ridge.¶ Deleted: ¶ Minimum Corner Side Yard -¶ The minimum side yard for a corner lot shall be ten (10) feet.¶ Minimum Building Separation -¶ The minimum building separation shall be ten (10) feet.¶ Minimum Lot Width -¶ The minimum lot width shall be twenty-four (24) feet.¶ Deleted: 0 Deleted: 63 Deleted: ¶ Maximum Height Regulations -¶ The maximum allowable height shall not be greater than three¶ stories of habitable structure nor more than forty-six (46) feet, ¶ measured at the mid-point between the top plate and the¶ dominate roof ridge.¶ The area regulations for “Alley Access” dwellings outlined above in Tract A.1 are also allowable in Tract A.2, but the maximum number of dwelling units shall not be greater than maximum allowed specified within Tract A.2. 6.0 Landscape and Screening Regulations The preservation of Tract B as a private park or open space, shall satisfy all tree mitigation requirements or monetary penalties associated with the future removal of any existing trees from Tract A. The following landscaping regulations shall apply: · There shall be a minimum of one shade tree for every four residential lots to complement large number of existing and mature trees. · There shall be one ornamental tree planted for every two residential lots. The following screening regulations shall apply: · Masonry screening fences shall be provided along all thoroughfares designated as an arterial or collector street on the city’s master thoroughfare plan. Such fences shall extend into and along the side lot lines, where applicable, of lots abutting the residential entry street(s) extending into the subject subdivision from the designated thoroughfare. They shall also be required along alley right-of-ways or property lines that separate residential from commercial, office or retail uses. All screening walls shall be constructed in conjunction with residential phases. · Screening fences shall be a minimum height of six feet and may be comprised of any of the following: 1. Solid masonry (stone or brick/split-face cmu block) or thin wall 2. Masonry or ornamental metal or a combination thereof. 3. Plans for screening fences and entry monumentation shall be submitted to the Director of Development for approval and for determination of acceptable distance for fence extensions into side lot lines as required in Section II.3.A. Such plans shall be included with the engineering plans at time of final platting. · Any use of metal shall be accompanied by shrubbery in front of such metal. Shrubbery when planted shall be a minimum size of five gallons placed on 36-inch centers. · The rear yards of all Street Access units which back to an open space shall have 4-foot ornamental metal fencing. The side Yard fencing shall be a 6-foot board-on-board wooden fence with a unified stain throughout. 7.0 Subdivision Regulations · Development shall meet the standards as required in the City of Coppell Subdivision Ordinance. 8.0 Legal Description See attached Exhibit “C”. EXHIBIT “C” LEGAL DESCRIPTION TRACT A 25.422 ACRES BEING a tract of land located in the EDWARD A. CROW SURVEY, ABSTRACT NO. 301, City of Coppell, Dallas County, Texas and being a part of those tracts of land described in Deed to Horace Thompson Ardinger, Jr., recorded in Volume 95064, Page 4717 and Volume 95064, Page 4713, Deed Records, Dallas County, Texas and part of a tract of land described in Deed to Horace Thompson Ardinger, Jr. by City of Coppell, Texas Ordinance No. 87383, recorded in Volume 87133, Page 1529, Deed Records, Dallas County, Texas and being more particularly described as follows: BEGINNING at a 1/2 inch iron rod found at the intersection of the West right-of-way line of Denton Tap Road, a 120 foot right-of-way, with the South line of said Ardinger tract recorded in Volume 95064, Page 4717; THENCE South 88 degrees 50 minutes 25 seconds West, along said South line, a distance of 442.21 feet to a 1/2 inch iron rod with a yellow plastic cap stamped “DAA” found at the Southeast corner of a tract of land described as Tract 2 in Deed to Lone Star Gas Company, recorded in Volume 5493, Page 9, Deed Records, Dallas County, Texas; THENCE North 58 degrees 50 minutes 33 seconds West, leaving said South line and along the Northeasterly line of said Tract 2, a distance of 722.69 feet to a 1/2 inch iron rod with a yellow plastic cap stamped “DAA” set for corner; THENCE North 56 degrees 05 minutes 33 seconds West, continuing along said Northeasterly line, a distance of 225.47 feet to a 1/2 inch iron rod with a yellow plastic cap stamped “DAA” set in the West line of said Ardinger tract recorded in Volume 95064, Page 4717, at the most Northerly Northwest corner of said Tract 2 ; THENCE North 00 degrees 26 minutes 54 seconds West, along said West line, a distance of 229.35 feet to a 1” iron rod found at the Northwest corner of said Ardinger tract recorded in Volume 95064, Page 4717 and the Southwest corner of a tract of land described in Deed to General Telephone Company of the Southwest, recorded in Volume 71011, Page 1961, Deed Records, Dallas County, Texas; THENCE North 89 degrees 30 minutes 32 seconds East, along the common line of said Ardinger tract and said General Telephone Company tract, a distance of 206.46 feet to a 1/2 inch iron rod with a yellow plastic cap stamped “DAA” set at the Southeast corner of said General Telephone Company tract and at the Southwest corner of said Ardinger tract recorded in Volume 95064, Page 4713; THENCE North 00 degrees 23 minutes 17 seconds West, along the common line of said Ardinger tract recorded and said General Telephone Company tract, a distance of 558.04 feet to a PK nail set in the South right-of-way line of Sandy Lake Road, a 110 foot right- of-way, said point being at the beginning of a non-tangent curve to the left having a central angle of 08 degrees 10 minutes 46 seconds, a radius of 2,923.94 feet and a chord bearing and distance of South 86 degrees 24 minutes 06 seconds East, 417.07 feet; THENCE Easterly, along said South right-of-way line and along said curve to the left, an arc distance of 417.42 feet to a 5/8 inch iron rod found; THENCE North 89 degrees 30 minutes 31 seconds East, continuing along said South right-of-way line, a distance of 203.18 feet to a 1” iron rod found at the Northwest corner of Lot 2 of SANDY LAKE CROSSING ADDITION, an Addition to the City of Coppell, according to the Plat thereof recorded in Volume 88037, Page 2602, Map Records, Dallas County, Texas; THENCE South 00 degrees 29 minutes 29 seconds East, leaving said South right-of-way line, a distance of 175.00 feet to a 1” iron rod found at the Southwest corner of said Lot 2; THENCE North 89 degrees 30 minutes 31 seconds East, a distance of 186.81 feet to an X set in concrete in the West line of a tract of land described as Lot 3, Block 1 of SANDY LAKE CROSSING, an Addition to the City of Coppell, according to the Plat thereof recorded in Volume 90012, Page 3601, Map Records, Dallas County, Texas, at the Southeast corner of said Lot 2; THENCE South 02 degrees 43 minutes 14 seconds East, a distance of 224.48 feet to an X set in concrete at the Southwest corner of a tract of land described as M.P. McDONALD’S ADDITION, an Addition to the City of Coppell, according to the Plat thereof recorded in Volume 87233, Page 2925, Map Records, Dallas County, Texas; THENCE North 87 degrees 16 minutes 46 seconds East, along the South line of said M.P. McDONALD’S ADDITION, a distance of 199.96 feet to an X set in concrete in said West right-of-way line of said Denton Tap Road; THENCE South 02 degrees 40 minutes 21 seconds East, along said West right-of-way line, a distance of 97.55 feet to a 1/2 inch iron rod with a yellow plastic cap stamped “DAA” set at the most Easterly Northeast corner of a tract of land described as Tract A in Deed to KFC National Company, recorded in Volume 89121, Page 2082, Deed Records, Dallas County, Texas; THENCE along the line of said KFC National Company tract, the following seven (7) courses and distances: South 87 degrees 19 minutes 40 seconds West, a distance of 60.00 feet to a 1/2 inch iron rod with a yellow plastic cap stamped “DAA” set for corner; North 02 degrees 40 minutes 20 seconds West, a distance of 12.68 feet to a 1/2 inch iron rod with a yellow plastic cap stamped “DAA” set for corner; South 87 degrees 19 minutes 40 seconds West, a distance of 63.33 feet to a 1/2 inch iron rod with a yellow plastic cap stamped “DAA” set for corner; South 42 degrees 19 minutes 40 seconds West, a distance of 121.88 feet to a 1/2 inch iron rod with a yellow plastic cap stamped “DAA” set for corner; South 32 degrees 39 minutes 58 seconds East, a distance of 61.03 feet to a 1/2 inch iron rod with a yellow plastic cap stamped “DAA” set for corner; South 02 degrees 40 minutes 20 seconds East, a distance of 37.13 feet to a 1/2 inch iron rod with a yellow plastic cap stamped “DAA” set for corner; North 87 degrees 19 minutes 40 seconds East, a distance of 178.98 feet to an X set in concrete in said West right-of-way line of Denton Tap Road at the Southeast corner of said KFC National Company tract; THENCE along said West right-of-way line, the following three (3) courses and distances: South 02 degrees 37 minutes 34 seconds East, a distance of 181.66 feet to a 1/2 inch iron rod with a yellow plastic cap stamped “DAA” set for corner at the beginning of a non-tangent curve to the right having a central angle of 02 degrees 14 minutes 55 seconds, a radius of 5,668.85 feet and a chord bearing and distance of South 01 degrees 38 minutes 43 seconds East, 222.46 feet; Southerly, along said curve to the right, an arc distance of 222.48 feet to a 1/2 inch iron rod with a yellow plastic cap stamped “DAA” set for corner; South 00 degrees 31 minutes 15 seconds East, a distance of 202.73 feet to the POINT OF BEGINNING and containing 25.422 acres of land, more or less. LEGAL DESCRIPTION TRACT B 3.633 ACRES BEING a tract of land located in the EDWARD A. CROW SURVEY, ABSTRACT NO. 301, City of Coppell, Dallas County, Texas and being a part of a tract of land described in Deed to Horace Thompson Ardinger, Jr., recorded in Volume 95064, Page 4717 and being more particularly described as follows: COMMENCING at a 1/2 inch iron rod found at the intersection of the West right-of- way line of Denton Tap Road, a 120 foot right-of-way, with the South line of said Ardinger tract recorded in Volume 95064, Page 4717; THENCE South 88 degrees 50 minutes 25 seconds West, along the South line of said Ardinger tract, a distance of 535.74 feet to a 1/2 inch iron rod with a yellow plastic cap stamped “DAA” set for the POINT OF BEGINNING of the tract of land herein described; THENCE South 88 degrees 50 minutes 25 seconds West, continuing along the South line of said Ardinger tract, a distance of 708.16 feet to a 1/2 inch iron rod with a yellow plastic cap stamped “DAA” set at the Southwest corner of said Ardinger tract and the Southeast corner of WHISPERING HILLS Addition, an Addition to the City of Coppell, according to the Plat thereof recorded in Volume 80016, Page 1736, Map Records, Dallas County, Texas, and the Northeast corner of SHADOW RIDGE ESTATES, an Addition to the City of Coppell, according to the Plat thereof recorded in Volume 84110, Page 6743, Map Records, Dallas County, Texas; THENCE North 00 degrees 26 minutes 54 seconds West, along the common line of said Ardinger tract and said WHISPERING HILLS Addition, a distance of 455.37 feet to a 1/2 inch iron rod with a yellow plastic cap stamped “DAA” set at the most Southerly Northwest corner of a tract of land described as Tract 2 in Deed to Lone Star Gas Company, recorded in Volume 5493, Page 9, Deed Records, Dallas County, Texas; THENCE South 56 degrees 05 minutes 33 seconds East, along the Southwesterly line of said Tract 2, a distance of 192.49 feet to a 1/2 inch iron rod with a yellow plastic cap stamped “DAA” set for corner; THENCE South 58 degrees 50 minutes 33 seconds East, continuing along said Southwesterly line, a distance of 644.85 feet to the POINT OF BEGINNING and containing 3.633 acres of land, more or less. ENGINEER/PLANNER25' and 30' STREET ACCESS ELEVATION(2-STORY TOWNHOUSE)BRICKBRICKCULTURED STONECULTURED STONETOP OF PLATETOP OF PLATEBRICK ACCENTS BRICK ACCENTSARCHITECTURALCOMP. SHINGLEARCHITECTURALCOMP. SHINGLENOTE:THE EXTERIOR FRONT, SIDE AND REAR ELEVATIONSSHALL BE 80% MASONRY (EXCLUDING DOORS AND WINDOWS)TEXTUREDGARAGE DOORTEXTUREDGARAGE DOORBALCONYBALCONY ENGINEER/PLANNER30' ALLEY ACCESS ELEVATION(COMBINATION 1 and 2-STORY TOWNHOUSE)BRICKBRICKCULTURED STONECULTURED STONETOP OF PLATETOP OF PLATEBRICK ACCENTS BRICK ACCENTSARCHITECTURALCOMP. SHINGLEARCHITECTURALCOMP. SHINGLENOTE:THE EXTERIOR FRONT, SIDE AND REAR ELEVATIONSSHALL BE 80% MASONRY (EXCLUDING DOORS AND WINDOWS) ENGINEER/PLANNER 30' ALLEY ACCESS ELEVATION (COMBINATION 1 and 2-STORY TOWNHOUSE) NOTE: THE EXTERIOR FRONT, SIDE AND REAR ELEVATIONS SHALL BE 80% MASONRY (EXCLUDING DOORS AND WINDOWS) 25' and 30' STREET ACCESS ELEVATION (2-STORY TOWNHOUSE) FLEX BDRM. BDRM. BDRM.BDRM. BDRM. BDRM. BDRM. FLEX MASTER BDRM. FLEX MASTER BDRM. MASTER BDRM. MASTER BDRM. BDRM.DINING DINING DINING KITCHEN KITCHEN KITCHEN KITCHEN DINING FAMILY FAMILY FAMILY GARAGE GARAGE GARAGE GARAGE FAMILY LIVING 25' and 30' STREET ACCESS ELEVATION (2-STORY TOWNHOUSE) FIRST FLOOR PLAN SECOND FLOOR PLAN PROPOSED 20'PROPOSED 20'ACCESS & UTILITYACCESS & UTILITYEASEMENT RESERVATIONEASEMENT RESERVATIONSTREET G REMOVABLEDECORATIVE BOLLARDSREMOVABLEDECORATIVE BOLLARDSREMOVABLEDECORATIVE BOLLARDSREMOVABLEDECORATIVE BOLLARDSNOT TO SCALETEALWOOD DRIVE 12' TRAIL12' TRAIL8' FIRE TRUCK8' FIRE TRUCK8'-6" 8'-6" 16' HORIZONTAL CLEAR ZONE OF TREES16' HORIZONTAL CLEAR ZONE OF TREES3' LADDER 3' LADDER2.5'SAFETY ZONE 2.5'SAFETY ZONE ** WORK SESSION CONSENT REGULAR DEPT: DATE: ITEM #: AGENDA REQUEST FORM ITEM TYPE: ITEM CAPTION: GOAL(S): EXECUTIVE SUMMARY: FINANCIAL COMMENTS: RECOMMENDED ACTION: ACTION TAKEN BY COUNCIL: City Managerr October 24, 2006 14 ✔✔ ORDINANCE Consider approval of an ordinance providing for the implementation of an automated red light enforcement program in the city of Coppell, Texas; imposing a civil penalty; and authorizing the Mayor to sign. The ordinance provides the backbone for operating the Red Light program in accordance with existing laws of the State of Texas. It also restricts the use of funds to