Loading...
04-09-2013 Agenda with BackupSPECIAL JOINT MEETING AGENDA City Council Board of Directors of the Schertz Economic Development Corporation The Planning & Zoning Commission AND REGULAR SESSION CITY COUNCIL HAL BALDWIN MUNICIPAL COMPLEX COUNCIL CHAMBERS 1400 SCHERTZ PARKWAY BUILDING #4 SCHERTZ, TEXAS 78154 04-09-2013 Council Agenda AGENDA TUESDAY, APRIL 9, 2013 AT 6:00 P.M. A quorum of each of the following could be present: - City Council - Board of Directors of the Schertz Economic Development Corporation - The Planning and Zoning Commission 1. Call to Order by each Governing Body 2. Presentation/discussion by Gateway Planning for the North, South and Downtown sectors plan for the City of Schertz. (B. James/S. Polikov) 3. Adjournment Call to Order – Regular Session Invocation and Pledges of Allegiance to the Flags of the United States and State of Texas. (Pastor Linda Montgomery – Schertz United Methodist Church) Presentations • Proclamation recognizing Telecommunications Week (Mayor/Chief Hansen) • Presentation and discussion regarding Cibolo Creek Municipal Authority (CCMA) sewer rate increase. (J. Bierschwale/Amber Briggs – CCMA) City Events and Announcements • Announcements of upcoming City Events (D. Harris/J. Bierschwale/B. James) • Announcements and recognitions by City Manager (J. Kessel) Hearing of Residents 04-09-2013 City Council Agenda Page - 2 - This time is set aside for any person who wishes to address the City Council. Each person should fill out the speaker’s register prior to the meeting. Presentations should be limited to no more than 3 minutes. All remarks shall be addressed to the Council as a body, and not to any individual member thereof. Any person making personal, impertinent, or slanderous remarks while addressing the Council may be requested to leave the meeting. Discussion by the Council of any item not on the agenda shall be limited to statements of specific factual information given in response to any inquiry, a recitation of existing policy in response to an inquiry, and/or a proposal to place the item on a future agenda. The presiding officer, during the Hearing of Residents portion of the agenda, will call on those persons who have signed up to speak in the order they have registered. Consent Agenda Items The Consent Agenda is considered to be self-explanatory and will be enacted by the Council with one motion. There will be no separate discussion of these items unless they are removed from the Consent Agenda upon the request by the Mayor or a Councilmember. 1. Minutes - Consideration and/or action regarding the approval of the minutes of the Regular Meeting of April 2, 2013. (J. Kessel/B. Dennis) 2. Resolution No. 13-R-16 – Consideration and/or action approving a Resolution authorizing a First Amendment to JavaNook Agreement, and other matters in connection therewith. (J. Kessel/D. Gwin) 3. Resolution No. 13-R-17 – Consideration and/or action approving a Resolution authorizing a Contact Information Amendment form relating to Economic Development Agreements, and other matters in connection therewith. (J. Kessel/D. Gwin) 4. Resolution No. 13-R-29 – Consideration and/or action approving a Resolution authorizing a Change of Name Amendment form relating to Economic Development Agreements, and other matters in connection therewith. (J. Kessel/D. Gwin) 5. Resolution No. 13-R-32 – Consideration and/or action approving a Resolution Authorizing a Memorandum of Understanding with the Schertz-Cibolo-Universal City Independent School District regarding certain matters relating to the proposed joint Natatorium Project, and other matters in connection therewith. (J. Kessel/M. Spain) Discussion and Action Items 6. Ordinance No. 13-B-10 – Consideration and/or action approving an Ordinance by the City Council of the City of Schertz, Texas authorizing the issuance of “City of Schertz, Texas Tax Notes, Series 2013”, levying an annual ad valorem tax, within the limitations prescribed by law, for the payment of the obligations; prescribing the form, terms, conditions, and resolving other matters incident and related to the issuance, sale, 04-09-2013 City Council Agenda Page - 3 - and delivery of the obligations; authorizing the execution of a Paying Agent/Registrar Agreement and a Purchase and Investment letter; complying with the letter of representations with the Depository Trust Company; authorizing the execution of any necessary engagement agreements with the City’s Financial Advisors and/or Bond Counsel; and providing an effective date. First and Final reading (J. Kessel/A. Friedman – Southwest Securities) 7. Ordinance No. 13-T-09 – Consideration and/or action approving an Ordinance authorizing an amendment to the tax abatement agreement with Valero Diamond, L.P. First and Final reading (J. Kessel/D. Gwin) 8. Ordinance No. 13-D-11 – Consideration and/or action approving an Ordinance amending the Code of Ordinances revising Section 86-115, Maximum Limits generally on Specific Streets (FM 1103 – From IH 35 to Cibolo City Limits). First Reading (J. Bierschwale/L. Busch) 9. Ordinance No. 13-C-08 – Conduct a public hearing, consider and make recommendations on an amendment to the Schertz Code of Ordinances, Chapter 18, Building and Building Regulations, Article I, General Requirements; Article II, the Building Code; and Article III, the Residential Code as it relates to contractor requirements, foundations, soil testing, retaining walls, and other related regulations, providing a penalty clause, and other matters in connection therewith. (B. James/M. Sanchez) (Conduct the public hearing and table action of first reading) 10. Ordinance No. 13-M-12 – Conduct a public hearing, consider and make recommendations on an amendment to the Schertz Code of Ordinances, Part III, Unified Development Code (UDC), Article 13 Land Disturbing Activities and Drainage.(B. James/L. Busch) (Conduct the public hearing and table action of first reading) 11. Ordinance No. 13-S-13 - Public Hearing – Conduct a public hearing, consider and act on a request to rezone approximately 2.010 ± acres of land generally located on the southeast corner of FM 482 and Old Nacogdoches Road from Pre-Development District (PRE) to General Business District (GB), out of the Francisco Rodriguez Survey, No. 99, Section 2, Comal County, Schertz, Texas. (B. James/M. Sanchez) (Conduct the public hearing and table action of first reading) Roll Call Vote Confirmation Executive Session Called under: Section 551.071 Texas Government Code Deliberation regarding litigation, pending or contemplated litigation; Section 551.072 Texas Government Code - Deliberation regarding the purchase, exchange, sale, lease, or value of real property, or real estate; 04-09-2013 City Council Agenda Page - 4 - Section 551.074 Texas Government Code - Deliberation regarding personnel matters, policies, duties, employment, and evaluation of certain public officials and employees; Section 551.087 Texas Government Code – Deliberation regarding Economic Development Negotiations. Reconvene into Regular Session 12. Take any action deemed necessary as a result of the Executive Session. Requests and Announcements 13. Announcements by City Manager • Citizen Kudos • Recognition of City employee actions • New Departmental initiatives 14. Requests by Mayor and Councilmembers that items be placed on a future City Council agenda. 15. Requests by Mayor and Councilmembers to City Manager and Staff for information. 16. Announcements by Mayor and Councilmembers • City and community events attended and to be attended • City Council Committee and Liaison Assignments (see assignments below) • Continuing education events attended and to be attended • Recognition of actions by City employees • Recognition of actions by community volunteers • Upcoming City Council agenda items Adjournment CERTIFICATION I, BRENDA DENNIS, CITY SECRETARY OF THE CITY OF SCHERTZ, TEXAS, DO HEREBY CERTIFY THAT THE ABOVE AGENDA WAS PREPARED AND POSTED ON THE OFFICIAL BULLETIN BOARDS ON THIS THE 5th DAY OF APRIL 2013 AT 4:00 A.M., WHICH IS A PLACE READILY ACCESSIBLE TO THE PUBLIC AT ALL TIMES AND THAT SAID NOTICE WAS POSTED IN ACCORDANCE WITH CHAPTER 551, TEXAS GOVERNMENT CODE. Brenda Dennis Brenda Dennis CPM, TRMC, MMC, City Secretary 04-09-2013 City Council Agenda Page - 5 - I CERTIFY THAT THE ATTACHED NOTICE AND AGENDA OF ITEMS TO BE CONSIDERED BY THE CITY COUNCIL WAS REMOVED BY ME FROM THE OFFICIAL BULLETIN BOARD ON _____DAY OF _______________, 2013. ____________________________Title:__________________________ This facility is accessible in accordance with the Americans with Disabilities Act. Handicapped parking spaces are available. If you require special assistance or have a request for sign interpretative services or other services please call 210 619-1030 at least 24 hours in advance of meeting. COUNCIL COMMITTEE AND LIAISON ASSIGNMENTS Mayor Carpenter Audit Committee Hal Baldwin Scholarship Committee Interview Committee for Boards and Commissions Investment Advisory Committee TIRZ II Board Mayor Pro-Tem Edwards – Place 4 Audit Committee Hal Baldwin Scholarship Committee Councilmember Fowler – Place 1 Interview Committee for Boards and Commissions Schertz Housing Board Liaison Councilmember Scagliola – Place 2 Animal Control Advisory Committee Cibolo Valley Local Government Corporation Interview Committee for Boards and Commissions Sweetheart Advisory Committee Councilmember Antuna - Place 3 ASA Commuter Rail District Board – Lone Star Randolph Joint Land Use Study (JLUS) Executive Committee Schertz Seguin Local Government Corporation Councilmember – Verinder – Place 5 Audit Committee Investment Advisory Committee Agenda No. 1 CITY COUNCIL MEMORANDUM City Council Meeting: April 9, 2013 Department: City Secretary Subject: Minutes BACKGROUND The City Council held a regular meeting on April 2, 2013. FISCAL IMPACT None RECOMMENDATION Staff recommends Council approve the minutes of the regular meeting of April 2, 2013. ATTACHMENT Minutes –regular meeting April 2, 2013 04-02-2013 Minutes MINUTES REGULAR MEETING April 2, 2013 A Regular Meeting was held by the Schertz City Council of the City of Schertz, Texas, on April 2, 2013, at 6:00 p.m., in the Hal Baldwin Municipal Complex Council Chambers, 1400 Schertz Parkway, Building #4, Schertz, Texas. The following members present to-wit: Mayor Michael R. Carpenter Mayor Pro-Tem Cedric Edwards, Sr. Councilmember David Scagliola Councilmember George Antuna, Jr. Staff Present: City Manager John C. Kessel Executive Director John Bierschwale Executive Director David Harris Executive Director Brian James Chief of Staff Bob Cantu City Attorney Michael Spain City Secretary Brenda Dennis Councilmembers Jim Fowler and Sydney Verinder were absent. CALL TO ORDER: Mayor Carpenter called the Regular Meeting to order at 6:02 p.m. INVOCATION AND PLEDGES OF ALLEGIANCE TO THE FLAGS OF THE UNITED STATES AND THE STATE OF TEXAS. Pastor Linda Montgomery with Schertz United Methodist Church gave the invocation followed by the Pledges of Allegiance to the Flags of the United States and the State of Texas. Recognition • Special presentation and unveiling of Mayor Hal Baldwin’s portrait. (Mayor/Council/M. Spence) Mayor Carpenter recognized Susan and Brian Beck who came forward unveiling the portrait of Mayor Hal Baldwin. City Events and Announcements • Announcements of upcoming City Events (D. Harris/J. Bierschwale/B. James) Mayor Carpenter recognized Executive Director David Harris who announced the following upcoming events: • Wednesday, April 3, 2013, Skateboard Design meeting – community input welcome, Schertz Civic Center 6:30 p.m. to 8:00 p.m. • Tuesday, April 9, 2013, 6:00 p.m. - Joint Meeting with Council, Planning & Zoning, and the Economic Development Corporation regarding a draft presentation regarding Schertz Sector Plan from Gateway Planning. 04-02-2013 Minutes • Friday, April 19, 2013, 2013 TML Legislative Training Series Webinar 10:30 – 11:30 a.m., City Manager’s Conference Room • Friday, April 19, 2013, Lions Club Casino Night, 7:00 p.m. – Schertz Civic Center • Saturday, April 20, 2013, Absolute Jazz – 1:00 p.m. to 11:00 p.m. – Pickrell Park • Thursday, April 25, 2013, Volunteer Fair and Open House – Schertz Civic Center 6:00 p.m. to 8:00 p.m. • Tuesday, April 30, 2013 Hal Baldwin Scholarship application deadline. • Thursday, May 2, 2013, 5:45 p.m. – Sweetheart Court Coronation, Schertz Civic Center Mr. Harris thanked Building Maintenance and Mary Spence for their assistance in getting the former Mayor’s portraits displayed this evening. • Announcements and recognitions by City Manager (J. Kessel) City Manager John Kessel recognized and thanked the Parks Department and Mary Spence for the arrangements regarding the Animal Adoption Center groundbreaking. Mr. Kessel stated that recently they have held meetings with citizens of the Savannah Square Subdivision regarding the prohibiting of operating vehicles in drainage easements. He stated that in the next few weeks he would be scheduling a workshop discussion on this item. Proclamations • Proclamation “Child Abuse Prevention Month” – Guadalupe County Children’s Advocacy Center. (Mayor/Christy Williams) Mayor Carpenter read and presented the Proclamation to Ms. Christy Williams with the Guadalupe County Children’s Advocacy Center. • Proclamation “National Sexual Assault Awareness Month” – Guadalupe Valley Violence Shelter, Inc. (Mayor/Jennifer Fernandez) Mayor Carpenter read and presented the Proclamation to Ms. Jennifer Fernandez with the Guadalupe Valley Violence Shelter, Inc. Presentation • Presentation and/discussion regarding the Annual Tax Increment Reinvestment Zone Number 2 (TIRZ) – (Sedona/Crossvine) (B. James/M. Spain) Mayor Carpenter recognized City Attorney Michael Spain who stated Section 311.016 of the Texas Tax Code requires municipalities with Tax Increment Reinvestment Zones (TIRZ) to submit an annual report to the taxing entity. This report is then sent to the State Comptroller. He stated the report must contain the following information: (1) the amount and source of revenue in the tax increment fund established for the zone ($144,513.63 balance for FY 2012; 04-02-2013 Minutes (2) the amount and purpose of expenditures from the fund ($0 for FY 2012); (3) the amount of principal and interest due on outstanding bonded indebtedness (None – no bonds issued); (4) the tax increment base and current captured appraised value retained by the zone ($450,879 City tax increment base and $24,946,759 captured appraised value for FY 2012); and (5) the captured appraised value shared by the municipality (same as (4) above. No action taken. Hearing of Residents This time is set aside for any person who wishes to address the City Council. Each person should fill out the speaker’s register prior to the meeting. Presentations should be limited to no more than 3 minutes. All remarks shall be addressed to the Council as a body, and not to any individual member thereof. Any person making personal, impertinent, or slanderous remarks while addressing the Council may be requested to leave the meeting. Discussion by the Council of any item not on the agenda shall be limited to statements of specific factual information given in response to any inquiry, a recitation of existing policy in response to an inquiry, and/or a proposal to place the item on a future agenda. The presiding officer, during the Hearing of Residents portion of the agenda, will call on those persons who have signed up to speak in the order they have registered. Mayor Carpenter recognized the following who spoke: • Mrs. Christy Williams, 424 N. River Street, Seguin, who spoke regarding the Advocacy Center & Child abuse upcoming fundraisers: o Saturday, April 6, 2013, Steak Dinner, KC Hall in Seguin at 6:00 p.m. o Thursday, May 9, 2013, Designer Purse Bingo – Schertz Civic Center 7:00 p.m. to 9:00 p.m. • Mrs. Maggie Titterington, Schertz Chamber President, who provided photos of the recent Chamber Events. • Mrs. Linda Jarrell, 4909 Crestwood Drive, who addressed Council with concerns of waterline and street repairs needed in the Northcliffe Subdivision. Consent Agenda Items The Consent Agenda is considered to be self-explanatory and will be enacted by the Council with one motion. There will be no separate discussion of these items unless they are removed from the Consent Agenda upon the request by the Mayor or a Councilmember. 04-02-2013 Minutes 1. Minutes - Consideration and/or action regarding the approval of the minutes of the Regular Meeting of March 26, 2013. (J. Kessel/B. Dennis) 2. Resolution No. 13-R-26 – Consideration and/or action approving a Resolution authorizing a Small Government Enterprise License Agreement (SGELA) with Environmental Systems Research Institute, Inc., (ESRI) and other matters in connection therewith. (B. James/T. McFalls) The following was read into record: RESOLUTION NO. 13-R-26 A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS AUTHORIZING A SMALL GOVERNMENT ENTERPRISE LICENSE AGREEMENT (SGELA) WITH ENVIRONMENTAL SYSTEMS RESEARCH INSTITUTE, INC. (ESRI), AND OTHER MATTERS IN CONNECTION THEREWITH Mayor Carpenter recognized Mayor Pro-Tem Edwards who moved, seconded by Councilmember Scagliola to approve the consent agenda items 1, and 2. The vote was unanimous with Mayor Pro-Tem Edwards, Councilmembers Scagliola, and Antuna voting yes, and no one voting no. Councilmembers Fowler and Verinder were absent. Motion Carried Roll Call Vote Confirmation Mayor Carpenter recognized City Secretary Brenda Dennis who recapped the votes for agenda items 1 and 2. Executive Session City Council did not meet in Executive Session 3. Take any action deemed necessary as a result of the Executive Session. No action taken as Council did not meet. Requests and Announcements 4. Announcements by City Manager • Citizen Kudos • Recognition of City employee actions • New Departmental initiatives Mayor Carpenter recognized City Manager John Kessel 5. Requests by Mayor and Councilmembers that items be placed on a future City Council agenda. No items were requested. 04-02-2013 Minutes 6. Requests by Mayor and Councilmembers to City Manager and Staff for information. No items were requested. 7. Announcements by Mayor and Councilmembers • City and community events attended and to be attended • City Council Committee and Liaison Assignments • Continuing education events attended and to be attended • Recognition of actions by City employees • Recognition of actions by community volunteers • Upcoming City Council agenda items Mayor Carpenter recognized Mayor Pro-Tem Edwards thanked Publications Editor Chuck McCollough for providing the unemployment information. Mayor Carpenter stated that Saturday, April 6, 2013, at 9:00 a.m. Buffalo Valley Youth Association (BVYA) will host their Spring Season Opening Ceremony at the Schertz Ballpark. Mayor Carpenter commented on the recent work with Animal Control, specifically creating a “No Kill” facility. He stated he is looking forward to the new Animal Adoption Center being built. Adjournment As there was no further business, the meeting was adjourned at 6:48 p.m. __________________________________ Mayor, Michael R. Carpenter ATTEST: _________________________ City Secretary, Brenda Dennis Agenda No. 2 CITY COUNCIL MEMORANDUM City Council Meeting: April 9, 2013 Department: Economic Development Subject: Resolution No. 13-R-16 First Amendment to JavaNook Agreement BACKGROUND Goal: The City of Schertz, Texas (the “City”) and the City of Schertz Economic Development Corporation (the “SEDC”) entered into a Development Agreement (“Agreement”) with JavaNook, LLC, on November 1, 2011. The Agreement was authorized under Chapter 380 of the Local Government Code. Under the Agreement, JavaNook received a $10,000 grant in consideration of renovating and continually- operating a coffee house located at the historic 509 Main Street, Schertz, Texas for a period of two years. In December 2012, JavaNook notified the SEDC that it would be moving its facility to 537 Main Street. In mid-January 2012, JavaNook moved its operations to the new location. JavaNook is currently operational with the store hours of 8:00am to 12:00pm, Monday through Friday. JavaNook has requested to amend the Agreement to redefine the term “Leased Space” to mean 537 Main Street, Schertz, Texas. Community Benefit: The amendment to the Agreement will allow JavaNook to continue to operate on Main Street and will continue to promote local economic development and to stimulate business and commercial activity. Summary of Recommended Action: To approve Resolution No. 13-R-16 with the accompanied First Amendment to JavaNook Agreement (the “Amendment”). FISCAL IMPACT The total Incentive was $10,000. If the Agreement is not amended, JavaNook will be required to repay 50% of the incentive plus interest and associated fees. If the Agreement is amended, JavaNook will continue its operations in effort to fulfill the Agreement. SEDC RECOMMENDATION The SEDC held a meeting on February 28, 2013 to consider the proposed Amendment. A motion was made by Grady Morris and Seconded by Rosemary Scott to approve the Amendment as presented. The motion passed unanimously (5-0). STAFF RECOMMENDATION Staff recommends approval of the Resolution ATTACHMENT(S) Resolution 13-R-16 RESOLUTION NO. 13-R-16 A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS AUTHORIZING A FIRST AMENDMENT TO JAVANOOK AGREEMENT, AND OTHER MATTERS IN CONNECTION THEREWITH WHEREAS, the City of Schertz (the “City”) and the City of Schertz Economic Development Corporation (the “SEDC”) entered into an Development Agreement (“Agreement”) with JavaNook, LLC (“JavaNook”) on November 1, 2011; and WHEREAS, the City and the SEDC authorized under Chapter 380, Texas Local Government Code provided a grant to promote local economic development and to stimulate business and commercial activity in Schertz; and WHEREAS, JavaNook has relocated within the downtown area to 537 Main Street, Schertz, Texas and desires to amend the “Lease Space” definition in the Agreement to mean the facility located at 537 Main Street; and WHEREAS, the City, SEDC and JavaNook intend to execute the remainder of the Agreement in full force and effect; and WHEREAS, the City Council has determined that it is in the best interest of the City to authorize the First Amendment to JavaNook Agreement attached hereto as Exhibit A. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS THAT: Section 1. The City Council hereby authorizes the President (or the Vice President in the President’s absence) of the SEDC and the City Manager of the City, or his designee, to execute and deliver, a First Amendment to JavaNook Agreement in substantially the form set forth on Exhibit A. Section 2. The recitals contained in the preamble hereof are hereby found to be true, and such recitals are hereby made a part of this Resolution for all purposes and are adopted as a part of the judgment and findings of the City Council. Section 3. All resolutions, or parts thereof, which are in conflict or inconsistent with any provision of this Resolution are hereby repealed to the extent of such conflict, and the provisions of this Resolution shall be and remain controlling as to the matters resolved herein. Section 4. This Resolution shall be construed and enforced in accordance with the laws of the State of Texas and the United States of America. Section 5. If any provision of this Resolution or the application thereof to any person or circumstance shall be held to be invalid, the remainder of this Resolution and the application of such provision to other persons and circumstances shall nevertheless be valid, and the City Council hereby declares that this Resolution would have been enacted without such invalid provision. Section 6. It is officially found, determined, and declared that the meeting at which this Resolution is adopted was open to the public and public notice of the time, place, and subject matter of the public business to be considered at such meeting, including this Resolution, was given, all as required by Chapter 551, Texas Government Code, as amended. Section 7. This Resolution shall be in force and effect from and after its final passage, and it is so resolved. PASSED AND ADOPTED, this _____ day of _____________, 2013. CITY OF SCHERTZ, TEXAS Michael R. Carpenter, Mayor ATTEST: Brenda Dennis, City Secretary (CITY SEAL) EXHIBIT A FIRST AMENDMENT TO JAVANOOK AGREEMENT FIRST AMENDMENT TO JAVANOOK AGREEMENT The City of Schertz, Texas (the “City”) and the City of Schertz Economic Development Corporation (the “SEDC”) entered into an Agreement on the November 1, 2011 with JavaNook, LLC (“JavaNook”). JavaNook has relocated within the downtown area of the City from 509 Main Street, Schertz, Texas to 537 Main Street, Schertz, Texas and desires to amend the “Leased Space” definition in the Agreement to mean the facility located at 537 Main Street, Schertz, Texas. Except as amended by this Amendment, the Agreement remains in full force and effect. The undersigned hereby certifies that he/she is authorized to sign this Amendment on behalf of the Company. This Amendment is signed on behalf of JavaNook, the City and the SEDC. CITY OF SCHERTZ, TEXAS a Texas home rule municipality By: _________________________ John C. Kessel, City Manager CITY OF SCHERTZ ECONOMIC DEVELOPMENT CORPORATION a Texas non-profit industrial development corporation By: _________________________ Tim Brown, President JAVANOOK, LLC a Texas limited liability company By: _________________________ Name: _______________________ Title: _________________________ Date: _________________________ Agenda No. 3 CITY COUNCIL MEMORANDUM City Council Meeting: April 9, 2013 Department: Economic Development Subject: Resolution No. 13-R-17 Change of Contact Information Amendment BACKGROUND Goal: The City Schertz, Texas (the “City”) and the City of Schertz Economic Development Corporation (the “SEDC”) have 17 active Development/Incentive Agreements (the “Agreements”) that have been created to help stimulate economic growth in the City of Schertz. The SEDC is required to monitor these Agreements to ensure that they remain compliant with the requirements as outlined in the Agreements. These Agreements can last several years and as such the SEDC has created the Contact Information Amendment (the “Amendment”) to easily update notification information, if needed. The Amendment will be used to update notification contact information and to update the Company’s certifying officer. Community Benefit: This Amendment will help enable the SEDC to better maintain current information for active Agreements. Summary of Recommended Action: To approve the Amendment as outlined in Resolution No. 13-R-17. FISCAL IMPACT This Amendment will save future legal expenses by not having to facilitate separate individual Amendments as parties need to change information. SEDC RECOMMENDATION The SEDC held a meeting on March 28, 2013 to approve the proposed Amendment. A motion was made by Marvin Thomas and Seconded by Roy Richard to approve the form as presented. The motion passed unanimously (6-0). STAFF RECOMMENDATION Staff recommends approval of the Resolution. ATTACHMENT(S) Resolution 13-R-17 with form of Amendment attached RESOLUTION NO. 13-R-17 A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS AUTHORIZING THE CONTACT INFORMATION AMENDMENT FORM AND PROCESS, AND OTHER MATTERS IN CONNECTION THEREWITH WHEREAS, the City of Schertz (the “City”) and the City of Schertz Economic Development Corporation (the “SEDC”) have entered into Development/Incentive Agreements (“Agreements”) with certain Schertz businesses under Section 312 and/or Section 380 of the Texas Property Tax Code; and WHEREAS, the Agreements require that notices be delivered from time to time to specific addresses and/or individuals; and WHEREAS, a form Contact Information Amendment (the “Amendment”) has been created to amend contact information and to identify certifying officers for the Agreements; WHEREAS, the City Council has determined that it is in the best interest of the City to authorize the Amendment attached hereto as Exhibit A. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS THAT: Section 1. The City Council hereby authorizes the President (or the Vice President in the President’s absence) of the SEDC and the City Manager of the City, or his designee, to execute and deliver Amendments for particular Agreements in substantially the form set forth on Exhibit A. No further approval shall be required by the City Council. Section 2. The recitals contained in the preamble hereof are hereby found to be true, and such recitals are hereby made a part of this Resolution for all purposes and are adopted as a part of the judgment and findings of the City Council. Section 3. All resolutions, or parts thereof, which are in conflict or inconsistent with any provision of this Resolution are hereby repealed to the extent of such conflict, and the provisions of this Resolution shall be and remain controlling as to the matters resolved herein. Section 4. This Resolution shall be construed and enforced in accordance with the laws of the State of Texas and the United States of America. Section 5. If any provision of this Resolution or the application thereof to any person or circumstance shall be held to be invalid, the remainder of this Resolution and the application of such provision to other persons and circumstances shall nevertheless be valid, and the City Council hereby declares that this Resolution would have been enacted without such invalid provision. Section 6. It is officially found, determined, and declared that the meeting at which this Resolution is adopted was open to the public and public notice of the time, place, and subject matter of the public business to be considered at such meeting, including this Resolution, was given, all as required by Chapter 551, Texas Government Code, as amended. Section 7. This Resolution shall be in force and effect from and after its final passage, and it is so resolved. PASSED AND ADOPTED, this _____ day of ______, 2013. CITY OF SCHERTZ, TEXAS Michael R. Carpenter, Mayor ATTEST: Brenda Dennis, City Secretary (CITY SEAL) EXHIBIT A CONTACT INFORMATION AMENDMENT Contact Information Amendment Page 1 of 4 CONTACT INFORMATION AMENDMENT This Amendment has been approved in form by the City of Schertz (the “City”) and the City of Schertz Economic Development Corporation (the “SEDC”) as an amendment to update contact information for an existing ______________ Agreement dated ______________ ___, ________ (the “Agreement”) among the City, the SEDC, and your organization (the “Company”). The information you provide below will be used for all notices to be provided to the Company under the Agreement. INSTRUCTIONS TO COMPLETE THIS AMENDMENT Company Name: Under A below, insert the correct legal name of the Company. Notice Information: Under B below, insert the preferred Company contact information, including Company name, street address, city, state, zip code, name and title of the person to receive notices, together with that person’s facsimile telephone number and e-mail address. (In addition, the person named in B1 below identifies who in the Company will provide periodic certifications under the Agreement to the City and the SEDC on behalf of the Company.) Under B2 and B3 below, identify similar contact information for additional persons, if any, who should receive copies of notices to the Company. (Additional notice parties are entirely optional on the part of the Company.) Execution: On page 3, date, sign, and print the name and title of the person signing this Contact Information Amendment. COMPANY INFORMATION A. Name of Company: ________________________________________________ B. Notice Information: 1. If to: ____________________________ (Company Legal Name) ____________________________ (Street Address) ____________________________ (City, State, Zip Code) ____________________________ (Attention: Name & Title) ____________________________ (Facsimile) ____________________________ (E-Mail) Contact Information Amendment Page 2 of 4 2. (Optional) With copy to: ____________________________ (Business Name) ____________________________ (Street Address) ____________________________ (City, State, Zip Code) ____________________________ (Attention: Name & Title) ____________________________ (Facsimile) ____________________________ (E-Mail) 3. (Optional) With copy to ____________________________ (Business Name) ____________________________ (Street Address) ____________________________ (City, State, Zip Code) ____________________________ (Attention: Name & Title) ____________________________ (Facsimile) ____________________________ (E-Mail) For the Company’s records, the current City and SEDC contact persons are as follows: If to the SEDC: Schertz Economic Development Corporation 1400 Schertz Parkway Schertz, Texas 78154 Attention: Executive Director If to the City: City of Schertz, Texas 1400 Schertz Parkway Schertz, Texas 78154 Attention: City Manager With a copy to: Fulbright & Jaworski L.L.P 300 Convent Street, Suite 2200 San Antonio, Texas 78205 Attention: Katherine Tapley City Attorney Facsimile: (210) 270-7205 Email: ktapley@fulbright.com Contact Information Amendment Page 3 of 4 Except as amended by this Amendment, the Agreement remains in full force and effect. Please forward one original signed and dated Amendment to the following address: The City of Schertz Economic Development Corporation Attention: Executive Director 1400 Schertz Parkway Schertz, Texas 78154 The Amendment will then be signed on behalf of the City and the SEDC, and a copy of the fully- signed Amendment will be returned to the Company. The undersigned hereby certifies that he/she is authorized to sign this Amendment on behalf of the Company. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] Contact Information Amendment Page 4 of 4 This Amendment is signed on behalf of the Company, the City and the SEDC. COMPANY _____________________________ (Name of Company) By: _________________________ ____________________________ (Print Name) ____________________________ (Title) ____________________________ (Date) CITY OF SCHERTZ, TEXAS By: _________________________ John C. Kessel City Manager CITY OF SCHERTZ ECONOMIC DEVELOPMENT CORPORATION By: _________________________ Tim Brown SEDC President Agenda No. 4 CITY COUNCIL MEMORANDUM City Council Meeting: April 9, 2013 Department: Economic Development Subject: Resolution No. 13-R-29 Change of Name Amendment BACKGROUND Goal: The City of Schertz, Texas (the “City”) and the City of Schertz Economic Development Corporation (the “SEDC”) have 17 active Development Agreements (the “Agreements”) that have been created to help stimulate economic growth in the City of Schertz. These Agreements can last several years and as such the SEDC has created the Change of Name Amendment (the “Amendment”) to more effectively update a company’s legal name, if and when needed. Currently the SEDC has three Agreements that require Amendment, they include: ProLogis Development Services Inc.; Lone Star Pet Supply LTD, LLP; and Sysco San Antonio Inc. The form will also be used to update future Agreements. Community Benefit: This Amendment will help ensure that all active Agreements are up-to-date. Summary of Recommended Action: To approve the form of Amendment as outlined in the proposed Resolution. FISCAL IMPACT This Amendment will save future legal expenses by not having to facilitate separate individual Amendments as parties need to change information. SEDC RECOMMENDATION The SEDC held a meeting on March 28, 2013 to approve the proposed Amendment. A motion was made by Roy Richard and Seconded by Marvin Thomas to approve the form as presented. The motion passed unanimously (6-0). STAFF RECOMMENDATION Staff recommends approval of the Resolution. ATTACHMENT(S) Resolution 13-R-29 with form of Amendment attached RESOLUTION NO. 13-R-29 A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS AUTHORIZING A CHANGE OF NAME AMENDMENT FORM RELATING TO CERTAIN ECONOMIC DEVELOPMENT AGREEMENTS, AND OTHER MATTERS IN CONNECTION THEREWITH WHEREAS, the City of Schertz (the “City”) and the City of Schertz Economic Development Corporation (the “SEDC”) have entered into Development/Incentive Agreements (“Agreements”) with certain Schertz businesses under Section 312 and/or Section 380 of the Texas Property Tax Code; and WHEREAS, each of the Agreements identifies the legal name of the organizations to which the Agreement applies; and WHEREAS, a form Change of Name Amendment (the “Amendment”) has been created to permit the organizations to reflect a change in the organization’s legal name; WHEREAS, the Amendment will not be used to assign an Agreement to another entity or to reflect a sale of the organization or the assets to which the agreement applies; and WHEREAS, the City Council has determined that it is in the best interest of the City to authorize the Amendment attached hereto as Exhibit A. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS THAT: Section 1. The City Council hereby authorizes the President (or the Vice President in the President’s absence) of the SEDC and the City Manager of the City, or his designee, to execute and deliver Amendments for particular Agreements in substantially the form set forth on Exhibit A. No further approval shall be required by the City Council. Section 2. The recitals contained in the preamble hereof are hereby found to be true, and such recitals are hereby made a part of this Resolution for all purposes and are adopted as a part of the judgment and findings of the City Council. Section 3. All resolutions, or parts thereof, which are in conflict or inconsistent with any provision of this Resolution are hereby repealed to the extent of such conflict, and the provisions of this Resolution shall be and remain controlling as to the matters resolved herein. Section 4. This Resolution shall be construed and enforced in accordance with the laws of the State of Texas and the United States of America. Section 5. If any provision of this Resolution or the application thereof to any person or circumstance shall be held to be invalid, the remainder of this Resolution and the application of such provision to other persons and circumstances shall nevertheless be valid, and the City Council hereby declares that this Resolution would have been enacted without such invalid provision. Section 6. It is officially found, determined, and declared that the meeting at which this Resolution is adopted was open to the public and public notice of the time, place, and subject matter of the public business to be considered at such meeting, including this Resolution, was given, all as required by Chapter 551, Texas Government Code, as amended. Section 7. This Resolution shall be in force and effect from and after its final passage, and it is so resolved. PASSED AND ADOPTED, this _____ day of _______, 2013. CITY OF SCHERTZ, TEXAS Michael R. Carpenter, Mayor ATTEST: Brenda Dennis, City Secretary (CITY SEAL) EXHIBIT A CHANGE OF NAME AMENDMENT Change of Name Amendment Page 1 of 2 CHANGE OF NAME AMENDMENT This Amendment has been approved in form by the City of Schertz (the “City”) and the City of Schertz Economic Development Corporation (the “SEDC”) as an amendment to update a change of name relating to an existing ______________ Agreement dated ______________ ___, ________ (the “Agreement”) among the City, the SEDC, and your organization (the “Company”). INSTRUCTIONS TO COMPLETE THIS AMENDMENT Company Information: Under A below, insert the original legal Company name together with the type of organization (e.g., corporation, limited liability company, etc.) and the state of organization (e.g., Texas, Delaware, etc.) as it appeared on the original Agreement. Under B below, insert the current legal Company name together with the type and state of organization. Execution: On page 2, date, sign, and print the name and title of the person signing this Change of Name Amendment on behalf of the Company. COMPANY INFORMATION A. Original Company Name: ________________________________________________ Type of Organization: ________________________________________________ State of Organization: __________________ B. Current Company Name: ________________________________________________ Type of Organization: ________________________________________________ State of Organization: __________________ This Amendment does not reflect an assignment of the Company’s interests under the Agreement or a sale of the Company or the assets subject to the Agreement. It solely reflects a change in the legal name of the Company. Except as amended by this Amendment, the Agreement remains in full force and effect. Please forward one original signed and dated Amendment to the following address: The City of Schertz Economic Development Corporation Attention: Executive Director 1400 Schertz Parkway Schertz, Texas 78154 Change of Name Amendment Page 2 of 2 The Amendment will then be signed on behalf of the City and the SEDC, and a copy of the fully signed Amendment will be returned to the Company. The undersigned hereby certifies that he/she is authorized to sign this Amendment on behalf of the Company. EXECUTION This Amendment is signed on behalf of the Company, the City and the SEDC. COMPANY _____________________________ (Name of Company) By: _________________________ ____________________________ (Print Name) ____________________________ (Title) ____________________________ (Date) CITY OF SCHERTZ, TEXAS By: _________________________ John C. Kessel City Manager CITY OF SCHERTZ ECONOMIC DEVELOPMENT CORPORATION By: _________________________ Tim Brown SEDC President 50611593.2 MEMORANDUM OF UNDERSTANDING This Memorandum of Understanding (this “Memorandum”) is between the City of Schertz, Texas (the “City”) and the Schertz-Cibolo-Universal City Independent School District (the “District”) and relates to the provision of certain legal services in connection with a proposed joint natatorium project involving the City and the District, as further described on Exhibit A (the “Project”). Existing Legal Relationships. The City Attorney for the City is Katherine Tapley of the law firm of Fulbright & Jaworski L.L.P. (“Fulbright”). Other attorneys with Fulbright, including but not limited to Michael Spain and Samantha Dyal, also perform City Attorney services for the City. General Counsel for the District is George Grimes of the law firm of Walsh, Anderson, Gallegos, Green & Treviño, P.C. (“Walsh Anderson”). Other attorneys with Walsh Anderson also perform General Counsel services for the District. Fulbright is the designated Bond Counsel for both the City and the District. Jeff Kuhn has for many years been the lead Fulbright partner acting as Bond Counsel for the City (the “City’s Bond Counsel”), and Bob Dransfield has for many years been the lead Fulbright partner acting as Bond Counsel for the District (the “District’s Bond Counsel”). Anticipated Agreements. The relationship between the City and the District with respect to designing, financing, constructing, maintaining, and operating the Project will involve allocation between the City and the District of current and ongoing rights, duties, obligations, and liabilities of the City and the District. The City and the District anticipate that such allocation will be set forth in detail in a definitive agreement or agreements (whether one or more, the “Agreements”). The preparation of such Agreements will involve presentations to and input from the City Council of the City and the Board of Trustees of the District and will involve negotiations between (for the City) designated staff of the City and the City Attorney and (for the District) designated staff of the District and the District’s General Counsel. In addition, because the financing, construction, ownership, and ongoing maintenance and operation of the Project will likely involve legal issues related to public finance matters, each of the City and the District expects to consult Bond Counsel. City Attorney and District General Counsel. This Memorandum documents the agreement of the City and the District that Fulbright shall represent the City as City Attorney in connection with the Project and the negotiation and drafting of the Agreements, and Walsh Anderson shall represent the District as its General Counsel in connection with the Project and the negotiation and drafting of the Agreements. In such representation, the District agrees that Fulbright, in its capacity as City Attorney, may hold in confidence its communications with the City staff and its communications with the City Council of the City during executive sessions of the City. Furthermore, the District agrees that, since there is no substantial relationship between Fulbright’s representation of the City as City Attorney and Fulbright’s representation of the District as the District’s Bond Counsel, no conflict currently exists which would prohibit Fulbright’s representation of the City in negotiations with the City. Bond Counsel. This Memorandum also documents the agreement of the City and the District with respect to Bond Counsel matters relating to the Project and the Agreements (“Bond 50611593.2 - 2 - Counsel Matters”). With respect to Bond Counsel Matters, the City and the District desire to be jointly represented by Bob Dransfield of Fulbright. The City and the District do not anticipate the issuance of any joint bond obligation; they acknowledge, however, that as noted above the financing, construction, ownership, and ongoing maintenance and operation of the Project will likely involve legal issues related to public finance matters. Mr. Dransfield may be assisted from time to time on Bond Counsel Matters by other Fulbright attorneys, but no Fulbright attorney providing City Attorney services will be involved with Mr. Dransfield on Bond Counsel Matters. In the remainder of this Bond Counsel section of this Memorandum, references to Fulbright mean Mr. Dransfield and other Fulbright attorneys working with him on Bond Counsel Matters. While the benefits of being jointly represented on Bond Counsel Matters may be obvious to the City and the District, there are also several concerns that each should consider carefully before agreeing to such joint representation. These concerns generally exist any time joint representation of two or more clients is undertaken in the same matter by the same lawyer or lawyers. Nevertheless, these concerns should be understood by each of the City and the District at the outset. The first concern relates to the sharing of confidential information. All communications between or among the City and the District and Fulbright as to Bond Counsel Matters will be treated as strictly confidential under the attorney-client privilege, and those communications cannot be disclosed to any third parties without the City’s and the District’s consent. Both the City and the District will enjoy the same privilege with respect to communications with Fulbright as to Bond Counsel Matters. Both the City and the District should be aware, however, that, if Fulbright jointly represents the City and the District as to Bond Counsel Matters, there will be no privilege of confidentiality as to those matters as between the City and the District. Thus, for example, any communications to Fulbright by either client in the joint representation would generally be deemed received by the other client. This does not mean that Fulbright will automatically repeat to each client everything that one client confides in Fulbright as to Bond Counsel Matters. It does mean, however, that either client will generally have the right to find out what the other client tells Fulbright concerning Bond Counsel Matters or what Fulbright advises the other client to the extent such information is any way relevant to Bond Counsel Matters. Ethics rules require Fulbright to adhere to this rule in order to ensure that Fulbright can fulfill its obligations to both clients as to Bond Counsel Matters. This does not mean that anyone else (i.e., any other client in other matters or any non- client) can gain access to such communications through Fulbright. Indeed, the privilege protecting the confidentiality of such communications would remain fully intact as to third parties. Furthermore, neither the City nor the District would be able to waive that privilege without the other’s consent. This is an important point, and each of the City and the District, by execution of this Memorandum, acknowledges and agrees that it cannot and will not attempt to waive the attorney-client privilege or attorney work product privilege that is common to it and the other jointly-represented client without the consent of both the City and the District. If either the City or the District considers imparting to Fulbright any information that the client may wish to keep secret from the other client, Fulbright will not be able to maintain such confidentiality from the other client if the information is at all relevant to the representation of the other client as to Bond Counsel Matters. It is extremely important that, prior to the time 50611593.2 - 3 - either the City or the District discloses to Fulbright any information that it desires to be kept confidential from the other client, it should so notify Mr. Dransfield in writing of its intention but not disclose the precise information. Prior to receiving the precise information, Mr. Dransfield will determine whether it is appropriate for him to hold such type of information confidential from the other client and will so inform the client which requested confidentiality. In the event that it is necessary for Fulbright to withdraw as counsel for either the City or the District in connection with Bond Counsel Matters or Fulbright’s representation of either the City or the District as to Bond Counsel Matters otherwise terminates, the City and the District should understand that any information either has provided to Fulbright that is relevant to the representation of the other client may be used for the benefit of or supplied to the other client to be used by the other client as deemed appropriate in furtherance of its interests. If Fulbright is to undertake this joint representation, the City and the District agree that as soon as either becomes aware (or suspects) that its interests may be in conflict with those of the other client with respect to Bond Counsel Matters, it will inform Mr. Dransfield immediately in writing and will refrain from revealing any further confidential information to Fulbright until the possible conflict is resolved. If the City and the District disagree as to Bond Counsel Matters, they will so inform Mr. Dransfield in writing, and Mr. Dransfield will ask them to resolve their differences between themselves, without his assistance. If the unresolved differences are serious enough, Mr. Dransfield may be required by applicable ethics rules to withdraw from the joint representation completely. Other Public Finance Matters. Both the City and the District are currently involved in public finance matters totally unrelated to the Project and the Agreements, and the above- described joint representation arrangements do not apply to such other matters. As to suc h matters, the City may continue to work with the City’s Bond Counsel as it always has, and the District may continue to work with the District’s Bond Counsel as it always has. Legal Fees. The City and the District will each continue its existing fee arrangement with the City Attorney and the District’s General Counsel, respectively. The City and the District each agree that it will be responsible for the payment of one-half of the legal fees and expenses and other charges for Fulbright’s joint representation on Bond Counsel Matters; provided, if services provided by Fulbright in its joint representation clearly benefit only the City or the District, the fees and expenses and other charges for such services will be paid by the benefitted party. City and District Agreement. The City Council of the City and appropriate staff of the City have conferred with the City Attorney and the City’s Bond Counsel, and the Board of Trustees of the District and appropriate District staff have conferred with the District’s General Counsel and the District’s Bond Counsel, concerning this Memorandum and the above-described roles applicable to Fulbright with respect to the Project and the Agreements. Following such discussions, the City Council and the Board of Trustees has each by official action (i) agreed that such arrangement is acceptable, (ii) authorized the City Manager and Superintendent, respectively, to execute and deliver this Memorandum to the other parties hereto, and (iii) directed its staff and legal counsel to proceed with the planning of the Project and the negotiation and drafting of the Agreements as described herein for presentation to the City Council and the Board of Trustees, respectively, for consideration and action. 50611593.2 - 4 - Effective Date; Termination. This Memorandum is effective as of the date it has been fully executed on behalf of the City and the District and shall continue in effect until either the City or the District notifies the other in writing that it desires to terminate this Memorandum. Such notice shall be delivered by mail or in person to the principal business address of the City (attention City Manager) or the District (attention Superintendent of Schools), as the case may be. AGREED AND CONSENTED: CITY OF SCHERTZ, TEXAS By: John C. Kessel, City Manager Date of execution: April __, 2013 SCHERTZ-CIBOLO-UNIVERSAL CITY INDEPENDENT SCHOOL DISTRICT By: Greg Gibson, Superintendent of Schools Date of execution: April __, 2013 By their acknowledgment below, the City Attorney and Mr. Dransfield as Bond Counsel have agreed to the above-described roles of Fulbright with respect to the Project and the Agreements. FULBRIGHT & JAWORSKI L.L.P. Katherine A. Tapley, as City Attorney Robert D. Dransfield, as Bond Counsel 50611593.2 A-1 EXHIBIT A THE NATATORIUM PROJECT The natatorium facility is currently in the master planning phase. It is anticipated that the main pool will be designed for competition quality and will be 25 meters x 25 yards and not less than 6 feet deep, with currently undefined bleacher seating. The facility may also contain a second body of water currently referred to as a “zero entry” pool. In addition to the aquatic aspect, there will also be associated support spaces that would include toilet/locker rooms, meeting facilities, offices, a small lobby space, and other mechanical electrical, and plumbing space. It is anticipated that the footprint of the facility will be in the 25,000-30,000 square foot range. The existing City recreation center parking will be expanded as part of the overall project design. The new facility may or may not be connected to the existing City recreation center (operated by the YMCA by contract with the City) depending on the final budget constraints. 50359789.1 Agenda No. 6 CITY COUNCIL MEMORANDUM City Council Meeting: April 9, 2013 Department: Finance Subject: Ordinance No. 13-B-10 Tax Notes, Series 2013 BACKGROUND On March 12, 2013 the City Council authorized the City Manager to enter into an agreement to for the purchase of a fire truck and equipment and authorized the solicitation of financing for the purchase of the fire truck and equipment. Southwest Securities sent out financing requests in the amount of $835,000 with bids due on Thursday April 5, 2013. The term of the Notes will be 5 years. At the City Council meeting, Southwest Securities will present the best bid and provide a recommendation as to whom the Notes should be sold. FISCAL IMPACT With the issuance of the Notes, the City will need to budget approximately $172,500/year for the 5 years. (At the Council meeting Southwest Securities will have the final annual payment schedule. It is currently estimated to be equal to or less than $172,500.) RECOMMENDATION The City Staff recommends approval of this expenditure and approval of first and final reading of Ordinance No. 13-B-10 ATTACHMENT Ordinance No. 13-B-10 57061362.1 1 DRAFT 3/21/12 AN ORDINANCE BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS AUTHORIZING THE ISSUANCE OF “CITY OF SCHERTZ, TEXAS TAX NOTES, SERIES 2013”, LEVYING AN ANNUAL AD VALOREM TAX, WITHIN THE LIMITATIONS PRESCRIBED BY LAW, FOR THE PAYMENT OF THE OBLIGATIONS; PRESCRIBING THE FORM, TERMS, CONDITIONS, AND RESOLVING OTHER MATTERS INCIDENT AND RELATED TO THE ISSUANCE, SALE, AND DELIVERY OF THE OBLIGATIONS; AUTHORIZING THE EXECUTION OF A PAYING AGENT/REGISTRAR AGREEMENT AND A PURCHASE AND INVESTMENT LETTER; COMPLYING WITH THE LETTER OF REPRESENTATIONS WITH THE DEPOSITORY TRUST COMPANY; AND PROVIDING AN EFFECTIVE DATE WHEREAS, pursuant to the provisions of Chapter 1431, as amended, Texas Government Code (the Act), the City Council (the Governing Body) of the City of Schertz, Texas (the Issuer) is authorized and empowered to issue anticipation notes to pay contractual obligations incurred or to be incurred for the construction of any public works, for the purchase of materials, supplies, equipment, machinery, buildings, lands, and rights-of-way for the Issuer’s authorized needs and purposes, and for professional services, including services provided by tax appraisal engineers, engineers, architects, attorneys, auditors, mapmakers, financial advisors, and fiscal agents; and WHEREAS, in accordance with the provisions of the Act, the Governing Body hereby finds and determines that anticipation notes should be issued and sold at this time to finance the costs of paying contractual obligations to be incurred for (1) purchasing a fire truck and other related public safety equipment and (2) the payment of professional services related to the design, construction and financing of the aforementioned projects; and WHEREAS, the Governing Body hereby finds and determines that the issuance of anticipation notes is in the best interests of the residents of the Issuer, now, therefore, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS THAT: SECTION 1: Authorization - Designation - Principal Amount - Purpose. General obligation notes of the Issuer shall be and are hereby authorized to be issued in the aggregate principal amount of EIGHT HUNDRED THIRTY FIVE THOUSAND AND NO/100 DOLLARS ($835,000), to be designated and bear the title of “CITY OF SCHERTZ, TEXAS TAX NOTES, SERIES 2013” (the Obligations), for the purpose of providing funds for (1) purchasing a fire truck and other related public safety equipment and (2) the payment of professional services related to the design, construction and financing of the aforementioned projects, all in conformity with the laws of the State of Texas, particularly Chapter 1431, as amended, Texas Government Code, an ordinance adopted by the Governing Body on April 9, 2013, and the City’s Home Rule Charter. 57061362.1 2 SECTION 2: Fully Registered Obligations - Authorized Denominations - Stated Maturities - Interest Rates – Dated Date. The Obligations shall be issued as fully registered obligations, without coupons, shall be dated April 1, 2013 (the Dated Date) and shall be in denominations of $100,000 or any integral multiple of $1,000 in excess thereof (within a Stated Maturity), shall be lettered “R-” and numbered consecutively from one (1) upward and principal shall become due and payable on February 1 in each of the years (the Stated Maturities) and in the amounts and bear interest at the rates per annum in accordance with the following schedule: Years of Stated Maturity Principal Amounts ($) Interest Rates (%) 2014 2015 2016 2017 2018 The Obligations shall bear interest on the unpaid principal amounts from the Closing Date (hereinafter defined), or from the most recent Interest Payment Date to which interest has been paid or duly provided for, to Stated Maturity, while Outstanding, at the rates per annum shown in the above schedule (calculated on the basis of a 360-day year of twelve 30-day months). Interest on the Obligations shall be payable on February 1 and August 1 in each year, commencing February 1, 2014 (the Interest Payment Date), while the Obligations are Outstanding. SECTION 3: Payment of Obligations - Paying Agent/Registrar. The principal of, premium, if any, and the interest on the Obligations, due and payable by reason of Stated Maturity or otherwise, shall be payable in any coin or currency of the United States of America which at the time of payment is legal tender for the payment of public and private debts, and such payment of principal of, premium, if any, and interest on the Obligations shall be without exchange or collection charges to the Holder (as hereinafter defined) of the Obligations. The selection and appointment of _____________________________, _________, _________ (the Paying Agent/Registrar), to serve as the initial Paying Agent/Registrar for the Obligations is hereby approved and confirmed, and the Issuer agrees and covenants to cause to be kept and maintained at the corporate trust office of the Paying Agent/Registrar books and records (the Security Register) for the registration, payment, and transfer of the Obligations, all as provided herein, in accordance with the terms and provisions of a Paying Agent/Registrar Agreement, attached, in substantially final form, as Exhibit A hereto, and such reasonable rules and regulations as the Paying Agent/Registrar and the Issuer may prescribe. The Issuer covenants to maintain and provide a Paying Agent/Registrar at all times while the Obligations are Outstanding, and any successor Paying Agent/Registrar shall be (i) a national or state banking institution or (ii) an association or a corporation organized and doing business under the laws of the United States of America or of any state, authorized under such laws to exercise trust powers. Such Paying Agent/Registrar shall be subject to supervision or examination by federal or state authority and authorized by law to serve as a Paying Agent/Registrar. 57061362.1 3 The Issuer reserves the right to appoint a successor Paying Agent/Registrar upon providing the previous Paying Agent/Registrar with a certified copy of a resolution or ordinance terminating such agency. Additionally, the Issuer agrees to promptly cause a written notice of this substitution to be sent to each Holder of the Obligations by United States mail, first-class postage prepaid, which notice shall also give the address of the new Paying Agent/Registrar. Principal of, premium, if any, and interest on the Obligations, due and payable by reason of Stated Maturity, redemption, or otherwise, shall be payable only to the registered owner of the Obligations appearing on the Security Register (the Holder or Holders) maintained on behalf of the Issuer by the Paying Agent/Registrar as hereinafter provided (i) on the Record Date (hereinafter defined) for purposes of payment of interest on the Obligations, (ii) on the date of surrender of the Obligations for purposes of receiving payment of principal thereof upon redemption of the Obligations or at the Obligations’ Stated Maturity, and (iii) on any date for any other purpose. The Issuer and the Paying Agent/Registrar, and any agent of either, shall treat the Holder as the owner of an Obligation for purposes of receiving payment and all other purposes whatsoever, and neither the Issuer nor the Paying Agent/Registrar, or any agent of either, shall be affected by notice to the contrary. Principal of and premium, if any, on the Obligations shall be payable only upon presentation and surrender of the Obligations to the Paying Agent/Registrar at its corporate trust office (provided, however, with respect to principal payments prior to the final Stated Maturity, the Obligations need not be surrendered to the Paying Agent/Registrar, who will merely document this payment on an internal ledger maintained by the Paying Agent/Registrar). Interest on the Obligations shall be paid to the Holder whose name appears in the Security Register at the close of business on the fifteenth day of the month next preceding an Interest Payment Date for the Obligations (the Record Date) and shall be paid (i) by check sent by United States mail, first-class postage prepaid, by the Paying Agent/Registrar, to the address of the Holder appearing in the Security Register or (ii) by such other method, acceptable to the Paying Agent/Registrar, requested in writing by the Holder at the Holder’s risk and expense. If the date for the payment of the principal of, premium, if any, or interest on the Obligations shall be a Saturday, a Sunday, a legal holiday, or a day on which banking institutions in the city where the corporate trust office of the Paying Agent/Registrar is located are authorized by law or executive order to close, then the date for such payment shall be the next succeeding day which is not such a day. The payment on such date shall have the same force and effect as if made on the original date any such payment on the Obligations was due. In the event of a non-payment of interest on a scheduled payment date, and for thirty (30) days thereafter, a new record date for such interest payment (a Special Record Date) will be established by the Paying Agent/Registrar, if and when funds for the payment of such interest have been received from the Issuer. Notice of the Special Record Date and of the scheduled payment date of the past due interest (the Special Payment Date - which shall be fifteen (15) days after the Special Record Date) shall be sent at least five (5) business days prior to the Special Record Date by United States mail, first-class postage prepaid, to the address of each Holder of an Obligation appearing on the Security Register at the close of business on the last business day next preceding the date of mailing of such notice. 57061362.1 4 SECTION 4: Redemption. A. Optional Redemption. The Obligations having Stated Maturities on and after February 1, 20__ shall be subject to redemption prior to Stated Maturity, at the option of the Issuer, on ____________, 20__, or on any date thereafter, in whole, in principal amounts of $1,000 or any integral multiple thereof at the redemption price of par plus accrued interest to the date of redemption. B. Exercise of Redemption Option. At least forty-five (45) days prior to a date set for the optional redemption of the Obligations (unless a shorter notification period shall be satisfactory to the Paying Agent/Registrar), the Issuer shall notify the Paying Agent/Registrar of its decision to exercise the right to redeem Obligations, the principal amount of each Stated Maturity to be redeemed, and the date set for the redemption thereof. The decision of the Issuer to exercise the right to redeem Obligations shall be entered in the minutes of the governing body of the Issuer. C. Notice of Redemption. Not less than thirty (30) days prior to an optional redemption date for the Obligations, the Paying Agent/Registrar shall cause a notice of redemption to be sent by United States mail, first-class postage prepaid, in the name of the Issuer and at the Issuer’ s expense, by the Paying Agent/Registrar to each Holder of an Obligation to be redeemed in whole at the address of the Holder appearing on the Security Register at the time such notice of redemption is mailed, and any notice of redemption so mailed shall be conclusively presumed to have been duly given irrespective of whether received by the Holder. All notices of redemption shall (i) specify the date of redemption for the Obligations, (ii) identify the Obligations to be redeemed and the principal amount thereof to be redeemed, (iii) state the redemption price, (iv) state that the Obligations shall become due and payable on the redemption date specified, and the interest thereon shall cease to accrue from and after the redemption date, and (v) specify that payment of the redemption price for the Obligations shall be made at the principal corporate trust office of the Paying Agent/Registrar only upon presentation and surrender thereof by the Holder This notice may also be published once in a financial publication, journal, or reporter of general circulations among securities dealers in the city of New York, New York (including, but not limited to, The Bond Buyer and The Wall Street Journal), or in the State of Texas (including, but not limited to, The Texas Bond Reporter). Additionally, this notice may also be sent by the Issuer to any registered securities depository and to any national information service that disseminates redemption notices. If an Obligation is subject by its terms to redemption and has been called for redemption and notice of redemption thereof has been duly given as hereinabove provided, such Obligation so called for redemption shall become due and payable, and if money sufficient for the payment of such Obligations at the then applicable redemption price is held for the purpose of such payment by the Paying Agent/Registrar, then on the redemption date designated in such notice, interest on the Obligation called for redemption shall cease to accrue and such Obligations shall not be deemed to be Outstanding. 57061362.1 5 D. Transfer/Exchange of Obligations. Neither the Issuer nor the Paying Agent/Registrar shall be required to issue, transfer or exchange any Obligations within forty-five (45) days of the date fixed for redemption. SECTION 5: Execution - Registration. The Obligations shall be executed on behalf of the Issuer by its Mayor under the seal of the Issuer reproduced or impressed thereon and attested by its City Secretary. The signature of any of said officers on the Obligations may be manual or facsimile. Obligations bearing the manual or facsimile signatures of individuals who were, at the time of the Dated Date, the proper officers of the Issuer shall bind the Issuer, notwithstanding that such individuals or either of them shall cease to hold such offices prior to the delivery of the Obligations to the Purchasers (hereinafter defined), all as authorized and provided in Chapter 1201, as amended, Texas Government Code. No Obligation shall be entitled to any right or benefit under this Ordinance, or be valid or obligatory for any purpose, unless there appears on such Obligation either a certificate of registration substantially in the form provided in Section 8C, executed by the Comptroller of Public Accounts of the State of Texas or his duly authorized agent by manual signature, or a certificate of registration substantially in the form provided in Section 8D, executed by the Paying Agent/Registrar by manual signature, and either such certificate upon any Obligation shall be conclusive evidence, and the only evidence, that such Obligation has been duly certified or registered and delivered. SECTION 6: Registration - Transfer - Exchange of Obligations - Predecessor Obligations. The Paying Agent/Registrar shall obtain, record, and maintain in the Security Register the name and address of every owner of the Obligations, or, if appropriate, the nominee thereof. Any Obligation may, in accordance with its terms and the terms hereof, be transferred or exchanged for Obligations of other authorized denominations upon the Security Register by the Holder, in person or by his duly authorized agent, upon surrender of such Obligation to the Paying Agent/Registrar for cancellation, accompanied by a written instrument of transfer or request for exchange duly executed by the Holder or by his duly authorized agent, in form satisfactory to the Paying Agent/Registrar. Upon surrender for transfer of any Obligation at the corporate trust office of the Paying Agent/Registrar, the Issuer shall execute and the Paying Agent/Registrar shall register and deliver, in the name of the designated transferee or transferees, one or more new Obligations of authorized denomination and having the same Stated Maturity and of a like interest rate and aggregate principal amount as the Obligation or Obligations surrendered for transfer. At the option of the Holder, Obligations may be exchanged for other Obligations of authorized denominations and having the same Stated Maturity, bearing the same rate of interest and of like aggregate principal amount as the Obligations surrendered for exchange upon surrender of the Obligations to be exchanged at the corporate trust office of the Paying Agent/Registrar. Whenever any Obligations are so surrendered for exchange, the Issuer shall execute, and the Paying Agent/Registrar shall register and deliver, the Obligations to the Holder requesting the exchange. 57061362.1 6 All Obligations issued upon any transfer or exchange of Obligations shall be delivered at the corporate trust office of the Paying Agent/Registrar, or be sent by registered mail to the Holder at his request, risk, and expense, and upon the delivery thereof, the same shall be the valid and binding obligations of the Issuer, evidencing the same obligation to pay, and entitled to the same benefits under this Ordinance, as the Obligations surrendered upon such transfer or exchange. All transfers or exchanges of Obligations pursuant to this Section shall be made without expense or service charge to the Holder, except as otherwise herein provided, and except that the Paying Agent/Registrar shall require payment by the Holder requesting such transfer or exchange of any tax or other governmental charges required to be paid with respect to such transfer or exchange. Obligations canceled by reason of an exchange or transfer pursuant to the provisions hereof are hereby defined to be Predecessor Obligations, evidencing all or a portion, as the case may be, of the same debt evidenced by the new Obligation or Obligations registered and delivered in the exchange or transfer therefor. Additionally, the term Predecessor Obligations shall include any Obligation registered and delivered pursuant to Section 17 in lieu of a mutilated, lost, destroyed, or stolen Obligation which shall be deemed to evidence the same obligation as the mutilated, lost, destroyed, or stolen Obligation. SECTION 7: Initial Obligations. The Obligations herein authorized shall be initially issued as a single fully registered Obligation in the aggregate principal amount of $835,000 with principal installments to become due and payable as provided in Section 2 hereof and numbered T-1 (the Initial Obligations), and the Initial Obligations shall be registered in the name of the Purchasers (defined herein) or the designee thereof. The Initial Obligations shall be the Obligations submitted to the Office of the Attorney General of the State of Texas for approval, certified and registered by the Office of the Comptroller of Public Accounts of the State of Texas and delivered to the Purchasers. Any time after the delivery of the Initial Obligations, the Paying Agent/Registrar, pursuant to written instructions from the Purchasers, or the designee thereof, shall cancel the Initial Obligations delivered hereunder and exchange therefor Definitive Obligations of like kind and of authorized denominations, Stated Maturities, principal amounts and bearing applicable interest rates for transfer and delivery to the Holders named at the addresses identified therefor; all pursuant to and in accordance with such written instructions from the Purchasers, or the designee thereof, and such other information and documentation as the Paying Agent/Registrar may reasonably require. 57061362.1 7 SECTION 8: FORMS. A. Forms Generally. The Obligations, the Registration Certificate of the Comptroller of Public Accounts of the State of Texas, the Registration Certificate of Paying Agent/Registrar, and the form of Assignment to be printed on each of the Obligations shall be substantially in the forms set forth in this Section with such appropriate insertions, omissions, substitutions, and other variations as are permitted or required by this Ordinance and may have such letters, numbers, or other marks of identification (including insurance legends in the event the Obligations, or any Stated Maturities thereof, are insured and identifying numbers and letters of the Committee on Uniform Securities Identification Procedures of the American Bankers Association) and such legends and endorsements (including any reproduction of an opinion of counsel) thereon as may, consistent herewith, be established by the Issuer or determined by the officers executing the Obligations as evidenced by their execution thereof. Any portion of the text of any Obligation may be set forth on the reverse thereof, with an appropriate reference thereto on the face of the Obligation. The definitive Obligations shall be printed, lithographed, or engraved, produced by any combination of these methods, or produced in any other similar manner, all as determined by the officers executing the Obligations as evidenced by their execution thereof, but the Initial Obligation(s) submitted to the Attorney General of Texas may be typewritten or photocopied or otherwise reproduced. [The remainder of this page intentionally left blank.] 57061362.1 8 B. Form of Definitive Obligation. REGISTERED REGISTERED NO. ____________ PRINCIPAL AMOUNT $__________ United States of America State of Texas Counties of Bexar, Comal and Guadalupe CITY OF SCHERTZ, TEXAS TAX NOTES, SERIES 2013 Dated Date: April 1, 2013 Interest Rate: ______________ Stated Maturity: ______________ CUSIP NO: ____________ REGISTERED OWNER: ________________________________________________________ PRINCIPAL AMOUNT: ______________________________________________ DOLLARS The City of Schertz, Texas (the Issuer), a body corporate and a municipal corporation in the Counties of Bexar, Comal and Guadalupe, State of Texas, for value received, acknowledges itself indebted to and hereby promises to pay to the order of the Registered Owner specified above, or the registered assigns thereof, on the Stated Maturity date specified above (or so much thereof as shall not have been paid upon prior redemption), the Principal Amount specified above and to pay interest on the unpaid Principal Amount hereof from the Closing Date, or from the most recent interest payment date to which interest has been paid or duly provided for until such Principal Amount has become due and payment thereof has been made or duly provided for, to the earlier of redemption or Stated Maturity, while Outstanding, at the per annum rate of interest specified above computed on the basis of a 360-day year of twelve 30-day months; such interest being payable on February 1 and August 1 of each year commencing February 1, 2014. Principal on this Obligation shall be payable to the Registered Owner hereof (the Holder), upon presentation and surrender (provided, however, with respect to principal payments prior to the final Stated Maturity, the Obligations need not be surrendered to the Paying Agent/Registrar, who will merely document this payment on an internal ledger maintained by the Paying Agent/Registrar), at the corporate trust office of the Paying Agent/Registrar executing the registration certificate appearing hereon or a successor thereof. Interest shall be payable to the Holder of this Obligation (or one or more Predecessor Obligations, as defined in the Ordinance hereinafter referenced) whose name appears on the Security Register maintained by the Paying Agent/Registrar at the close of business on the Record Date, which is the fifteenth day of the month next preceding each interest payment date. All payments of principal of and interest on this Obligation shall be in any coin or currency of the United States of America which at the time of payment is legal tender for the payment of public and private debts. Interest shall be paid by the Paying Agent/Registrar by check sent on or prior to the appropriate date of payment by United States mail, first-class postage prepaid, to the Holder hereof at the address appearing in 57061362.1 9 the Security Register or by such other method, acceptable to the Paying Agent/Registrar, requested by the Holder hereof at the Holder’s risk and expense. This Obligation is one of the series specified in its title issued in the aggregate principal amount of $835,000 (the Obligations) pursuant to an ordinance adopted by the Governing Body of the Issuer (the Ordinance), for the purpose of (1) purchasing a fire truck and other related public safety equipment and (2) the payment of professional services related to the design, construction and financing of the aforementioned projects, all in conformity with the laws of the State of Texas, including Chapter 1431, as amended, Texas Government Code, an ordinance adopted by the Governing Body on April 9, 2013, and the City’s Home Rule Charter. As provided in the Ordinance, the Obligations having Stated Maturities on and after February 1, 20__ shall be subject to redemption prior to Stated Maturity, at the option of the Issuer, on ____________, 20__, or on any date thereafter, in whole, in principal amounts of $1,000 or any integral multiple thereof at the redemption price of par plus accrued interest to the date of redemption. At least thirty (30) days prior to the date of redemption, the Paying Agent/Registrar shall cause written notice to be given by United States mail, first-class postage prepaid, to Holders of the Obligations to be redeemed, all in accordance with and subject to the terms and provisions relating thereto contained in the Ordinance. If this Obligation is in a denomination in excess of $1,000, portions of the principal sum hereof in installments of $1,000 or any integral multiple thereof may be redeemed, and, if less than all of the principal sum hereof is to be redeemed, there shall be issued, without charge therefor, to the Holder hereof, upon the surrender of this Obligation to the Paying Agent/Registrar at its corporate trust office, a new Obligation or Obligations of like Stated Maturity and interest rate in any authorized denominations provided in the Ordinance for the then unredeemed balance of the principal sum hereof. If this Obligation shall have been duly called for redemption and notice of such redemption duly given, then upon such redemption date this Obligation shall become due and payable, and, if money for the payment of the redemption price and the interest accrued on the principal amount to be redeemed to the date of redemption is held for the purpose of such payment by the Paying Agent/Registrar, interest shall cease to accrue and be payable hereon from and after the redemption date on the principal amount hereof to be redeemed. If this Obligation is called for redemption, in whole, the Issuer or the Paying Agent/Registrar shall not be required to issue, transfer, or exchange this Obligation within forty-five (45) days of the date fixed for redemption. The Obligations of this series are payable from the proceeds of an annual ad valorem tax levied upon all taxable property within the Issuer within the limitations prescribed by law. Reference is hereby made to the Ordinance, a copy of which is on file in the corporate trust office of the Paying Agent/Registrar, and to all of the provisions of which the Holder by his acceptance hereof hereby assents, for definitions of terms; the description of and the nature and extent of the tax levied for the payment of the Obligations; the terms and conditions relating to the transfer or exchange of the Obligations; the conditions upon which the Ordinance may be amended or supplemented with or without the consent of the Holders; the rights, duties, and 57061362.1 10 obligations of the Issuer and the Paying Agent/Registrar; the terms and provisions upon which this Obligation may be redeemed or discharged at or prior to the Stated Maturity thereof, and deemed to be no longer Outstanding thereunder; and for the other terms and provisions specified in the Ordinance. Capitalized terms used herein have the same meanings assigned in the Ordinance. This Obligation, subject to certain limitations contained in the Ordinance, may be transferred on the Security Register upon presentation and surrender at the corporate trust office of the Paying Agent/Registrar, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Paying Agent/Registrar duly executed by the Holder hereof, or his duly authorized agent, and thereupon one or more new fully registered Obligations of the same Stated Maturity, of authorized denominations, bearing the same rate of interest, and of the same aggregate principal amount will be issued to the designated transferee or transferees. The Issuer and the Paying Agent/Registrar, and any agent of either, shall treat the Holder hereof whose name appears on the Security Register (i) on the Record Date as the owner hereof for purposes of receiving payment of interest hereon, (ii) on the date of surrender of this Obligation as the owner hereof for purposes of receiving payment of principal hereof at its Stated Maturity or its redemption, in whole or in part, and (iii) on any other date as the owner hereof for all other purposes, and neither the Issuer nor the Paying Agent/Registrar, or any such agent of either, shall be affected by notice to the contrary. In the event of a non-payment of interest on a scheduled payment date, and for thirty (30) days thereafter, a new record date for such interest payment (a Special Record Date) will be established by the Paying Agent/Registrar, if and when funds for the payment of such interest have been received from the Issuer. Notice of the Special Record Date and of the scheduled payment date of the past due interest (the Special Payment Date - which shall be fifteen (15) days after the Special Record Date) shall be sent at least five (5) business days prior to the Special Record Date by United States mail, first-class postage prepaid, to the address of each Holder appearing on the Security Register at the close of business on the last business day next preceding the date of mailing of such notice. It is hereby certified, covenanted, and represented that all acts, conditions, and things required to be performed, exist, and be done precedent to the issuance of this Obligation in order to render the same a legal, valid, and binding obligation of the Issuer have been performed, exist, and have been done, in regular and due time, form, and manner, as required by law, and that issuance of the Obligations does not exceed any constitutional or statutory limitation; and that due provision has been made for the payment of the principal of, premium if any, and interest on the Obligations by the levy of a tax as aforestated. In case any provision in this Obligation or any application thereof shall be deemed invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions and applications shall not in any way be affected or impaired thereby. The terms and provisions of this Obligation and the Ordinance shall be construed in accordance with and shall be governed by the laws of the State of Texas. [The remainder of this page intentionally left blank.] 57061362.1 11 IN WITNESS WHEREOF, the Issuer has caused this Obligation to be duly executed under its official seal. CITY OF SCHERTZ, TEXAS By _________________________________ Mayor ATTEST: ____________________________________ City Secretary (CITY SEAL) [The remainder of this page intentionally left blank.] 57061362.1 12 C. *Form of Registration Certificate of Comptroller of Public Accounts to Appear on Initial Obligations Only. REGISTRATION CERTIFICATE OF COMPTROLLER OF PUBLIC ACCOUNTS OFFICE OF THE COMPTROLLER OF PUBLIC ACCOUNTS THE STATE OF TEXAS § § § § REGISTER NO. I HEREBY CERTIFY that this Obligation has been examined, certified as to validity and approved by the Attorney General of the State of Texas, and duly registered by the Comptroller of Public Accounts of the State of Texas. WITNESS my signature and seal of office this ____________________ ____________________________________ Comptroller of Public Accounts of the State of Texas (SEAL) *NOTE TO PRINTER: Not to appear on printed Obligations. D. Form of Certificate of Paying Agent/Registrar to Appear on Definitive Obligations Only. REGISTRATION CERTIFICATE OF PAYING AGENT/REGISTRAR This Obligation has been duly issued under the provisions of the within-mentioned Ordinance; the Obligation or Obligations of the above-entitled and designated series originally delivered having been approved by the Attorney General of the State of Texas and registered by the Comptroller of Public Accounts, as shown by the records of the Paying Agent/Registrar. Registered this date: ____________________________________ ____________________________________, as Paying Agent/Registrar By: _______________________________ Authorized Signature 57061362.1 13 E. Form of Assignment. ASSIGNMENT FOR VALUE RECEIVED the undersigned hereby sells, assigns, and transfers unto (Print or typewrite name, address, and zip code of transferee): ____________________________ ______________________________________________________________________________ (Social Security or other identifying number): ________________________________________ the within Obligation and all rights thereunder, and hereby irrevocably constitutes and appoints ____________________attorney to transfer the within Obligation on the books kept for registration thereof, with full power of substitution in the premises. DATED: ____________________________ ________________________________________________ NOTICE: The signature on this assignment must correspond with the name of the registered owner as it appears on the face of the within Obligation in every particular. Signature guaranteed: ______________________________ F. The Initial Obligations shall be in the respective forms set forth in paragraph B of this Section, except that the form of a single fully registered Initial Obligation shall be modified as follows: (i) immediately under the name of the Obligation(s) the headings “Interest Rate ____” and “Stated Maturity ________” shall both be completed “as shown below”; (ii) the first two paragraphs shall read as follows: Registered Owner: _____________________________________________________________ Principal Amount: ______________________________________________________________ The City of Schertz, Texas (the Issuer), a body corporate and municipal corporation in the Counties of Bexar, Comal and Guadalupe, State of Texas, for value received, acknowledges itself indebted to and hereby promises to pay to the order of the Registered Owner named above, or the registered assigns thereof, the Principal Amount specified above on the first day of February in each of the years and in principal amounts and bearing interest at per annum rates in accordance with the following schedule: Years of Stated Maturity Principal Amounts ($) Interest Rates (%) 57061362.1 14 (Information to be inserted from schedule in Section 2 hereof). (or so much thereof as shall not have been paid upon prior redemption) and to pay interest on the unpaid Principal Amount hereof from the Closing Date (anticipated to occur on April 30, 2013) or from the most recent interest payment date to which interest has been paid or duly provided for until the Principal Amount has become due and payment thereof has been made or duly provided for, to the earlier of redemption of Stated Maturity, while Outstanding, at the per annum rates of interest specified above computed on the basis of a 360-day year of twelve 30-day months; such interest being payable on February 1 and August 1 of each year, commencing February 1, 2014. Principal of this Obligation shall be payable to the Registered Owner hereof (the Holder), upon its presentation and surrender, to Stated Maturity or prior redemption, while Outstanding, at the corporate trust office of ____________________________________, ____________, ________ (the Paying Agent/Registrar). Interest shall be payable to the Holder of this Obligation whose name appears on the Security Register maintained by the Paying Agent/Registrar at the close of business on the Record Date, which is the fifteenth day of the month next preceding each interest payment date. All payments of principal of and interest on this Obligation shall be in any coin or currency of the United States of America which at the time of payment is legal tender for the payment of public and private debts. Interest shall be paid by the Paying Agent/Registrar by check sent on or prior to the appropriate date of payment by United States mail, first-class postage prepaid, to the Holder hereof at the address appearing in the Security Register or by such other method, acceptable to the Paying Agent/Registrar, requested by, and at the risk and expense of, the Holder hereof. [The remainder of this page intentionally left blank.] 57061362.1 15 G. Insurance Legend. If bond insurance is obtained by the Issuer or the Purchasers for the Obligations, the definitive Obligations and the Initial Obligations shall bear an appropriate legend as provided by the insurer. SECTION 9: Definitions. For all purposes of this Ordinance (as defined below), except as otherwise expressly provided or unless the context otherwise requires: (i) the terms defined in this Section have the meanings assigned to them in this Section, and certain terms used in Sections 19 and 36 of this Ordinance have the meanings assigned to them in such Sections, and all such terms include the plural as well as the singular; (ii) all references in this Ordinance to designated “Sections” and other subdivisions are to the designated Sections and other subdivisions of this Ordinance as originally adopted; and (iii) the words “herein”, “hereof”, and “hereunder” and other words of similar import refer to this Ordinance as a whole and not to any particular Section or other subdivision. A. The term Authorized Officials shall mean the Mayor, the Mayor Pro Tem, the City Manager, the Finance Director, and/or the City Secretary. B. The term Closing Date shall mean the date of physical delivery of the Initial Obligations in exchange for the payment in full by the Purchasers. C. The term Issuer shall mean the City of Schertz, Texas located in the Counties of Bexar, Comal and Guadalupe, Texas and, where appropriate, the Governing Body of the Issuer. D. The term Debt Service Requirements shall mean, as of any particular date of computation, with respect to any obligations and with respect to any period, the aggregate of the amounts to be paid or set aside by the Issuer as of such date or in such period for the payment of the principal of, premium, if any, and interest (to the extent not capitalized) on such obligations; assuming, in the case of obligations without a fixed numerical rate, that such obligations bear interest at the maximum rate permitted by the terms thereof and further assuming in the case of obligations required to be redeemed or prepaid as to principal prior to Stated Maturity, the principal amounts thereof will be redeemed prior to Stated Maturity in accordance with the mandatory redemption provisions applicable thereto. E. The term Depository shall mean an official depository bank of the Issuer. F. The term Government Securities, as used herein, shall mean (i) direct noncallable obligations of the United States, including obligations that are unconditionally guaranteed by, the United States of America; (ii) noncallable obligations of an agency or instrumentality of the United States, including obligations that are unconditionally guaranteed or insured by the agency or instrumentality and that, on the date the governing body of the issuer adopts or approves the proceedings authorizing the issuance of refunding bonds, are rated as to investment quality by a nationally recognized investment rating firm not less than AAA or its equivalent; (iii) noncallable obligations of a state or an agency or a county, municipality, or other political subdivision of a state that have been refunded and that, on the date the governing body of the issuer adopts or approves the proceedings authorizing the issuance of refunding bonds, are rated as to investment quality by a nationally recognized investment rating firm not less than AAA or its equivalent; or (iv) any additional securities and obligations hereafter authorized by the laws of 57061362.1 16 the State of Texas as eligible for use to accomplish the discharge of obligations such as the Obligations. G. The term Holder or Holders shall mean the registered owner, whose name appears in the Security Register, for any Obligation. H. The term Interest Payment Date shall mean the date interest is payable on the Obligations, being February 1 and August 1 of each year, commencing February 1, 2014, while any of the Obligations remain Outstanding. I. The term Obligation Fund shall mean the special Fund created and established by the provisions of Section 10 of this Ordinance. J. The term Obligations shall mean the $835,000 “CITY OF SCHERTZ, TEXAS TAX NOTES, SERIES 2013” authorized by this Ordinance. K. The term Ordinance shall mean this ordinance finally adopted by the Governing Body of the Issuer on April 9, 2013. L. The term Outstanding when used in this Ordinance with respect to Obligations shall mean, as of the date of determination, all Obligations issued and delivered under this Ordinance, except: (1) those Obligations canceled by the Paying Agent/Registrar or delivered to the Paying Agent/Registrar for cancellation; (2) those Obligations for which payment has been duly provided by the Issuer in accordance with the provisions of Section 21 of this Ordinance; and (3) those Obligations that have been mutilated, destroyed, lost, or stolen and replacement Obligations have been registered and delivered in lieu thereof as provided in Section 17 of this Ordinance. M. The term Purchasers shall mean the initial purchasers of the Obligations named in Section 18 of this Ordinance. N. The term Stated Maturity shall mean the annual principal payments of the Obligations payable on February 1 of each year, as set forth in Section 2 of this Ordinance. SECTION 10: Obligation Fund – Investments. For the purpose of paying the interest on and to provide a sinking fund for the payment, redemption, and retirement of the Obligations, there shall be and is hereby created a special Fund to be designated “TAX NOTES, SERIES 2013, INTEREST AND SINKING FUND” (the Obligation Fund), which Fund shall be kept and maintained at the Depository, and money deposited in such Fund shall be used for no other purpose and shall be maintained as provided in Section 19. Authorized Officials of the Issuer are hereby authorized and directed to make withdrawals from the Obligation Fund sufficient to pay the principal of, premium, if any, and interest on the Obligations as the same become due and payable and shall cause to be transferred to the Paying Agent/Registrar from money on deposit in 57061362.1 17 the Obligation Fund an amount sufficient to pay the amount of principal and/or interest stated to mature on the Obligations, such transfer of funds to the Paying Agent/Registrar to be made in such manner as will cause immediately available funds to be deposited with the Paying Agent/Registrar on or before the business day next preceding each interest and principal payment date for the Obligations. Pending the transfer of funds to the Paying Agent/Registrar, money in any Fund created and established by this Ordinance, at the option of the Issuer, may be placed in time deposits, certificates of deposit, guaranteed investment contracts, or similar contractual agreements, as permitted by the provisions of the Public Funds Investment Act, as amended, Chapter 2256, Texas Government Code, secured (to the extent not insured by the Federal Deposit Insurance Corporation) by obligations of the type hereinafter described, or be invested, as authorized by any law, including investments held in book-entry form, in securities including, but not limited to, direct obligations of the United States of America, obligations guaranteed or insured by the United States of America, which, in the opinion of the Attorney General of the United States, are backed by its full faith and credit or represent its general obligations, or invested in indirect obligations of the United States of America, including, but not limited to, evidences of indebtedness issued, insured or guaranteed by such governmental agencies as the Federal Land Banks, Federal Intermediate Credit Banks, Banks for Cooperatives, Federal Home Loan Banks, Government National Mortgage Association, Farmers Home Administration, Federal Home Loan Mortgage Association, Small Business Administration, or Federal Housing Association; provided that all such deposits and investments shall be made in such a manner that the money required to be expended from such Fund will be available at the proper time or times. All interest and income derived from deposits and investments in such Fund shall be credited to, and any losses debited to, such Fund. All such investments shall be sold promptly when necessary to prevent any default in connection with the Obligations. SECTION 11: Tax Levy. To provide for the payment of the Debt Service Requirements on the Obligations being (i) the interest on the Obligations and (ii) a sinking fund for their redemption at Stated Maturity or a sinking fund of 2% (whichever amount shall be the greater), there shall be and there is hereby levied for the current year and each succeeding year thereafter while the Obligations or any interest thereon shall remain Outstanding, a sufficient tax, within the limitations prescribed by law, on each one hundred dollars’ valuation of taxable property in the Issuer, adequate to pay such Debt Service Requirements, full allowance being made for delinquencies and costs of collection; said tax shall be assessed and collected each year and applied to the payment of the Debt Service Requirements, and the same shall not be diverted to any other purpose. The taxes so levied and collected shall be paid into the Obligation Fund and are thereafter pledged to the payment of the Obligations. The Governing Body hereby declares its purpose and intent to provide and levy a tax legally and fully sufficient to pay such Debt Service Requirements, it having been determined that the existing and available taxing authority of the Issuer for such purpose is adequate to permit a legally sufficient tax in consideration of all other outstanding indebtedness and other obligations of the Issuer. SECTION 12: Deposits to Obligation Fund – Surplus Obligation Proceeds. The Issuer hereby covenants and agrees to cause to be deposited in the Obligation Fund prior to a principal and interest payment date for the Obligations, from the annual levy of an ad valorem tax or from other lawfully available funds, amounts sufficient to fully pay and discharge promptly each 57061362.1 18 installment of interest and principal of the Obligations as the same accrues or matures or comes due by reason of Stated Maturity. Accrued interest, if any, received from the Purchasers of the Obligations shall be deposited to the Obligation Fund. In addition, any surplus proceeds from the sale of the Obligations, including investment income thereon, not expended for authorized purposes, as described in Section 1 hereof, shall be deposited in the Obligation Fund, and such amounts so deposited shall reduce the sums otherwise required to be deposited in said Fund from ad valorem taxes. SECTION 13: Security of Funds. All money on deposit in the Funds for which this Ordinance makes provision (except any portion thereof as may be at any time properly invested as provided herein) shall be secured in the manner and to the fullest extent required by the laws of the State of Texas for the security of public funds, and money on deposit in such Funds shall be used only for the purposes permitted by this Ordinance. SECTION 14: Remedies in Event of Default. In addition to all the rights and remedies provided by the laws of the State of Texas, the Issuer covenants and agrees particularly that in the event the Issuer (a) defaults in the payments to be made to the Obligation Fund or (b) defaults in the observance or performance of any other of the covenants, conditions, or obligations set forth in this Ordinance, the Holders of any of the Obligations shall be entitled to seek a writ of mandamus issued by a court of proper jurisdiction compelling and requiring the governing body of the Issuer and other officers of the Issuer to observe and perform any covenant, condition, or obligation prescribed in this Ordinance. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver of any such default or acquiescence therein, and every such right and power may be exercised from time to time and as often as may be deemed expedient. The specific remedies herein provided shall be cumulative of all other existing remedies and the specification of such remedies shall not be deemed to be exclusive. SECTION 15: Notices to Holders – Waiver. Wherever this Ordinance provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and sent by United States mail, first-class postage prepaid, to the address of each Holder as it appears in the Security Register at the close of business on the business day next preceding the mailing of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice to any particular Holders, nor any defect in any notice so mailed, shall affect the sufficiency of such notice with respect to all other Holders. Where this Ordinance provides for notice in any manner, such notice may be waived in writing by the Holder entitled to receive such notice, either before or after the event with respect to which such notice is given, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Paying Agent/Registrar, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver. 57061362.1 19 SECTION 16: Cancellation. All Obligations surrendered for payment, redemption, transfer, exchange, or replacement, if surrendered to the Paying Agent/Registrar, shall be promptly canceled by it and, if surrendered to the Issuer, shall be delivered to the Paying Agent/Registrar and, if not already canceled, shall be promptly canceled by the Paying Agent/Registrar. The Issuer may at any time deliver to the Paying Agent/Registrar for cancellation any Obligations previously certified or registered and delivered which the Issuer may have acquired in any manner whatsoever, and all Obligations so delivered shall be promptly canceled by the Paying Agent/Registrar. All canceled Obligations held by the Paying Agent/Registrar shall be destroyed as directed by the Issuer. SECTION 17: Mutilated, Destroyed, Lost, and Stolen Obligations. If (1) any mutilated Obligation is surrendered to the Paying Agent/Registrar, or the Issuer and the Paying Agent/Registrar receive evidence to their satisfaction of the destruction, loss, or theft of any Obligation, and (2) there is delivered to the Issuer and the Paying Agent/Registrar such security or indemnity as may be required to save each of them harmless, then, in the absence of notice to the Issuer or the Paying Agent/Registrar that such Obligation has been acquired by a bona fide purchaser, the Issuer shall execute and, upon its request, the Paying Agent/Registrar shall register and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost, or stolen Obligation, a new Obligation of the same Stated Maturity and interest rate and of like tenor and principal amount, bearing a number not contemporaneously outstanding. In case any such mutilated, destroyed, lost, or stolen Obligation has become or is about to become due and payable, the Issuer in its discretion may, instead of issuing a new Obligation, pay such Obligation. Upon the issuance of any new Obligation or payment in lieu thereof, under this Section, the Issuer may require payment by the Holder of a sum sufficient to cover any tax or other governmental charge imposed in relation thereto and any other expenses (including attorney’s fees and the fees and expenses of the Paying Agent/Registrar) connected therewith. Every new Obligation issued pursuant to this Section in lieu of any mutilated, destroyed, lost, or stolen Obligation shall constitute a replacement of the prior obligation of the Issuer, whether or not the mutilated, destroyed, lost, or stolen Obligation shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Ordinance equally and ratably with all other Outstanding Obligations. The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement and payment of mutilated, destroyed, lost, or stolen Obligations. SECTION 18: Sale of Obligations - Purchase and Investment Letters Approval – Use of Proceeds. The Obligations authorized by this Ordinance are hereby sold by the Issuer to ____________________________________, ____________, ________ (the Purchasers, having all the rights, benefits, and obligations of a Holder), in accordance with the provisions of a Purchase and Investment Letter (the Purchase Contract), dated April 9, 2013 attached hereto as Exhibit B and incorporated hereby by reference as a part of this Ordinance for all purposes. The pricing and terms of the sale of the Obligations are hereby found and determined to be the most 57061362.1 20 advantageous reasonably obtainable by the Issuer. The Initial Obligations shall be registered in the name of ____________________________________. The Mayor of the Issuer is hereby authorized and directed to execute the Purchase Contract for and on behalf of the Issuer and as the act and deed of this Governing Body, and in regard to the approval and execution of the Purchase Contract, the Governing Body hereby finds, determines and declares that the representations, warranties, and agreements of the Issuer contained in the Purchase Contract are true and correct in all material respects and shall be honored and performed by the Issuer. Delivery of the Obligations to the Purchasers shall occur as soon as practicable after the adoption of this Ordinance, upon payment therefor in accordance with the terms of the Purchase Contract. Proceeds from the sale of the Obligations shall be applied as follows: (1) Accrued interest, if any, received from the Purchasers shall be deposited into the Obligation Fund. (2) The balance of the proceeds derived from the sale of the Obligations (after paying costs of issuance) shall be deposited into the special construction account or accounts created for the projects to be constructed with the proceeds of the Obligations. This special construction account shall be established and maintained at the Depository and shall be invested in accordance with the provisions of Section 10 of this Ordinance. Interest earned on the proceeds of the Obligations pending completion of construction of the projects financed with such proceeds shall be accounted for, maintained, deposited, and expended as permitted by the provisions of Chapter 1201, as amended, Texas Government Code, or as required by any other applicable law. Thereafter, such amounts shall be expended in accordance with Section 12 of this Ordinance. SECTION 19: Covenants to Maintain Tax-Exempt Status. A. Definitions. When used in this Section, the following terms have the following meanings: Code means the Internal Revenue Code of 1986, as amended by all legislation, if any, effective on or before the Closing Date. Computation Date has the meaning set forth in Section 1.148-1(b) of the Regulations. Gross Proceeds means any proceeds as defined in Section 1.148-1(b) of the Regulations, and any replacement proceeds as defined in Section 1.148-1(c) of the Regulations, of the Obligations. Investment has the meaning set forth in Section 1.148-1(b) of the Regulations. Nonpurpose Investment means any investment property, as defined in section 148(b) of the Code, in which Gross Proceeds of the Obligations are invested and which is not acquired to carry out the governmental purposes of the Obligations. 57061362.1 21 Rebate Amount has the meaning set forth in Section 1.148-1(b) of the Regulations. Regulations means any proposed, temporary, or final Income Tax Regulations issued pursuant to sections 103 and 141 through 150 of the Code, and 103 of the Internal Revenue Code of 1954, which are applicable to the Obligations. Any reference to any specific Regulation shall also mean, as appropriate, any proposed, temporary or final Income Tax Regulation designed to supplement, amend or replace the specific Regulation referenced. Yield of (1) any Investment has the meaning set forth in Section 1.148-5 of the Regulations; and (2) the Obligations has the meaning set forth in Section 1.148-4 of the Regulations. B. Not to Cause Interest to Become Taxable. The Issuer shall not use, permit the use of, or omit to use Gross Proceeds or any other amounts (or any property the acquisition, construction or improvement of which is to be financed directly or indirectly with Gross Proceeds) in a manner which if made or omitted, respectively, would cause the interest on any Obligations to become includable in the gross income, as defined in section 61 of the Code, of the owner thereof for federal income tax purposes. Without limiting the generality of the foregoing, unless and until the Issuer receives a written opinion of counsel nationally recognized in the field of municipal bond law to the effect that failure to comply with such covenant will not adversely affect the exemption from federal income tax of the interest on any Obligation, the Issuer shall comply with each of the specific covenants in this Section. C. No Private Use or Private Payments. Except to the extent that it will not cause the Obligations to become “private activity bonds” within the meaning of section 141 of the Code and the Regulations and rulings thereunder, the Issuer shall at all times prior to the last Stated Maturity of Obligations: (1) exclusively own, operate and possess all property the acquisition, construction or improvement of which is to be financed or refinanced directly or indirectly with Gross Proceeds of the Obligations, and not use or permit the use of such Gross Proceeds (including all contractual arrangements with terms different than those applicable to the general public) or any property acquired, constructed or improved with such Gross Proceeds in any activity carried on by any person or entity (including the United States or any agency, department and instrumentality thereof) other than a state or local government, unless such use is solely as a member of the general public; and (2) not directly or indirectly impose or accept any charge or other payment by any person or entity who is treated as using Gross Proceeds of the Obligations or any property the acquisition, construction or improvement of which is to be financed or refinanced directly or indirectly with such Gross Proceeds, other than taxes of general application within the Issuer or interest earned on investments acquired with such Gross Proceeds pending application for their intended purposes. 57061362.1 22 D. No Private Loan. Except to the extent that it will not cause the Obligations to become “private activity bonds” within the meaning of section 141 of the Code and the Regulations and rulings thereunder, the Issuer shall not use Gross Proceeds of the Obligations to make or finance loans to any person or entity other than a state or local government. For purposes of the foregoing covenant, such Gross Proceeds are considered to be “loaned” to a person or entity if: (i) property acquired, constructed or improved with such Gross Proceeds is sold or leased to such person or entity in a transaction which creates a debt for federal income tax purposes; (ii) capacity in or service from such property is committed to such person or entity under a take-or-pay, output or similar contract or arrangement; or (iii) indirect benefits, or burdens and benefits of ownership, of such Gross Proceeds or any property acquired, constructed or improved with such Gross Proceeds are otherwise transferred in a transaction which is the economic equivalent of a loan. E. Not to Invest at Higher Yield. Except to the extent that it will cause the Obligations to become “arbitrage bonds” within the meaning of section 148 of the Code and the Regulations and rulings thereunder, the Issuer shall not at any time prior to the final Stated Maturity of the Obligations directly or indirectly invest Gross Proceeds in any Investment, if as a result of such investment the Yield of any Investment acquired with Gross Proceeds, whether then held or previously disposed of, materially exceeds the Yield of the Obligations. F. Not Federally Guaranteed. Except to the extent permitted by section 149(b) of the Code and the Regulations and rulings thereunder, the Issuer shall not take or omit to take any action which would cause the Obligations to be federally guaranteed within the meaning of section 149(b) of the Code and the Regulations and rulings thereunder. G. Information Report. The Issuer shall timely file the information required by section 149(e) of the Code with the Secretary of the Treasury on Form 8038-G or such other form and in such place as the Secretary may prescribe. H. Rebate of Arbitrage Profits. Except to the extent otherwise provided in section 148(f) of the Code and the Regulations and rulings thereunder: (1) The Issuer shall account for all Gross Proceeds (including all receipts, expenditures and investments thereof) on its books of account separately and apart from all other funds (and receipts, expenditures and investments thereof) and shall retain all records of accounting for at least six years after the day on which the last Outstanding Obligation is discharged. However, to the extent permitted by law, the Issuer may commingle Gross Proceeds of the Obligations with other money of the Issuer, provided that the Issuer separately accounts for each receipt and expenditure of Gross Proceeds and the obligations acquired therewith. (2) Not less frequently than each Computation Date, the Issuer shall calculate the Rebate Amount in accordance with rules set forth in section 148(f) of the Code and the Regulations and rulings thereunder. The Issuer shall maintain such calculations with its official transcript of proceedings relating to the issuance of the Obligations until six years after the final Computation Date. 57061362.1 23 (3) As additional consideration for the purchase of the Obligations by the Purchasers and the loan of the money represented thereby and in order to induce such purchase by measures designed to insure the excludability of the interest thereon from the gross income of the owners thereof for federal income tax purposes, the Issuer shall pay to the United States out of the Obligation Fund or its general fund, as permitted by applicable Texas statute, regulation or opinion of the Attorney General of the State of Texas, the amount that when added to the future value of previous rebate payments made for the Obligations equals (i) in the case of a Final Computation Date as defined in Section 1.148-3(e)(2) of the Regulations, one hundred percent (100%) of the Rebate Amount on such date; and (ii) in the case of any other Computation Date, ninety percent (90%) of the Rebate Amount on such date. In all cases, the rebate payments shall be made at the times, in the installments, to the place and in the manner as is or may be required by section 148(f) of the Code and the Regulations and rulings thereunder, and shall be accompanied by Form 8038-T or such other forms and information as is or may be required by section 148(f) of the Code and the Regulations and rulings thereunder. (4) The Issuer shall exercise reasonable diligence to assure that no errors are made in the calculations and payments required by paragraphs (2) and (3), and if an error is made, to discover and promptly correct such error within a reasonable amount of time thereafter (and in all events within one hundred eighty (180) days after discovery of the error), including payment to the United States of any additional Rebate Amount owed to it, interest thereon, and any penalty imposed under Section 1.148-3(h) of the Regulations. I. Not to Divert Arbitrage Profits. Except to the extent permitted by section 148 of the Code and the Regulations and rulings thereunder, the Issuer shall not, at any time prior to the earlier of the Stated Maturity or final payment of the Obligations, enter into any transaction that reduces the amount required to be paid to the United States pursuant to Subsection H of this Section because such transaction results in a smaller profit or a larger loss than would have resulted if the transaction had been at arm’s length and had the Yield of the Obligations not been relevant to either party. J. Obligations Not Hedge Bonds. (1) The Issuer reasonably expects to spend at least 85% of the spendable proceeds of the Obligations within three years after such Obligations are issued. (2) Not more than 50% of the proceeds of the Obligations will be invested in Nonpurpose Investments having a substantially guaranteed Yield for a period of 4 years or more. K. Elections. The Issuer hereby directs and authorizes any Authorized Official, either or any combination of the foregoing, to make such elections in the Certificate as to Tax Exemption or similar or other appropriate certificate, form, or document permitted or required pursuant to the provisions of the Code or the Regulations, as they deem necessary or appropriate in connection with the Obligations. Such elections shall be deemed to be made on the Closing Date. SECTION 20: Control and Custody of Obligations. The Mayor shall be and is hereby authorized to take and have charge of all necessary orders and records pending investigation by 57061362.1 24 the Attorney General of the State of Texas and shall take and have charge and control of the Obligations pending their approval by the Attorney General, the registration thereof by the Comptroller of Public Accounts and the delivery of the Obligations to the Purchasers. Furthermore, the Mayor, Mayor Pro Tem, City Manager, City Secretary, or City Attorney, either or all, are hereby authorized and directed to furnish and execute such documents relating to the Issuer and its financial affairs as may be necessary for the issuance of the Obligations, the approval of the Attorney General and their registration by the Comptroller of Public Accounts and, together with the Issuer’s financial advisors, Bond Counsel, and the Paying Agent/Registrar, make the necessary arrangements for the delivery of the Initial Obligations to the Purchasers and the initial exchange thereof for definitive Obligations. SECTION 21: Satisfaction of Obligation of Issuer. If the Issuer shall pay or cause to be paid, or there shall otherwise be paid to the Holders, the principal of, premium, if any, and interest on the Obligations, at the times and in the manner stipulated in this Ordinance, then the pledge of taxes levied under this Ordinance and all covenants, agreements, and other obligations of the Issuer to the Holders shall thereupon cease, terminate, and be discharged and satisfied. Obligations, or any principal amount(s) thereof, shall be deemed to have been paid within the meaning and with the effect expressed above in this Section when (i) money sufficient to pay in full such Obligations or the principal amount(s) thereof at Stated Maturity or to the redemption date therefor, together with all interest due thereon, shall have been irrevocably deposited with and held in trust by the Paying Agent/Registrar, or an authorized escrow agent, and/or (ii) Government Securities shall have been irrevocably deposited in trust with the Paying Agent/Registrar, or an authorized escrow agent, which Government Securities have, in the case of a net defeasance, been certified by an independent accounting firm to mature as to principal and interest in such