traffic safety programs and functions. Fines are $75 dollars per offense unless there are 3 in 1 calendar year than the fine is $200 for the 3rd one. The ordinance must be passed before the installation of the cameras and implementation of the civil fine system. The ordinance also provides 9 affirmative defenses to liability created by this ordinance. Staff recommends approval. !RedLight 1 70221 AN ORDINANCE OF THE CITY OF COPPELL ORDINANCE NO. ____________ AN ORDINANCE OF THE CITY OF COPPELL, TEXAS, AMENDING THE CODE OF ORDINANCES BY AMENDING CHAPTER 8, TRAFFIC REGULATIONS, BY ADDING ARTICLE 8-8, AUTOMATED RED LIGHT ENFORCEMENT, TO PROVIDE FOR THE IMPLEMENTATION OF AN AUTOMATED RED LIGHT ENFORCEMENT PROGRAM IN THE CITY OF COPPELL, TEXAS; PROVIDING FOR THE IMPOSITION OF A CIVIL PENALTY; PROVIDING FOR ENFORCEMENT AND PROCEDURES; PROVIDING FOR AN ADMINISTRATIVE ADJUDICATION HEARING; PROVIDING FOR EFFECT OF LIABILITY, EXCLUSION OF CIVIL REMEDY, AND ENFORCEMENT; PROVIDING FOR THE USE OF CIVIL PENALTY FUNDS; PROVIDING A REPEALING CLAUSE; PROVIDING A SEVERABILITY CLAUSE; PROVIDING A SAVINGS CLAUSE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Coppell, Texas (“City Council”) under the authority of Article XI, Section 5 of the Texas constitution, investigated and determined that it would be advantageous and beneficial to the City of Coppell, Texas (“Coppell”) and its inhabitants to implement an automated red light enforcement program; and WHEREAS, upon investigation it has been determined that red light running is the cause of approximately 280,000 collisions and 240,000 injuries each year in the United States; and WHEREAS, upon investigation it has been determined that red light running causes the death of approximately 100 people in the State of Texas each year; and WHEREAS, red light enforcement programs have proven to reduce the number of red light runners in that Washington, D.C. has reduced red light running by 68% and Wilmington, Delaware has reduced red light running by 62% with their red light enforcement programs; and WHEREAS, the local community of the City of Garland began its automated red light enforcement program in September 2003 and has already experienced a 13% reduction in violations; and WHEREAS, it is in the interest of the public health, safety and welfare to implement traffic regulation and safety programs. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF COPPELL, TEXAS: 2 70221 SECTION 1. That Chapter 8, Traffic Regulations, of the Code of Ordinances of the City of Coppell, Texas, be, and the same is, hereby amended by adding a new Article 8-8, Automated Red Light Enforcement, which shall read as follows: “Chapter 8 TRAFFIC REGULATIONS . . . . . Sec. 8-8-1. Definitions. In this article: Department means the Police Department of the City of Coppell, Texas. Owner means the owner of a motor vehicle as shown on the motor vehicle registration records of the Texas Department of Transportation or the analogous department or agency of another state or country. The term “owner” includes (i) a lessee of a motor vehicle under a lease of 6 months or more, or (ii) the lessee of a motor vehicle rented or leased from a motor vehicle rental or leasing company, but does not include the motor vehicle rental or leasing company itself. Photographic Traffic Monitoring System means a system that: (1) consists of a camera and vehicle sensor installed to work in conjunction with an electrically operated traffic control signal; and (2) is capable of producing at least two recorded images that depict the license plate attached to the rear of a motor vehicle that is not operated in compliance with the instructions of the traffic control signal. Recorded Image means an image recorded by a photographic traffic monitoring system that depicts the rear of a motor vehicle and is automatically recorded on a photograph or digital image. System Location means the approach to an intersection toward which a photographic traffic monitoring system is directed an in operation. Traffic Control Signal means a traffic control device that displays alternating red, amber and green lights that directs traffic when to stop at or proceed through an intersection. 3 70221 Sec. 8-8-2. Imposition of civil penalty for creating dangerous intersections. A. The City Council finds and determines that a vehicle that proceeds into an intersection when the traffic control signal for that vehicle’s direction of travel is emitting a steady red signal damages the public endangering vehicle operators and pedestrians alike, by decreasing the efficiency of traffic control and traffic flow efforts, and by increasing the number of serious accidents to which public safety agencies must respond at the expense of the taxpayers. B. The owner of a motor vehicle is liable for a civil penalty if the vehicle proceeds into an intersection at a system location when the traffic control signal for that vehicle’s direction of travel is emitting a steady red signal. C. The civil penalty for which the owner is liable is $75.00, provided that for a third or subsequent offense in any 12-month period, the amount of the penalty shall be $200.00. Sec. 8-8- 3. Enforcement; procedures, A. The Department is responsible for the enforcement and administration of this Ordinance. B. In order to impose a civil penalty under this Ordinance, the Department, or its designee, shall mail or cause to be mailed a notice of violation to the owner of the motor vehicle liable for the civil penalty not later than the 30th day after the date the violation is alleged to have occurred to: (1) the owner’s address as shown on the registration records of the Texas Department of Transportation; or (2) if the vehicle is registered in another state or country, the owner’s address as shown on the motor vehicle registration records of the department or agency of the other state or country analogous to the Texas Department of Transportation. C. A notice of violation issued under this Ordinance shall contain the following: (1) a description of the violation alleged; (2) the location of the intersection where the violation occurred; (3) the date and time of the violation; (4) the name and address of the owner of the vehicle involved in the violation; 4 70221 (5) the registration number displayed on the license plate of the vehicle involved in the violation; (6) a copy of a recorded image of the vehicle involved in the violation that depicts the registration number displayed on the license plate of that vehicle. (7) the amount of the civil penalty to be imposed for the violation; (8) the date by which the civil penalty must be paid; (9) a statement that a recorded image is evidence in a proceeding for the imposition of a civil penalty; (10) information that informs the person named in the notice of violation; (a) of the person’s right to contest the imposition of the civil penalty against the person in an administrative adjudication; (b) of the manner and time in which imposition of the civil penalty may be contested; (c) that failure to pay the civil penalty or to contest liability in a timely manner is an admission of liability and that failure to appear at an administrative adjudication hearing after having requested a hearing is an admission of liability; (d) that failure to pay the civil penalty within the time allowed shall result in the imposition of a late-payment fee of $25.00; and (11) a statement, if at the time and place of the violation the vehicle was being operated by a person other than the owner; if the owner is a natural person, the owner may transfer liability for the violation to the person who was operating the vehicle at that time and place if the owner submits to the City by affidavit, on a form provided by the City, or under oath at an administrative adjudication hearing the name and current address of the person: (a) operating the vehicle at the time and place of the violation; (b) who was the lessee of the vehicle at the time of the violation, if the vehicle was rented or leased from a person in the business of renting or leasing motor vehicles at that time; or 5 70221 (c) who was the subsequent owner of the motor vehicle, if ownership of the vehicle was transferred by the owner before the time of the violation. D. A notice of violation under this article is presumed to have been received on the fifth (5th) day after the date the notice of violation is mailed. E. In lieu of issuing a notice of violation, the Department may mail a warning notice to the owner, that, in addition to any other information contained in the warning notice, must contain the Information required by subsection (C) of this Article. Sec. 8-8-4. Administrative adjudication hearing. A. A person who received a notice of violation under this Ordinance may contest the imposition of the civil penalty by requesting in writing an administrative adjudication of the civil penalty within the time provided in the notice (which period shall not be less than fifteen (15) days following the mailing of the notice). Upon receipt of the request, the Department shall notify the person of the date and time of the hearing on the administrative adjudication. The administrative adjudication hearing shall be held before a hearing officer appointed by the City Manager. B. Failure to pay a civil penalty or to contest liability within fifteen days (15) following the date of the notice is an admission of liability in the full amount of the civil penalty assessed in the notice of violation and constitutes a waiver of the right to appeal under Section 8-8-4 (K). C. Failure to appear at an administrative adjudication hearing after having requested a hearing is an admission of liability for the full amount of the civil penalty assessed in the notice of violation and constitutes a waiver of the right to appeal under Section 8-8-4 (K). D. A person who fails to pay a civil penalty within the time allowed under this Article shall be additionally liable for a late payment penalty in the amount of twenty-five dollars ($25.00). E. The civil penalty shall not be assessed if: (1) After a hearing, the hearing officer enters a finding of no liability; or (2) Within the time prescribed in the notice of violation, the person against whom the civil penalty is to be assessed submits the proof described in Section 8-8-3 (C) (11). 6 70221 F. A person who is found liable after an administrative adjudication hearing or who requests an administrative adjudication hearing and thereafter fails to appear at the time and place of the hearing is liable for administrative hearing costs in the amount of fifty dollars ($50.00) in addition to the amount of the civil penalty assessed for the violation. A person who is found liable for a civil penalty after an administrative adjudication hearing shall pay the civil penalty and costs within ten (10) days of the hearing. G. In an administrative adjudication hearing, the issues must be proved at the hearing by a preponderance of the evidence. The reliability of the photographic traffic control signal monitoring system used to produce the recorded image of the violation, originals or copies of the recorded image, and other documentary evidence relating to the violation alleged in a notice of violation may be attested to in an administrative adjudication hearing by affidavit of an officer or employee of the City or the entity with which the City contracts to install or operate the system and who is responsible for inspecting and maintaining the system. A certification of an officer or employee of the City that alleges a violation based on an inspection of the pertinent recorded image is admissible in a proceeding under this Ordinance, is evidence of the facts contained therein, and is prima facie evidence of the violation alleged in the notice of violation. H. It shall be an affirmative defense to liability under this Article, to be proven by a preponderance of the evidence, that; (1) the traffic-control signal was not in proper position and sufficiently legible to an ordinarily observant person; (2) the operator of the motor vehicle was acting in compliance with the lawful order or direction of a police officer; (3) the operator of the motor vehicle violated the instructions of the traffic-control signal so as to yield the right-of-way to an immediately approaching authorized emergency; vehicle; (4) the motor vehicle was being operated as an authorized emergency vehicle under Chapter 546 of the Texas Transportation Code and that the operator was acting in compliance with that chapter; (5) the motor vehicle was a stolen vehicle and being operated by a person other than the owner of the vehicle without the effective consent of the owner. (6) the license plate depicted in the recorded image of the violation was a stolen plate and being displayed on a motor vehicle other than the motor vehicle for which the plate had been issued; 7 70221 (7) if the owner of the vehicle is a natural person, the vehicle was being operated by a person other than the owner of the vehicle; or (8) the presence of ice, snow, unusual amounts of rain or other unusually hazardous road conditions existed that would make compliance with this Ordinance more dangerous under the circumstances than non-compliance. I. To demonstrate that at the time of the violation the motor vehicle was a stolen vehicle or the license plate displayed on the motor vehicle was a stolen plate, the owner must submit proof acceptable to the hearing officer that the theft of the vehicle or license plate had been timely reported to the appropriate law enforcement agency. J. Notwithstanding anything in this Article to the contrary, a person who fails to pay the amount of a civil penalty or to contest liability in a timely manner is entitled to an administrative adjudication hearing on the violation if; (1) the person files an affidavit with the hearing officer stating the date on which the person received the notice of violation that was mailed to the person; and (2) within the same period required by Section 8-8-4 (A) for a hearing to be timely requested but measured from the date the mailed notice was received as stated in the affidavit filed under Subdivision (1) of this subsection, the person requests an administrative adjudication hearing. K. A person who is found liable after an administrative adjudication hearing may appeal that finding of liability to the Municipal Court by filing a notice of appeal with the clerk of the Municipal Court. The notice of appeal must be filed not later than the thirty-first (31st) day after the date on which the administrative adjudication hearing officer entered the findings of liability and shall be accompanied by the payment of an appellate filing fee of fifty dollars ($50.00). Unless the person, on or before the filing of the notice of appeal, posts a bond in the amount of the civil penalty and any late fees, an appeal does not stay the enforcement of the civil penalty. An appeal shall be determined by the Municipal Court by trial de novo. The affidavits submitted under Section 8-8-3 (11) shall be admitted by the municipal judge in the trial de novo, and the issues must be proved by a preponderance of the evidence. Sec. 8-8-5. Effect of liability; exclusion of civil remedy; enforcement. A. The imposition of a civil penalty under this Ordinance is not a conviction and may not be considered a conviction for any purpose. 8 70221 B. The Department may not impose a civil penalty under this Ordinance on the owner of a motor vehicle if the operator of the vehicle was arrested or was issued a citation and notice to appear by a peace officer for a violation of Section 544.007(d) of the Texas Transportation Code recorded by the traffic control monitoring system. C. The City Attorney is authorized to file suit to enforce collection of a civil penalty assessed under this Ordinance. Sec. 8-8-6. Use of civil penalty funds. Civil penalties received by Coppell or the Department may only be used as follows: (A) to pay for the expenses of the automated red light enforcement program, including but not limited to, operations, maintenance, improvements, personnel and program management (“Operational Expenses”); and (B) all funds remaining after the payment of Operational Expenses shall be placed in an account to be used solely for expenses and items that are related or can be used in the furtherance of traffic safety, including but not limited to, cameras, traffic control devices, enforcement equipment, such as radars and police vehicles, communication equipment, educational or awareness programs, personnel and training.” SECTION 2. That all provisions of the ordinances of the City of Coppell in conflict with the provisions of this ordinance be, and the same are hereby, repealed, and all other provisions of the ordinances of the City of Coppell not in conflict with the provisions of this ordinance shall remain in full force and effect. SECTION 3. That should any sentence, paragraph, subdivision, clause, phrase, or section of this ordinance be adjudge or held to be unconstitutional, illegal or invalid, the same shall not affect the validity of this ordinance as a whole, or any part or provision thereof other than the part so decided to be invalid, illegal or unconstitutional, and shall not affect the validity of the Code of Ordinances as a whole. 9 70221 SECTION 4. An offense committed before the effective date of this ordinance is governed by the prior law and the provisions of the Code of Ordinances, as amended, in effect when the offense was committed and the former law is continued in effect for this purpose. SECTION 5. This ordinance shall take effect from and after its passage and the publication of the caption as the law and charter provide. DULY PASSED by the City Council of the City of Coppell, Texas on the _________ day of _______________________, 2006. APPROVED: ______________________________ DOUGLAS N. STOVER, MAYOR ATTEST: ______________________________ LIBBY BALL, CITY SECRETARY APPROVED AS TO FORM: ________________________________ ROBERT HAGER, CITY ATTORNEY WORK SESSION CONSENT REGULAR DEPT: DATE: ITEM #: AGENDA REQUEST FORM ITEM TYPE: ITEM CAPTION: GOAL(S): EXECUTIVE SUMMARY: FINANCIAL COMMENTS: RECOMMENDED ACTION: ACTION TAKEN BY COUNCIL: Police October 24, 2006 15 CONTRACT/BID or PROPOSAL Consider approval of an agreement between the City of Coppell and Redflex Traffic Systems, Inc. for Photo Red Light Enforcement Program; and authorizing the City Manager to sign and provide a letter of intent. The term of this Agreement shall commence as of the date hereof and shall continue for a period of three (3) years after the Installation Date. The City of Coppell shall have the right, but not the obligation, to extend the term of this Agreement for up to three (3) additional consecutive and automatic one (1) year periods following the expiration of the Initial Term. The City of Coppell shall be obligated to pay Redflex a fee of no more than $4,870 per month for each Designated Intersection Approach as full remuneration for performing all of the services comtemplated in this Agreement. Staff recommends approval. )Redflex Agreement 1 AGREEMENT BETWEEN THE CITY OF COPPELL AND REDFLEX TRAFFIC SYSTEMS, INC. FOR PHOTO RED LIGHT ENFORCEMENT PROGRAM This Agreement (this “Agreement”) is made as of this __ day of (insert month), 2006 by and between Redflex Traffic Systems, Inc. with offices at 6047 Bristol Parkway 1st Floor, Culver City, California 90230 (“Redflex”), and The City of Coppell, a municipal corporation, with offices at 255 E. Parkway Blvd. Coppell, TX 75019 (the “Customer”). RECITALS WHEREAS, Redflex has exclusive knowledge, possession and ownership of certain equipment, licenses, applications, and Notice of Violation processes related to digital photo red light enforcement systems; and WHEREAS, the Customer desires to engage the services of Redflex to provide certain equipment, processes and back office services so that sworn police officers of the Customer are able to monitor, identify and enforce red light running violations as prescribed under Ordinance No. To Be Determined; and WHEREAS, it is a mutual objective of both Redflex and the Customer to reduce the incidence of vehicle collisions at the traffic intersections and city streets that will be monitored pursuant to the terms of this Agreement. NOW THEREFORE, in consideration of the mutual covenants contained herein, and for other valuable consideration received, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: AGREEMENT 1. DEFINITIONS. In this Agreement, the words and phrases below shall have the following meanings: 1.1. “Authorized Officer” means the Police Project Manager or such other individual(s) as the Customer shall designate to review Potential Violations and to authorize the Issuance of Notice of Violations in respect thereto, and in any event, a sworn police officer. 1.2. “Authorized Violation” means each Potential Violation in the Violation Data for which authorization to issue a Notice of Violation in the form of an Electronic Signature is given by the Authorized Officer by using the Redflex System. 1.3. “Notice of Violation” means the notice of a Violation, which is mailed or otherwise delivered by Redflex to the violator on the appropriate Enforcement Documentation in respect of each Authorized Violation. 1.4. “Confidential or Private Information” means, with respect to any Person, any information, matter or thing of a secret, confidential or private nature, whether or not so labeled, which is connected with such Person’s business or methods of operation or concerning any of such Person’s suppliers, licensors, licensees, customers or others with whom such Person has a business relationship, and 2 which has current or potential value to such Person or the unauthorized disclosure of which could be detrimental to such Person, including but not limited to: 1.4.1. Matters of a business nature, including but not limited to information relating to development plans, costs, finances, marketing plans, data, procedures, business opportunities, marketing methods, plans and strategies, the costs of construction, installation, materials or components, the prices such Person obtains or has obtained from its clients or customers, or at which such Person sells or has sold its services; and 1.4.2. Matters of a technical nature, including but not limited to product information, trade secrets, know-how, formulae, innovations, inventions, devices, discoveries, techniques, formats, processes, methods, specifications, designs, patterns, schematics, data, access or security codes, compilations of information, test results and research and development projects. For purposes of this Agreement, the term “trade secrets” shall mean the broadest and most inclusive interpretation of trade secrets. 1.4.3. Notwithstanding the foregoing, Confidential Information will not include information that: (i) was generally available to the public or otherwise part of the public domain at the time of its disclosure, (ii) became generally available to the public or otherwise part of the public domain after its disclosure and other than through any act or omission by any party hereto in breach of this Agreement, (iii) was subsequently lawfully disclosed to the disclosing party by a person other than a party hereto, (iv) was required by a court of competent jurisdiction to be described, or (v) was required by applicable state law to be described. 1.5. “Designated Intersection Approaches” means the Intersection Approaches set forth on Exhibit A attached hereto, and such additional Intersection Approaches as Redflex and the Customer shall mutually agree from time to time. 1.6. “Electronic Signature” means the method through which the Authorized Officer indicates his or her approval of the issuance of a Notice of Violation in respect of a Potential Violation using the Redflex System. 1.7. “Enforcement Documentation” means the necessary and appropriate documentation related to the Photo Red Light Enforcement Program, including but not limited to warning letters, violation notices (using City specifications), a numbering sequence for use on all Notice of Violation, instructions to accompany each issued Notice of Violation (including in such instructions a description of basic adjudication procedures, payment options and information regarding the viewing of images and data collected by the Redflex System), chain of custody records, criteria regarding operational policies for processing Notices of Violation (including with respect to coordinating with the Department of Motor Vehicles), and technical support documentation for adjudication personnel . 1.8. “Equipment” means any and all cameras, sensors, equipment, components, products, software and other tangible and intangible property relating to the Redflex Photo Red Light System(s), including but not limited to all camera systems, housings, radar units, severs and poles. 3 1.9. ‘“Fine” means a monetary sum in the form of a civil penalty assessed for each Notice of Violation. 1.10. “Governmental Authority” means any domestic or foreign government, governmental authority, court, tribunal, agency or other regulatory, administrative or judicial agency, commission or organization, and any subdivision, branch or department of any of the foregoing. 1.11. “Installation Date of the Photo Red Light Program” means the date on which Redflex completes the construction and installation of at least one (1) Intersection Approach in accordance with the terms of this Agreement so that such Intersection Approach is operational for the purposes of functioning with the Redlight Photo Enforcement Program. 1.12. “Intellectual Property” means, with respect to any Person, any and all now known or hereafter known tangible and intangible (a) rights associated with works of authorship throughout the world, including but not limited to copyrights, moral rights and mask-works, (b) trademark and trade name rights and similar rights, (c) trade secrets rights, (d) patents, designs, algorithms and other industrial property rights, (e) all other intellectual and industrial property rights (of every kind and nature throughout the universe and however designated), whether arising by operation of law, contract, license, or otherwise, and (f) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues hereof now or hereafter in force (including any rights in any of the foregoing), of such Person. 1.13. “Intersection Approach” means a conduit of travel with up to four (4) contiguous lanes from the curb (e.g., northbound, southbound, eastbound or westbound) on which at least one (1) system has been installed by Redflex for the purposes of facilitating Redlight Photo Enforcement by the Customer. 1.14. “Operational Period” means the period of time during the Term, commencing on the Installation Date, during which the Photo Red Light Enforcement Program is functional in order to permit the identification and prosecution of Violations at the Designated City Streets and Intersection Approaches by a sworn police officer of the Customer and the issuance of Notices of Violation for such approved Violations using the Redflex System. 1.15. “Person” means a natural individual, company, Governmental Authority, partnership, firm, corporation, legal entity or other business association. 1.16. “Police Project Manager” means the project manager appointed by the Customer in accordance with this Agreement, which shall be a sworn police officer and shall be responsible for overseeing the installation of the Intersection Approaches and the implementation of the Redlight Photo Enforcement Program, and which manager shall have the power and authority to make management decisions relating to the Customer’s obligations pursuant to this Agreement, including but not limited to change order authorizations, subject to any limitations set forth in the Customer’s charter or other organizational documents of the Customer or by the city counsel or other governing body of the Customer. 1.17. “Potential Violation” means, with respect to any motor vehicle passing through a Designated City Street and/or Intersection Approach, the data collected by the Redflex System with respect to such motor vehicle, which data shall be 4 processed by the Redflex System for the purposes of allowing the Authorized Officer to review such data and determine whether a Red Light Violation has occurred. 