amounts and at such times as will insure the availability, without reinvestment, of sufficient money, together with any money deposited therewith, if any, to pay when due the principal of and interest on such Obligations, or the principal amount(s) thereof, on and prior to the Stated Maturity thereof or (if notice of redemption has been duly given or waived or if irrevocable arrangements therefor acceptable to the Paying Agent/Registrar have been made) the redemption date thereof. In the event of a gross defeasance of the Obligations, the Issuer shall deliver a certificate from its financial advisor, the Paying Agent/Registrar, or another qualified third party concerning the deposit of cash and/or Government Securities to pay, when due, the principal of, redemption premium (if any), and interest due on any defeased Obligations. The Issuer covenants that no deposit of money or Government Securities will be made under this Section and no use made of any such deposit which would cause the Obligations to be treated as arbitrage bonds within the meaning of section 148 of the Code (as defined in Section 19 hereof). Any money so deposited with the Paying Agent/Registrar, and all income from Government Securities held in trust by the Paying Agent/Registrar, or an authorized escrow agent, pursuant to this Section which is not required for the payment of the Obligations, or any principal amount(s) thereof, or interest thereon with respect to which such money has been so deposited shall be remitted to the Issuer or deposited as directed by the Issuer. Furthermore, any money held by the Paying Agent/Registrar for the payment of the principal of and interest on the Obligations and remaining unclaimed for a period of three (3) years after the Stated Maturity of 57061362.1 25 the Obligations or applicable redemption date, such money was deposited and is held in trust to pay shall upon the request of the Issuer be remitted to the Issuer against a written receipt therefor, subject to the unclaimed property laws of the State of Texas. Notwithstanding any other provision of this Ordinance to the contrary, it is hereby provided that any determination not to redeem defeased Obligations that is made in conjunction with the payment arrangements specified in subsection (i) or (ii) above shall not be irrevocable, provided that: (1) in the proceedings providing for such defeasance, the Issuer expressly reserves the right to call the defeased Obligations for redemption; (2) gives notice of the reservation of that right to the owners of the defeased Obligations immediately following the defeasance; (3) directs that notice of the reservation be included in any redemption notices that it authorizes; and (4) at the time of the redemption, satisfies the conditions of (i) or (ii) above with respect to such defeased debt as though it was being defeased at the time of the exercise of the option to redeem the defeased Obligations, after taking the redemption into account in determining the sufficiency of the provisions made for the payment of the defeased Obligations. SECTION 22: Printed Opinion. The Purchasers’ obligation to accept delivery of the Obligations is subject to its being furnished a final opinion of Fulbright & Jaworski L.L.P., as Bond Counsel, approving certain legal matters as to the Obligations, said opinion to be dated and delivered as of the date of initial delivery and payment for such Obligations. Printing of a true and correct copy of this opinion on the reverse side of each of the Obligations, with appropriate certificate pertaining thereto executed by facsimile signature of the City Secretary of the Issuer is hereby approved and authorized. SECTION 23: CUSIP Numbers. CUSIP numbers may be printed or typed on the definitive Obligations. It is expressly provided, however, that the presence or absence of CUSIP numbers on the definitive Obligations shall be of no significance or effect as regards the legality thereof, and neither the Issuer nor attorneys approving said Obligations as to legality are to be held responsible for CUSIP numbers incorrectly printed or typed on the definitive Obligations. SECTION 24: Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof. SECTION 25: Ordinance a Contract; Amendments - Outstanding Obligations. The Issuer acknowledges that the covenants and obligations of the Issuer herein contained are a material inducement to the purchase of the Obligations. This Ordinance shall constitute a contract with the Holders from time to time, shall be binding on the Issuer and its successors and assigns, and shall not be amended or repealed by the Issuer so long as any Obligation remains Outstanding except as permitted in this Section. The Issuer may, without the consent of or notice to any Holders, from time to time and at any time, amend this Ordinance in any manner not detrimental to the interests of the Holders, including the curing of any ambiguity, inconsistency, or formal defect or omission herein. In addition, the Issuer may, with the written consent of Holders holding a majority in aggregate principal amount of the Obligations then Outstanding affected thereby, amend, add to, or rescind any of the provisions of this Ordinance; provided, however that, without the consent of all Holders of Outstanding Obligations, no such amendment, addition, or rescission shall (1) extend the time or times of payment of the principal of, and interest on the Obligations, reduce the principal amount thereof, the redemption price therefor, or 57061362.1 26 the rate of interest thereon, or in any other way modify the terms of payment of the principal of, or interest on the Obligations, (2) give any preference to any Obligation over any other Obligation, or (3) reduce the aggregate principal amount of Obligations required for consent to any such amendment, addition, or rescission. SECTION 26: Benefits of Ordinance. Nothing in this Ordinance, expressed or implied, is intended or shall be construed to confer upon any person other than the Issuer, Bond Counsel, Paying Agent/Registrar, and the Holders, any right, remedy, or claim, legal or equitable, under or by reason of this Ordinance or any provision hereof, this Ordinance and all its provisions being intended to be and being for the sole and exclusive benefit of the Issuer, Bond Counsel, the Paying Agent/Registrar, and the Holders. SECTION 27: Inconsistent Provisions. All ordinances and resolutions, or parts thereof, which are in conflict or inconsistent with any provision of this Ordinance are hereby repealed to the extent of such conflict, and the provisions of this Ordinance shall be and remain controlling as to the matters ordained herein. SECTION 28: Construction of Terms. If appropriate in the context of this Ordinance, words of the singular number shall be considered to include the plural, words of the plural number shall be considered to include the singular, and words of the masculine, feminine or neuter gender shall be considered to include the other genders. SECTION 29: Governing Law. This Ordinance shall be construed and enforced in accordance with the laws of the State of Texas and the United States of America. SECTION 30: Severability. If any provision of this Ordinance or the application thereof to any person or circumstance shall be held to be invalid, the remainder of this Ordinance and the application of such provision to other persons and circumstances shall nevertheless be valid, and the Governing Body hereby declares that this Ordinance would have been enacted without such invalid provision. SECTION 31: Incorporation of Preamble Recitals. The recitals contained in the preamble hereof are hereby found to be true, and such recitals are hereby made a part of this Ordinance for all purposes and are adopted as a part of the judgment and findings of the Governing Body. SECTION 32: Authorization of Paying Agent/Registrar Agreement. The Governing Body of the Issuer hereby finds and determines that it is in the best interest of the Issuer to authorize the execution of a Paying Agent/Registrar Agreement concerning the payment, exchange, and transferability of the Obligations. A copy of the Paying Agent/Registrar Agreement is attached hereto, in substantially final form, as Exhibit A and is incorporated by reference to the provisions of this Ordinance. SECTION 33: Public Meeting. It is officially found, determined, and declared that the meeting at which this Ordinance is finally adopted was open to the public and public notice of the time, place, and subject matter of the public business to be considered at such meeting, including this Ordinance, was given, all as required by Chapter 551, as amended, Texas Government Code. 57061362.1 27 SECTION 34: Unavailability of Authorized Publication. If, because of the temporary or permanent suspension of any newspaper, journal, or other publication, or, for any reason, publication of notice cannot be made meeting any requirements herein established, any notice required to be published by the provisions of this Ordinance shall be given in such other manner and at such time or times as in the judgment of the Issuer or of the Paying Agent/Registrar shall most effectively approximate such required publication and the giving of such notice in such manner shall for all purposes of this Ordinance be deemed to be in compliance with the requirements for publication thereof. SECTION 35: No Recourse Against Issuer Officials. No recourse shall be had for the payment of principal of, premium, if any, or interest on any Obligation or for any claim based thereon or on this Ordinance against any official of the Issuer or any person executing any Obligation. SECTION 36: Continuing Disclosure Undertaking. Definitions. As used in this Section, the following terms have the meanings ascribed to such terms below: Rule means SEC Rule 15c2-12, as amended from time to time. SEC means the United States Securities and Exchange Commission. The Obligations are being sold pursuant to a private placement with the Purchasers, generally in denominations of $100,000 or any integral multiple of $1,000 in excess thereof, to less than thirty-five sophisticated investors, and therefore SEC Rule 15c2-12 is not applicable to the offering of the Obligations. Accordingly, no contract to provide continuing disclosure information after the issuance of the Obligations has been made by the Issuer with investors. SECTION 37: Book-Entry Only System . The Obligations may initially be registered so as to participate in a securities depository system (the DTC System) with the Depository Trust Company, New York, New York, or any successor entity thereto (DTC), as set forth herein. Each Stated Maturity of the Obligations shall be issued (following cancellation of the Initial Obligations described in Section 7) in the form of a separate single definitive Obligation. Upon issuance, the ownership of each such Obligation shall be registered in the name of Cede & Co., as the nominee of DTC, and all of the Outstanding Obligations shall be registered in the name of Cede & Co., as the nominee of DTC. The Issuer and the Paying Agent/Registrar are authorized to execute, deliver, and take the actions set forth in such letters to or agreements with DTC as shall be necessary to effectuate the DTC System, including the Letter of Representations attached hereto as Exhibit C (the Representation Letter). With respect to the Obligations registered in the name of Cede & Co., as nominee of DTC, the Issuer and the Paying Agent/Registrar shall have no responsibility or obligation to any broker-dealer, bank, or other financial institution for which DTC holds the Obligations from time to time as securities depository (a Depository Participant) or to any person on behalf of whom such a Depository Participant holds an interest in the Obligations (an Indirect Participant). Without limiting the immediately preceding sentence, the Issuer and the Paying Agent/Registrar 57061362.1 28 shall have no responsibility or obligation with respect to (i) the accuracy of the records of DTC, Cede & Co., or any Depository Participant with respect to any ownership interest in the Obligations, (ii) the delivery to any Depository Participant or any other person, other than a registered owner of the Obligations, as shown on the Security Register, of any notice with respect to the Obligations, including any notice of redemption, or (iii) the delivery to any Depository Participant or any Indirect Participant or any other Person, other than a Holder of an Obligation, of any amount with respect to principal of, premium, if any, or interest on the Obligations. While in the DTC System, no person other than Cede & Co., or any successor thereto, as nominee for DTC, shall receive an Obligation evidencing the obligation of the Issuer to make payments of principal, premium, if any, or interest on the Obligations pursuant to this Ordinance. Upon delivery by DTC to the Paying Agent/Registrar of written notice to the effect that DTC has determined to substitute a new nominee in place of Cede & Co., and subject to the provisions in this Ordinance with respect to interest checks or drafts being mailed to the Holder, the word “Cede & Co.” in this Ordinance shall refer to such new nominee of DTC. In the event that (a) the Issuer determines that DTC is incapable of discharging its responsibilities described herein and in the Representation Letter, (b) the Representation Letter shall be terminated for any reason, or (c) DTC or the Issuer determines that it is in the best interest of the beneficial owners of the Obligations that they be able to obtain certificated Obligations, the Issuer shall notify the Paying Agent/Registrar, DTC, and the Depository Participants of the availability within a reasonable period of time through DTC of bond certificates, and the Obligations shall no longer be restricted to being registered in the name of Cede & Co., as nominee of DTC. At that time, the Issuer may determine that the Obligations shall be registered in the name of and deposited with a successor depository operating a securities depository system, as may be acceptable to the Issuer, or such depository’s agent or designee, and if the Issuer and the Paying Agent/Registrar do not select such alternate securities depository system then the Obligations may be registered in whatever name or names the Holders of Obligations transferring or exchanging the Obligations shall designate, in accordance with the provisions hereof. Notwithstanding any other provision of this Ordinance to the contrary, so long as any Obligation is registered in the name of Cede & Co., as nominee of DTC, all payments with respect to principal of, premium, if any, and interest on such Obligation and all notices with respect to such Obligation shall be made and given, respectively, in the manner provided in the Representation Letter. SECTION 38: Further Procedures. The officers and employees of the Issuer are hereby authorized, empowered and directed from time to time and at any time to do and perform all such acts and things and to execute, acknowledge and deliver in the name and under the corporate seal and on behalf of the Issuer all such instruments, whether or not herein mentioned, as may be necessary or desirable in order to carry out the terms and provisions of this Ordinance, the initial sale and delivery of the Obligations, the Paying Agent/Registrar Agreement, and the Purchase Contract. In addition, prior to the initial delivery of the Obligations, any Authorized Official and Bond Counsel are hereby authorized and directed to approve any technical changes or corrections to this Ordinance or to any of the instruments authorized and approved by this Ordinance necessary in order to (i) correct any ambiguity or mistake or properly or more completely document the transactions contemplated and approved by this Ordinance, (ii) obtain a 57061362.1 29 rating from any of the national bond rating agencies, or (iii) obtain the approval of the Obligations by the Texas Attorney General’s office. In case any officer of the Issuer whose signature shall appear on any certificate shall cease to be such officer before the delivery of such certificate, such signature shall nevertheless be valid and sufficient for all purposes the same as if such officer had remained in office until such delivery. SECTION 39: Effective Date. Pursuant to the provisions of Section 1201.028, as amended, Texas Government Code, this Ordinance shall be effective immediately upon adoption, notwithstanding any provision in the City’s Home Rule Charter to the contrary concerning a multiple reading requirement for the adoption of ordinances. 57061362.1 S-1 PASSED AND ADOPTED by the City Council of the City of Schertz, Texas, this the 9th day of April, 2013. CITY OF SCHERTZ, TEXAS ____________________________________ Mayor ATTEST: _________________________________ City Secretary (CITY SEAL) Exhibit A - Paying Agent/Registrar Agreement Exhibit B - Purchase Contract Exhibit C – DTC Letter of Representations 57061362.1 A-1 EXHIBIT A Paying Agent/Registrar Agreement See Tab No. __ 57061362.1 B-1 EXHIBIT B Purchase Contract See Tab No. __ 57061362.1 C-1 EXHIBIT C DTC Letter of Representations See Tab No. __ 57066309.1 A-1 EXHIBIT A ORDINANCE NO. 13-B-10 CONSIDERATION AND APPROVAL OF AN ORDINANCE BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS AUTHORIZING THE ISSUANCE OF “CITY OF SCHERTZ, TEXAS TAX NOTES, SERIES 2013”, LEVYING AN ANNUAL AD VALOREM TAX, WITHIN THE LIMITATIONS PRESCRIBED BY LAW, FOR THE PAYMENT OF THE OBLIGATIONS; PRESCRIBING THE FORM, TERMS, CONDITIONS, AND RESOLVING OTHER MATTERS INCIDENT AND RELATED TO THE ISSUANCE, SALE, AND DELIVERY OF THE OBLIGATIONS; AUTHORIZING THE EXECUTION OF A PAYING AGENT/REGISTRAR AGREEMENT AND A PURCHASE AND INVESTMENT LETTER; COMPLYING WITH THE LETTER OF REPRESENTATIONS WITH THE DEPOSITORY TRUST COMPANY; AUTHORIZING THE EXECUTION OF ANY NECESSARY ENGAGEMENT AGREEMENTS WITH THE CITY’S FINANCIAL ADVISORS AND/OR BOND COUNSEL; AND PROVIDING AN EFFECTIVE DATE 57066309.1 B-1 EXHIBIT B A MOTION BY COUNCILMEMBER ______________ AND SECONDED BY COUNCILMEMBER _____________ THAT THE CITY COUNCIL ADOPT AN ORDINANCE AUTHORIZING THE ISSUANCE OF “CITY OF SCHERTZ, TEXAS TAX NOTES, SERIES 2013” Agenda No. 7 CITY COUNCIL MEMORANDUM City Council Meeting: April 9, 2013 Department: Economic Development Subject: Ordinance No. 13-T-09 Assigned and Amended Tax Abatement Agreement – CST Diamond L.P. (Formerly Valero Diamond L.P.) BACKGROUND Goal: The City of Schertz, Texas (the “City”) entered into a Tax Abatement Agreement (“Agreement”) with Valero Diamond, L.P. (“Valero”), on June 27, 2006. The Agreement was authorized under Chapter 312 of the Local Government Code. Under the Agreement, Valero received 90% tax abatement for ten years on the Capital Improvements and Personal Property (machinery and equipment) located on the property. Late last year, Valero Energy Corporation announced plans to spin off its Corner Store businesses. As result, the Agreement has been revised through the Assigned and Amended Tax Abatement Agreement (the “Amendment”). The Amendment assigns the tax abatement to CST Diamond L.P. (“CST”). In connection with the assignment, CST has been identified as the lessee. No changes have been made to the quantitative terms of the Agreement. Community Benefit: The Amendment will ensure that Agreement is up-to-date. Summary of Recommended Action: To recommend approval to the City Council of the Amendment Tax Abatement Agreement. FISCAL IMPACT There is no change in the fiscal impact of the Amendment. No additional incentives are being given. SEDC RECOMMENDATION The SEDC Board held a meeting on March 28, 2013 to consider the proposed Assigned and Amended Tax Abatement. A motion was made by Grady Morris and Seconded by Angelina Kiser to approve the assignment and amendment as presented. The motion passed unanimously (6-0) STAFF RECOMMENDATION Staff recommends approval of the proposed Amendment ATTACHMENT(S) Ordinance 13-T-09 with Assigned and Amended Tax Abatement Agreement Schertz Economic Development Corporation Valero Diamond Amendment (CST Diamond L.P.) April 9, 2012 David Gwin, AICP, CEcD Executive Director, Schertz Economic Development Corporation 1 Schertz Economic Development Corporation History •2006 Valero Diamond Tax Abatement •90% Abatement on Real and Personal Property for 10 years. •Expires 12/31/2015 •2012 Valero announces that it’s corner stores division will spin off into CST Diamond L.P. (“CST”) •2013 CST takes over corner stores and vending operations 2 Schertz Economic Development Corporation Proposed Amendment •Assignment from Valero Diamond L.P. to CST Diamond L.P. •Owner of Real Property = ProLogis •No quantitative changes to the original terms of the Agreement 3 Schertz Economic Development Corporation Questions? _______________________ Direction? 4 Schertz Economic Development Corporation Questions? _______________________ Direction? 5 Schertz Economic Development Corporation Company’s Representation •Lease property within Tri-County Business & Industrial Park •Operate as a regional food distributor •Capital investment of $2,606,747 •Personal Property of $5,555,106 6 Schertz Economic Development Corporation Questions? _______________________ Direction? 7 ORDINANCE NO. 13-T-09 BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS, APPROVING AN ASSIGNMENT AND AN AMENDMENT TO A TAX ABATEMENT AGREEMENT BY THE CITY COUNCIL FOR AND WITH CST DIAMOND, L.P., A COMPANY OPERATING IN THE CITY OF SCHERTZ. WHEREAS, Section 312 of the Texas Property Tax Code allows municipalities to abate ad valorem taxes under specific Guidelines and Criteria, and the City of Schertz has adopted specific Guidelines and Criteria under these provisions; and WHEREAS, the City Council has previously found that an application for abatement of ad valorem taxes for the benefit of Valero Diamond, L.P. (“Valero”) met those Guidelines and Criteria, and the City and Valero entered into Tax Abatement Agreement (the “Agreement”); and WHEREAS, the property occupied by Valero under this Agreement is described as a 7.2170 acre tract of land located at 6413 Tri County Parkway, Lot 7, Block 1 of the Tri-County Business & Industrial Park in the City of Schertz, Comal County, Texas (the “Property”); and WHEREAS, the Property is owned by ProLogis Exchange 6413 Tri-County Parkway LLC (“ProLogis”), and Valero leases 130,000 square feet of the Property from ProLogis (the “Leased Space”); and WHEREAS, Valero desires to assign the Agreement to an affiliate, CST Diamond, L.P. (“CST”), and the lease of the Leased Space will be assigned to CST; and WHEREAS, the City has determined to authorize the assignment of the Agreement from Valero to CST and to amend the Agreement to reflect such assignment and to clarify certain provisions of the Agreement; and WHEREAS, the terms of the assigned and amended Agreement will cause no substantial long term adverse effect on the provision of the City's services or tax base, and the use of the property will not constitute a hazard to public safety, health or morals; NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS: THAT, the request for assignment of the abatement to CST is hereby approved. THAT, the City Manager is authorized to enter into an assigned and amended agreement, shown as Exhibit 1, with CST. THAT, the original Agreement with Valero relating to the Property and the Leased Space was authorized pursuant to Ordinance No. 05-T-21, which is hereby replaced to the extent of any conflict with this Ordinance. PASSED AND APPROVED on first reading this the 9th day of April, 2013. PASSED, APPROVED AND ADOPTED on second reading this the _____ day of _________, 2013. CITY OF SCHERTZ, TEXAS Michael R. Carpenter, Mayor ATTEST: Brenda Dennis, City Secretary (CITY SEAL) Agenda No. 8 CITY COUNCIL MEMORANDUM City Council Meeting: April 9, 2013 Department: Public Works / Engineering Subject: Ordinance No. 13-D-11- Providing that the Code of Ordinances for the City of Schertz be amended by revising section 86-115 maximum speed limits generally on FM 1103 from IH-35 to the City of Cibolo City Limits. First Reading BACKGROUND The Texas Department of Transportation conducted an engineering and traffic investigation on FM 1103 as required by the Transportation Code Sec. 545.353, Authority of Texas Transportation Commission to Alter Speed Limits. Based on the results of the study, TxDOT is requesting the speed limit be reduced from the existing 55 mph to 45 mph to make the speed limit for the entire roadway 45 mph from IH-35 to the Cibolo City Limit. Goal To ensure that all streets maintained by the City are up to date in the City Code of Ordinances and reflect the recommendations made by the Texas Department of Transportation. Community Benefit City Ordinances are current and up to date regarding all streets owned and maintained by the City. Summary of Recommended Action Recommend approval of first reading of decreasing speed limit from 55 mph to 45 mph on FM 1103 from IH-35 to the Cibolo City Limit. FISCAL IMPACT No fiscal impact. TxDOT will produce and install new speed limit signs. RECOMMENDATION Staff recommends approval of first reading of Ordinance 13-D-11. ATTACHMENT(S) Ordinance 13-D-11 FM 1103 Exhibit ORDINANCE NO. 13-D-11 AN ORDINANCE BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS PROVIDING THAT THE CODE OF ORDINANCES OF THE CITY OF SCHERTZ, TEXAS BE AMENDED BY REVISING SECTION 86-115, MAXIMUM LIMITS GENERALLY ON SPECIFIC STREETS; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, it has been established that FM 1103 from Interstate Highway 35 to the Cibolo City Limits is currently set as a 55 mile per hour roadway under Section 86-115 Maximum limits generally on specific streets of the City Code of Ordinance. WHEREAS, it is recommended to change FM 1103 from Interstate Highway 35 to the Cibolo City Limits in the City Code of Ordinances under Section 86-115 Maximum limits generally on specific streets. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS: Section 1. THAT, Section 86-115 Maximum Limits Generally of the Code of Ordinances, on roadways maintained by the City of Schertz, Texas be amended as follows: Street Extent Speed Limit FM 1103 From IH-35 to Cibolo City Limits 45 MPH Section 2 The recitals contained in the preamble hereof are hereby found to be true, and such recitals are hereby made a part of this Ordinance for all purposes and are adopted as a part of the judgment and findings of the Council. Section 3 All ordinances and codes, or parts thereof, which are in conflict or inconsistent with any provision of this Ordinance are hereby repealed to the extent of such conflict, and the provisions of this Ordinance shall be and remain controlling as to the matters resolved herein. Section 4 This Ordinance shall be construed and enforced in accordance with the laws of the State of Texas and the United States of America. Section 5 If any provision of this Ordinance or the application thereof to any person or circumstance shall be held to be invalid, the remainder of this Ordinance and the application of such provision to other persons and circumstances shall nevertheless be valid, and the City hereby declares that this Ordinance would have been enacted without such invalid provision. Section 6 It is officially found, determined, and declared that the meeting at which this Ordinance is adopted was open to the public and public notice of the time, place, and subject matter of the public business to be considered at such meeting, including this Ordinance, was given, all as required by Chapter 551, as amended, Texas Government Code. City Council Memorandum Page 2 Section 7 This Ordinance shall be effective upon the date of final adoption hereof and any publication required by law. PASSED ON FIRST READING, the 9th day of April 2013. PASSED, APPROVED AND ADOPTED the 16th day of April 2013. ___________________________________ Michael R. Carpenter, Mayor ATTEST: ______________________________ Brenda Dennis, City Secretary (CITY SEAL) IH 35 N F M 1 1 0 3 COLUMBIA C O U N T R Y C L U B B L V D C H E R R Y T R E E D R R E D TI P D R B E L M O N T P K W Y EA G L E V A L L E Y S T HARVEST F A I R L A W N A V E MORNIN G D R CLIFFSID E D R ASHWO O D R D FOXBRIAR L N CHARLEST O N C R U S A D E R B E N D MAYFAI R M I S T Y W O O D L N CHELSEA D R WIMBLEDO N D R A M E R I C A N F L A G M I N E R A L S P R I N G S HI G H T R A I L R D OLD WIE D E R S T E I N R D WINDING T R L WHISPER B L F SUNRID G E R D WAR AD M I R A L COUNTR Y V W TURNAB O U T L O O P SCENIC D R E A G L E S G L E N N W E D G E W O O D D R P A W TUCKET R D F O U N T A I N G A T E TI F F A N Y L N MEADOW H E A D D R B R O O K H E A D L N CL E A R B R O O K A V E SHERW I N D R HI L L S I D E LI V I N G S T O N D R S E C R ET A RIA T D R FM 4 8 2 F A I R W A Y S DR H U B E R T U S R D T RIP LE C R O W N CHENEY R D C A S T L E H I L L D R EL M C T C R E S T W O O D D R HANSEL HTS STERLIN G W A Y PORTAG E L N P E B B L E B E A C H RIVA RID G E C I R BETHAN Y D R W E N S L E D A LE D R WHISPER H A V E N HUNTERS GLEN GREE N R I D G E Schertz C i t y L i m i t s NORTHE R N H E I G H T S D R GRENADA G A I T F O X RUN CLOVE R B R O O K L N C E L T I C A S H R U N ABA C C U S C T LAKE HI G H L A N D S C A P O T C O U R T L N W H I S P E R C V C H E S T N UT CT FI S H E R R D P A T R O N V I L L A G E W I N D S O R C T WHISP E R K N O L L P U L I T Z E R R D MIMOSA C T ST O N E Y B R O O K D R TU C K A T O E ± 0.70 Miles / 0 500 1,000 1,500 2,000250Feet • reduce existing 55 mph zone to 45 mphProposed Improvements:City of SchertzSpeed ZoneRevisions FM 1103 Agenda No. 9 CITY COUNCIL MEMORANDUM City Council Meeting: April 9, 2013 Department: Development Services Subject: Ordinance No. 13-C-08 – Public Hearing and consider an Amendment to the Schertz Code of Ordinances, Chapter 18, Buildings and Building Regulations, Article I, General Requirements; Article II, the Building Code; and Article III, the Residential Code as it relates to contractor requirements, foundations, soil testing, retaining walls, and other related regulations (REQUEST TO BE TABLED) BACKGROUND Goal The City Council has determined a need to revise current building codes with regard to foundation, soil testing and retaining wall requirements due to numerous resident comments concerning the failure of certain residential foundations within the City. The revisions proposed are intended to ensure the proper construction of structures built in the City. Community Benefit It is the City’s desire to protect the safety and welfare of the community through regulation of certain construction activities within the City. Summary of Recommended Action Development Services staff met with several focus groups to include Homebuilders; Concrete and Geo Tech professionals; Residents and HOA groups; and Developers and Engineers to gain their input on the proposed code changes. Each group provided beneficial feedback and offered recommendations based on industry standards and experience. The Planning and Zoning Commission conducted four public hearings to receive additional public comment and to provide the Commission the opportunity to ask questions and offer recommendations. Revisions and clarifications to the proposed ordinance resulted from the focus group and the Planning Commission meetings. City Council Memorandum Page 2 Changes proposed include: • Foundations shall be designed by a Professional Engineer in Texas and all plans and supporting documents shall be signed and sealed by the Engineer. • Documents shall indicate the strand and reinforcement placement, pier size, depth, location and reinforcing beam size and location and shall include design calculations. • The Design Engineer shall perform a pre pour inspection and provide confirmation of inspection and approval. • The Design Engineer shall verify concrete mix design and tensions of post tension cable designs. • Prior to issuance of a Certificate of Occupancy, the Design Engineer shall provide a letter indicating that a strength test was performed on the batch of concrete and that the results of the strength test were consistent with the foundation design. • A Letter of Final Acceptance that the foundation has been placed in compliance with the design shall be provided by the design Engineer prior to issuance of the C of O. • The Design Engineer must be registered with the City. • Soil reports shall be provided with specific information regarding the location that the soil was tested, the soil bearing capacity, plasticity index and potential vertical rise. • The owner(s) of the property shall provide a letter that no cut or fill was performed subsequent to the soil test being conducted. • The owner(s) of the property shall provide a sealed certification from an engineer licensed to practice in Texas that the concrete has adequately cured to allow for framing of the first floor only. Prior to placing any additional load on the slab, the owner shall provide the same type of certification that the concrete has adequately cured to allow for any additional load above the first floor, but in no event shall any additional load be placed on the foundation less than 3 days after it is poured. • If the foundation is a post-tension foundation, certification that it was designed and constructed according the Post-Tensioning Institute’s (PTI) Construction Designs shall be provided. • Post-Tension foundations must be inspected by a PTI Inspector prior to placing a load on the slab or commencement of framing. • Prior to issuance of a C of O, a final survey indicating the final grade elevations and verifying positive drainage away from the foundation must be submitted to the City. • Retaining walls in excess of four feet (4’) shall plan submittal and approval by the City Engineer along with an inspection report verifying the construction in accordance with the design plans. • Retaining walls in excess of four feet (4’) in height shall be provided with a maintenance and access easement in addition to the designated rear and side yard setbacks for the benefit of the adjacent property owner(s) and the city and to prevent any incursion into fill material. • Contractor’s license registration issued by the City may only be revoked by the City due to violations of Chapter 18, failure to obtain permits or failure to obtain property inspections. FISCAL IMPACT City Council Memorandum Page 3 None RECOMMENDATION The Planning and Zoning Commission reviewed the changes proposed at their regular meeting of March 27, 2013 and offered a recommendation of approval. Staff recommends that the public hearing be conducted and that the first reading of Ordinance 13-C-08 amending the Schertz Code of Ordinances, Chapter 18, Buildings and Building Regulations be tabled to the City Council meeting of April 16, 2013. This Ordinance shall become effective August 1, 2013 and will apply to all final subdivision plats approved on or after that date. Subdivisions that are under construction at this time will not be required to follow the adopted amendments. ATTACHMENT Ordinance No. 13-C-08. 1 ORDINANCE NO. 13-C-08 AN ORDINANCE BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS AMENDING THE CODE OF ORDINANCES OF THE CITY BY AMENDING CHAPTER 18, BUILDINGS AND BUILDING REGULATIONS, ARTICLE I, GENERAL REQUIREMENTS; ARTICLE II, THE BUILDING CODE; AND ARTICLE III, THE RESIDENTIAL CODE PROVIDING A PENALTY CLAUSE AND OTHER MATTERS IN CONNECTION THEREWITH WHEREAS, the City Council of the City of Schertz, Texas (the “City”) desires to protect the safety and welfare of the citizens of the City through regulation of construction activities in the City; WHEREAS, the Planning and Zoning Commission (“P&Z”) of the City voted to recommend approval of the provisions regulating construction activities set forth herein at the P&Z meeting on March 27, 2013; WHEREAS, the City Staff of the City has recommended that the City Council adopt the provisions set forth herein, which regulate construction activities in the City; and WHEREAS, the City Council has determined that the regulation of construction activities in the City, as set forth herein, is in the best interests of the City. NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS: SECTION I Chapter 18, Buildings and Building Regulations, Article II, Building Code of the Code of Ordinances, City of Schertz, Texas is hereby amended as follows: Sec. 18-39 - Amendments. The building code adopted by section 18-38 is hereby amended as set forth in the following paragraphs of the section: Section 1801.2 Design is hereby amended to add the following new paragraph to the end of Section 1801.2: “All foundations shall be designed by a registered Professional Engineer in the State of Texas and all drawings and documentation must be signed and sealed. Design Engineers must be registered with the City of Schertz. Documentation shall include: 2 1. Design letter referencing soils report numbers, date of report, and soils engineer name; specific location including lot, block and subdivision; specific design criteria including soil bearing capacity, plasticity index, and potential vertical rise. The engineer shall also approve a concrete mix design with performance criteria based on soils and seasonal conditions. 2. Signed and sealed drawings clearly indicating the strand and reinforcement placement, pier size, depth, location, and reinforcing, beam size and location, and any special details. Design calculations must be included. 3. Design engineer must perform a pre-pour inspection and provide the City of Schertz with a signed and sealed document stating that the foundation has been inspected and approved. This inspection must take place prior to requesting a foundation inspection from the City of Schertz. The design engineer shall be present during placement of concrete to verify concrete mix design and seasonal conditions during placement, and verify tensioning and elongation of cables if it is a post-tension foundation. 4. Letter from the engineer indicating that rough grading of the lot occurred immediately after form removal to maintain drainage away from foundation during the construction process. 5. The engineer must provide to the City of Schertz a Letter of Final Acceptance stating that the foundation has been placed in compliance with the design prior to issuance of a Certificate of Occupancy. 