1.18. “Proprietary Property” means, with respect to any Person, any written or tangible property owned or used by such Person in connection with such Person’s business, whether or not such property is copyrightable or also qualifies as Confidential Information, including without limitation products, samples, equipment, files, lists, books, notebooks, records, documents, memoranda, reports, patterns, schematics, compilations, designs, drawings, data, test results, contracts, agreements, literature, correspondence, spread sheets, computer programs and software, computer print outs, other written and graphic records and the like, whether originals, copies, duplicates or summaries thereof, affecting or relating to the business of such Person, financial statements, budgets, projections and invoices. 1.19. “Redflex Marks” means all trademarks registered in the name of Redflex or any of its affiliates, such other trademarks as are used by Redflex or any of its affiliates on or in relation to Photo Red Light Enforcement at any time during the Term this Agreement, service marks, trade names, logos, brands and other marks owned by Redflex, and all modifications or adaptations of any of the foregoing. 1.20. “Redflex Project Manager” means the project manager appointed by Redflex in accordance with this Agreement, which project manager shall initially be (insert name), or such person as Redflex shall designate by providing written notice thereof to the Customer from time to time, who shall be responsible for overseeing the construction and installation of the Designated Intersection Approaches and the implementation the Photo Red Light Enforcement Program, and who shall have the power and authority to make management decisions relating to Redflex’s obligations pursuant to this Agreement, including but not limited to change-order authorizations. 1.21. “Redflex Photo Red Light System” means, collectively, the SmartCam™ System, the SmartOps™ System, the Redlight Photo Enforcement Program, and all of the other equipment, applications, back office processes and digital red light traffic enforcement cameras, sensors, components, products, software and other tangible and intangible property relating thereto. 1.22. “Photo Red Light Enforcement Program” means the process by which the monitoring, identification and enforcement of Violations is facilitated by the use of certain equipment, applications and back office processes of Redflex, including but not limited to cameras, flashes, central processing units, signal controller interfaces and detectors (whether loop, radar or video loop) which, collectively, are capable of measuring Violations and recording such Violation data in the form of photographic images of motor vehicles. 1.23. “Photo Redlight Violation Criteria” means the standards and criteria by which Potential Violations will be evaluated by sworn police officers of the Customer, which standards and criteria shall include, but are not limited to, the duration of time that a traffic light must remain red prior to a Violation being deemed to have occurred, and the location(s) in an intersection which a motor vehicle must pass during a red light signal prior to being deemed to have 5 committed a Violation, all of which shall be in compliance with all applicable laws, rules and regulations of Governmental Authorities. 1.24. “SmartCam™ System” means the proprietary digital redlight photo enforcement system of Redflex relating to the Photo Red Light Enforcement Program. 1.25. “SmartOps™ System” means the proprietary back-office processes of Redflex relating to the Photo Red Light Enforcement Program. 1.26. “SmartScene™ System” means the proprietary digital video camera unit, hardware and software required for providing supplemental violation data. 1.27. “Traffic Signal Controller Boxes” means the signal controller interface and detector, including but not limited to the radar or video loop, as the case may be. 1.28. “Violation” means any traffic violation contrary to the terms of the Vehicle Code or any applicable rule, regulation or law of any other Governmental Authority, including but not limited to operating a motor vehicle contrary to traffic signals, and operating a motor vehicle without displaying a valid license plate or registration. 1.29. “Violations Data” means the images and other Violations data gathered by the Redflex System at the Designated City Streets and/or Intersection Approaches. 1.30. “Warning Period” means the period that only warning notices and not Notices of Violation shall be sent during the 30 day period commencing with the installation of a traffic-control signal monitoring device. 1.31. 2. TERM. The term of this Agreement shall commence as of the date hereof and shall continue for a period of three (3) years after the Installation Date (the “Initial Term”). The Customer shall have the right, but not the obligation, to extend the term of this Agreement for up to three (3) additional consecutive and automatic one (1) year periods following the expiration of the Initial Term (each, a “Renewal Term” and collectively with the Initial Term, the “Term”). The Customer may exercise the right to extend the term of this Agreement for a Renewal Term by providing written notice to Redflex not less than thirty (30) days prior to the last day of the Initial Term or the Renewal Term, as the case may be. 3. SERVICES. Redflex shall provide the Photo Red Light Enforcement Program to the Customer, in each case in accordance with the terms and provisions set forth in this Agreement. This Agreement shall consist not only of the terms and conditions set forth in this document but also the Redflex Traffic Systems USA Bid Proposal for Automated Traffic Signal Enforcement System RFP #C015-05 incorporated herein in its entirety (Exhibit “G”) and the City of Plano’s Proposal Number C015-05 RFP For Automated Traffic Signal Enforcement System incorporated herein in its entirety (Exhibit “H”). In the event there exists a conflict in interpretation, the documents shall control in the order listed above. These documents shall be referred to collectively as “Contract Documents.” 6 3.1. INSTALLATION. With respect to the construction and installation of (1) the Designated Intersection Approaches and the installation of the Redflex System at such Designated Intersection Approaches, the Customer and Redflex shall have the respective rights and obligations set forth on Exhibit B attached hereto. 3.2. MAINTENANCE. With respect to the maintenance of the Redflex System at the Designated Intersection Approaches the Customer and Redflex shall have the respective rights and obligations set forth on Exhibit C attached hereto. 3.3. VIOLATION PROCESSING. During the Operational Period, Violations shall be processed as follows: 3.3.1. All Violations Data shall be stored on the Redflex System; 3.3.2. The Redflex System shall process Violations Data gathered from the Designated City Streets and/or Intersection Approaches into a format capable of review by the Authorized Officer via the Redflex System; 3.3.3. The Redflex System shall be accessible by the Authorized Officer through a virtual private network in encrypted format by use of a confidential password on any computer equipped with a high-speed internet connection and a web browser; 3.3.4. Redflex shall provide the Authorized Officer with access to the Redflex System for the purposes of reviewing the pre-processed Violations Data within an average of four (4) days of the gathering of the Violation Data from the applicable Designated City Streets and/or Intersection Approaches 3.3.5. The Customer shall cause the Authorized Officer to review the Violations Data and to determine whether a Notice of Violation shall be issued with respect to each Potential Violation captured within such Violation Data, and transmit each such determination in the form of an Electronic Signature to Redflex using the software or other applications or procedures provided by Redflex on the Redflex System for such purpose, and REDFLEX HEREBY ACKNOWLEDGES AND AGREES THAT THE DECISION TO ISSUE A NOTICE OF VIOLATION SHALL BE THE SOLE, UNILATERAL AND EXCLUSIVE DECISION OF THE AUTHORIZED OFFICER AND SHALL BE MADE IN SUCH AUTHORIZED OFFICER’S SOLE DISCRETION (A “NOTICE OF VIOLATION DECISION”), AND IN NO EVENT SHALL REDFLEX HAVE THE ABILITY OR AUTHORIZATION TO MAKE A NOTICE OF VIOLATION DECISION; 3.3.6. With respect to each Authorized Violation, Redflex shall print and mail a Notice of Violation within two (2) days after Redflex’s receipt of such authorization; provided, however, during the Warning Period, warning violation notices shall be issued in respect of all Authorized Violations; 3.3.7. Redflex shall provide a toll-free telephone number for the purposes of answering citizen enquiries. 3.3.8. Redflex shall permit the Authorized Officer to generate reports as needed using the Redflex Standard Report System. 3.3.9. Prior to the installation date of the Photo Red Light Program, Redflex shall open and maintain a local customer office for the walk-in payment of fines and a local mailing address in the Dallas metropolitan area to accept payment by mail. 7 3.3.10. Upon Redflex’s receipt of a written request from the Customer and in addition to the Standard Reports, Redflex shall provide, without cost to the Customer, reports regarding the processing and issuance of Notices of Violation, the maintenance and downtime records of the Designated Intersection Approaches and the functionality of the Redflex System with respect thereto to the Customer in such format and for such periods as the Customer may reasonably request; provided, however, Redflex shall not be obligated to provide in excess of six (6) such reports in any given twelve (12) month period without cost to the Customer; 3.3.11. Upon the Customer’s receipt of a written request from Redflex, the Customer shall provide, without cost to Redflex, reports regarding the prosecution of Notices of Violation and the collection of fines, fees and other monies in respect thereof in such format and for such periods as Redflex may reasonably request; provided, however, the Customer shall not be obligated to provide in excess of six (6) such reports in any given twelve (12) month period without cost to Redflex; 3.3.12. Upon Redflex’s receipt of a written request from the Customer at least fourteen (14) calendar days in advance of the adjudication proceeding, Redflex shall provide expert witnesses for use by the Customer in prosecuting Violations; provided, however, the Customer shall use reasonable best efforts to seek judicial notice in lieu of requiring Redflex to provide such expert witnesses; and 3.3.13. During the three (3) month period following the Installation Date, Redflex shall provide such training to police personnel as shall be reasonably necessary in order to allow such personnel to act as expert witnesses on behalf of the Customer with respect to the Redlight Enforcement Program. 3.4. PROSECUTION AND COLLECTION; COMPENSATION. The Customer shall diligently prosecute all contested Notices of Violation before the hearing officer and any appeal to Customer’s municipal court. Redflex shall diligently prosecute the collection of all Fines, contested or uncontested. All payments will be collected and deposited into a Customer specified account and will be in direct accordance with the Customer’s guidelines. Redflex will employ a collection service to collect delinquent payments with a goal of achieving a 70-80% collection rate. Redflex shall have the right to receive, and the Customer shall be obligated to pay, the compensation set forth on Exhibit D attached hereto. 3.5. OTHER RIGHTS AND OBLIGATIONS. During the Term, in addition to all of the other rights and obligations set forth in this Agreement, Redflex and the Customer shall have the respective rights and obligations set forth on Exhibit E attached hereto. 3.6. CHANGE ORDERS. The Customer may from time to time request changes to the work required to be performed or the addition of products or services to those required pursuant to the terms of this Agreement by providing written notice thereof to Redflex, setting forth in reasonable detail the proposed changes (a “Change Order Notice”). Upon Redflex’s receipt of a Change Order Notice, Redflex shall deliver a written statement describing the effect, if any, the proposed changes would have on the pricing terms set forth in Exhibit D (the 8 “Change Order Proposal”), which Change Order Proposal shall include (i) a detailed breakdown of the charge and schedule effects, (ii) a description of any resulting changes to the specifications and obligations of the parties, (iii) a schedule for the delivery and other performance obligations, and (iv) any other information relating to the proposed changes reasonably requested by the Customer. Following the Customer’s receipt of the Change Order Proposal, the parties shall negotiate in good faith and agree to a plan and schedule for implementation of the proposed changes, the time, manner and amount of payment or price increases or decreases, as the case may be, and any other matters relating to the proposed changes; provided, however, in the event that any proposed change involves only the addition of equipment or services to the existing Designated Intersection Approaches, Designated City Vehicles, or the addition of Intersection Approaches to be covered by the terms of this Agreement, to the maximum extent applicable, the pricing terms set forth in Exhibit D shall govern. Any failure of the parties to reach agreement with respect to any of the foregoing as a result of any proposed changes shall not be deemed to be a breach of this Agreement, and any disagreement shall be resolved in accordance with Section 10. 4. License; Reservation of Rights. 4.1. License. Subject to the terms and conditions of this Agreement, Redflex hereby grants the Customer, and the Customer hereby accepts from Redflex upon the terms and conditions herein specified, a non-exclusive, non-transferable license during the Term of this Agreement to: (a) solely within the City of (insert name), access and use the Redflex System for the sole purpose of reviewing Potential Violations and authorizing the issuance of Notice of Violations pursuant to the terms of this Agreement, and to print copies of any content posted on the Redflex System in connection therewith, (b) disclose to the public (including outside of the City of (insert name) that Redflex is providing services to the Customer in connection with Photo Red Light Enforcement Program pursuant to the terms of this Agreement, and (c) use and display the Redflex Marks on or in marketing, public awareness or education, or other publications or materials relating to the Photo Red Light Enforcement Program, so long as any and all such publications or materials are approved in advance by Redflex. 4.2. RESERVATION OF RIGHTS. The Customer hereby acknowledges and agrees that: (a) Redflex is the sole and exclusive owner of the Redflex System, the Redflex Marks, all Intellectual Property arising from or relating to the Redflex System, and any and all related Equipment, (b) the Customer neither has nor makes any claim to any right, title or interest in any of the foregoing, except as specifically granted or authorized under this Agreement, and (c) by reason of the exercise of any such rights or interests of Customer pursuant to this Agreement, the Customer shall gain no additional right, title or interest therein. 4.3. RESTRICTED USE. The Customer hereby covenants and agrees that it shall not (a) make any modifications to the Redflex System, including but not limited to any Equipment, (b) alter, remove or tamper with any Redflex Marks, (c) use any of the Redflex Marks in any way which might prejudice their distinctiveness, validity or the goodwill of Redflex therein, (d) use any trademarks or other marks 9 other than the Redflex Marks in connection with the Customer’s use of the Redflex System pursuant to the terms of this Agreement without first obtaining the prior consent of Redflex, or (e) disassemble, de-compile or otherwise perform any type of reverse engineering to the Redflex System, the Redflex System, including but not limited to any Equipment, or to any, Intellectual Property or Proprietary Property of Redflex, or cause any other Person to do any of the foregoing. 4.4. PROTECTION OF RIGHTS. Redflex shall have the right to take whatever action it deems necessary or desirable to remedy or prevent the infringement of any Intellectual Property of Redflex, including without limitation the filing of applications to register as trademarks in any jurisdiction any of the Redflex Marks, the filing of patent application for any of the Intellectual Property of Redflex, and making any other applications or filings with appropriate Governmental Authorities. The Customer shall not take any action to remedy or prevent such infringing activities, and shall not in its own name make any registrations or filings with respect to any of the Redflex Marks or the Intellectual Property of Redflex without the prior written consent of Redflex. 4.5. INFRINGEMENT. The Customer shall use its reasonable best efforts to give Redflex prompt notice of any activities or threatened activities of any Person of which it becomes aware that infringes or violates the Redflex Marks or any of Redflex’s Intellectual Property or that constitute a misappropriation of trade secrets or act of unfair competition that might dilute, damage or destroy any of the Redflex Marks or any other Intellectual Property of Redflex. Redflex shall have the exclusive right, but not the obligation, to take action to enforce such rights and to make settlements with respect thereto. In the event that Redflex commences any enforcement action under this Section 4.5, then the Customer shall render to Redflex such reasonable cooperation and assistance as is reasonably requested by Redflex, and Redflex shall be entitled to any damages or other monetary amount that might be awarded after deduction of actual costs; provided, that Redflex shall reimburse the Customer for any reasonable costs incurred in providing such cooperation and assistance. 4.6. INFRINGING USE. The Customer shall give Redflex prompt written notice of any action or claim action or claim, whether threatened or pending, against the Customer alleging that the Redflex Marks, or any other Intellectual Property of Redflex, infringes or violates any patent, trademark, copyright, trade secret or other Intellectual Property of any other Person, and the Customer shall render to Redflex such reasonable cooperation and assistance as is reasonably requested by Redflex in the defense thereof; provided, that Redflex shall reimburse the Customer for any reasonable costs incurred in providing such cooperation and assistance. If such a claim is made and Redflex determines, in the exercise of its sole discretion, that an infringement may exist, Redflex shall have the right, but not the obligation, to procure for the Customer the right to keep using the allegedly infringing items, modify them to avoid the alleged infringement or replace them with non-infringing items. 5. Representations and Warranties. 5.1. Redflex Representations and Warranties. 10 5.1.1. Authority. Redflex hereby warrants and represents that it has all right, power and authority to execute and deliver this Agreement and perform its obligations hereunder. 5.1.2. Professional Services. Redflex hereby warrants and represents that any and all services provided by Redflex pursuant to this Agreement shall be performed in a professional and workmanlike manner and, with respect to the installation of the Redflex System, subject to applicable law, in compliance with all specifications provided to Redflex by the Customer. 5.2. Customer Representations and Warranties. 5.2.1. Authority. The Customer hereby warrants and represents that it has all right, power and authority to execute and deliver this Agreement and perform its obligations hereunder. 5.2.2. Professional Services. The Customer hereby warrants and represents that any and all services provided by the Customer pursuant to this Agreement shall be performed in a professional and workmanlike manner. 5.3. LIMITED WARRANTIES. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, REDFLEX MAKES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE REDFLEX SYSTEM OR ANY RELATED EQUIPMENT OR WITH RESPECT TO THE RESULTS OF THE CUSTOMER’S USE OF ANY OF THE FOREGOING. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH HEREIN, REDFLEX DOES NOT WARRANT THAT ANY OF THE DESIGNATED INTERSECTION APPROACHES OR THE REDFLEX SYSTEM WILL OPERATE IN THE WAY THE CUSTOMER SELECTS FOR USE, OR THAT THE OPERATION OR USE THEREOF WILL BE UNINTERRUPTED. THE CUSTOMER HEREBY ACKNOWLEDGES THAT THE REDFLEX SYSTEM MAY MALFUNCTION FROM TIME TO TIME, AND SUBJECT TO THE TERMS OF THIS AGREEMENT, REDFLEX SHALL DILIGENTLY ENDEAVOR TO CORRECT ANY SUCH MALFUNCTION IN A TIMELY MANNER. 6. Termination. 6.1. TERMINATION FOR CAUSE: Either party shall have the right to terminate this Agreement immediately by written notice to the other if (i) state statutes are amended to prohibit or substantially change the operation of photo red light enforcement systems; (ii) any court having jurisdiction over City rules, or state or federal statute declares, that results from the Redflex System of photo red light enforcement are inadmissible in evidence; or (iii) the other party commits any material breach of any of the provisions of this Agreement. In the event of a termination due to Section 6.1(i) or 6.1(ii) above, Customer shall be relieved of any further obligations for payment to Redflex other than as specified in Exhibit “D”. Either party shall have the right to remedy the cause for termination (Sec 6.1) within forty-five (45) calendar days (or within such other time period as the Customer and Redflex shall mutually agree, which agreement shall not be 11 unreasonably withheld or delayed) after written notice from the non-causing party setting forth in reasonable detail the events of the cause for termination. 6.2. The rights to terminate this Agreement given in this Section 6.1 shall be without prejudice to any other right or remedy of either party in respect of the breach concerned (if any) or any other breach of this Agreement. 6.3. PROCEDURES UPON TERMINATION. The termination of this Agreement shall not relive either party of any liability that accrued prior to such termination. Except as set forth in Section 6.3, upon the termination of this Agreement, all of the provisions of this Agreement shall terminate and: 6.3.1. Redflex shall (i) immediately cease to provide services, including but not limited to work in connection with the construction or installation activities and services in connection with the Photo Red Light Enforcement Program, (ii) promptly deliver to the Customer any and all Proprietary Property of the Customer provided to Redflex pursuant to this Agreement, (iii) promptly deliver to the Customer a final report to the Customer regarding the collection of data and the issuance of Notice of Violations in such format and for such periods as the Customer may reasonably request, and which final report Redflex shall update or supplement from time to time when and if additional data or information becomes available, (iv) promptly deliver to Customer a final invoice stating all fees and charges properly owed by Customer to Redflex for work performed and Notice of Violations issued by Redflex prior to the termination, and (v) provide such assistance as the Customer may reasonably request from time to time in connection with prosecuting and enforcing Notice of Violations issued prior to the termination of this Agreement. 6.3.2. The Customer shall (i) immediately cease using the Photo Red Light Enforcement Program, accessing the Redflex System and using any other Intellectual Property of Redflex, (ii) promptly deliver to Redflex any and all Proprietary Property of Redflex provided to the Customer pursuant to this Agreement, and (iii) promptly pay any and all fees, charges and amounts properly owed by Customer to Redflex for work performed and Notice of Violations issued by Redflex prior to the termination. 6.3.3. Unless the Customer and Redflex have agreed to enter into a new agreement relating to the Photo Red Light Enforcement Program or have agreed to extend the Term of this Agreement, Redflex shall remove any and all Equipment or other materials of Redflex installed in connection with Redflex’s performance of its obligations under this Agreement, including but not limited to housings, poles and camera systems, and Redflex shall restore the Designated City Vehicles and Designated Intersection Approaches to substantially the same condition such Designated Intersection Approaches were in immediately prior to this Agreement. 6.4. SURVIVAL. Notwithstanding the foregoing, the definitions and each of the following shall survive the termination of this Agreement: (x) Sections 4.2 (Reservation of Rights), 5.1 (Redflex Representations and Warranties), 5.2 12 (Customer Representations and Warranties), 5.3 (Limited Warranty), 7 (Confidentiality), 8 (Indemnification and Liability), 9 (Notices), 10 (Dispute Resolution), 11.1 (Assignment), 11.17 (Applicable Law), 11.16 (Injunctive Relief; Specific Performance) and 11.18 (Jurisdiction and Venue), and (y) those provisions, and the rights and obligations therein, set forth in this Agreement which either by their terms state, or evidence the intent of the parties, that the provisions survive the expiration or termination of the Agreement, or must survive to give effect to the provisions of this Agreement. 7. CONFIDENTIALITY. During the term of this Agreement and for a period of three (3) years thereafter, neither party shall disclose to any third person, or use for itself in any way for pecuniary gain, any Confidential Information learned from the other party during the course of the negotiations for this Agreement or during the Term of this Agreement. Upon termination of this Agreement, each party shall return to the other all tangible Confidential Information of such party. Each party shall retain in confidence and not disclose to any third party any Confidential Information without the other party’s express written consent, except (a) to its employees who are reasonably required to have the Confidential Information, (b) to its agents, representatives, attorneys and other professional advisors that have a need to know such Confidential Information, provided that such parties undertake in writing (or are otherwise bound by rules of professional conduct) to keep such information strictly confidential, and (c) pursuant to, and to the extent of, a request or order by any Governmental Authority, including laws relating to public records. 8. Indemnification and Liability. 8.1. Indemnification by Redflex. Subject to Section 8.3, Redflex hereby agrees to defend and indemnify the Customer and its affiliates, shareholders or other interest holders, managers, officers, directors, employees, agents, representatives and successors, permitted assignees and each of their affiliates, and all persons acting by, through, under or in concert with them, or any of them (individually a “Customer Party” and collectively, the “Customer Parties”) against, and to protect, save and keep harmless the Customer Parties from, and to pay on behalf of or reimburse the Customer Parties as and when incurred for, any and all liabilities, obligations, losses, damages, penalties, demands, claims, actions, suits, judgments, settlements, costs, expenses and disbursements (including reasonable attorneys’, accountants’ and expert witnesses’ fees) of whatever kind and nature (collectively, “Losses”), which may be imposed on or incurred by any Customer Party arising out of or related to (a) any material misrepresentation, inaccuracy or breach of any covenant, warranty or representation of Redflex contained in this Agreement, or (b) the willful misconduct of Redflex, its employees or agents which result in death or bodily injury to any natural person (including third parties) or any damage to any real or tangible personal property (including the personal property of third parties), except to the extent caused by the willful misconduct of any Customer Party. 