6. Prior to issuance of a Certificate of Occupancy, the engineer shall provide a letter indicating that a strength test was performed on the batch of concrete and the results of the concrete strength test were consistent with the acceptable range specified in the foundation design. Copies of relevant logs or test results from the concrete manufacturer shall also be provided. “After foundation construction, but prior to commencement of framing, the owner or applicant shall provide the building official of the City with a sealed certification from an engineer licensed to practice in the State of Texas and registered with the City of Schertz that the concrete has adequately cured to allow for framing of the first floor only to occur. Prior to placing any additional load on the slab the owner or applicant shall provide the building official of the City with a sealed certification from an engineer licensed to practice in the State of Texas that the concrete has adequately cured to allow an additional load to be placed on the slab, including framing above the first floor. In no event shall this be less than 3 days after the foundation was poured. If the foundation is a post-tension foundation that it was designed after the engineer’s consideration of (a) the Post-Tensioning Institute’s Construction and Maintenance Manual for Post-Tensioned Slab-on-Ground Foundations, 3d Edition; (b) the Post- Tensioning Institute’s Design of Post-Tensioned Slabs-on-Ground, 3d Edition with 2008 Supplement; and the soil test conducted for the lot.” “Post-Tension foundations must be inspected by a Post-Tensioning Institute (PTI) Level 1 or 2 Unbonded PT Inspector prior to placing a load on the slab or commencement of framing. Additionally, the PTI Level 1 or 2 Unbonded PT Inspector must provide 3 foundation design drawings, shipping lists, material certifications, jack certifications, stressing records, and concrete placement records (as described in the Post-Tensioning Institute’s Construction and Maintenance Manual for Post-Tensioned Slab-on-Ground Foundations, 3d Edition) to the City. Section 1802.2 Where required is hereby amended to add the following new paragraph to the end of Section 1802.2: “Notwithstanding the foregoing, prior to issuance of a building permit, the owner or applicant shall provide to the building official for the City a soil test (geotechnical investigation) for the lot signed, sealed, and made by a geotechnical engineer licensed to practice in the State of Texas. The soil test shall contain design recommendations. The soil test shall be conducted within the area where the building foundation is to be located and the owner shall provide a survey of the lot to the City indicating the location of the soil test. Such soil test report shall be referenced on the building permit application along with a signed and sealed statement from an engineer licensed to practice in the State of Texas that the foundation(s) on the lot was/were designed in consideration of the results shown in the soil test report for that lot. The owner(s) of the property shall provide a letter stating that no cut or fill was done subsequent to the soil test being conducted. The Exception to Section 1802.2 stating ‘The building official need not require a foundation or soils investigation where satisfactory data from adjacent areas is available that demonstrates an investigation is not necessary for any of the conditions in Sections 1802.2.1 through 1802.2.6’ is hereby deleted.” Section 1806.1 General is hereby amended to add the following new paragraphs to the end of Section 1806.1: “Construction of a retaining wall in excess of four (4) feet in height, as measured from the bottom of the footing of the wall to the top of the wall, constructed on public property or to be dedicated to the City as a public improvement, as a part of the overall subdivision civil plans and the Development Permit application process, shall require submission to, and approval by, the City Engineer of the City of detailed retaining wall design plans sealed by an engineer licensed to practice in the State of Texas, prior to commencing construction of such wall. Construction of such retaining wall shall also require submission to, and approval by, the City Engineer of the City of a sealed engineering inspection report verifying the construction of the retaining wall in conformance with the retaining wall design plans in order to close out the Development Permit. Construction of a retaining wall in excess of four (4) feet in height, as measured from the bottom of the footing of the wall to the top of the wall, constructed on private property and that will not be dedicated to the City as a public improvement, as a part of the building permit application process, shall require submission to, and approval by, the building official of the City of detailed retaining wall design plans sealed by an engineer licensed to practice in the State of Texas, prior to commencing construction of such wall. Construction of such retaining wall shall also require submission to, and approval by, the 4 building official of the City of a sealed engineering inspection report verifying the construction of the retaining wall in conformance with the retaining wall design plans in order to close out the building permit. On lots with a retaining wall in excess of four (4) feet in height, as measured from the bottom of the footing to the top of the wall, in addition to the designated rear and side yard setbacks, a maintenance and access easement for the benefit of the adjacent property owners and the City on either side of the retaining wall, as necessitated by the design of the retaining wall and in accordance with the signed and sealed engineering plans, shall be required for retaining wall maintenance and to prevent any incursion into fill material. The required area of the easement shall vary according to the retaining wall design and adjacent property access and shall, at a minimum, include all of the fill area. Any incursion into a retaining wall fill for maintenance and construction of utilities shall require the submission to, and approval by, the building official of the City of detailed design plans, sealed by an engineer licensed to practice in the State of Texas, prior to commencing construction on such incursion. All other incursions are prohibited.” SECTION II Chapter 18, Buildings and Building Regulations, Article III, Residential Code of the Code of Ordinances, City of Schertz, Texas is hereby amended and restated as follows: Sec. 18-68 - Amendments. The residential code adopted by section 18-67 is hereby amended as set forth in the following paragraphs of the section: Section R401.2 Requirements is hereby amended to add the following new paragraph to the end of Section 401.2: “All foundations shall be designed by a registered Professional Engineer in the State of Texas and all drawings and documentation must be signed and sealed. Design Engineers must be registered with the City of Schertz. Documentation shall include: 1. Design letter referencing soils report numbers, date of report, and soils engineer name; specific location including lot, block and subdivision; specific design criteria including soil bearing capacity, plasticity index, and potential vertical rise. The engineer shall also approve a concrete mix design with performance criteria based on soils and seasonal conditions. 2. Signed and sealed drawings clearly indicating the strand and reinforcement placement, pier size, depth, location, and reinforcing, beam size and location, and any special details. Design calculations must be included. 3. Design engineer must perform a pre-pour inspection and provide the City of Schertz with a signed and sealed document stating that the foundation has been inspected and approved. This inspection must take place prior to requesting a foundation inspection from the City of Schertz. The design 5 engineer shall be present during placement of concrete to verify concrete mix design and seasonal conditions during placement, and verify tensioning and elongation of cables if it is a post-tension foundation. 4. Letter from the engineer indicating that rough grading of the lot occurred immediately after form removal to maintain drainage away from foundation during the construction process. 5. The engineer must provide to the City of Schertz a Letter of Final Acceptance stating that the foundation has been placed in compliance with the design prior to issuance of a Certificate of Occupancy. 6. Prior to issuance of a Certificate of Occupancy, the engineer shall provide a letter indicating that a strength test was performed on the batch of concrete and the results of the concrete strength test were consistent with the acceptable range specified in the foundation design. Copies of relevant logs or test results from the concrete manufacturer shall also be provided. “After foundation construction, but prior to commencement of framing, the owner or applicant shall provide the building official of the City with a sealed certification from an engineer licensed to practice in the State of Texas and registered with the City of Schertz that the concrete has adequately cured to allow for framing of the first floor to occur. Prior to placing any additional load on the slab the owner or applicant shall provide the building official of the City with a sealed certification from an engineer licensed to practice in the State of Texas that the concrete has adequately cured to allow an additional load to be placed on the slab, including framing above the first floor. In no event shall this be less than 3 days after the foundation was poured. If the foundation is a post-tension foundation that it was designed after the engineer’s consideration of (a) the Post-Tensioning Institute’s Construction and Maintenance Manual for Post-Tensioned Slab-on-Ground Foundations, 3d Edition; (b) the Post- Tensioning Institute’s Design of Post-Tensioned Slabs-on-Ground, 3d Edition with 2008 Supplement; and the soil test conducted for the lot.” “Post-Tension foundations must be inspected by a Post-Tensioning Institute (PTI) Level 1 or 2 Unbonded PT Inspector prior to placing a load on the slab or commencement of framing. Additionally, the PTI Level 1 or 2 Unbonded PT Inspector must provide foundation design drawings, shipping lists, material certifications, jack certifications, stressing records, and concrete placement records (as described in the Post-Tensioning Institute’s Construction and Maintenance Manual for Post-Tensioned Slab-on-Ground Foundations, 3d Edition) to the City. Prior to receiving a Certificate of Occupancy, a final survey indicating final grade elevations and verifying positive drainage away from the foundation must be submitted to the City. Section R401.4 Soil Tests is hereby amended to add the following new paragraph to the end of Section 401.4: 6 “Notwithstanding the foregoing, prior to issuance of a building permit, the owner or applicant shall provide to the building official of the City a soil test (geotechnical investigation) for the residential lot made by a geotechnical engineer licensed to practice in the State of Texas. The soil test shall contain design recommendations. The soil test shall be conducted within the area where the building foundation is to be located and the owner shall provide a survey of the lot to the City indicating the location of the soil test. Such soil test report shall be referenced on the building permit application along with a signed and sealed statement from an engineer licensed to practice in the State of Texas that the foundation on the residential lot was designed in consideration of the results shown in the soil test report for that lot and that no cut or fill was done subsequent to the soil test being conducted.” Section R404.5 Retaining Walls is hereby amended to add the following new paragraphs to the end of Section 404.5: “Construction of a retaining wall in excess of four (4) feet in height, as measured from the bottom of the footing of the wall to the top of the wall, constructed on public property or to be dedicated to the City as a public improvement, as a part of the overall subdivision civil plans and the Development Permit application process, shall require submission to, and approval by, the City Engineer of the City of detailed retaining wall design plans sealed by an engineer licensed to practice in the State of Texas, prior to commencing construction of such wall. Construction of such retaining wall shall also require submission to, and approval by, the City Engineer of the City of a sealed engineering inspection report verifying the construction of the retaining wall in conformance with the retaining wall design plans in order to close out the Development Permit. Construction of a retaining wall in excess of four (4) feet in height, as measured from the bottom of the footing of the wall to the top of the wall, constructed on private property and that will not be dedicated to the City as a public improvement, as a part of the building permit application process, shall require submission to, and approval by, the building official of the City of detailed retaining wall design plans sealed by an engineer licensed to practice in the State of Texas, prior to commencing construction of such wall. Construction of such retaining wall shall also require submission to, and approval by, the building official of the City of a sealed engineering inspection report verifying the construction of the retaining wall in conformance with the retaining wall design plans in order to close out the building permit. On residential lots with a retaining wall in excess of four (4) feet in height, as measured from the bottom of the footing to the top of the wall, in addition to the designated rear and side yard setbacks, a maintenance and access easement for the benefit of the adjacent property owners and the City on either side of the retaining wall, as necessitated by the design of the retaining wall and in accordance with the signed and sealed engineering plans, shall be required for retaining wall maintenance and to prevent any incursion into fill material. The required area of the easement shall vary according to the retaining wall design and adjacent property access and structures and shall, at a minimum, include all of the fill area. All incursions are prohibited, including but not limited to the planting of 7 trees, except that a fence may be constructed but shall require the submission to, and approval by, the building official of the City of detailed design plans, sealed by an engineer licensed to practice in the State of Texas, prior to commencing construction on such incursion. Additionally motor vehicles shall not be parked within the easement.” SECTION III Chapter 18, Buildings and Building Regulations, Article I, In General of the Code of Ordinances, City of Schertz, Texas is hereby amended and restated as follows: (a) Building contractors responsibilities. It shall be the duty of every contractor who shall make contracts for the construction, erection, alteration, repair, moving, demolition, installation or replacements of any building, structure, swimming pool, or sign, whether permanent or temporary, obtain all the necessary permits. Such contractor shall be licensed by the city. (b) Insurance required. It shall be the duty of all contractors who practice their craft within the city to show proof of general commercial liability insurance for claims for property damage, or bodily injury regardless of whether the claim arises from a negligence claim or on a contract claim. Coverage amount of liability insurance shall not be less than $250,000.00. The insurance shall run for a concurrent term with the license. (c) Application. A written application for a contractor's license will be submitted to the building official on a form prescribed by the city along with the required initial fee and evidence of qualifications as follows: (1) Required initial fee; (2) Renewal fee; (3) Completed application; (4) Reference of one financial institution; (5) Reference of two suppliers; (6) Reference of three customers with work performed within the last two years. The building official, within 30 days from the receipt of the completed application, will issue the license or give a written refusal setting out the reasons for refusal. 8 (d) Renewal. All renewals shall be due January 1, of each year. Failure to renew within 30 days after the renewal date will require the applicant to reapply for licensing at the initial fee rate. (e) Revocation. Any license issued under this section may be revoked by the building official for violations of the chapter, failure to obtain permits, or failure to obtain proper inspections. (f) Appeal. An applicant, whose license has been denied or revoked, may appeal to the board of adjustments within 30 days, in writing along with an established filing fee. SECTION IV The recitals contained in the preamble hereof are hereby found to be true, and such recitals are hereby made a part of this Ordinance for all purposes and are adopted as a part of the judgment and findings of the Council. SECTION V All ordinances and codes, or parts thereof, which are in conflict or inconsistent with any provision of this Ordinance are hereby repealed to the extent of such conflict, and the provisions of this Ordinance shall be and remain controlling as to the matters resolved herein. SECTION VI This Ordinance shall be construed and enforced in accordance with the laws of the State of Texas and the United States of America. SECTION VII If any provision of this Ordinance or the application thereof to any person or circumstance shall be held to be invalid, the remainder of this Ordinance and the application of such provision to other persons and circumstances shall nevertheless be valid, and the City hereby declares that this Ordinance would have been enacted without such invalid provision. SECTION VIII It is officially found, determined, and declared that the meeting at which this Ordinance is adopted was open to the public and public notice of the time, place, and subject matter of the public business to be considered at such meeting, including this Ordinance, was given, all as required by Chapter 551, as amended, Texas Government Code. SECTION IX 9 This Ordinance shall become effective August 1, 2013 and will apply to all final subdivision plats approved on or after that date. Subdivisions that are under construction at this time will not be required to follow the adopted amendments. PASSED AND APPROVED on first reading this the ____ day of _____________, 2013. PASSED, APPROVED, AND ADOPTED on second reading this the 9th day of April, 2013.___ Mayor, Michael R. Carpenter, ATTEST: City Secretary, City of Schertz, Texas (SEAL OF CITY) 10 Proposed Addition to the City’s Unified Development Code: Development Permit. A development permit shall be issued by the City prior to initiation of construction of public improvements. Details and requirements for obtaining the development permit shall be contained in the City’s Public Works Manual. Agenda No. 10 CITY COUNCIL MEMORANDUM City Council Meeting: April 9, 2013 Department: Development Services Subject: Ordinance 13-M-12 - Consider and make recommendations on an amendment to the Schertz Code of Ordinances, Part III, Unified Development Code (UDC), Article 13 Land Disturbing Activities and Drainage. (REQUEST TO BE TABLED) BACKGROUND The City has rules and regulations in place to try and provide for the health, safety and welfare of the residents. In staff’s review of our current regulations we have found some areas where we believe improvements can be made to complement the quality of life Schertz has strived for. Also, as part of our Texas Pollutant Discharge Elimination System general permit, we have as part of our implementation plan a need to adopt additional ordinances to satisfy the requirements of our storm water discharge permit. A number of public hearings to gather input have been held at Planning and Zoning Commission meetings. Staff also met in a public meeting with Engineers, Developers, and citizens to gain their input on the proposed code changes to better understand if the proposed regulations and revisions to current code correct the issues of concern and fully understand the impact these changes will have on the development community. Goal The City Council has determined a need to revise the current storm water and drainage ordinance given the history of our community and the amount of property affected by floodplain, storm water runoff and flooding. With increased development in more rural areas these issues have once again caught the attention of City Council, Planning and Zoning, concerned residents and City staff. Community Benefit It is the City’s desire to protect the safety and welfare of the community through regulation of certain construction activities within the City. City Council Memorandum Page 2 Summary of Recommended Action Staff is recommending that changes be made to Article 13 of the UDC, Land Disturbing Activities and Drainage. Of particular significance are changes to clarify when a clearing and grading permit is required. Staff is also proposing the creation of the Illicit Discharge and Connection Storm Water Ordinance which is designed to regulate the discharge of pollutants into the storm water system. The Ordinance for the Control of Storm Water Run-off works with other regulations to regulate storm water run-off including detention requirements. The Construction Storm Water Management Ordinance stipulates what measures have to be in place to control for soil erosion during construction. The Flood Prevention Ordinance is designed to minimize losses due to flood conditions. Of particular note is the change to generally not allow improvements to increase the water surface elevation of the base flood except on the subject property. Current ordinances allow up to a 1 foot increase. Finally, for reference staff is including a draft of the Public Works Design Specifications Manual. Given the length of these documents staff wanted to provide them to City Council prior to seeking approval in order to allow Council more time to review them. FISCAL IMPACT None RECOMMENDATION The Planning and Zoning Commission reviewed the changes proposed at their regular meeting of March 27, 2013 and offered a recommendation of approval. Staff recommends that the public hearing be conducted and that the first reading of Ordinance 13-M-12 amending the Schertz Code of Ordinances, Part III, Unified Development Code, Article 13 Land Disturbing Activities and Drainage be tabled to the City Council meeting of April 16, 2013. ATTACHMENT Draft Changes to Article 13 Land Disturbing Activities and Drainage Draft Illicit Discharge and Connection Storm Water Ordinance Draft Ordinance for the Control of Storm Water Run-off Draft Construction Storm Water Management Ordinance Draft Flood Damage Prevention Ordinance Draft Public Works Design Specifications Manual Article 13 – Land Disturbing Activities and Drainage Schertz Unified Development Code 50307818.3 13-1 Article 13 Land Disturbing Activities and Drainage Sec. 21.13.1 Clearing and Grading A. No removal of trees, land clearing and/or grading activities shall occur without the required approvals and permits including but not limited to the Grading and Clearing Permit and Tree Permits. Grading and clearing activity shall be limited to the limits of grading area identified on an approved grading plan. A Grading and Clearing Permit is required for any land disturbing activities greater than 0.1 acres outside of the FEMA designated special flood hazard area (SFHA), and all areas within the SFHA unless specifically exempted in this Section. B. All Grading and Clearing permits shall be reviewed by the City Engineer and Public Works Department and approved by the City Engineer or his/her designee. Grading and Clearing Permits shall be reviewed in accordance with this Unified Development Code, the Public Works Specifications Manual, the City of Schertz Code of Ordinances, and any other applicable law, code, or regulation governing grading and clearing activity. C. The following shall be exempt from the requirement for Grading and Clearing Permit: 1. grading and clearing in emergency situations involving immediate danger to life and property or substantial fire hazards; 2. the removal of underbrush, dead trees or diseased or damaged trees which constitute a hazard to life and property based upon field inspection verification; and 3. grading and clearing practices associated with agricultural operations, excluding timber cutting, grading cuts or fills, and work within SFHA. Sec. 21.13.2 Drainage A. Applicability. The provisions of this section shall apply to any Capital Improvement Project, application for Subdivision Plat, Master Development Plan, Site Plan, Grading and Clearing Permit, or Building Permit approval except as otherwise provided by this chapter. A Storm Water Management Plan (SWMP) shall be provided as set forth in section 21.13.3. B. Storm Water Management Program 1. System Criteria a. All storm water management facilities, or combination of facilities, shall be designed for ultimate development. Facilities with drainage areas less than one hundred (100) acres none of which Article 13 – Land Disturbing Activities and Drainage Schertz Unified Development Code 50307818.3 13-2 lies within the SFHA shall be designed for a twenty-five-year storm. Facilities with drainage areas over one hundred (100) acres or any part of which is within a SFHA shall be designed for a 100- year storm or a twenty-five-year storm plus freeboard, as defined in the Public Works Specifications Manual, if that elevation is higher. b. Detention facilities and streets are exceptions to the frequency criteria cited above. Refer to the Public Works Specifications Manual for specific drainage design criteria for streets and detention facilities. c. Three (3) development conditions shall be analyzed for each development. i. Existing Conditions. This refers to current development conditions in the watershed and on-site. Use as the baseline analysis for determining the impact of development. ii. Proposed Conditions. This refers to existing conditions with the proposed development added. Use to determine if the increased runoff from the proposed development results in an adverse impact to other properties. iii. Ultimate Conditions. This refers to ultimate development conditions within the watershed used to design the drainage facilities. This condition may be used in-lieu of subsection (2) above, to determine if the increased runoff from the ultimate watershed development results in an adverse impact to other properties. d. Responsibility to Accept Storm Water The owner or developer of property to be developed shall be responsible for the conveyance of all storm water flowing through the property. This responsibility includes the storm water flowing onto the property by any other developed property as well as the drainage naturally flowing through the property by reason of topography. Future upstream development shall be accounted for by assuming ultimate development when sizing drainage systems as specified in this section. e. Positive Overflow Pathways Storm Water Management Facilities for local drainage systems will be designed to ensure that a positive overflow pathway is provided to the nearest one hundred (100) year conveyance facility. The overflow pathway must be delineated on a plan that Article 13 – Land Disturbing Activities and Drainage Schertz Unified Development Code 50307818.3 13-3 shows all existing structures in the vicinity impacted by the overflow pathway. f. Maintenance i. Maintenance of publicly owned facilities will be the responsibility of the City. Maintenance of private facilities is the responsibility of the property owner or the community association and must be specified in a maintenance schedule submitted to the City. A maintenance schedule for privately owned facilities must be approved by the Director of Public Works prior to the approval of construction drawings. ii. Authorized personnel from the City shall conduct periodic inspections of these facilities and structures. Any required repairs will be consistent with current construction standards. Maintenance issues identified by the City or State during inspections shall be the responsibility of the current owner. iii. If the current owner fails to address any maintenance issues identified by the City or State, then the City may perform required maintenance at the expense of the current owner. g. New Development Peak storm water runoff rates from all new development shall be less than or equal to the peak runoff rates from the site’s predevelopment conditions for the five-year, twenty-five-year and one-hundred-year (100-yr) design storm events, except as provided in subsection B.1, above. h. Redevelopment Peak storm water runoff rates from an area of redevelopment shall be less than or equal to the peak runoff rates produced by existing development conditions for the five-year, twenty-five-year and one hundred (100) year design storm events, except as provided in subsection B.1, above. C. Drainage Easements/Rights-of-Way 1. Where a subdivision is traversed by a watercourse, drainageway, natural channel or stream, there shall be provided an easement or right-of-way conforming substantially to the limit of such watercourse, plus additional width as outlined below. Article 13 – Land Disturbing Activities and Drainage Schertz Unified Development Code 50307818.3 13-4 2. Easements shall be the one hundred (100) year floodplain or the twenty- five-year plus freeboard (Public Works Specifications Manual) whichever is greater. In floodplain areas where ongoing maintenance is required or the floodplain will be reserved for use by the public, the drainage easements shall be maintained by a public entity and the property will be dedicated to the City as a multi-use drainage easement. A drivable access way shall be provided in floodplain easements for the length of the easement. Diversion of storm water away from the natural watercourse will not be allowed except within the boundaries of the property controlled by the developer, provided that the diverted water is returned to the watercourse within which it would naturally have been flowing prior to leaving the developer’s property. An analysis of the timing of the diverted hydrograph on watersheds greater than twenty (20) acres, as it reenters the receiving watercourse, must be performed to show that the peak flow rate in the receiving watercourse has not been increased as a result of the diversion. 3. An unobstructed access right-of-way connecting the drainage easement with an alley or roadway parallel to or near the easement shall be provided at a minimum spacing of one (1) access right-of-way at approximately one thousand-foot intervals. The access right-of-way shall be a minimum of fifteen (15) feet in width and shall be maintained clear of obstructions that would limit maintenance vehicular access. If the flow line of the designed channel incorporates grade control structures or vehicular bridges that would prevent maintenance equipment from accessing that portion of the channel, additional access points may be required. Channel design, earthen or concrete, shall have ramps in the side slopes near the access points that would allow maintenance equipment to descend to the floor level of the channel. The maximum allowable ramp slope for vehicular access is seven to one (7:1). Access points adjacent to roadways or alleys shall be provided with a post and cable feature with padlock to prevent unauthorized use. 4. For single family residential subdivisions, drainage easements crossing lots and property lines are prohibited. Drainage easements should be placed in separate common area lots. Fencing or other structures may be allowed across drainage easements only in accordance with the following restrictions: a. The fence or structure will not interfere with adequate drainage flow. b. Bottom of fence shall be a minimum of the flow depth, plus freeboard (see Public Works Specifications Manual) above design flow line of channel or drain. Fences located within drainage easements shall be equipped with a bar screen at the bottom to Article 13 – Land Disturbing Activities and Drainage Schertz Unified Development Code 50307818.3 13-5 allow for proper drainage flow to be approved by the Driector of Public Works or his/her designee. c. A hinged gate will be placed across the entire width of the drainage easement. d. Fence posts located within the easement must be structurally designed to resist damage from the storm water flows and impact from debris. e. A Floodplain Development Permit will be required to construct a fence within an easement within the 100-year floodplain. 5. Interceptor drainage easements and channels shall be provided where the drainage area to the back of platted lots exceeds the depth of one (1) platted residential lot or 120 feet whichever is greater. Interceptor drains shall be constructed prior to the issuing of building permits on any lot that would be affected by natural drainage being intercepted. 6. All developments shall provide for adequate drainage outfall at the lower end of the site into an existing street, alley, drainage, easements or right- of-way, or to the centerline of an existing natural drain. Where proposed street, storm sewer, or open channel does not discharge into a natural low or into an existing adequate drainage easement then facilities and drainage easements of adequate width to contain the design discharge shall be constructed and dedicated to the centerline of an existing natural low within the same watershed. However, where the natural low lies within the developer’s property, the developer will be required only to plat an easement to natural low and include the design storage area for the volume of runoff, provided that the easement is adequate to accommodate the facilities that will be built in conjunction with the future development of that property to build out of the watershed. D. Site Design and Grading 1. All land disturbing or land filling activities or soil storage shall be undertaken in a manner designed to minimize surface runoff, erosion and sedimentation, and to safeguard life, limb, property and the public welfare in accordance with the TPDES General Permit TXR150000, as amended, and the document entitled “Complying with the Edwards Aquifer Rules; Technical Guidance on Best Management Practices,” by Michael E. Barrett, Ph.D., P.E. Center for Research in Water Resources, Bureau of Engineering Research, University of Texas at Austin, (RG-348, July 2005), which documents are hereby incorporated by this reference. 2. Erosion and sedimentation controls in accordance with the specifications established by the Director of Public Works in compliance with the Texas Article 13 – Land Disturbing Activities and Drainage Schertz Unified Development Code 50307818.3 13-6 Pollutant Discharge Elimination System (TPDES) permitting requirements and the Public Works Specifications Manual are required. 3. Projects shall not be considered complete until restoration has been made in accordance with TPDES requirements. 4. Where possible, multiple uses of drainage facilities and open space shall be incorporated by the owner or developer of a new subdivision. Alternative uses such as public recreation, horse/bike/hiking trails, walking paths, nature preserves, wildlife habitat areas, etc. are encouraged subject to the approval of the Director of Public Works. 5. A note must be placed on the plat for residential lots, which states that finished floor elevations must be a minimum of eight (8) inches above final adjacent grade. A grading plan shall be prepared and submitted to the City, which indicates typical lot grading for all lots in the subdivision using typical FHA lot grading types (A, B and C). A more detailed grading plan is also acceptable. E. For projects or series of projects with an increased impervious area of greater than 0.1 acres, storm water detention shall mitigate peak flow rates to predevelopment or existing development conditions including the initial 0.1 acres increase as stated in sections 21.13.2.B. of this Article. 1. The maximum allowable outflow rate from the detention facility must be restricted to the flow rate from the undeveloped or existing development tract for the five-year, twenty-five-year and one-hundred-year frequency. Best Management Practices shall be used in the design of detention facilities in accordance with this section. The timing of the hydrograph released from the detention facility must be checked against the timing of the flow rate in the first open watercourse to prevent any increase in the peak flow rate in the receiving watercourse. For detention basins constructed in-line on an existing watercourse, the creation of the basin shall not increase flood elevations in the channel upstream of the new development boundaries. 2. On-site detention facilities must be privately owned and shall be maintained by the community association or property owner. A maintenance schedule shall be submitted to the Public Works Department and approved by the Director of Public Works prior to approval of construction plans. The City will have the right to do periodic inspections of privately owned and maintained detention facilities to ensure that the maintenance schedule is being implemented. 3. Multi-use facilities are encouraged, but not required (multi-use facilities allows for water quality, satisfy TPDES requirements, enhance ground water recharge, provide open space, provide recreation or other amenities, Article 13 – Land Disturbing Activities and Drainage Schertz Unified Development Code 50307818.3 13-7 and/or provide habitat) and may be utilized so long as the facility meets the standards set forth in subsection (B.1.a) of this section and does not increase the rate or volume of erosion above that which would result from the use of a facility without multiple uses. The use of multi-use detention facilities to alleviate existing flooding problems, enhance and provide amenities for older neighborhoods, and support the revitalization of economically depressed areas is encouraged in public and private redevelopment initiatives. 4. Storm water retention with permanent wet pool or pumped detention systems will not be acceptable methods of storm water mitigation unless the facility will remain privately owned, operated, and maintained. The City will approve the use of a pumped facility for private use under the following conditions: a. A gravity system is not feasible from an engineering and economic standpoint. b. At least two (2) pumps are provided each of which is sized to pump the design flow rate. c. The selected design outflow rate must not aggravate downstream flooding. d. Controls and pumps shall be designed to prevent unauthorized operation and vandalism. e. Adequate assurance is provided that the system will be operated and maintained on a continuous basis. 5. All storm water detention facilities considered to be dams as defined by Texas Commission on Environmental Quality (TCEQ) shall conform to any applicable law, regulation, and ordinance of any regulatory entity and the following criteria: a. All dams shall be approved by the Dam Safety Team of the Texas Commission on Environmental Quality (TCEQ) for safety. All other new dams shall be designed in accordance with acceptable design criteria as approved by the Director of Public Works, or his authorized representative. b. All hydrology and hydraulic properties of a dam will be reviewed by the Department of Public Works with regard to spillway design, freeboard hydraulics, backwater curves and downstream effects due to the dam site. c. The spillway section of any earthen dam with a height greater than six (6) feet shall be large enough to pass a PMP (probable Article 13 – Land Disturbing Activities and Drainage Schertz Unified Development Code 50307818.3 13-8 maximum precipitation) flood, as defined by the NRCS, without overtopping the crest of the dam in accordance with TCEQ regulations. d. A 100-year frequency flood shall be routed through the proposed dam and all land subject to flooding shall be dedicated as drainage easement or right-of-way. An unobstructed fifteen-foot access easement around the periphery of the flooded area shall be dedicated as drainage easement for facilities that require regular mowing or other ongoing maintenance, at the discretion of the Director of Public Works. An unobstructed fifteen-foot access right-of-way shall be established which connects the drainage easement adjacent to the dam structure to a road or alley. e. Development below existing dams will take into account the original design conditions of the existing dam. Dam breach analysis checks will be required, dependent upon location of development with respect to dam site. f. All spillway discharges shall be adequately routed to the centerline of the natural low below the dam site. The adequate routing of spillway discharges pertains to the hydraulic routing of the one hundred (100) year frequency flood for dedication of drainage easement limits. Probable maximum precipitation (PMP) defined PMP on definition section flood routing or breaches will only be considered for safety considerations (that is, the placement of building and the setting of minimum floor slab elevations below the dams). Any proposed concrete dam structure need not have spillway capable of routing a PMP flood, however, it shall be shown to be structurally capable of withstanding any range of flood conditions with regard to possible failure due to sliding, overturning, and structural integrity, up to and including the PMP flood. Sec. 21.13.3 Storm Water Management Plan Procedure To standardize the review process and minimize the time for approval by the City during review of any applications indicated in Section 21.13.2.A of this Article, a complete submittal regarding the analysis of existing drainage conditions and the design of modifications or new drainage facilities is necessary. The owner of the property to be developed is required by the Director of Public Works to provide, at the owner’s expense and as a condition of construction plan approval, a Storm Water Management Plan (SWMP) for the total development area to be ultimately constructed. The SWMP shall contain all of the necessary support data, Article 13 – Land Disturbing Activities and Drainage Schertz Unified Development Code 50307818.3 13-9 methodologies used in calculations, and conclusions as required by the Public Works Specifications Manual (Section 4.3). A checklist is found in the Public Works Specifications Manual (Section 6) that will be used by the City reviewer as a guide during the evaluation of all SWMPs submitted to the City. The purpose of the checklist is to expedite the review process for both the engineer and the City, and to aid the engineer in the preparation of reports for the City’s review. The SWMP shall be submitted to the Director of Public Works or his/her designee prior to approval of any construction plans. Sec. 21.13.4 Waivers and Amendments A. General The City Manager or his/her designee may authorize waivers from the provisions of this Article when, in his/her opinion, undue hardship will result from requiring strict compliance. In granting a waiver, the City Manager shall prescribe only conditions that he/she deems necessary or desirable to the public interest. In making his/her findings, the City Manager shall take into account the nature of the proposed use of the land involved and existing uses of land in the vicinity, the number of persons who will reside or work in the proposed subdivision, and the probable effect of such waivers upon the public health, safety, convenience, and welfare in the vicinity. Waivers shall not be granted unless the City Manager finds: 1. That the granting of the waiver will not be detrimental to the public health, safety, or welfare, or injurious to other property in the area, and will not violate any applicable law or ordinance of any regulatory entity; and 2. Waivers may be granted only when in harmony with the general purpose and intent of this UDC so that the public health, safety, and welfare may be secured and justice done. Such findings of the City Manager, together with the specified facts upon which such findings are based, shall be incorporated into the official records of any related permit for which such waiver is granted. B. The City Manager may establish a time period for execution of each granted waiver. C. Any decision of the City Manager or his/her designee regarding waivers to the provisions of this Article may be appealed to the City Council. When considering an appeal, the City Council shall consider the same standards as the City Manager as outlined above. D. The City Manager or his/her designee is hereby granted authority to amend, supplement, change, modify, or repeal the text of any portion of the Public Works Specifications Manual in order to establish and maintain appropriate standards for Article 13 – Land Disturbing Activities and Drainage Schertz Unified Development Code 50307818.3 13-10 development and use of property within the City’s corporate limits and extraterritorial jurisdiction in accordance with Section 21.1.4. End of Article 13 Article 13 – Land Disturbing Activities and Drainage Schertz Unified Development Code 50307818.3 13-11 [This page intentionally left blank.] 1 Illicit Discharge and Connection Storm Water Ordinance Section 1: Purpose and Intent This purpose and intent of the Illicit Discharge and Connection Storm Water Ordinance (“this Ordinance”) is to provide for the health, safety, and general welfare of the citizens of the City of Schertz (“the City”) through the regulation of non-storm water discharges to the storm drainage system as required by the Texas Pollutant Discharge Elimination System (TPDES) permit and state law. The objectives are to regulate the contribution of pollutants to the storm drainage system by storm water discharges of any user, to prohibit illicit discharges and connections to the storm drainage system, to establish legal authority to carry out all inspection, surveillance, and monitoring procedures necessary to ensure compliance with this Ordinance, and to establish penalties for violations of this Ordinance. The provisions of this Ordinance shall be interpreted and applied as the minimum requirements for the promotion of public health, safety and general welfare. Section 2: Applicability This Ordinance shall apply to all discharges entering the storm drainage system generated on any developed and undeveloped lands within the corporate limits of the City or in the extraterritorial jurisdiction unless explicitly exempted by Public Works or an authorized state or federal enforcement agency. Section 3: Responsibility for Administration Public Works shall administer, implement, and enforce the provisions of this Ordinance. Any powers granted or duties imposed upon the authorized enforcement agency may be delegated in writing by the Director of Public Works or his/her designee to persons or entities acting in the beneficial interest in the employ of the City. Whenever the requirements of this Ordinance are in conflict with the requirements of any other lawfully adopted rules, regulations, or ordinances, the requirement that is most restrictive or that imposes the higher standards, as determined by the Director of Public Works or his/her designee shall apply. Section 4: Severability All sections, paragraphs, sentences, clauses, and phrases of this Ordinance are severable, and if any section, paragraph, sentence, clause, or phrase is declared unconstitutional or otherwise invalid in any court of competent jurisdiction in a valid judgment or decree, such unconstitutionality or invalidity shall not cause any remaining section, paragraph, sentence, clause, or phrase of this Ordinance to fail or become invalid. Section 5: Ultimate Responsibility The issuance of any permit, certificate or approval in accordance with the standards and requirements of this Ordinance shall not relieve the recipient of such permit, certificate or approval from the responsibility of complying with all other applicable requirements of any other municipality, county, special district, state or federal agency having jurisdiction over the storm drainage system for which 2 the permit, certificate or approval was issued. This Ordinance does not intend or imply that compliance by any person will ensure that there will not be contamination, pollution, or unauthorized discharge of pollutants. Section 6: Prohibitions A. Prohibition of Illegal Discharges No person shall discharge or cause to be discharged into the storm drain system or watercourse any materials, including but not limited to pollutants or waters containing any pollutants that cause or contribute to a violation of applicable water quality standards, other than storm water. The commencement, conduct, or continuance of any illegal discharge to the storm drainage system is prohibited except as described as follows: 1. The following are exempt discharges not prohibited by the establishment of this Ordinance: uncontaminated water line flushing or other potable water sources, landscape irrigation or lawn watering, diverted stream flows, rising ground water, ground water infiltration to storm drains, uncontaminated pumped ground water, foundation or footing drains (not including active ground water dewatering systems), crawl space pumps, air conditioning condensation, springs, individual, noncommercial washing of vehicles, natural riparian habitat or wetland flows, fire hydrant flushing, firefighting activities, and any other water source not containing pollutants of concern or other materials as described in this Ordinance. 2. Discharges from swimming pools are generally not allowed unless: de-chlorinated to less than 1 ppm chlorine or discharged through the yard of the property on which it is located, and does not cross adjacent property, to aid in dissipating the chlorine and notification to the Public Works Department at least one business day in advance of discharge. 3. Discharges specified in writing by the Director of Public Works or his/her designee as being necessary to protect public health and safety. 4. Dye testing is an allowable discharge, but requires written approval from the Director of Public Works or his/her designee and all other applicable enforcement agencies prior to the time of the test. 5. The prohibition shall not apply to any non-storm water discharge permitted under an TPDES permit, waiver, or waste discharge order issued to the discharger and administered under the authority of the Federal Environmental Protection Agency, provided that the discharger is in full compliance with all requirements of the permit, waiver or order and other applicable laws and regulations, and provided that written approval has been granted by the Director of Public Works or his/her designee for any discharge to the storm drain system. B. Prohibition of Illicit Connections 3 1. The construction, use, maintenance or continued existence of illicit connections to the storm drainage system is prohibited. 2. This prohibition expressly includes, without limitation, illicit connections made in the past, regardless of whether the connection was permissible under law or practices applicable or prevailing at the time of connection. 3. A person is considered to be in violation of this Ordinance if the person connects a line conveying sewage to the storm drainage system or allows such a connection to continue. Section 7: Suspension of Storm Drainage System Access A. Suspension Due to Illicit Discharges In Emergency Situations The Director of Public Works or his/her designee may, without prior notice, suspend storm drainage system discharge access to a person or entity when such suspension is necessary to stop an actual or threatened discharge which presents or may present imminent and substantial danger to the environment, or to the health or welfare of persons, or to the storm drainage system or waters of the United States. If the violator fails to comply with a suspension order issued in an emergency, the City may take such steps as deemed necessary to prevent or minimize damage to the storm drainage system, water of the United States, or to minimize danger to persons. B. Termination Due to the Detection of Illicit Drainage Any person discharging to the storm drainage system in violation of this Ordinance may have their access terminated if such termination would abate or reduce an illicit discharge. The City will notify a violator of the proposed termination of its storm drainage system access. The notifications will be in accordance with Section 13 of this Ordinance as specified below. Section 8: Industrial or Construction Activity Discharges Any person or persons subject to an industrial or construction activity TPDES storm water discharge permit shall comply will all provisions of such permit. Proof of compliance with said permit will be required in a form acceptable to the City prior to the allowing of discharges to the storm drainage system. Section 9: Monitoring of Discharges A. Public Works representatives’ shall be allowed to enter and inspect permitted facilities subject to regulation under this Ordinance as often as may be necessary to determine compliance. If a discharger has security measures in force, which require proper identification and clearance before entry into its premises, the discharger shall make the necessary arrangements to allow access to representatives of Public Works. B. Facility operators shall allow Public Works representatives’ ready access to all parts of the premises for the purpose of inspection, sampling, examination and copying of 4 records that must be kept under the conditions of an TPDES permit to discharge storm water, and the performance of any additional duties as defined by state and federal law. C. Public Works’ representatives shall have the right to set up on any permitted facility such devices as are necessary in the opinion of the authorized enforcement agency to conduct monitoring and/or sampling of the facility’s storm water discharge. D. Public Works has the right to require the discharger to install monitoring equipment as necessary. The facility’s sampling and monitoring equipment shall be maintained at all times in a safe and proper operating condition by the discharger at its own expense. All devices used to measure storm water flow and quality shall be calibrated to ensure their accuracy. E. Any temporary or permanent obstruction to safe and easy access to the facility to be inspected and/or sampled shall be promptly removed by the operator at the written or oral request of the Director of Public Works or his/her designee and shall not be replaced. The costs of clearing such access shall be borne by the operator. F. Unreasonable delays in allowing Public Works’ representatives access to a permitted facility is a violation of a storm water discharge permit and of this Ordinance. A person who is the operator of a facility with a TPDES permit to discharge storm water associated with industrial activity commits an offense if the person denies Public Works’ representatives reasonable access to the permitted facility for the purpose of conducting any activity authorized or required by this Ordinance. G. If Public Work’s representatives have been refused access to any part of the premises from which storm water is discharged, and he/she is able to demonstrate probable cause to believe that there may be a violation of this Ordinance, or that there is a need to inspect and/or sample as part of a routine inspection and sampling program designed to verify compliance with this Ordinance or any order issued hereunder, or to protect the overall public health, safety, and welfare of the community, then the Public Works representative may seek issuance of a search warrant from any court of competent jurisdiction. Section 10: Requirement to Prevent, Control, and Reduce Storm Water Pollutants by the Use of Best Management Practices The City will adopt requirements identifying Best Management Practices (BMPs) for any activity, operation, or facility, which may cause or continue to contribute to pollution or contamination of storm water, the storm drain system, or waters of the U.S. The owner or operator of a commercial or industrial establishment shall provide, at their own expense, reasonable protection from accidental discharge of prohibited materials or other wastes into the storm drainage system or watercourses through the use of these structural and non-structural BMPs. Further, any person responsible for a property or premises, which is, or may be, the source of an illicit discharge may be required to implement, at said person’s expense, additional structural and non-structural BMPs to prevent the further discharge of pollutants to the storm drainage system. Compliance with all terms and conditions of a valid TPDES permit authorizing the discharge of storm water associated with industrial activity, to the extent practicable, shall be deemed compliant wit the provisions of this section. These BMPs shall 5 be part of a Storm Water Pollution Prevention Plan (SWPPP) as necessary for compliance with requirements of the TPDES permit. Section 11: Watercourse Protection Every person owning a property through which a watercourse passes, shall keep and maintain that part of the watercourse within said person’s property free of trash, debris, excessive vegetation, and other obstacles that would pollute, contaminate, or retard the flow of water through the watercourse. In addition, the owner shall maintain existing privately owned structures within or adjacent to a watercourse, so that such structures will not become a hazard to the use, function or physical integrity of the watercourse. Section 12: Notification of Spills Notwithstanding other requirements of law, as soon as any person responsible for a facility or operation, or responsible for emergency response for a facility or operation, has information of any known or suspected release of materials which are resulting or may result in illegal discharges or pollutants discharging into storm water, the storm drain system or waters of the U.S., said person shall take all necessary steps to ensure the discovery, containment, and cleanup of such release. In the event of such as release of hazardous materials said person shall immediately notify emergency response agencies of the occurrence via emergency dispatch services. In the event of a release of nonhazardous materials, said person shall notify Public Works in person or by phone or facsimile no later than the next business day. Notifications in person or by phone shall be confirmed by written notice addressed and mailed to the Director of Public Works within three business days of the phone notice. If the discharge of prohibited materials emanates from a commercial or industrial establishment, the owner or operator of such establishment shall also retain an on site written record of the discharge and the actions taken to prevent its recurrence. Such records shall be retained for at least three years from the date of the discharge. Section 13: Violation, Enforcement, Penalties and Appeals A. Notice of Violation Whenever the Public Works representative finds that a person has violated a prohibition or failed to meet a requirement of this Ordinance, the authorized enforcement agency may order compliance by written notice of violation to the responsible person. If abatement of a violation and/or restoration of affected property are required, the notice shall set forth a deadline within which such remediation or restoration must be completed. Said notice shall further advise that, should the violator fail to remediate or restore within the established deadline, the work will be done by a designated governmental agency or a contractor and the expense thereof shall be charged to the violator. B. Appeal of Notice of Violation Any person receiving a Notice of Violation may appeal the determination of the authorized enforcement agency. The notice of appeal must be received within five (5) business days from the date of the Notice of Violation. Hearing on the appeal before the appropriate authority or his/her designee shall take place within thirty (30) days from the date of receipt of the notice of appeal. The decision of the municipal authority or their designee shall be final. 6 C. Enforcement Measures After Appeal If the violation has not been corrected pursuant to the requirements set forth in the Notice of Violation, or in the event of an appeal, within thirty (30) days of the decision of the representative upholding the decision of Public Works, then representatives of the City may enter the subject’s private property and are authorized to take any and all measures necessary to abate the violation and/or restore the property. It shall be unlawful for any person, owner, agent or person in possession of any premises to refuse to allow the Public Works representative or designated contractor to enter upon the premises for the purposes set forth above. D. Cost of Abatement of the Violation Any person violating any of the provisions of this article shall become liable to the City by reason of such violation beginning on the 1st day following discovery of the violation. Within thirty (30) days after abatement of the violation, the owner of the property will be notified of the cost of abatement, including administrative costs. The property owner may file a written protest in the City Secretary’s Office objecting to the amount of the assessment within five (5) business days. The written protest shall be addressed by the City Council within 30 days. If the amount due is not paid in full within 60 days from the notification of the cost of abatement the charges may become a special assessment against the property and shall constitute a lien on the property for the amount of the assessment. E. Injunctive Relief It shall be unlawful for any person to violate any provision or fail to comply with any of the requirements of this Ordinance. If a person has violated or continues to violate the provisions of this Ordinance, the City may petition for a preliminary or permanent injunction restraining the person from activities which would create further violations or compelling the person to perform abatement or remediation of the violation. F. Violations Deemed a Public Nuisance In addition to the enforcement processes and penalties provided, any condition caused or permitted to exist in violation of any of the provisions of this Ordinance is a threat to public health, safety and welfare, and is declared and deemed a nuisance, and may be summarily abated or restored at the violator’s expense, and/or a civil action to abate, enjoin, or otherwise compel the cessation of such nuisance may be taken. G. Criminal Protection Any person that has violated or continues to violate this Ordinance may be liable to criminal prosecution to the fullest extent of the law. A conviction for violation of this Ordinance shall constitute a class “C” misdemeanor. A person convicted of a violation of this Ordinance shall be fined a minimum amount of not less than two hundred dollars ($200.00) per violation and a maximum amount of not more than two thousand dollars ($2,000.00) per violation. Each violation of a particular section of this Ordinance shall constitute a separate offense, and each day an offense continues shall be considered a new violation for purposes of enforcing this 7 Ordinance. A culpable mental state is not required to prove an offense under this Ordinance. The City may recover all attorneys’ fees, court costs, and other expenses associated with enforcement of this Ordinance, including sampling and monitoring expenses. The City Manager or his/her designee is hereby authorized to serve notices of violations of this Ordinance and to take all necessary actions to petition for injunctive relief. I. Civil Penalty A civil penalty in an amount not to exceed two thousand dollars ($2,000.00) per violation of this Ordinance may be imposed. Each violation of a particular section of this Ordinance shall constitute a separate offense, and each day such an offense continues shall be considered a new violation for purposes of enforcing this Ordinance. Section 14: Remedies Not Exclusive The remedies listed in this Ordinance are not exclusive of any other remedies available under any applicable federal, state or local law and it is within the discretion of the City to seek cumulative remedies. 1 Ordinance for the Control of Storm Water Run-off Section 1: Purpose and Intent The purpose of the Ordinance for the Control of Storm Water Run-off (“this Ordinance”) is to establish minimum storm water management requirements and controls to protect and safeguard the general health, safety, and welfare of the public residing in watersheds within this jurisdiction. This Ordinance seeks to meet that purpose through the following objectives: A. Minimize storm water run-off from any property in order to reduce flooding, siltation, increases in stream temperature, stream bank erosion and maintain the integrity of stream channels. B. Minimize nonpoint source pollution caused by storm water run-off from property which would otherwise degrade local water quality. C. Minimize the total annual volume of surface water run-off which flows from any specific site during and following development to not exceed the pre-development hydrologic regime to the maximum extent practicable. D. Reduce storm water run-off rates and volumes, soil erosion and nonpoint source pollution, through storm water management controls and to ensure that these management controls are properly maintained and pose no threat to public safety. Section 2: Applicability This Ordinance shall be applicable to all territory within the corporate limits and extraterritorial jurisdiction of the City including any developed and undeveloped land unless explicitly exempted by Section 4 of this Ordinance or an authorized state or federal enforcement agency. This Ordinance also applies to land development activities that are smaller than the minimum applicability criteria if such activities are part of a larger common plan of development that meets the following applicability criteria, even though multiple separate and distinct land development activities may take place at different times on different schedules. In addition, all plans may also be reviewed by local environmental protection officials to ensure that established water quality standards will be maintained during and after development of the site and that post construction run-off levels are consistent with any local and regional watershed plans. To prevent the adverse impacts of storm water run-off, the City has developed a set of performance standards that must be met by new developments. These standards apply to any construction activity disturbing one (1) acre or more of land. The following activities may be exempt from these storm water performance criteria: 2 A. Any emergency activity that is immediately necessary for the protection of life, property, or natural resources. Public Works must be notified within 24 hours of such activities. B. The removal of underbrush, dead trees, and diseased or damaged trees which constitute a hazard to life and property based upon field inspection verification. C. Grading and clearing practices associated with agricultural operations, excluding timber cutting, grading cuts or fills, and work within designated special flood hazard area. Section 3: Responsibility for Administration Public Works shall administer, implement, and enforce the provisions of this Ordinance. Any powers granted or duties imposed upon the authorized enforcement agency may be delegated in writing by the Director of Public Works or his/her designee to persons or entities acting in the beneficial interest of the City. Whenever the requirements of this Ordinance are in conflict with the requirements of any other adopted rules, regulations, or ordinances, the requirement that is most restrictive or that imposes the higher standards, as determined by the Director of Public Works or his/her designee, shall apply. Section 4: Severability All sections, paragraphs, sentences, clauses, and phrases of this Ordinance are severable, and if any section, paragraph, sentence, clause, or phrase is declared unconstitutional or otherwise invalid in any court of competent jurisdiction in a valid judgment or decree, such unconstitutionality or invalidity shall not cause any remaining section, paragraph, sentence, clause, or phrase of this Ordinance to fail or become invalid. Section 5: Ultimate Responsibility The issuance of any permit, certificate, or approval in accordance with the standards and requirements of this Ordinance shall not relieve the recipient of such permit, certificate, or approval from the responsibility of complying with all other applicable requirements of any other municipality, county, special district, state or federal agency having jurisdiction over the storm drainage system for which the permit, certificate or approval was issued. This Ordinance does not intend or imply that compliance by any person will ensure that there will not be contamination, pollution, or unauthorized discharge of pollutants. Section 6: Development of a Storm Water Design Manual 3 The City may furnish additional policy, criteria, and information including specifications and standards, for the proper implementation of the requirements of this Ordinance and may provide such information in the form of a Storm Water Design Manual as part of the Public Works Specifications Manual. This manual will include a list of acceptable storm water treatment practices, including the specific design criteria and operation and maintenance requirements for each storm water practice. The manual may be updated and expanded at the discretion of the local review authority, based on improvements in engineering, science, monitoring, and local maintenance experience. Storm water treatment practices that are designed and constructed in accordance with these design and sizing criteria will be presumed to meet the minimum water quality performance standards of the City. Section 7: Permit Required. No land owner or land operator shall receive a Grading and Clearing Permit, Development Permit or Construction Permit, required for land disturbance activities, without first meeting the requirements of this Ordinance prior to commencing the proposed activity. Section 8: Application Requirements Unless specifically excluded by this Ordinance, any land owner or operator desiring a permit for a land disturbance activity shall submit to the City a permit application on a form provided for that purpose. Unless otherwise excluded by this Ordinance, a permit application must be accompanied by the following: A. A storm water management concept plan. B. A maintenance agreement. C. A non-refundable permit review fee. The storm water management plan and maintenance agreement shall be prepared to meet at minimum the requirements of this Ordinance, the Public Works Specifications Manual, the Unified Development Code, and any other applicable law, code, or ordinance. The fees shall be established by the City in the current fee schedule at the time of application submittal, or as required in this Ordinance. The City may, at its discretion, require the submittal of a performance bond/escrow in the amount of $1,000/acre prior to the issuance of a permit in order insure that the storm water management practices as required by the plans approved for the permit are installed and maintained by the permit holder for the duration of the construction activity. The performance 4 bond or escrow will not be released until all land disturbed by construction activity has 85% coverage of approved vegetation as determined by the Director of Public Works or his/her designee. Section 9: Application Review Fees The fee for review of any land development application shall be based on the amount of land to be disturbed at the site, and the fee structure shall be established by the City. All of the monetary contributions shall be credited to a local budgetary category to support local plan review, inspection, and program administration. Payment shall be made prior to the issuance of any permit for the development. Section 10: Application Procedure A. Applications for land disturbance activity permits must be filed with the Inspections Department on any regular business day. B. A copy of this permit application shall be forwarded to the appropriate department(s) for review. C. Permit applications shall include the following; two copies of the storm water management concept plan, two copies of the maintenance agreement, one copy of the storm water management concept plan, and the maintenance agreement in PDF on a CD/DVD, and any required review fees. D. Within 30 days of the receipt of a complete permit application, including all documents as required by this Ordinance, the City shall inform the applicant whether the application, plan, and maintenance agreement are approved or disapproved. E. If the permit application, storm water management plan, or maintenance agreement are disapproved, the applicant may revise the storm water management plan or agreement. If additional information is submitted, the City shall have 30 days from the date the additional information is received to inform the applicant that the plan and maintenance agreement are either approved or disapproved. Section 11: Permit Duration Permits issued under this section shall be valid from the date of issuance through the date of completion as specified on each individual permit. It is the responsibility of the applicant to ensure that all storm water management practices have passed the final inspection required under 5 the permit’s conditions, or an extension has been approved if applicable by the date of completion of the permit. Section 12: Waivers for Providing Storm Water Management Every applicant shall provide for storm water management as required by this Ordinance, unless a written request is filed to waive this requirement. Requests to waive the storm water management plan requirements shall be submitted to the City for approval. The minimum requirements for storm water management may be waived in whole or in part upon written request of the applicant, provided that at least one of the following conditions applies: A. It can be demonstrated that the proposed development is not likely to impair attainment of the objectives of this Ordinance. B. Alternative minimum requirements for on-site management of storm water discharges have been established in a storm water management plan that has been approved by the City and the implementation of the plan is required by local ordinance. C. Provisions are made to manage storm water by an off-site facility. The off-site facility is required to be in place and be designed and adequately sized to provide a level of storm water control that is equal to or greater than that which would be afforded by on-site practices and there is a legally obligated entity responsible for long-term operation and maintenance of the storm water practice. D. The City determines that meeting the minimum on-site management requirements is not feasible due to the natural or existing physical characteristics of a site. E. Non-structural practices will be used on the site that reduces: 1.) the generation of storm water from the site, 2.) the size and cost of storm water storage and 3.) the pollutants generated at the site. These non-structural practices are explained in detail in the current design manual and the amount of credit available for using such practices shall be determined by the City. In instances where one of the conditions above applies, the City may grant a waiver from strict compliance with these storm water management provisions, as long as acceptable mitigation measures are provided. However, to be eligible for a variance, the applicant must demonstrate to the satisfaction of the City that the variance will not result in the following impacts to downstream waterways: 6 A. Deterioration of existing culverts, bridges, dams, and other structures. B. Degradation of biological functions or habitat. C. Accelerated stream bank or stream bed erosion or siltation. D. Increased threat of flood damage to public health, life, safety, and/or property. Furthermore, where compliance with minimum requirements for storm water management is waived, the applicant will satisfy the minimum requirements by meeting one of the mitigation measures selected by the jurisdictional storm water authority. Mitigation measures may include, but are not limited to, the following: A. The purchase and donation of privately owned lands, or the grant of an easement to be dedicated for preservation and/or reforestation. These lands should be located adjacent to the stream corridor in order to provide permanent buffer areas to protect water quality and aquatic habitat. B. The creation of a storm water management facility or other drainage improvements on previously developed properties, public or private, that currently lack storm water management facilities designed and constructed in accordance with the purposes and standards of this Ordinance. C. Monetary contributions (fee-in-lieu) to fund storm water management activities such as research and studies (e.g., regional wetland delineation studies, stream monitoring studies for water quality and macro-invertebrates, stream flow monitoring, threatened and endangered species studies, hydrologic studies, and monitoring of storm water management practices). The City Manager or his/her designee may authorize waivers from the provisions of this Ordinance when, in his/her opinion, undue hardship will result from requiring strict compliance. In granting a waiver, the City Manager shall prescribe only conditions that he/she deems necessary or desirable to the public interest. In making his/her findings, the City Manager shall take into account the nature of the proposed use of the land involved and existing uses of land in the vicinity, the number of persons who will reside or work in the proposed subdivision, and the probable effect of such waivers upon traffic conditions and upon the public health, safety, convenience, and welfare in the vicinity. Waivers shall not be granted unless the City Manager finds: A. That the granting of the waiver will not be detrimental to the public health, safety, or welfare, or injurious to other property in the area, and will not violate any applicable law or ordinance of any regulatory entity. 7 B. That the granting of the waiver will be in harmony with the general purpose and intent of the UDC and any other applicable code or ordinance so that the public health, safety, and welfare may be secured and justice done. Such findings of the City Manager, together with the specified facts upon which such findings are based, shall be incorporated into the official records of any related permit for which such waiver is granted. The City Manager may establish a time period for execution of each granted waiver. Any decision of the City Manager or his/her designee regarding waivers to the provisions of this Ordinance may be appealed to the City Council. When considering an appeal, the City Council shall consider the same standards as the City Manager, as outlined above. Section 13: Fee in Lieu of Storm Water Management Practices. Where the City waives all or part of the minimum storm water management requirements, or where the waiver is based on the provision of adequate storm water facilities provided downstream of the proposed development, the applicant shall be required to pay a fee in an amount as determined by the City. When an applicant obtains a waiver of the required storm water management, the monetary contribution required shall not exceed the proportionate cost of his/her contribution to the system discharged into (unless the applicant and storm water authority reach an agreement on a greater alternate contribution). All of the monetary contributions shall be credited to an appropriate capital improvements program project, and shall be made by the developer prior to the issuance of any permit for development. Section 14: Dedication of land In lieu of a monetary contribution, an applicant may obtain a waiver of the required storm water management by entering into an agreement with the City for the granting of an easement or the dedication of land by the applicant, to be used for the construction of an off-site storm water management facility. The agreement shall be entered into by the applicant and the City prior to the recording of plats or, if no record plat is required, prior to the issuance of the building permit. Section 15: General Performance Criteria for Storm Water Management Unless judged by the City to be exempt or by waiver, the following performance criteria shall be addressed for storm water management at all sites: A. All site designs shall establish storm water management practices to control the peak flow rates of storm water discharge associated with specified design storms and reduce the generation of storm water. These practices should seek to utilize pervious areas for storm water treatment and to infiltrate storm water run-off from driveways, sidewalks, rooftops, parking lots, and landscaped areas to the 8 maximum extent practical to provide treatment for both water quality and quantity. B. All storm water run-off generated from new development shall not discharge untreated storm water directly into a jurisdictional wetland or local water body without adequate treatment. Where such discharges are proposed, the impact of the proposal on wetland functional values shall be assessed using a method acceptable to the City. In no case shall the impact on functional values be any less than allowed by the United States Army Corp of Engineers (USACE) or the Texas Commission of Environmental Quality (TCEQ) responsible for natural resources. C. Annual groundwater recharge rates shall be maintained by promoting infiltration through the use of structural and non-structural methods. D. For new development, structural storm water treatment practices (STP) shall be designed to remove the average annual post development total suspended solids load (TSS). It is presumed that a STP complies with this performance standard if it is: 1. Sized to capture the prescribed water quality volume (WQv). 2. Designed according to the specific performance criteria outlined in the local storm water design manual. 3. Constructed properly and maintained regurlarly. E. To protect stream channels from degradation, specific channel protection criteria shall be provided as prescribed in the current storm water manual. F. Storm water discharges to critical areas with sensitive resources (i.e. Edwards Aquifer regulated zones and other water supply reservoirs) will be required to meet the requirements of the Edwards Aquifer Protection Program. G. Certain industrial sites are required to prepare and implement a storm water pollution prevention plan, and shall file a notice of intent (NOI) under the provisions of the Texas Pollutant Discharge Elimination System (TPDES) general permit. The storm water pollution prevention plan requirement applies to both existing and new industrial sites. H. Storm water discharges from land uses or activities with higher potential pollutant loadings, known as “hotspots”, may require the use of specific structural storm water treatment practice (STPs) and pollution prevention practices. 9 I. Prior to design, applicants are required to consult with the City to determine if they are subject to additional storm water design requirements. J. The calculations for determining peak flows as found in the Public Works Specification Manual shall be used for sizing all storm water management practices. Section 16: Minimum Control Requirements All storm water management practices will be designed so that the specific storm frequency storage volumes (e.g., recharge, water quality, channel protection, 5 year, 25 year, 100 year) as identified in the current storm water design manual are met, unless the City grants the applicant a waiver or the applicant is exempt from such requirements. In addition, if hydrologic or topographic conditions warrant greater control than that provided by the minimum control requirements, the City reserves the right to impose any and all additional requirements deemed necessary to control the volume, timing, and rate of run-off. Section 17: Site Design Feasibility Storm water management practices for a site shall be chosen based on the physical conditions of the site. Among the factors that should be considered: A. Topography B. Maximum Drainage Area C. Depth to Water Table D. Soils E. Slopes F. Terrain G. Head H. Location in relation to environmentally sensitive features or ultra-urban areas Section 17: Conveyance Issues All storm water management practices shall be designed to convey storm water to allow for the maximum removal of pollutants and reduction in flow velocities. This shall include, but not be limited to: A. Maximizing of flowpaths from inflow points to outflow points B. Protection of inlet and outfall structures C. Elimination of erosive flow velocities D. Providing of underdrain systems, where applicable The Storm Water Design Manual shall provide detailed guidance on the requirements for conveyance for each of the approved storm water management practices. 