8.2. Indemnification by Customer. Subject to Section 8.3, the Customer, to the extent allowed by law and without waiving any rights, defenses or immunities provided to it by the Texas Tort Claims Act, hereby agrees to defend and indemnify Redflex and its affiliates, shareholders or other interest holders, managers, 13 officers, directors, employees, agents, representatives and successors, permitted assignees and all persons acting by, through, under or in concert with them, or any of them (individually a “Redflex Party” and collectively, the “Redflex Parties”) against, and to protect, save and keep harmless the Redflex Parties from, and to pay on behalf of or reimburse the Redflex Parties as and when incurred for, any and all Losses which may be imposed on or incurred by any Redflex Party arising out of or in any way related to (a) any material misrepresentation, inaccuracy or breach of any covenant, warranty or representation of the Customer contained in this Agreement, or (b) the willful misconduct of the Customer, its employees, contractors or agents which result in death or bodily injury to any natural person (including third parties) or any damage to any real or tangible personal property (including the personal property of third parties), except to the extent caused by the willful misconduct of any Redflex Party. 8.3. Indemnification Procedures. In the event any claim, action or demand (a “Claim”) in respect of which any party hereto seeks indemnification from the other, the party seeking indemnification (the “Indemnified Party”) shall give the party from whom indemnification is sought (the “Indemnifying Party”) written notice of such Claim promptly after the Indemnified Party first becomes aware thereof; provided, however, that failure so to give such notice shall not preclude indemnification with respect to such Claim except to the extent of any additional or increased Losses or other actual prejudice directly caused by such failure. The Indemnifying Party shall have the right to choose counsel to defend such Claim (subject to the approval of such counsel by the Indemnified Party, which approval shall not be unreasonably withheld, conditioned or delayed), and to control, compromise and settle such Claim, and the Indemnified Party shall have the right to participate in the defense at its sole expense; provided, however, the Indemnified Party shall have the right to take over the control of the defense or settlement of such Claim at any time if the Indemnified Party irrevocably waives all rights to indemnification from and by the Indemnifying Party. The Indemnifying Party and the Indemnified Party shall cooperate in the defense or settlement of any Claim, and no party shall have the right enter into any settlement agreement that materially affects the other party’s material rights or material interests without such party’s prior written consent, which consent will not be unreasonably withheld or delayed. 8.4. LIMITED LIABILITY. Notwithstanding anything to the contrary in this Agreement, neither party shall be liable to the other, by reason of any representation or express or implied warranty, condition or other term or any duty at common or civil law, for any indirect, incidental, special, lost profits or consequential damages, however caused and on any theory of liability arising out of or relating to this Agreement. 9. NOTICES. Any notices to be given hereunder shall be in writing, and shall be deemed to have been given (a) upon delivery, if delivered by hand, (b) three (3) days after being mailed first class, certified mail, return receipt requested, postage and registry fees prepaid, or (c) one Business Day after being delivered to a reputable overnight courier service, excluding the U.S. Postal Service, prepaid, marked for next 14 day delivery, if the courier service obtains a signature acknowledging receipt, in each case addressed or sent to such party as follows: 9.1. Notices to Redflex: Redflex Traffic Systems, Inc. 15020 North 74th Street Scottsdale, AZ 85260 Attention: Ms. Karen Finley Facsimile: (480) 607-5552 9.2. Notices to the Customer: City of Coppell 255 E. Parkway Blvd., Coppell, TX 75019 Attention: Jim Witt, City Manager Office (972) 304-3618 10. DISPUTE RESOLUTION. Upon the occurrence of any dispute or disagreement between the parties hereto arising out of or in connection with any term or provision of this Agreement, the subject matter hereof, or the interpretation or enforcement hereof (the “Dispute”), the parties shall engage in informal, good faith discussions and attempt to resolve the Dispute. In connection therewith, upon written notice of either party, each of the parties will appoint a designated officer whose task it shall be to meet for the purpose of attempting to resolve such Dispute. The designated officers shall meet as often as the parties shall deem to be reasonably necessary. Such officers will discuss the Dispute. If the parties are unable to resolve the Dispute in accordance with this Section 10, and in the event that either of the parties concludes in good faith that amicable resolution through continued negotiation with respect to the Dispute is not reasonably likely, then the parties may mutually agree to submit to binding or nonbinding arbitration or mediation. 11. Miscellaneous. 11.1. ASSIGNMENT. Neither party may assign all or any portion of this Agreement without the prior written consent of the other. However, the Customer hereby acknowledges and agrees that the execution (as outlined in Exhibit F), delivery and performance of Redflex’s rights pursuant to this Agreement shall require a significant investment by Redflex, and that in order to finance such investment, Redflex may be required to enter into certain agreements or arrangements (“Financing Transactions”) with equipment lessors, banks, financial institutions or other similar persons or entities (each, a “Financial Institution” and collectively, “Financial Institutions”). The Customer hereby agrees that Redflex shall have the right to assign, pledge, hypothecate or otherwise transfer (“Transfer”) its rights, or any of them, under this Agreement to any Financial Institution in connection with any Financing Transaction between Redflex and any such Financial Institution, subject to the Customer’s prior written approval, which approval shall not be unreasonably withheld or delayed. The Customer further acknowledges and agrees that in the event that Redflex provides written notice to the Customer that it intends to Transfer all or any of 15 Redflex’s rights pursuant to this Agreement, and in the event that the Customer fails to provide such approval or fails to object to such Transfer within forty-five (45) business days after its receipt of such notice from Redflex, for the purposes of this Agreement, the Customer shall be deemed to have consented to and approved such Transfer by Redflex. Notwithstanding the above, this Agreement shall inure to the benefit of, and be binding upon, the parties hereto, and their respective successors or assigns. 11.2. “SPEED ENFORCEMENT” The Customer and Redflex agree that should legislation or local ordinance be enacted to enable the photo enforcement of speed within the city, and the city requires this capability for public safety then the city will have the option to extend this contract to include additional terms for photo enforcement of speed within the city. 11.3. RELATIONSHIP BETWEEN REDFLEX AND THE CUSTOMER. Nothing in this Agreement shall create, or be deemed to create, a partnership, joint venture or the relationship of principal and agent or employer and employee between the parties. The relationship between the parties shall be that of independent contractors, and nothing contained in this Agreement shall create the relationship of principal and agent or otherwise permit either party to incur any debts or liabilities or obligations on behalf of the other party (except as specifically provided herein). 11.4. AUDIT RIGHTS. Each of parties hereto shall have the right to audit the books and records of the other party hereto (the “Audited Party”) solely for the purpose of verifying the payments, if any, payable pursuant to this Agreement. Any such audit shall be conducted upon not less than forty-eight (48) hours’ prior notice to the Audited Party, at mutually convenient times and during the Audited Party’s normal business hours. Except as otherwise provided in this Agreement, the cost of any such audit shall be borne by the non-Audited Party. In the event any such audit establishes any underpayment of any payment payable by the Audited Party to the non-Audited Party pursuant to this Agreement, the Audited Party shall promptly pay the amount of the shortfall, and in the event that any such audit establishes that the Audited Party has underpaid any payment by more than twenty five percent (25%) of the amount of actually owing, the cost of such audit shall be borne by the Audited Party. In the event any such audit establishes any overpayment by the Audited Party of any payment made pursuant to this Agreement, non-Audited Party shall promptly refund to the Audited Party the amount of the excess. 11.5. FORCE MAJEURE. Neither party will be liable to the other or be deemed to be in breach of this Agreement for any failure or delay in rendering performance arising out of causes beyond its reasonable control and without its fault or negligence. Such causes may include but are not limited to, acts of God or the public enemy, terrorism, significant fires, floods, earthquakes, epidemics, quarantine restrictions, strikes, freight embargoes, or Governmental Authorities approval delays which are not caused by any act or omission by Redflex, and unusually severe weather. The party whose performance is affected agrees to notify the other promptly of the existence and nature of any delay. 16 11.6. ENTIRE AGREEMENT. This Agreement represents the entire Agreement between the parties, and there are no other agreements (other than invoices and purchase orders), whether written or oral, which affect its terms. This Agreement may be amended only by a subsequent written agreement signed by both parties. 11.7. SEVERABILITY. If any provision of this Agreement is held by any court or other competent authority to be void or unenforceable in whole or part, this Agreement shall continue to be valid as to the other provisions thereof and the remainder of the affected provision. 11.8. WAIVER. Any waiver by either party of a breach of any provision of this Agreement shall not be considered as a waiver of any subsequent breach of the same or any other provision thereof. 11.9. CONSTRUCTION Except as expressly otherwise provided in this Agreement, this Agreement shall be construed as having been fully and completely negotiated and neither the Agreement nor any provision thereof shall be construed more strictly against either party. 11.10. HEADINGS. The headings of the sections contained in this Agreement are included herein for reference purposes only, solely for the convenience of the parties hereto, and shall not in any way be deemed to affect the meaning, interpretation or applicability of this Agreement or any term, condition or provision hereof. 11.11. EXECUTION AND COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, and such counterparts together shall constitute only one instrument. Any one of such counterparts shall be sufficient for the purpose of proving the existence and terms of this Agreement, and no party shall be required to produce an original or all of such counterparts in making such proof. 11.12. COVENANT OF FURTHER ASSURANCES. All parties to this Agreement shall, upon request, perform any and all acts and execute and deliver any and all certificates, instruments and other documents that may be necessary or appropriate to carry out any of the terms, conditions and provisions hereof or to carry out the intent of this Agreement. 11.13. REMEDIES CUMULATIVE. Each and all of the several rights and remedies provided for in this Agreement shall be construed as being cumulative and no one of them shall be deemed to be exclusive of the others or of any right or remedy allowed by law or equity, and pursuit of any one remedy shall not be deemed to be an election of such remedy, or a waiver of any other remedy. 11.14. BINDING EFFECT. This Agreement shall inure to the benefit of and be binding upon all of the parties hereto and their respective executors, administrators, successors and permitted assigns. 11.15. COMPLIANCE WITH LAWS. Nothing contained in this Agreement shall be construed to require the commission of any act contrary to law, and whenever there is a conflict between any term, condition or provision of this Agreement and any present or future statute, law, ordinance or regulation contrary to which the parties have no legal right to contract, the latter shall 17 prevail, but in such event the term, condition or provision of this Agreement affected shall be curtailed and limited only to the extent necessary to bring it within the requirement of the law, provided that such construction is consistent with the intent of the Parties as expressed in this Agreement. 11.16. NO THIRD PARTY BENEFIT. Nothing contained in this Agreement shall be deemed to confer any right or benefit on any Person who is not a party to this Agreement. 11.17. INJUNCTIVE RELIEF; SPECIFIC PERFORMANCE. The parties hereby agree and acknowledge that a breach of Sections 4.1 (License), 4.3 (Restricted Use) or 7 (Confidentiality) of this Agreement would result in severe and irreparable injury to the other party, which injury could not be adequately compensated by an award of money damages, and the parties therefore agree and acknowledge that they shall be entitled to injunctive relief in the event of any breach of any material term, condition or provision of this Agreement, or to enjoin or prevent such a breach, including without limitation an action for specific performance hereof. 11.18. APPLICABLE LAW. This Agreement shall be governed by and construed in all respects solely in accordance with the laws of the State of Texas United States. 11.19. JURISDICTION AND VENUE. Any dispute arising out of or in connection with this Agreement shall be submitted to the exclusive jurisdiction and venue of the courts located in the County of Collin, Texas, and both parties specifically agree to be bound by the jurisdiction and venue thereof. 11.20. MOST FAVORED NATION CLAUSE. If during the term of this contract Redflex should enter into any agreement with another municipality within the greater Dallas metropolitan area for photo red light enforcement upon terms and conditions more favorable than those granted to Customer, Reflex agrees to modify this contract to include such favorable terms if so requested by Customer. (The remainder of this page is left intentionally blank) 18 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first set forth above. “Customer” CITY OF COPPELL, TX By: APPROVED AS TO CONTENT: By: “Redflex” REDFLEX TRAFFIC SYSTEMS, INC., By: Name: Title: 19 EXHIBIT “A” Designated Intersection Approaches The contract is for the implementation of up to 20 intersections. Identification of enforced intersections will be based on mutual agreement between Redflex and the City as warranted by community safety and traffic needs. 