10 Section 18: Treatment/Geometry Conditions All storm water management practices shall be designed to capture and treat storm water run-off according to the specifications outlined in the Storm Water Design Manual. These specifications will designate the water quantity and quality treatment criteria that apply to an approved storm water management practice. Section 19: Landscaping Plans Required All storm water management practices must have a landscaping plan detailing both the vegetation to be in the practice and how and who will manage and maintain this vegetation. Section 20: Maintenance Agreements All storm water treatment practices shall have an enforceable operation and maintenance agreement to ensure the system functions as designed. This agreement will include any and all maintenance easements required to access and inspect the storm water treatment practices, and to perform routine maintenance as necessary to ensure proper functioning of the storm water treatment practice. In addition, a legally binding covenant specifying the parties responsible for the proper maintenance of all storm water treatment practices shall be secured prior to issuance of any permits for land disturbance activities. Section 21: Non-Structural Storm Water Practices The use of non-structural storm water treatment practices is encouraged in order to minimize the reliance on structural practices. Credit in the form of reductions in the amount of storm water that must be managed can be earned through the use of non-structural practices that reduce the generation of storm water from the site. These non-structural practices are explained in detail in the current design manual and applicants wishing to obtain credit for use of non-structural practices must ensure that these practices are documented and remain unaltered by subsequent property owners. Section 22: Storm Water Management Plan Required for All Developments. No application for development will be approved unless it includes a storm water management plan detailing in concept how run-off and associated water quality impacts resulting from the development will be controlled or managed. This plan must be prepared by an individual approved by the City, must indicate whether storm water will be managed on-site or off-site and the general location and type of practices. The storm water management plan(s) shall be referred for comment to all other interested agencies, and any comments must be addressed in a final storm water management plan. This 11 final plan must be signed by a licensed professional engineer (PE), who will verify that the design of all storm water management practices meet the submittal requirements outlined in the Submittal Checklist found in the storm water design manual. No Grading and Clearing Permit, Development Permit or Construction Permit shall be issued until a satisfactory final Storm Water Management Plan, or a waiver thereof, shall have undergone a review and been approved by the City after determining that the plan or waiver is consistent with the requirements of this Ordinance. Section 23: Storm Water Management Concept Plan Requirements A storm water management concept plan shall be required with all permit applications and will include sufficient information (i.e, maps, hydrologic calculations, etc) to evaluate the environmental characteristics of the project site, the potential impacts of all proposed development of the site, both present and future, on the water resources, and the effectiveness and acceptability of the measures proposed for managing storm water generated at the project site. The intent of this conceptual planning process is to determine the type of storm water management measures necessary for the proposed project, and ensure adequate planning for management of storm water run-off from future development. To accomplish this goal the following information shall be included in the concept plan: A. A map (or maps) indicating the location of existing and proposed buildings, roads, parking areas, utilities, structural storm water management and sediment control facilities. The map(s) will also clearly show proposed land use with tabulation of the percentage of surface area to be adapted to various uses; drainage patterns; locations of utilities, roads and easements; the limits of grading and clearing; a written description of the site plan and justification of proposed changes in natural conditions may also be required. B. Sufficient engineering analysis to show that the proposed storm water management measures are capable of controlling run-off from the site in compliance with this Ordinance and the specifications of the Storm Water Design Manual. C. A written or graphic inventory of the natural resources at the site and surrounding area as it exists prior to the commencement of the project and a description of the watershed and its relation to the project site. This description should include a discussion of soil conditions, forest cover, topography, wetlands, and other native vegetative areas on the site. Particular attention should be paid to environmentally sensitive features that provide particular opportunities or constraints for development. D. A written description of the required maintenance burden for any proposed storm water management facility. 12 E. The City may also require a concept plan to consider the maximum development potential of a site under existing zoning, regardless of whether the applicant presently intends to develop the site to its maximum potential. Section 24: Final Storm Water Management Plan Requirements After review of the storm water management concept plan, and modifications to that plan as deemed necessary by the City, a final storm water management plan must be submitted for approval. The final storm water management plan, in addition to the information from the concept plan, shall include all of the information required in the Storm Water Management Plan checklist found in the Storm Water Design Manual. Section 25: Performance Bond/Escrow The City may, at its discretion, require the submittal of a performance escrow or bond prior to issuance of any permit in order to insure that the storm water practices are installed by the permit holder as required by the approved storm water management plan. The amount of the performance bond/escrow and the forfeiture provisions for failure to complete work specified in the storm water management plan shall be in accordance with Section 8 of this Ordinance. The performance bond/escrow shall be released in full only upon submission of "as-built plans", quantity and cost of any public storm water conveyance facilities, 85% coverage of vegetation of all disturbed areas, and written certification by a registered professional engineer that the storm water practice has been installed in accordance with the approved plan and other applicable provisions of this Ordinance. The City will make a final inspection of the storm water practice to ensure that it is in compliance with the approved plan and the provisions of this Ordinance. Provisions for a partial pro-rata release of the performance security based on the completion of various development stages can be done at the discretion of the City. Section 26: Notice of Construction Commencement The applicant must notify the City at least two business days in advance before the commencement of construction. Regular inspections of the storm water management system construction shall be conducted by the staff or certified by a professional engineer or their designee who has been approved by the jurisdictional storm water authority. All inspections shall be documented and written reports prepared that contain the following information: A. The date and location of the inspection. B. Whether construction is in compliance with the approved storm water management plan. C. Variations from the approved construction specifications. D. Any violations that exist. 13 If any violations are found, the property owner shall be notified in writing of the nature of the violation and the required corrective actions. No added work shall proceed until any violations are corrected and all work previously completed has received approval by the City Section 27: As Built Plans All applicants are required to submit actual “as-built” plans for any storm water management practices located on-site after final construction is completed. The plan must show the final design specifications for all storm water management facilities and must be certified by a professional engineer. A full size set of as-builts and one copy PDF on CD/DVD as well as final inspection by the City is required before the release of any performance securities can occur. Section 28: Landscaping and Stabilization Requirements Any area of land from which the natural vegetative cover has been either partially or wholly cleared or removed by development activities shall be revegetated within ten (10) days from the substantial completion of such clearing and construction. The following criteria shall apply to revegetation efforts: A. Reseeding must be done in accordance with the criteria established in the Public Works Specification Manual to control erosion until such time as the cover crop is established over eighty-five percent (85%) of the seeded area. B. Replanting with native woody and herbaceous vegetation must be accompanied by placement of straw mulch or its equivalent of sufficient coverage to control erosion until the plantings are established and are capable of controlling erosion. C. In addition to the above requirements, a landscaping plan must be submitted with the final design describing the vegetative stabilization and management techniques to be used at a site after construction is completed. This plan will explain not only how the site will be stabilized after construction, but who will be responsible for the maintenance of vegetation at the site and what practices will be employed to ensure that adequate vegetative cover is preserved. This plan must be approved prior to receiving a permit. D. In order to file a plat before establishing 85% coverage of approved vegetation on all land disturbed by construction activity, a performance bond/escrow must be submitted to and accepted by the City in accordance with Section 25 of this Ordinance. Section 29: Maintenance Easement 14 Prior to the issuance of any permit that has an storm water management facility as one of the requirements of the permit, the applicant or owner of the site must execute a maintenance easement agreement that shall be binding on all subsequent owners of land served by the storm water management facility. The agreement shall provide for access to the facility at reasonable times for periodic inspection by the City, or their contractor or agent, and for regular or special assessments of property owners to ensure that the facility is maintained in proper working condition to meet design standards and any other provisions established by this Ordinance. The easement agreement shall be recorded prior to final plat approval or prior to any building permit issued within the development, whichever is sooner. Section 30: Maintenance Covenants Maintenance of all storm water management facilities shall be ensured through the creation of a formal maintenance covenant that must be approved by the City and recorded into the land record prior to construction plan approval. As part of the covenant, a schedule shall be developed for when and how often maintenance will occur to ensure proper function of the storm water management facility. The covenant shall also include plans for periodic inspections to ensure proper performance of the facility between scheduled cleanouts. The City, in lieu of a maintenance covenant, may accept dedication of any existing or future storm water management facility for maintenance, provided such facility meets all the requirements of the Public Works Specifications Manual and the Unified Development Code and includes adequate and perpetual access and sufficient area, by easement or otherwise, for inspection and regular maintenance. Section 31: Requirements for Maintenance Covenants All storm water management facilities will be subject to, at the minimum, an annual inspection to document maintenance and repair needs and ensure compliance with the requirements of this Ordinance and accomplishment of its purposes. These needs may include; removal of silt, litter and other debris from all catch basins, inlets and drainage pipes, grass cutting and vegetation removal, and necessary replacement of landscape vegetation. Any maintenance needs found must be addressed in a timely manner, as determined by the City, and the inspection and maintenance requirement may be increased as deemed necessary to ensure proper functioning of the storm water management facility. Section 32: Inspection of Storm Water Facilities Inspection programs may be established on any reasonable basis, including but not limited to: routine inspections; random inspections; inspections based upon complaints or other notice of possible violations; inspection of drainage basins or areas identified as higher than typical sources of sediment or other contaminants or pollutants; inspections of businesses or industries of a type associated with higher than usual discharges of contaminants or pollutants or with 15 discharges of a type which are more likely than the typical discharge to cause violations of state or federal water or sediment quality standards or the TPDES storm water permit; and joint inspections with other agencies inspecting under environmental or safety laws. Inspections may include, but are not limited to: reviewing maintenance and repair records; sampling discharges, surface water, groundwater, and material or water in drainage control facilities; and evaluating the condition of drainage control facilities and other storm water treatment practices. Section 33: Right-of-Entry for Inspection When any new drainage control facility is installed on private property, or when any new connection is made between private property and a public drainage control system, sanitary sewer or combined sewer, the property owner shall grant to the City the right to enter the property at reasonable times and in a reasonable manner for the purpose of inspection. This includes the right to enter a property when it has a reasonable basis to believe that a violation of this Ordinance is occurring or has occurred, and to enter when necessary for abatement of a public nuisance or correction of a violation of this Ordinance. Section 34: Records of Installation and Maintenance Activities. Parties responsible for the operation and maintenance of a storm water management facility shall make records of the installation and of all maintenance and repairs, and shall retain the records for at least 3 years. These records shall be made available to the City during inspection of the facility and at other reasonable times upon request. Section 35: Failure to Maintain Practices If a responsible party fails or refuses to meet the requirements of the maintenance covenant, the City, after reasonable notice, may correct a violation of the design standards or maintenance needs by performing all necessary work to place the facility in proper working condition. In the event that the storm water management facility becomes a danger to public safety or public health, the City shall notify the party responsible for maintenance of the storm water management facility in writing. Upon receipt of that notice, the responsible person shall have 60 days to effect maintenance and repair of the facility in an approved manner. After proper notice, the City may assess the owner(s) of the facility for the cost of repair work and any penalties; and the cost of the work shall be a lien on the property, or prorated against the beneficial users of the property, and may be placed on the tax bill and collected as ordinary taxes by the county. Section 36: Violations Any development activity that is commenced or is conducted contrary to this Ordinance, may be restrained by injunction or otherwise abated in a manner provided by law. Section 37: Notice of Violation. 16 When the City determines that an activity is not being carried out in accordance with the requirements of this Ordinance, it shall issue a written notice of violation to the owner of the property. The notice of violation shall contain: A. The name and address of the owner or the applicant or the responsible person. B. The address or other description of the site upon which the violation is occurring. C. A statement specifying the nature of the violation. D. A description of the remedial measures necessary to bring the action or inaction into compliance with the permit, the storm water management plan, the storm water maintenance agreement, or this Ordinance and the date for the completion of such remedial action. E. A statement of the penalty or penalties that may be assessed against the person to whom the notice of violation is directed. F. A statement that the determination of violation may be appealed to the City Council of the City by filing a written notice of appeal within five (5) business days after the notice of violation (except, that in the event the violation constitutes an immediate danger to public health or public safety, 24 hours notice shall be sufficient). The City may recover all attorneys’ fees, court costs, and other expenses associated with enforcement of this Ordinance, including sampling and monitoring expenses. Section 38: Stop Work Orders Persons receiving a notice of violation will be required to halt all construction activities not directly related to the actions necessary to restore compliance with this Ordinance. This “stop work order” will be in effect until the City confirms that the development activity is in compliance and the violation has been satisfactorily addressed. Failure to address a notice of violation in a timely manner can result in civil, criminal, or monetary penalties in accordance with the enforcement measures authorized in this Ordinance. Section 39: Civil and Criminal Penalties In addition to or as an alternative to any penalty provided herein or by law, any person who violates the provisions of this Ordinance shall be deemed guilty of a class “C” misdemeanor and each day during which any violation of any of the provisions of this Ordinance is committed, continued, or permitted, shall constitute a separate offense. Upon conviction of any such 17 violation, such person, partnership, or corporation may be punished by and fined a minimum amount of not less than two hundred dollars ($200.00) per violation and a maximum amount of not more than two thousand dollars ($2,000.00) per violation. In addition to any other penalty authorized by this section, any person, partnership, or corporation convicted of violating any of the provisions of this Ordinance shall be required to bear the expense of such restoration. A civil penalty in an amount not to exceed five hundred dollars ($500.00) per violation of this Ordinance may be imposed. Each violation of a particular section of this Ordinance shall constitute a separate offense, and each day such an offense continues shall be considered a new violation for purposes of enforcing this Ordinance. Section 40: Restoration of lands Any violator may be required to restore land to its undisturbed condition. In the event that restoration is not undertaken within a reasonable time after notice, the City may take necessary corrective action, the cost of which shall be borne by the owner and may become a lien upon the property until paid. Section 41: Holds on Occupation Permits Occupation permits will not be granted until all corrections to all storm water practices have been made and accepted by the City. 1 Construction Storm Water Management Ordinance Section 1: Purpose and Intent During the construction process, soil is highly vulnerable to erosion by wind and water. Eroded soil endangers water resources by reducing water quality and causing the siltation of aquatic habitat for fish and other desirable species. Eroded soil also necessitates repair of sewers and ditches and the dredging of lakes. In addition, grading and clearing during construction cause the loss of native vegetation necessary for terrestrial and aquatic habitat. The intent of the Construction Storm Water Management Ordinance (“this Ordinance”) is to provide for the health, safety, and general welfare of the citizens of the City of Schertz (“the City”) by guiding, regulating, and controlling the design, construction, use, and maintenance of any development or other activity that disturbs or breaks the topsoil or results in the movement of earth in the City. The provisions of this Ordinance shall be interpreted and applied as the minimum requirements for the promotion of public health, safety and general welfare. Section 2: Applicability This Ordinance shall apply to all territory within the corporate limits and extraterritorial jurisdiction of the City including any developed and undeveloped land unless explicitly exempted by Public Works or an authorized state or federal enforcement agency. Section 3: Responsibility for Administration Public Works shall administer, implement, and enforce the provisions of this Ordinance. Any powers granted or duties imposed upon the authorized enforcement agency may be delegated in writing by the Director of Public Works or his/her designee to persons or entities acting in the beneficial interest in the employ of the City. Whenever the requirements of this Ordinance are in conflict with the requirements of any other lawfully adopted rules, regulations, or ordinances, the requirement that is most restrictive or that imposes the higher standards, as determined by the Director of Public Works or his/her designee shall apply. Section 4: Severability All sections, paragraphs, sentences, clauses, and phrases of this Ordinance are severable, and if any section, paragraph, sentence, clause or phrase is declared unconstitutional or otherwise invalid in any court of competent jurisdiction in a valid judgment or decree, such unconstitutionality or invalidity shall not cause any remaining section, paragraph, sentence, clause or phrase of this Ordinance to fail or become invalid. Section 5: Ultimate Responsibility The issuance of any permit, certificate, or approval in accordance with the standards and requirements of this Ordinance shall not relieve the recipient of such permit, certificate or 2 approval from the responsibility of complying with all other applicable requirements of any other municipality, county, special district, State or Federal agency having jurisdiction over the storm drainage system for which the permit, certificate or approval was issued. This Ordinance does not intend or imply that compliance by any person will ensure that there will not be contamination, pollution, or unauthorized discharge of pollutants. Section 6: Permits A. No person shall be granted a Grading and Clearing Permit, Development Permit or Construction Permit for land-disturbing activity without the approval of a Grading Plan by the City Engineer, Director of Public Works, and the City Manager or his/her designees. B. No Grading and Clearing Permit is required for the following activities: 1. Any emergency activity that is immediately necessary for the protection of life, property, or natural resources. Public Works must be notified within 24 hours of such activities; 2. The removal of underbrush, dead trees, or diseased or damaged trees which constitute a hazard to life and property based upon field inspection verification; or 3. Grading and clearing practices associated with agricultural operations, excluding timber cutting, grading cuts or fills, and work within designated special flood hazard area. Section 7: Applications A. Each application shall bear the name(s) and address(es) of the owner or developer of the site, of any consulting firm retained by the applicant together with the name of the applicant’s principal contact at such firm, and the physical address of the site or a detailed description of its location. Applications shall be accompanied by all items required per the submittal process and the application and all applicable fees. B. The City of Schertz may, at its discretion, require the submittal of a performance bond/escrow in the amount of $1,000/acre prior to the issuance of a permit in order to insure that the storm water management practices as required by the plans approved for the permit are installed and maintained by the permit holder for the duration of the construction activity. The bond shall not be released until 85% coverage of all disturbed areas with approved vegetation is accomplished as determined by the Director of Public Works or his/her designee. 3 Section 8: Review and Approval A. Engineering/Public Works will review each application for a permit to determine its conformance with the provisions of this regulation. Within 30 days after receiving an application, Engineering/Public Works shall, in writing, complete one of the following actions: 1. Approve the permit application. 2. Approve the permit application subject to such reasonable conditions as may be necessary to secure substantially the objectives of this regulation, and issue the permit subject to these conditions. 3. Disapprove the permit application, indicating the reason(s) and procedure for submitting a revised application and/or submission. B. By approving a plan under this regulation, the City does not accept responsibility for the design, installation, operation or maintenance of construction storm water management activities for the permit holder. Section 9: Grading Plan A. The Grading Plan shall include the following: 1. One plan sheet showing existing floodplain/floodway limits, and one plan sheet showing the existing floodplain/floodway limits and the proposed floodplain/floodway limits. 2. A sequence of construction of the development site, including stripping and clearing, rough grading, construction of utilities, infrastructure, and buildings, and final grading and landscaping. Sequencing shall identify the expected date on which clearing will begin, the estimated duration of exposure of cleared areas, areas of clearing installation of temporary erosion and sediment control measures, and establishment of permanent vegetation. 3. All erosion and sediment control measures necessary to meet the objectives of the City’s regulations throughout all phases of construction and after completion of development of the site. Depending upon the complexity of the project, the drafting of intermediate plans may be required at the close of each season. 4. Seeding mixtures and rates, types of sod, method of seedbed preparation, expected seeding dates, type and rate of lime and fertilizer application, and 4 kind and quantity of mulching for both temporary and permanent vegetative control measure. 5. Provisions for maintenance of control facilities, including easements and estimates of the cost of maintenance. B. Modifications to the plan shall be processed and approved or disapproved in the same manner as Section 8 of this regulation. The City Engineer and Director of Public Works or his/her designees will provide written authorization to the permit applicant, and shall include: 1. Major amendments of the Grading Plan submitted to Public Works and Engineering. 2. Field modifications of a minor nature. Section 10: Design Requirements A. Grading, erosion control practices, sediment control practices, and waterway crossings shall meet the design criteria set forth in the City’s UDC, Public Works Specifications Manual and Public Works Design Standards, and shall be adequate to prevent transportation of sediment from the site to the satisfaction of the City Engineer and the Director of Public Works or his/her designees. B. Grading and clearing shall not be permitted, except when in compliance with the UDC, this Ordinance, and any other applicable authority. C. Clearing, except as necessary to establish sediment control devices, shall not begin until all sediment control devices have been installed and have been stabilized. D. Phasing is strongly recommended and may be required on sites disturbing greater than 15 acres, with the size of each phase to be established at plan review and as approved by Engineering and Public Works. E. Erosion control requirements shall include the following: 1. Soil stabilization shall be completed within five days of clearing or inactivity in construction. 2. If seeding or another vegetation erosion control method is used, it shall become established within two weeks or Public Works may require the site to be reseeded or a non-vegetation option employed. 5 3. Special techniques required other than design criteria outlined in UDC for steep slopes or in drainage ways shall be used to ensure stabilization, and approved by the City Engineer. 4. Soil stockpiles must be stabilized or covered at the end of each workday. 5. The entire site must be stabilized, using a heavy mulch layer or another method that does not require germination to control erosion, at the close of the construction season. 6. Techniques shall be employed to prevent the blowing of dust or sediment from the site. 7. Techniques that divert upland runoff past disturbed slopes shall be employed. F. Sediment controls requirements shall include: 1. Settling basins, sediment traps, or tanks and perimeter controls. 2. Settling basins that are designed in a manner that allows adaptation to provide long-term storm water management, if required by the City. 3. Protection for adjacent properties by the use of a vegetated buffer strip in combination with perimeter controls. G. Waterway and watercourse protection requirements shall include: 1. A temporary stream crossing installed and approved by Engineering and Public Works if a watercourse will be crossed regularly during construction. 2. Stabilization of the watercourse channel before, during, and after any in- channel work. 3. All on-site storm water conveyance channels designed according to the criteria outlined in the UDC. 4. Stabilization adequate to prevent erosion located at the outlets of all pipes and paved channels. H. Construction site access requirements shall include: 1. A temporary construction access road provided at all sites. 6 2. Other measures required by Engineering and Public Works in order to ensure that sediment is not tracked onto public streets by construction vehicle or washed into storm drains. Section 11: Inspection A. The Director of Public Works or his/her designee shall make inspections as hereinafter required and shall approve the portion of the work completed or shall notify the permit holder wherein the work fails to comply with this Ordinance, the UDC, or other City regulations as approved. Plans for grading, stripping, excavating, and filling work bearing the stamp of approval of the City shall be maintained at the site during the progress of the work. To obtain inspections, the permit holder shall notify Public Works at least two working days before the following: 1. Start of construction. 2. Installation of sediment and erosion measure. 3. Completion of site clearing. 4. Completion of rough grading. 5. Completion of final grading. 6. Close of the construction season. 7. Completion of final landscaping. B. The permit holder or his/her principal contact shall make regular inspections of all control measures in accordance with the inspection schedule outlined on the approved Grading Plan. The purpose of such inspections will be to determine the overall effectiveness of the control plan and the need for additional control measure. All inspections shall be documented in written form and submitted to Public Works at the time interval specified in the approved permit. C. The Director of Public Works or his/her designee shall enter the property of the applicant as deemed necessary to make regular inspections to ensure the validity of the reports filed under paragraph B of this Section. Section 12: Enforcement A. Stop-Work Order: Revocation of Permit In the event that any person holding a Grading and Clearing Permit, Development Permit or Construction Permit pursuant to this Ordinance violates the terms of the permit or implements site development in such a manner as to materially adversely affect the health, welfare, or safety of a person residing or working in the neighborhood or development site so as to be materially detrimental to the public welfare or injurious to property or improvements in the neighborhood, the City Engineer or Director of Public 7 Works or his/her designees at the time interval specified in the approved permit may issue a Stop Work Order or Revoke aforementioned permit. B. Violation and Penalties No person shall construct, enlarge, alter, repair, or maintain any grading, excavation, or fill, or cause the same to be done, contrary to or in violation of any terms of this Ordinance. Any person violating any of the provisions of this Ordinance shall be deemed guilty of a class “C” misdemeanor and each day during which any violation of any of the provisions of this Ordinance is committed, continued, or permitted, shall constitute a separate offense. Upon conviction of any such violation, such person, partnership, or corporation shall be punished by a fined a minimum amount of not less than two hundred dollars ($200.00) per violation and a maximum amount of not more than two thousand dollars ($2,000.00) per violation. In addition, any other penalty authorized by this section, any person, partnership, or corporation convicted of violating any of the provisions of this Ordinance shall be required to bear the expense of such restoration. A civil penalty in an amount not to exceed five hundred dollars ($500.00) per violation of this Ordinance may be imposed. Each violation of a particular section of this Ordinance shall constitute a separate offense, and each day such an offense continues shall be considered a new violation for purposes of enforcing this Ordinance. C. Notice of Violation If the City Engineer or the Director of Public Works determines that an applicant or other responsible person has failed to comply with the terms and conditions of a permit, approved Grading Plan, or the provisions of this Ordinance, it shall issue a written notice of violation to such applicant or other responsible person. Where a person is engaged in activity covered by this Ordinance without having first secured a permit therefore, the notice of violation shall be served on the owner or the responsible person in charge of the activity being conducted on the site. The notice of violation shall contain: 1. The name and address of the owner or the applicant or the responsible person. 2. The address or other description of the site upon which the violation is occurring. 3. A statement specifying the nature of the violation. 4. A description of the remedial measures necessary to bring the action or inaction into compliance with the permit, the storm water management plan, the storm water maintenance agreement, or this Ordinance and the date for the completion of such remedial action. 5. A statement of the penalty or penalties that may be assessed against the person to whom the notice of violation is directed. 8 6. A statement that the determination of violation may be appealed to the City Council of the City of Schertz by filing a written notice of appeal within five (5) business days after the notice of violation (except, that in the event the violation constitutes an immediate danger to public health or public safety, 24 hours notice shall be sufficient). The City of Schertz may recover all attorneys’ fees, court costs, and other expenses associated with enforcement of this Ordinance, including sampling and monitoring expenses. D. Appeals The decisions or orders of City Council of the City of Schertz shall be final. Further relief shall be to a higher court of competent jurisdiction. E. Remedies Not Exclusive The remedies listed in this Ordinance are not exclusive of any other remedies available under any applicable federal, state, or local law. FLOOD DAMAGE PREVENTION ORDINANCE ARTICLE I TITLE OF ORDINANCE, FINDINGS OF FACT, PURPOSE AND METHODS Section 1. Statutory Authorization The Legislature of the State of Texas has in the Flood Control Act, Texas Water Code, Section 16.315, delegated the responsibility of local governmental units to adopt regulations designed to minimize flood losses. Therefore, the City of Schertz, Texas (“the City”) does ordain as follows: Section 2. Finding of Fact (a) The flood hazard areas of the City and extraterritorial jurisdiction are subject to periodic inundation, which results in loss of life and property, health and safety hazards, disruption of commerce and governmental services, and extraordinary public expenditures for flood protection and relief, all of which adversely affect the public health, safety and general welfare. (b) These flood losses are created by the cumulative effect of obstructions in floodplains which cause an increase in flood heights and velocities, and by the occupancy of flood hazard areas by uses vulnerable to floods and hazardous to other lands because they are inadequately elevated, flood-proofed or otherwise protected from flood damage. Section 3. Statement of Purpose It is the purpose of this ordinance to promote the public health, safety and general welfare and to minimize public and private losses due to flood conditions in specific areas by provisions designed to: (a) Protect human life and health. (b) minimize expenditure of public money for costly flood control projects. (c) minimize the need for rescue and relief efforts associated with flooding and generally undertaken at the expense of the general public. (d) minimize prolonged business interruptions. (e) minimize damage to public facilities and utilities such as water and gas mains, electric, telephone and sewer lines, streets and bridges located in floodplains. 2 (f) help maintain a stable tax base by providing for the sound use and development of flood-prone areas in such a manner as to minimize future flood blight areas. (g) ensure that potential buyers are notified that property is in a flood area. Section 4. Methods of Reducing Flood Losses In order to accomplish its purposes, this ordinance uses the following methods: (a) restrict or prohibit uses that are dangerous to health, safety or property in times of flood, or cause increases in flood heights or velocities. (b) Require that uses vulnerable to floods, including facilities, which serve such uses, be protected against flood damage at the time of initial construction. (c) control the alteration of natural floodplains, stream channels, and natural protective barriers, which are involved in the accommodation of flood waters. (d) control filling, grading, dredging and other development which may increase flood damage. (e) prevent or regulate the construction of flood barriers which will unnaturally divert flood waters or which may increase flood hazards to other lands. ARTICLE II DEFINITIONS Unless specifically defined below, words or phrases used in this ordinance shall be interpreted to give them the meaning they have in common usage and to give this ordinance the most reasonable application. ALLUVIAL FAN FLOODING - means flooding occurring on the surface of an alluvial fan or similar landform which originates at the apex and is characterized by high-velocity flows; active processes of erosion, sediment transport, and deposition; and unpredictable flow paths. APEX - means a point on an alluvial fan or similar landform below which the flow path of the major stream that formed the fan becomes unpredictable and alluvial fan flooding can occur. APPEALS BOARD – means the Board of Adjustment of the City of Schertz, Texas. APPURTENANT STRUCTURE – means a structure which is on the same parcel of property as the principal structure to be insured and the use of which is incidental to the use of the principal structure. 3 AREA OF FUTURE CONDITIONS FLOOD HAZARD – means the land area that would be inundated by the 1-percent-annual chance (100 year) flood based on future conditions hydrology. AREA OF SHALLOW FLOODING - means a designated AO, AH, AR/AO, AR/AH, or VO zone on a community's Flood Insurance Rate Map (FIRM) with a 1 percent or greater annual chance of flooding to an average depth of 1 to 3 feet where a clearly defined channel does not exist, where the path of flooding is unpredictable and where velocity flow may be evident. Such flooding is characterized by ponding or sheet flow. AREA OF SPECIAL FLOOD HAZARD or SPECIAL FLOOD HAZARD AREA - is the land in the floodplain within a community subject to a 1 percent or greater chance of flooding in any given year. The area may be designated as Zone A on the Flood Hazard Boundary Map (FHBM). After detailed rate making has been completed in preparation for publication of the FIRM, Zone A usually is refined into Zones A, AO, AH, A1-30, AE, A99, AR, AR/A1-30, AR/AE, AR/AO, AR/AH, AR/A, VO, V1-30, VE or V. BASE FLOOD - means the flood having a 1 percent chance of being equaled or exceeded in any given year. BASEMENT - means any area of the building having its floor subgrade (below ground level) on three or more sides. BASE FLOOD ELEVATION or BFE – means the elevation shown on the Flood Insurance Rate Map (FIRM) and found in the accompanying Flood Insurance Study (FIS) for Zones A, AE, AH, A1-A30, AR, V1-V30, or VE that indicates the water surface elevation resulting from the base flood. BREAKAWAY WALL – means a wall that is not part of the structural support of the building and is intended through its design and construction to collapse under specific lateral loading forces, without causing damage to the elevated portion of the building or supporting foundation system. CRITICAL FEATURE - means an integral and readily identifiable part of a flood protection system, without which the flood protection provided by the entire system would be compromised. DEVELOPMENT - means any man-made change to improved and unimproved real estate, including but not limited to buildings or other structures, mining, dredging, filling, grading, paving, excavation or drilling operations or storage of equipment or materials. ELEVATED BUILDING – means, for insurance purposes, a non-basement building, which has its lowest elevated floor, raised above ground level by foundation walls, shear walls, posts, piers, pilings, or columns. 4 EXISTING CONSTRUCTION - means for the purposes of determining rates, structures for which the "start of construction" commenced before the effective date of the FIRM or before January 1, 1975, for FIRMs effective before that date. "Existing construction" may also be referred to as "existing structures." EXISTING MANUFACTURED HOME PARK OR SUBDIVISION - means a manufactured home park or subdivision for which the construction of facilities for servicing the lots on which the manufactured homes are to be affixed (including, at a minimum, the installation of utilities, the construction of streets, and either final site grading or the pouring of concrete pads) is completed before the effective date of the floodplain management regulations adopted by a community. EXPANSION TO AN EXISTING MANUFACTURED HOME PARK OR SUBDIVISION - means the preparation of additional sites by the construction of facilities for servicing the lots on which the manufactured homes are to be affixed (including the installation of utilities, the construction of streets, and either final site grading or the pouring of concrete pads). FLOOD or FLOODING - means a general and temporary condition of partial or complete inundation of normally dry land areas from: (a) the overflow of inland or tidal waters. (b) the unusual and rapid accumulation or runoff of surface waters from any source. FLOOD ELEVATION STUDY or FLOOD INSURANCE STUDY or FIS – means an examination, evaluation and determination of flood hazards and, if appropriate, corresponding water surface elevations, or an examination, evaluation and determination of mudslide (i.e., mudflow) and/or flood-related erosion hazards. FLOOD INSURANCE RATE MAP or FIRM - means an official map of a community, on which the Federal Emergency Management Agency has delineated both the special flood hazard areas and the risk premium zones applicable to the community. FLOODPLAIN or FLOOD PRONE AREA - means any land area susceptible to being inundated by water from any source (see definition of flooding). FLOODPLAIN MANAGEMENT - means the operation of an overall program of corrective and preventive measures for reducing flood damage, including but not limited to emergency preparedness plans, flood control works and floodplain management regulations. FLOODPLAIN MANAGEMENT REGULATIONS - means zoning ordinances, subdivision regulations, building codes, health regulations, special purpose ordinances (such as a floodplain ordinance, grading ordinance and erosion control ordinance) and other applications of police power. The term describes such state or local regulations, in any combination thereof, which provide standards for the purpose of flood damage prevention and reduction. 5 FLOOD PROTECTION SYSTEM - means those physical structural works for which funds have been authorized, appropriated, and expended and which have been constructed specifically to modify flooding in order to reduce the extent of the area within a community subject to a "special flood hazard" and the extent of the depths of associated flooding. Such a system typically includes hurricane tidal barriers, dams, reservoirs, levees or dikes. These specialized flood modifying works are those constructed in conformance with sound engineering standards. FLOOD PROOFING - means any combination of structural and non-structural additions, changes, or adjustments to structures which reduce or eliminate flood damage to real estate or improved real property, water and sanitary facilities, structures and their contents. FREEBOARD – is a factor of safety above the BFE. (The City requires 1 foot above the BFE.) FUNCTIONALLY DEPENDENT USE - means a use, which cannot perform its intended purpose unless it is located or carried out in close proximity to water. The term includes only docking facilities, port facilities that are necessary for the loading and unloading of cargo or passengers, and ship building and ship repair facilities, but does not include long-term storage or related manufacturing facilities. HIGHEST ADJACENT GRADE - means the highest natural elevation of the ground surface prior to construction next to the proposed walls of a structure. HISTORIC STRUCTURE - means any structure that is: (a) Listed individually in the National Register of Historic Places (a listing maintained by the Department of Interior) or preliminarily determined by the Secretary of the Interior as meeting the requirements for individual listing on the National Register. (b) Certified or preliminarily determined by the Secretary of the Interior as contributing to the historical significance of a registered historic district or a district preliminarily determined by the Secretary to qualify as a registered historic district. (c) Individually listed on a state inventory of historic places in states with historic preservation programs which have been approved by the Secretary of the Interior. (d) Individually listed on a local inventory or historic places in communities with historic preservation programs that have been certified either. (1) By an approved state program as determined by the Secretary of the Interior. (2) Directly by the Secretary of the Interior in states without approved programs. 6 LEVEE - means a man-made structure, usually an earthen embankment, designed and constructed in accordance with sound engineering practices to contain, control, or divert the flow of water so as to provide protection from temporary flooding. LEVEE SYSTEM - means a flood protection system, which consists of a levee, or levees, and associated structures, such as closure, and drainage devices, which are constructed and operated in accordance with sound engineering practices. LOWEST FLOOR - means the lowest floor of the lowest enclosed area (including basement). An unfinished or flood resistant enclosure, usable solely for parking or vehicles, building access or storage in an area other than a basement area is not considered a building's lowest floor; provided that such enclosure is not built so as to render the structure in violation of the applicable non-elevation design requirement of Section 60.3 of the National Flood Insurance Program regulations. MANUFACTURED HOME - means a structure transportable in one or more sections, which is built on a permanent chassis and is designed for use with or without a permanent foundation when connected to the required utilities. The term "manufactured home" does not include a "recreational vehicle". MANUFACTURED HOME PARK OR SUBDIVISION - means a parcel (or contiguous parcels) of land divided into two or more manufactured home lots for rent or sale. MEAN SEA LEVEL - means, for purposes of the National Flood Insurance Program, the North American Vertical Datum (NAVD) of 1988 or other datum, to which base flood elevations shown on a community's Flood Insurance Rate Map are referenced. NEW CONSTRUCTION - means, for the purpose of determining insurance rates, structures for which the "start of construction" commenced on or after the effective date of an initial FIRM or after December 31, 1974, whichever is later, and includes any subsequent improvements to such structures. For floodplain management purposes, "new construction" means structures for which the "start of construction" commenced on or after the effective date of a floodplain management regulation adopted by a community and includes any subsequent improvements to such structures. NEW MANUFACTURED HOME PARK OR SUBDIVISION - means a manufactured home park or subdivision for which the construction of facilities for servicing the lots on which the manufactured homes are to be affixed (including at a minimum, the installation of utilities, the construction of streets, and either final site grading or the pouring of concrete pads) is completed on or after the effective date of floodplain management regulations adopted by a community. NON-RESIDENTIAL STRUCTURE – includes, but is not limited to: small business concerns, churches, schools, farm buildings (including grain bins and silos), poolhouses, clubhouses, recreational buildings, mercantile structures, agricultural and industrial structures, warehouses, hotels and motels with normal room rentals for less than 6 months’ duration, and nursing homes. 7 RECREATIONAL VEHICLE - means a vehicle which is (i) built on a single chassis; (ii) 400 square feet or less when measured at the largest horizontal projections; (iii) designed to be self- propelled or permanently towable by a light duty truck; and (iv) designed primarily not for use as a permanent dwelling but as temporary living quarters for recreational, camping, travel, or seasonal use. REGULATORY FLOODWAY or FLOODWAY - means the channel of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than a designated height. RESIDENTIAL STRUCTURES - means a structure that is considered to be domicile or is used for residential purposes for 6 months or more. Residential structures include a single family home, multiple unit apartment buildings, a residential condominium, or a manufactured or modular home. RIVERINE – means relating to, formed by, or resembling a river (including tributaries), stream, brook, etc. START OF CONSTRUCTION - (for other than new construction or substantial improvements under the Coastal Barrier Resources Act (Pub. L. 97-348)), includes substantial improvement and means the date the building permit was issued, provided the actual start of construction, repair, reconstruction, rehabilitation, addition placement, or other improvement was within 180 days of the permit date. The actual start means either the first placement of permanent construction of a structure on a site, such as the pouring of slab or footings, the installation of piles, the construction of columns, or any work beyond the stage of excavation; or the placement of a manufactured home on a foundation. Permanent construction does not include land preparation, such as clearing, grading and filling; nor does it include the installation of streets and/or walkways; nor does it include excavation for basement, footings, piers or foundations or the erection of temporary forms; nor does it include the installation on the property of accessory buildings, such as garages or sheds not occupied as dwelling units or not part of the main structure. For a substantial improvement, the actual start of construction means the first alteration of any wall, ceiling, floor, or other structural part of a building, whether or not that alteration affects the external dimensions of the building. STRUCTURE – means, for floodplain management purposes, a walled and roofed building, including a gas or liquid storage tank, that is principally above ground, as well as a manufactured home. SUBSTANTIAL DAMAGE - means damage of any origin sustained by a structure whereby the cost of restoring the structure to its before damaged condition would equal or exceed 50 percent (50%) of the market value of the structure before the damage occurred. SUBSTANTIAL IMPROVEMENT - means any reconstruction, rehabilitation, addition, or other improvement of a structure or any series of reconstructions, rehabilitations, additions, or 8 other improvements of a structure, the cumulative cost of which equals or exceeds 50 percent of the market value of the structure as of the effective date of this Ordinance. This term includes structures which have incurred "substantial damage", regardless of the actual repair work performed. The term does not, however, include either: (1) Any project for improvement of a structure to correct existing violations of state or local health, sanitary, or safety code specifications which have been identified by the local code enforcement official and which are the minimum necessary to assure safe living conditions or (2) Any alteration of a "historic structure", provided that the alteration will not preclude the structure's continued designation as a "historic structure." VARIANCE – means a grant of relief by a community from the terms of a floodplain management regulation. (For full requirements see Section 60.6 of the National Flood Insurance Program regulations.) VIOLATION - means the failure of a structure or other development to be fully compliant with the community's floodplain management regulations. A structure or other development without the elevation certificate, other certifications, or other evidence of compliance required in Section 60.3(b)(5), (c)(4), (c)(10), (d)(3), (e)(2), (e)(4), or (e)(5) is presumed to be in violation until such time as that documentation is provided. WATER SURFACE ELEVATION - means the height, in relation to the North American Vertical Datum (NAVD) of 1988 (or other datum, where specified), of floods of various magnitudes and frequencies in the floodplains of coastal or riverine areas. ARTICLE III GENERAL PROVISIONS Section 1. Lands to Which This Ordinance Applies The ordinance shall apply to all areas of special flood hazard within the corporate limits and the extraterritorial jurisdiction of the City. Section 2. Basis for Establishing the Areas of Special Flood Hazard The areas of special flood hazard identified by the Federal Emergency Management Agency in the current scientific and engineering report entitled, “The Flood Insurance Study (FIS) for {Guadalupe County Texas and Incorporated Areas Volume 1 & 2}," dated {November 2, 2007}, with accompanying Flood Insurance Rate Maps and/or Flood Boundary-Floodway Maps (FIRM and/or FBFM) dated {November 2, 2007}. Also applicable are the effective FIS and FIRM maps for Bexar County dated {September 29, 2010} and Comal County dated {September 2, 2009}. And any revisions thereto are hereby adopted by reference and declared to be a part of this ordinance. 9 Section 3. Establishment of Floodplain Development Permit A Floodplain Development Permit shall be required to ensure conformance with the provisions of this Ordinance as further set forth in Article IV. Section 4. Compliance No structure or land shall hereafter be located, altered, or have its use changed without full compliance with the terms of this ordinance and other applicable regulations. Section 5. Abrogation and Greater Restrictions This Ordinance is not intended to repeal, abrogate, or impair any existing easements, covenants, or deed restrictions. However, where this ordinance and another ordinance, easement, covenant, or deed restriction conflict or overlap, whichever imposes the more stringent restrictions shall prevail. Section 6. Interpretation In the interpretation and application of this ordinance, all provisions shall be; (1) considered as minimum requirements; (2) liberally construed in favor of the governing body; and (3) deemed neither to limit nor repeal any other powers granted under State statutes. Section 7. Warning and Disclaimer of Liability The degree of flood protection required by this ordinance is considered reasonable for regulatory purposes and is based on scientific and engineering considerations. On rare occasions greater floods can and will occur and flood heights may be increased by man-made or natural causes. This ordinance does not imply that land outside the areas of special flood hazards or uses permitted within such areas will be free from flooding or flood damages. This ordinance shall not create liability on the part of the community or any official or employee thereof for any flood damages that result from reliance on this ordinance or any administrative decision lawfully made hereunder. ARTICLE IV ADMINISTRATION Section 1. Designation of the Floodplain Administrator The City Manager or his/her designee is hereby appointed the Floodplain Administrator to administer and implement the provisions of this ordinance and other appropriate sections of 44 10 CFR (Emergency Management and Assistance - National Flood Insurance Program Regulations) pertaining to floodplain management. Section 2. Duties and Responsibilities of the Floodplain Administrator The duties and responsibilities of the Floodplain Administrator shall include, but not be limited to, the following: (a) Maintain and hold open for public inspection all records pertaining to the provisions of this ordinance. (b) Review permit applications to determine whether the proposed building site project, including the placement of manufactured homes, will be reasonably safe from flooding. (c) Review, approve or deny all applications for development permits required by adoption of this ordinance. (d) Review permits for proposed development to assure that all necessary permits relating to floodplain management have been obtained from those Federal, State or local governmental agencies (including Section 404 of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. 1334) from which prior approval is required. (e) Where interpretation is needed as to the exact location of the boundaries of the areas of special flood hazards (for example, where there appears to be a conflict between a mapped boundary and actual field conditions) the Floodplain Administrator shall make the necessary interpretation. (f) Notify, in riverine situations, adjacent communities and the State Coordinating Agency, which is the Texas Water Board, prior to any alteration or relocation of a watercourse, and require that evidence of such notification is submitted to the Federal Emergency Management Agency. (g) Assure that the flood carrying capacity within the altered or relocated portion of any watercourse is maintained. (h) When base flood elevation data has not been provided in accordance with Article III, Section 2, the Floodplain Administrator shall obtain, review and reasonably utilize any base flood elevation data and floodway data available from a Federal, State or other source, in order to administer the provisions of Article V. (i) When a regulatory floodway has not been designated, the Floodplain Administrator must require that no new construction, substantial improvements, or other development (including fill) shall be permitted within Zones A1-30 and 11 AE on the community's FIRM, unless it is demonstrated that the cumulative effect of the proposed development, when combined with all other existing and anticipated development, will not increase the water surface elevation of the base flood at any point within the community unless said increase is completely contained within the property of the development. (j) Under the provisions of 44 CFR Chapter 1, Section 65.12, of the National Flood Insurance Program regulations, a community may approve certain development in Zones A1-30, AE, AH, on the community's FIRM which increases the water surface elevation of the base flood provided that the community first completes all of the provisions required by 44 CFR Chapter 1, Section 65.12. Section 3. Permit Procedures (a) Application for a Floodplain Development Permit shall be presented to the Floodplain Administrator on forms furnished by him/her and may include, but not be limited to, plans in duplicate drawn to scale showing the location, dimensions, and elevation of proposed landscape alterations, existing and proposed structures, including the placement of manufactured homes, and the location of the foregoing in relation to areas of special flood hazard. Additionally, the following information is required: (1) Elevation (in relation to mean sea level), of the lowest floor (including basement) of all new and substantially improved structures. (2) Elevation in relation to mean sea level to which any non-residential structure shall be flood-proofed (3) A certificate from a registered professional engineer or architect that the non-residential floodproofed structure shall meet the flood-proofing criteria of Article V, Section 2 (b). (4) Description of the extent to which any watercourse or natural drainage will be altered or relocated as a result of proposed development. (5) Maintain a record of all such information in accordance with Article IV, Section 2 (a). (b) Approval or denial of a Floodplain Development Permit by the Floodplain Administrator shall be based on all of the provisions of this ordinance and the following relevant factors: (1) The danger to life and property due to flooding or erosion damage. 12 (2) The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner. (3) The danger that materials may be swept onto other lands to the injury of others. (4) The compatibility of the proposed use with existing and anticipated development. (5) The safety of access to the property in times of flood for ordinary and emergency vehicles. (6) The costs of providing governmental services during and after flood conditions including maintenance and repair of streets and bridges, and public utilities and facilities such as sewer, gas, electrical and water systems. (7) The expected heights, velocity, duration, rate of rise and sediment transport of the floodwaters and the effects of wave action, if applicable, expected at the site. (8) The necessity to the facility of a waterfront location, where applicable. (9) The availability of alternative locations, not subject to flooding or erosion damage, for the proposed use. (c) The Floodplain Administrator may grant a waiver to certain submittal requirements, within the specified area shown on Exhibit A, for new construction and substantial improvements to be erected on a lot of ½ acre or less in size contiguous to and surrounded by lots with existing structure constructed below the base flood level, providing the relevant factors in Section 3 (b) of this Article have been fully considered and the standards of Article V are met. The ability to be granted a waiver for the requirements to the specific area outlined in the exhibit attached hereto are:  To prevent slum and blight  To prevent undue hardship on property owners in the area shown on Exhibit A to which the substantial build out and close proximity of the existing structures creates unique situations where any impact may be deemed negligible. Section 4. Variance Procedures (a) The Appeal Board, as established by the community, shall hear and render judgment on requests for variances from the requirements of this ordinance. 13 (b) The Appeal Board shall hear and render judgment on an appeal only when it is alleged there is an error in any requirement, decision, or determination made by the Floodplain Administrator in the enforcement or administration of this ordinance. (c) Any person or persons aggrieved by the decision of the Appeal Board may appeal such decision in the courts of competent jurisdiction. (d) The Floodplain Administrator shall maintain a record of all actions involving an appeal and shall report variances to the Federal Emergency Management Agency upon request. (e) Variances may be issued for the reconstruction, rehabilitation or restoration of structures listed on the National Register of Historic Places or the State Inventory of Historic Places, without regard to the procedures set forth in the remainder of this ordinance. (f) Upon consideration of the factors noted above and the intent of this ordinance, the Appeal Board may attach such conditions to the granting of variances as it deems necessary to further the purpose and objectives of this ordinance (Article I, Section 3). (g) Variances shall not be issued within any designated floodway if any increase in flood levels during the base flood discharge would result. (h) Variances may be issued for the repair or rehabilitation of historic structures upon a determination that the proposed repair or rehabilitation will not preclude the structure's continued designation as a historic structure and the variance is the minimum necessary to preserve the historic character and design of the structure. (i) Prerequisites for granting variances: (1) Variances shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief. (2) Variances shall only be issued upon: (i) showing a good and sufficient cause; (ii) a determination that failure to grant the variance would result in exceptional hardship to the applicant, and (iii) a determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, extraordinary public expense, create nuisances, cause fraud on or victimization of the public, or conflict with existing local laws or ordinances. 14 (3) Any application to which a variance is granted shall be given written notice that the structure will be permitted to be built with the lowest floor elevation below the base flood elevation, and that the cost of flood insurance will be commensurate with the increased risk resulting from the reduced lowest floor elevation. (j) Variances may be issued by a community for new construction and substantial improvements and for other development necessary for the conduct of a functionally dependent use provided that (i) the criteria outlined in Article IV, Section 4 (a)-(j) are met, and (ii) the structure or other development is protected by methods that minimize flood damages during the base flood and create no additional threats to public safety. ARTICLE V PROVISIONS FOR FLOOD HAZARD REDUCTION Section 1. General Standards In all areas of special flood hazards the following provisions are required for all new construction and substantial improvements: (a) All new construction or substantial improvements shall be designed (or modified) and adequately anchored to prevent flotation, collapse or lateral movement of the structure resulting from hydrodynamic and hydrostatic loads, including the effects of buoyancy. (b) All new construction or substantial improvements shall be constructed by methods and practices that minimize flood damage. (c) All new construction or substantial improvements shall be constructed with materials resistant to flood damage. (d) All new construction or substantial improvements shall be constructed with electrical, heating, ventilation, plumbing, and air conditioning equipment and other service facilities that are designed and/or located so as to prevent water from entering or accumulating within the components during conditions of flooding. (e) All new and replacement water supply systems shall be designed to minimize or eliminate infiltration of flood waters into the system. (f) New and replacement sanitary sewage systems shall be designed to minimize or eliminate infiltration of flood waters into the system and discharge from the systems into flood waters. 15 (g) On-site waste disposal systems shall be located to avoid impairment to them or contamination from them during flooding. Section 2. Specific Standards In all areas of special flood hazards where base flood elevation data has been provided as set forth in (i) Article III, Section 2, (ii) Article IV, Section 2 (8), or (iii) Article V, Section 3 (c), the following provisions are required: (a) Residential Construction - new construction and substantial improvement of any residential structure shall have the lowest floor (including basement), elevated to or above the base flood elevation plus freeboard. A registered professional engineer, architect, or land surveyor shall submit a certification to the Floodplain Administrator that the standard of this subsection as proposed in Article IV, Section 3 (a) , is satisfied. (b) Non-Residential Construction - new construction and substantial improvements of any commercial, industrial or other non-residential structure shall either have the lowest floor (including basement) elevated to or above the base flood level plus freeboard or together with attendant utility and sanitary facilities, be designed so that below the base flood level the structure is watertight with walls substantially impermeable to the passage of water and with structural components having the capability of resisting hydrostatic and hydrodynamic loads and effects of buoyancy. A registered professional engineer or architect shall develop and/or review structural design, specifications, and plans for the construction, and shall certify that the design and methods of construction are in accordance with accepted standards of practice as outlined in this subsection. A record of such certification which includes the specific elevation (in relation to mean sea level) to which such structures are flood-proofed shall be maintained by the Floodplain Administrator. (c) Enclosures - new construction and substantial improvements, with fully enclosed areas below the lowest floor that are usable solely for parking of vehicles, building access or storage in an area other than a basement and which are subject to flooding shall be designed to automatically equalize hydrostatic flood forces on exterior walls by allowing for the entry and exit of floodwaters. Designs for meeting this requirement must either be certified by a registered professional engineer or architect or meet or exceed the following minimum criteria: (1) A minimum of two openings on separate walls having a total net area of not less than 1 square inch for every square foot of enclosed area subject to flooding shall be provided. (2) The bottom of all openings shall be no higher than 1 foot above grade. 16 (3) Openings may be equipped with screens, louvers, valves, or other coverings or devices provided that they permit the automatic entry and exit of floodwaters. (d) Manufactured Homes - (1) Require that all manufactured homes to be placed within Zone A on a community's FHBM or FIRM shall be installed using methods and practices which minimize flood damage. For the purposes of this requirement, manufactured homes must be elevated and anchored to resist flotation, collapse, or lateral movement. Methods of anchoring may include, but are not limited to, use of over-the-top or frame ties to ground anchors. This requirement is in addition to applicable State and local anchoring requirements for resisting wind forces. (2) Require that manufactured homes that are placed or substantially improved within Zones A1-30, AH, and AE on the community's FIRM on sites (i) outside of a manufactured home park or subdivision, (ii) in a new manufactured home park or subdivision, (iii) in an expansion to an existing manufactured home park or subdivision, or (iv) in an existing manufactured home park or subdivision on which a manufactured home has incurred "substantial damage" as a result of a flood, be elevated on a permanent foundation such that the lowest floor of the manufactured home is elevated to or above the base flood elevation and be securely anchored to an adequately anchored foundation system to resist flotation, collapse, and lateral movement. (3) Require that manufactured homes be placed or substantially improved on sites in an existing manufactured home park or subdivision with Zones A1-30, AH and AE on the community's FIRM that are not subject to the provisions in (1) or (2) be elevated so that either: (i) the lowest floor of the manufactured home is at or above the base flood elevation, or (ii) the manufactured home chassis is supported by reinforced piers or other foundation elements of at least equivalent strength that are no less than 36 inches in height above grade and be securely anchored to an adequately anchored foundation system to resist flotation, collapse, and lateral movement. (e) Recreational Vehicles - Require that recreational vehicles placed on sites within Zones A1-30, AH, and AE on the community's FIRM be fully licensed, have current motor vehicle inspection certificate, state registration, is operable and 17 ready for highway use. A recreational vehicle is ready for highway use if it is on its wheels or jacking system, is attached to the site only by quick disconnect type utilities and security devices, has no permanently attached additions. Section 3. Standards for Subdivision Proposals (a) All subdivision proposals including the placement of manufactured home parks and subdivisions shall be consistent with Article I, Sections 2, 3, and 4 of this ordinance. (b) All proposals for the development of subdivisions including the placement of manufactured home parks and subdivisions shall meet Floodplain Development Permit requirements of Article III, Section 3; Article IV, Section 3; and the provisions of Article V of this ordinance. (c) Base flood elevation data shall be generated for subdivision proposals and other proposed development including the placement of manufactured home parks and subdivisions which is greater than 50 lots or 5 acres, whichever is lesser, if not otherwise provided pursuant to Article III, Section 2 or Article IV, Section 2 (h) of this ordinance. (d) All subdivision proposals including the placement of manufactured home parks and subdivisions shall have adequate drainage provided to reduce exposure to flood hazards. (e) All subdivision proposals including the placement of manufactured home parks and subdivisions shall have public utilities and facilities such as sewer, gas, electrical and water systems located and constructed to minimize or eliminate flood damage. Section 4. Standards for Areas of Shallow Flooding (AO/AH Zones) Located within the areas of special flood hazard established in Article III, Section 2, are areas designated as shallow flooding. These areas have special flood hazards associated with flood depths of 1 to 3 feet where a clearly defined channel does not exist, where the path of flooding is unpredictable, and where velocity flow may be evident. Such flooding is characterized by ponding or sheet flow; therefore, the following provisions apply: (a) All new construction and substantial improvements of residential structures have the lowest floor (including basement) elevated to or above the base flood elevation. (b) All new construction and substantial improvements of non-residential structures; 18 (1) have the lowest floor (including basement) elevated to or above the base flood elevation, or (2) together with attendant utility and sanitary facilities be designed so that below the base specified flood depth in an AO Zone, or below the Base Flood Elevation in an AH Zone, the structure is watertight with walls substantially impermeable to the passage of water and with structural components having the capability of resisting hydrostatic and hydrodynamic loads of effects of buoyancy. (c) A registered professional engineer or architect shall submit a certification to the Floodplain Administrator that the standards of this Section, as proposed in Article IV, Section 3 are satisfied. (d) Require within Zones AH or AO adequate drainage paths around structures on slopes, to guide flood waters around and away from proposed structures. Section 5. Floodways Lands located within areas of special flood hazard established in Article III, Section 2, are areas designated as floodways. Since the floodway is an extremely hazardous area due to the velocity of flood waters which carry debris, potential projectiles and erosion potential, the following provisions shall apply: (a) Encroachments are prohibited, including fill, new construction, substantial improvements and other development within the adopted regulatory floodway unless it has been demonstrated through hydrologic and hydraulic analyses performed in accordance with standard engineering practice that the proposed encroachment would not result in any increase in flood levels within the community during the occurrence of the base flood discharge. (b) If Article V, Section 5 (a) above is satisfied, all new construction and substantial improvements shall comply with all applicable flood hazard reduction provisions of Article V. (c) Under the provisions of 44 CFR Chapter 1, Section 65.12, of the National Flood Insurance Program Regulations, a community may permit encroachments within the adopted regulatory floodway that would result in an increase in base flood elevations, provided that the community first completes all of the provisions required by Section 65.12. Section 6. Severability If any section, clause, sentence, or phrase of this Ordinance is held to be invalid or unconstitutional by any court of competent jurisdiction, then said holding shall in no way affect 19 the validity of the remaining portions of this Ordinance. Section 7. Penalties for Non-Compliance No structure or land shall hereafter be constructed, located, extended, converted, or altered without full compliance with the terms of this Ordinance and other applicable regulations. Violation of the provisions of this Ordinance by failure to comply with any of its requirements (including violations of conditions and safeguards established in connection with conditions) shall constitute a misdemeanor. Any person who violates this Ordinance or fails to comply with any of its requirements shall upon conviction thereof be fined not more than $500.00, and in addition shall pay all costs and expenses involved in the case. Each violation of a particular section of this ordinance shall constitute a separate offense, and each day an offense continues shall be considered a new violation for purposes of enforcing this ordinance. Nothing herein contained shall prevent the City from taking such other lawful action as is necessary to prevent or remedy any violation. Æÿ8151 Æÿ87 Æÿ87 Æÿ8151 Æÿ9003 S C H E R T Z P K W Y SCH E R T Z P K W Y LIVE OA K R D AERO AV E MAIN ST ELBEL RD MAPLE D R O A K S T MASKE R D R A N D O L P H A V E PECAN DR E AVIATIO N B L V D 1 S T S T C H E S T N U T D R B E V E R LY D R M I L L S T W E S T C H E S T E R D R B U F F A L O D R C O M MUNITY CIR CURTISS A V E VALLEY F O R G E D R R O A N O K E D R GETTYSB U R G D R C O L O N Y O A K S T D O W M A N S T CHURCH S T 4 0 500 1,000 1,500 2,000 2,500250Feet Flood Damage Prevention Ordinance Exhibit AThis product is for informational purposes and may not have been prepared for or be suitable for legal, engineering, or surveying purposes. It does not represent an on-the-ground survey and represents only the approximate relative location of property boundaries. Last Update: January 17, 2013 City of Schertz, GIS Coordinator: Tony McFalls, amcfallls@schertz.com (210) 619-1184 Rivers and Streams Floodway 100 Year Flood Zone Waiver Boundary Agenda No. 11 CITY COUNCIL MEMORANDUM City Council Meeting: April 9, 2013 Department: Development Services Subject: Ordinance No. 13-S-13– Public Hearing Hold a public hearing, consider and act on a request to rezone approximately 2.010 ± acres of land from Pre-Development District (PRE) to General Business District (GB), out of the Francisco Rodriguez Survey, No. 99, Section 2, Comal County, Schertz, Texas. (REQUEST TO BE TABLED) BACKGROUND Goal Nital Properties, LLC is proposing to rezone approximately 2.010+ acres of land generally located on the southeast corner of FM 482 and Old Nacogdoches Road from Pre-Development District (PRE) to General Business (GB). Community Benefit It is the City’s desire to promote safe, orderly, efficient development and ensure compliance with the City’s vision of future growth. Summary of Recommended Action Anticipating this item would be acted on by the Planning and Zoning Commission on March 27, 2013, staff published the notice for the April 9, 2013 City Council meeting on March 22, 2013. At the recommendation of Staff and the applicant, the Planning and Zoning Commission tabled consideration of the item to April 10. Since the Planning and Zoning Commission has not acted on this item, Council cannot yet consider it. FISCAL IMPACT None RECOMMENDATION City Council Memorandum Page 2 Based on the Planning and Zoning action Staff recommends that the public hearing be opened and the item be tabled to allow the Planning and Zoning Commission to continue their public hearing and forward a recommendation to City Council on this request.