20 EXHIBIT “B” Construction and Installation Obligations Timeframe for Installation: Fixed Photo Red Light System Redflex will have each specified intersection installed and activated in phases in accordance with an implementation plan to be mutually agreed to by Redflex Traffic Systems and the Municipality. Redflex will use reasonable commercial efforts to install the system in accordance with the schedule set forth in the implementation plan that will be formalized upon project commencement. Redflex will use reasonable commercial efforts to install and activate the first four specified intersection within the first ninety (90) days subsequent to formal project kick- off. Any additional intersections will be added within thirty (30) days of receipt of a notice to proceed. The Municipality agrees that the estimated timeframe for installation and activation are subject to conditions beyond the control of Redflex and are not guaranteed. In order to provide the client with timely completion of the photo enforcement project Redflex Traffic Systems requires that the City assist with providing timely approval of City permit requests. The City acknowledges the importance of the safety program and undertakes that in order to keep the project on schedule the customer is to provide city engineers review of Redflex permit requests and all documentation within a two business days. Redflex will also review and correct if necessary any redlines with in two business days. Permits need to be received within five business days of first submittal in order to implement the program in a timely manner. 1. Redflex Obligations. Redflex shall do or cause to be done each of the following (in each case, unless otherwise stated below, at Redflex’s sole expense): 1.1. Appoint the Redflex Project Manager and a project implementation team consisting of between one (1) and four (4) people to assist the Redflex Project Manager; 1.2. Request current “as-built” electronic engineering drawings for the Designated Intersection Approaches (the “Drawings”) from the city traffic engineer, if available; 1.3. Develop and submit to the Customer for approval construction and installation specifications in reasonable detail for the Designated Intersection Approaches, including but not limited to specifications for all radar sensors, pavement loops, electrical connections and traffic controller connections, as required; and 1.4. Seek approval from the relevant Governmental Authorities having authority or jurisdiction over the construction and installation specifications for the Designated Intersection Approaches (collectively, the “Approvals”), which will include compliance with City permit applications. 1.5. Finalize the acquisition of the Approvals; 21 1.6. Submit to the Customer a public awareness strategy for the Customer’s consideration and approval, which strategy shall include media and educational materials for the Customer’s approval or amendment (the “Awareness Strategy”); 1.7. Develop the Redlight Violation Criteria in consultation with the Customer; 1.8. Develop the Enforcement Documentation for approval by the Customer, which approval shall not be unreasonably withheld; 1.9. Complete the installation and testing of all necessary Equipment, including hardware and software, at the Designated Intersection Approaches (under the supervision of the Customer); 1.10. Cause an electrical sub-contractor to complete all reasonably necessary electrical work at the Designated Intersection Approaches, including but not limited to the installation of all related Equipment and other detection sensors, poles, cabling, telecommunications equipment and wiring, which work shall be performed in compliance with all applicable local, state and federal laws and regulations; 1.11. Install and test the functionality of the Designated Intersection Approaches with the Redflex System and establish fully operational Violation processing capability with the Redflex System; 1.12. Implement the use of the Redflex System at each of the Designated Intersection Approaches; 1.13. Deliver the Materials to the Customer; and 1.14. Issue Notice of Violation notices for Authorized Violations; 1.15. Redflex shall provide training (i) for up to fifteen (15) personnel of the Customer, including but not limited to the persons who Customer shall appoint as Authorized Officers and other persons involved in the administration of the Redlight Photo Enforcement Program, (ii) for at least sixteen (16) hours in the aggregate, (iii) regarding the operation of the Redflex System and the Redlight Photo Enforcement Program, which training shall include training with respect to the Redflex System and its operations, strategies for presenting Violations Data in administrative adjudication hearing proceedings and a review of the Enforcement Documentation; 1.16. Interact with administrative adjudication hearing personnel to address issues regarding the implementation of the Redflex System, the development of a subpoena processing timeline that will permit the offering of Violations Data in adjudication proceedings, and coordination between Redflex, the Customer and adjudication personnel; and 1.17. Redflex will work with the Customer to develop a comprehensive Public Awareness/Education Campaign that will be based on research and public polling to ensure tailored messaging for the community. Redflex will organize a press conference at the project’s commencement and coordinate all logistics, including preparing a media packet which will include: a news release; an overview of the Customer’s photo enforcement program; a project fact sheet; a project question and answer sheet; a photo enforcement “Facts & Myths” handout; a map showing photo enforcement intersections and thoroughfares; background on similar successful projects elsewhere; an explanation of photo enforcement technology; an explanation of how the program will be 22 administered; and a spokesperson contact list. The Police Department’s Public Information Officer will be their primary point of contact, and will have final approval on all media materials 1.18. Notice of Violation processing and Notice of Violation re-issuance 1.19. Employ a collection agency to collect delinquent accounts. To offset the cost of collecting each delinquent account, Redflex will receive reimbursement for the cost of delinquent collection up to the amount of the late fee penalty of $25 associated with that account, for each account and associated late fee successfully collected. 2. CUSTOMER OBLIGATIONS. The Customer shall do or cause to be done each of the following (in each case, unless otherwise stated below, at Customer’s sole expense): 2.1.1. Appoint the Police Project Manager; Provide an Administrative Hearing Officer to preside over Appeals Hearing for the City. 2.1.2. Assist Redflex in obtaining the Drawings from the relevant Governmental Authorities; 2.1.3. Notify Redflex of any specific requirements relating to the construction and installation of any Intersection Approaches or the implementation of the Redlight Photo Enforcement Program; 2.1.4. Provide assistance to Redflex in obtaining access to the records data of the Texas Department of Transportation in Redflex’s capacity as an independent contractor to the Customer; and 2.1.5. Assist Redflex in seeking the Approvals 2.1.6. Provide reasonable access to the Customer’s properties and facilities in order to permit Redflex to install and test the functionality of the Designated Intersection Approaches and the Redlight Photo Enforcement Program; 2.1.7. Provide reasonable access to the personnel of the Customer and reasonable information about the specific operational requirements of such personnel for the purposes of performing training; 2.1.8. Seek approval or amendment of Awareness Strategy, as described in Section 1.17 above, and provide written notice to Redflex with respect to the quantity of media and program materials (the “Materials”) that the Customer will require in order to implement the Awareness Strategy during the period commencing on the date on which Redflex begins the installation of any of the Designated Intersection Approaches and ending one (1) month after the Installation Date; 2.1.9. Assist Redflex in developing the Redlight Violation Criteria; and 2.1.10. Seek approval of the Enforcement Documentation. 23 EXHIBIT “C” Maintenance 1. All repair and maintenance of Photo Red Light Enforcement systems and related equipment will be the sole responsibility of Redflex, including but not limited to maintaining the casings of the cameras included in the Redflex System and all other Equipment in reasonably clean and graffiti-free condition. 2. Redflex shall not open the Traffic Signal Controller Boxes without a representative of city Traffic Engineering present. 3. The provision of all necessary communication, broadband and telephone services to the Designated Intersection Approaches will be the sole responsibility of the Redflex 4. The provision of all necessary electrical services to the Designated Intersection Approaches will be the sole responsibility of Redflex. 5. In the event that images of a quality suitable for the Authorized Officer to identify Violations cannot be reasonably obtained without the use of flash units, Redflex shall provide and install such flash units. 6. The Redflex Project Manager (or a reasonable alternate) shall be available to the Police Project Manager each day, on a reasonable best efforts basis. 24 EXHIBIT “D” COMPENSATION & PRICING Commencing on the expiration of the Warning Period for each Designated Intersection Approach, Customer shall be obligated to pay Redflex a fixed fee of $4,870 per month for each Designated Intersection Approach (“Fixed Fee”) as full remuneration for performing all of the services contemplated in this Agreement. As a beta-testing and feasibility study, Redflex will provide a mobile photo red light system unit for a period of 90 days at no charge to the Customer; upon completion of feasibility study; Redflex and the Customer will have the option to extend this contract and negotiate terms for mobile photo enforcement. Cost Neutrality Cost neutrality is assured to Customer. The maximum compensation that Customer shall be obligated to pay to Redflex each month is the Fixed Fee. Each month, Customer and Redflex shall compare the aggregate revenue received from all Notice of Violations (“Revenue”) to the total amount invoiced by Redflex for the Fixed Fee (“Amount Invoiced”) during the previous month (“Cost Neutrality Review”). If the Amount Invoiced exceeds the Revenue, then City shall only be obligated to pay the Revenue to Redflex and the difference between the Revenue and the Amount Invoiced for that month will carry over to the next month as a deficit (“Deficit Amount”). If, in the next following month, the Revenue exceeds the Amount Invoiced, Customer shall pay the Amount Invoiced plus all or any portion of the accumulated Deficit Amount to the extent that there is sufficient Revenue to pay all or any portion of the Deficit Amount. Upon contract expiration any such outstanding deficits will be forfeited by Redflex. BUSINESS ASSUMPTIONS FOR ALL PRICING OPTIONS: 1. Redflex construction will be able to utilize existing conduit for installation where space is available. 2. The Customer agrees to pay Redflex within thirty (30) days after the invoice is received. A monthly late fee of 1.5% is payable for amounts remaining unpaid 60 days from date of invoice. 3. Each year, beginning with the second year of the Initial Term, the pricing will be adjusted by the Consumer Price Index (CPI) for the Dallas Metroplex as published by the U.S. Department of Labor. 25 Exhibit “E” Additional Rights and Obligations Redflex and the Customer shall respectively have the additional rights and obligations set forth below: 1. Redflex shall assist the Customer in public information and education efforts, including but not limited to the development of artwork for utility bill inserts, press releases and schedules for any public launch of the Redlight Photo Enforcement Program (actual print and production costs are the sole responsibility of the Customer). 2. Redflex shall be solely responsible for installing such Signage. The Customer shall be solely responsible for the fabrication of any signage, notices or other postings required pursuant to any law, rule or regulation of any Governmental Authority (“Signage”), including but not limited to the Vehicle Code, and shall assist in determining the placement of such Signage. 3. The Redflex Project Manager and the Police Project Manager shall meet on a weekly basis during the period commencing as of the date of execution hereof and ending on the Installation Date, and on a monthly basis for the remainder of the Term, at such times and places as the Redflex Manager and the Customer Manager shall mutually agree. 4. The Customer shall not access the Redflex System or use the Redlight Photo Enforcement Program in any manner other than prescribe by law and which restricts or inhibits any other Person from using the Redflex System or the Redflex Photo Enforcement Program with respect to any Intersection Approaches constructed or maintained by Redflex for such Person, or which could damage, disable, impair or overburden the Redflex System or the Redflex Photo Enforcement Program, and the Customer shall not attempt to gain unauthorized access to (i) any account of any other Person, (ii) any computer systems or networks connected to the Redflex System, or (iii) any materials or information not intentionally made available by Redflex to the Customer by means of hacking, password mining or any other method whatsoever, nor shall the Customer cause any other Person to do any of the foregoing. 5. The Customer shall maintain the confidentiality of any username, password or other process or device for accessing the Redflex System or using the Redlight Photo Enforcement Program. 6. Each of Redflex and the Customer shall advise each other in writing with respect to any applicable rules or regulations governing the conduct of the other on or with respect to the property of such other party, including but not limited to rules and regulations relating to the safeguarding of confidential or proprietary information, and when so advised, each of Redflex and the Customer shall obey any and all such rules and regulations. 7. The Customer shall promptly reimburse Redflex for the cost of repairing or replacing any portion of the Redflex System, or any property or equipment related thereto, damaged directly or indirectly by the Customer, or any of its employees, contractors or agents. 26 Insurance 1. During the Term, Redflex shall procure and maintain and Redflex’s sole cost and expense the following insurance coverage with respect to claims for injuries to persons or damages to property which may arise from or in connection with the performance of work or services pursuant to this Agreement by Redflex, and each of Redflex’s subcontractors, agents, representatives and employees: 2. Commercial General Liability Insurance. Commercial General Liability Insurance with coverage of not less than One Million Dollars ($1,000,000) combined single limit per occurrence for bodily injury and property damage; 3. Commercial Automobile Liability Insurance. Commercial Automobile Liability Insurance with coverage of not less than One Million Dollars ($1,000,000) combined single limit per occurrence for bodily injury or property damage, including but not limited to coverage for all automobiles owned by Redflex, hired by Redflex, and owned by third parties; 4. Professional Liability (Errors and Omissions) Insurance. Redflex will use its commercial best efforts to procure and maintain Professional Liability (Errors and Omissions) Insurance with coverage of not less than One Million Dollars ($1,000,000) per occurrence and in the aggregate. 5. Workers’ Compensation and Employer’s Liability Insurance. Workers’ Compensation Insurance with coverage of not less than the limits required by the Labor Code of the State of (insert name), Employer’s Liability Insurance with coverage of not less than One Million Dollars ($1,000,000) per occurrence. 6. With respect to the insurance described in the foregoing Section of this Exhibit E, any deductibles or self-insured retentions must be declared to and approved by the Customer, and any changes to such deductibles or self-insured retentions during the Term must be approved in advance in writing by the Customer. 7. With respect to the Commercial General Liability Insurance the following additional provisions shall apply: 8. The Customer Parties shall be covered as additional insureds with respect to any liability arising from any act or omission of any Redflex Parties on the premises upon which any such Redflex Parties may perform services pursuant to this Agreement, and such coverage shall contain no special limitations on the scope of protection afforded to such additional insureds. 9. The insurance coverage procured by Redflex and described above shall be the primary insurance with respect to the Customer Parties in connection with this Agreement, and any insurance or self-insurance maintained by any of the (insert name) shall be in excess, and not in contribution to, such insurance. 10. Any failure to comply with the reporting provisions of the various insurance policies described above shall not affect the coverage provided to the (insert names), and such insurance policies shall state the such insurance coverage shall apply separately with respect to each additional insured against whom any claim is made or suit is brought, except with respect to the limits set forth in such insurance policies. 11. With respect to the insurance described in the foregoing Section of this Exhibit E, each such insurance policy shall be endorsed to state that the coverage provided thereby shall not be cancelled except after thirty (30) calendar days’ prior written 27 notice to the Customer. If any of the Redflex Parties are notified by any insurer that any insurance coverage will be cancelled, Redflex shall immediately provide written notice thereof to the Customer and shall take all necessary actions to correct such cancellation in coverage limits, and shall provide written notice to the Customer of the date and nature of such correction. If Redflex, for any reason, fails to maintain the insurance coverage required pursuant to this Agreement, such failure shall be deemed a material breach of this Agreement, and the Customer shall have the right, but not the obligation and exercisable in its sole discretion, to either (i) terminate this Agreement and seek damages from Redflex for such breach, or (ii) purchase such required insurance, and without further notice to Redflex, deduct from any amounts due to Redflex pursuant to this Agreement, any premium costs advance by the Customer for such insurance. If the premium costs advanced by the Customer for such insurance exceed any amounts due to Redflex pursuant to this Agreement, Redflex shall promptly remit such excess amount to the Customer upon receipt of written notice thereof. 12. Redflex shall provide certificates of insurance evidencing the insurance required pursuant to the terms of this Agreement, which certificates shall be executed by an authorized representative of the applicable insurer, and which certificates shall be delivered to the Customer prior to Redflex commencing any work pursuant to the terms of this Agreement. 28 Exhibit F FORM OF ACKNOWLEDGMENT AND CONSENT This Acknowledgement and Consent, dated as of _________, 2006, is entered into by and between the City of Coppell, TX (the "City") and Redflex Traffic Systems, Inc., ("Redflex"), with reference to the [Agreement for Automated Red Light Photo Enforcement Cameras], dated as of _______________, by and between the City and Redflex (the "Agreement"). 1. Redflex has entered into a Credit Agreement, dated as of August 3, 2004 (the "Harris-Redflex Credit Agreement"), with Harris Trust and Savings Bank (the "Bank"), pursuant to which the Bank has provided certain working capital credit facilities to Redflex. Such credit facilities will provide Redflex the working capital that it needs to perform its obligations to the City under the Agreement. 2. Pursuant to the Harris-Redflex Credit Agreement, Redflex has granted Harris a security interest in all of Redflex's personal property as collateral for the payment and performance of Redflex's obligations to the Bank under the Harris-Redflex Credit Agreement. Such security interest applies to and covers all of Redflex's contract rights, including, without limitation, all of Redflex's rights and interests under the Agreement. 3. Redflex will not, by virtue of the Harris-Redflex Credit Agreement, be relieved of any liability or obligation under the Agreement, and the Bank has not assumed any liability or obligation of Redflex under the Agreement. 4. The City hereby acknowledges notice of, and consents to, Redflex's grant of such security interest in favor of the Bank in all of Redflex's rights and interests under the Agreement pursuant to the Harris-Redflex Credit Agreement. 5. The City further acknowledges and agrees that this Acknowledgement and Consent shall be binding upon the City and shall inure to the benefit of the successors and assigns of the Bank and to any replacement lender which refinances Redflex's obligations to the Bank under the Harris-Redflex Credit Agreement. IN WITNESS WHEREOF, the City and Redflex have caused this Acknowledgement and Consent to be executed by their respective duly authorized and elected officers as of the date first above written. The City: City of Coppell, TX By:__________________________ Name:________________________ Title:_________________________ Redflex: REDFLEX TRAFFIC SYSTEMS, INC. By:__________________________ Name:________________________ Title:_________________________ 29 Exhibit “G” Redflex Traffic Systems USA Bid Proposal for Automated Traffic Signal Enforcement System RFP #C015-05 30 Exhibit “H” City of Plano’s Proposal Number C015-05 RFP For Automated Traffic Signal Enforcement System WORK SESSION CONSENT REGULAR DEPT: DATE: ITEM #: AGENDA REQUEST FORM ITEM TYPE: ITEM CAPTION: GOAL(S): EXECUTIVE SUMMARY: FINANCIAL COMMENTS: RECOMMENDED ACTION: ACTION TAKEN BY COUNCIL: City Manager October 24, 2006 16 ✔ DISCUSSION Consider approval of sending a letter to Senator Chris Harris regarding the city of Coppell adopting a sex offender residency ordinance, and authorizing the Mayor to sign. Staff recommends approval. !SexOffender Hon. Chris Harris State Senator 2001 E. Lamar Blvd. Ste. 150 Arlington, TX 76006 October 16, 2006 Dear Senator Harris: As you are aware, the Coalition of North Texas Cities is a group of cities that have all adopted sex offender residency ordinances. We believe that, in order to better protect our children from the violent and predatory acts of sex offenders, statewide legislation is necessary. We have developed a list of issues, based on your comments, our discussions, and laws passed in other states, to be addressed in legislation for the 2007 session. Senator, we truly appreciate the contributions that you and your staff have made to our efforts. We look forward to continuing to work with you to pass this important legislation. Please review the list of issues below and let us know if you have any comments, suggestions or concerns. List of items to be included in proposed sex offender legislation: Child safety zone: an area within 1,000 feet of any defined premise where children commonly gather, including public or private elementary or secondary schools, registered or licensed day care facilities, public parks or playgrounds. Charge appropriate state agency with developing overlay map indicating locations of child safety zone premises and known addresses of offenders prohibited from living within 1,000 feet of such premises. Offenders restricted from living from within 1,000 feet of defined premises are adult offenders whose victims were under age 17 at the time of the offense who were convicted or adjudicated on or after September 1, 1970 and who are required to register as sex offenders with the State of Texas or any other state. Statute shall apply to defined offenders for the duration of their registration requirement. Residence includes permanent or temporary residences. o Permanent residence: 14 or more consecutive days. o Temporary residence: 14 or more days in the aggregate during any calendar year and which is not a permanent residence or 4 or more consecutive or nonconsecutive days in any month and which is not a permanent address. Statute does not affect court’s ability to impose more restrictive residency requirements on offenders under court supervision. Violation of the statute constitutes a state jail felony. Subsequent offenses result in mandatory two-year jail term. Offenders are required to determine annually on their birth date whether they are still in compliance with the statute. If a defined premise has been located within 1,000 feet of their home, the offenders must relocate within thirty days. The following bullet will not be included in the residency requirement legislation. A better alternative may be to amend another bill with this language: Offenders must provide a complete list of names and ages of individuals residing in their home, whether permanently or temporarily. (Group, please provide me with the name and title for the representative/signatory from your city.) DATE: October 24, 2006 ITEM #: 17 AGENDA REQUEST FORM NECESSARY ACTION RESULTING FROM WORK SESSION Agenda Request Form - Revised 02/04 Document Name: %necessaryactionwork DATE: October 24, 2006 ITEM #: 18 AGENDA REQUEST FORM COUNCIL COMMITTEE REPORTS A. Carrollton/Farmers Branch ISD/Lewisville ISD – Councilmember Tunnell. B. Coppell ISD – Mayor Pro Tem Faught and Councilmembeer York. C. Coppell Seniors – Mayor Pro Tem Faught and Councilmember Brancheau. D. Dallas Regional Mobility Coalition - Councilmember Peters. E. Economic Development Committee – Councilmembers Peters and Franklin. F. Metrocrest Hospital Authority - Councilmember Tunnell. G. Metrocrest Medical Foundation - Councilmember Hinojosa-Flores. H. Metrocrest Medical Services – Councilmember Hinojosa-Flores. I. Metrocrest Social Service Center – Councilmember York. J. North Texas Council of Governments - Councilmember Peters. K. NTCOG/Regional Emergency Management – Councilmember Franklin. L. North Texas Commission - Councilmember Brancheau. M. Senior Adult Services – Mayor Pro Tem Faught. Agenda Request Form - Revised 06/03 Document Name: %ccommreport DATE: October 24, 2006 ITEM #: 19 AGENDA REQUEST FORM NECESSARY ACTION RESULTING FROM EXECUTIVE SESSION Agenda Request Form - Revised 09/02 Document Name: %necessaryactionexec CERTIFICATE OF AGENDA ITEM SUBMISSION Council Meeting Date: October 24, 2006 Department Submissions: Item Nos. 11/H and 11/I were placed on the Agenda for the above- referenced City Council meeting by the Parks Department. I have reviewed the Agenda Requests (and any backup if applicable) and hereby submit these items to the City Council for consideration. ____________________ Parks Department Item No. 13 was placed on the Agenda for the above-referenced City Council meeting by the Planning Department. I have reviewed the Agenda Request (and any backup if applicable) and hereby submit this item to the City Council for consideration. ____________________ Planning Department Item Nos. 14 and 15 were placed on the Agenda for the above-referenced City Council meeting by the Police Department. I have reviewed the Agenda Requests (and any backup if applicable) and hereby submit these items to the City Council for consideration. ____________________ Police Department Financial Review: I certify that I have reviewed all the items submitted for consideration on the Agenda for the above-referenced City Council Meeting and have inserted any financial comments where appropriate. ____________________ Finance Department City Manager Review: I certify that I have reviewed the complete Agenda and Packet for the above-referenced City Council Meeting and hereby submit the same to the City Council for consideration. ____________________ City Manager (or Deputy City Manager)