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02-28-2012 Agenda PacketSCHERTZ CITY COUNCIL REGULAR SESSION MUNICIPAL COMPLEX COUNCIL CHAMBERS 1400 SCHERTZ PARKWAY BUILDING #4 SCHERTZ, TEXAS 78154 02-28-2012 Council Agenda AGENDA TUESDAY, FEBRUARY 28, 2012 AT 6:00 P.M. The City Council may, for its convenience or for the convenience of City Staff or persons in attendance, modify the order in which items on the agenda are considered by the City Council. Call to Order – Regular Session – 6:00 p.m. Invocation and Pledges of Allegiance to the Flags of the United States and State of Texas. City Events • Announcements of upcoming City Events (D. Harris/J. Bierschwale) Worksession Items A. Discussion regarding the intent to revise Article 7, Non-Conforming Uses, Lots and Structures of the Unified Development Code. (J. Kessel/M. Sanchez) Presentations • Capital Improvements (J. Kessel/P. Gaudreau) - Capital Improvements Project Update - Playscape • Web-based Project Management Program (J. Kessel/P. Gaudreau) 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. 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 02-28-2012 City Council Agenda Page - 2 - 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 February 21, 2012. 2. Resolution No. 12-R-18 – Consideration and/or action approving a second agreement regarding Sewer Facilities with the Schertz-Cibolo-Universal City Independent School District, Croton Properties, LLC, Fred Development, LLC, and Gordon V. Hartman Enterprises, L.P. (J. Kessel/M. Spain) 3. Resolution No. 12-R-19 - Executive Director – Consideration and/or action approving a resolution authorizing a budget transfer to fund the new Executive Director position in the City Manager Department. (J. Kessel/D. Harris) 4. Resolution No. 12-R-20 – Consideration and/or action approving a resolution authorizing an Interlocal Agreement with Live Oak concerning emergency communication systems. (J. Bierschwale/D. Wait) Executive Session Called under Section 551.071 Texas Government Code 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. Reconvene into Regular Session 5. Take any action deemed necessary as a result of the Executive Session. Requests and Announcements 6. Requests by Mayor and Councilmembers that items be placed on a future City Council agenda. 7. Requests by Mayor and Councilmembers to City Manager and Staff for information. 8. 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 9. Announcements by City Manager 02-28-2012 City Council Agenda Page - 3 - • Citizen Kudos • Recognition of City employee actions • New Departmental initiatives 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 24th DAY OF FEBRUARY 2012 AT 3:00 P.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, TRMC, MMC City Secretary 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 _______________, 2012. ____________________________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 Baldwin Interview Board for Boards and Commissions Investment Advisory Committee ASA Commuter Rail District Board – Lone Star Alamo Area Council of Governments Cibolo Valley Local Government Corporation Schertz Seguin Local Government Corporation Mayor Pro-Tem Scagliola – Council Place 2 Animal Control Advisory Committee Interview Board for Boards and Commissions Sweetheart Advisory Committee Councilmember Fowler – Place 1 Interview Board for Boards and Commissions Schertz Housing Board Liaison Councilmember Antuna - Place 3 Audit Committee Councilmember Edwards – Place 4 Investment Advisory Committee Audit Committee Hal Baldwin Scholarship Committee Councilmember Carpenter – Place 5 TIRZ II Board Hal Baldwin Scholarship Committee February 28, 2012 JACKSON A&E ASSOCIATES, INC ANIMAL CONTROL FACILITY SITE PLAN ANIMAL CONTROL FACILITY FLOOR PLAN ANIMAL CONTROL FACILITY FLOOR PLAN ANIMAL CONTROL FACILITY ROOF PLAN ANIMAL CONTROL FACILITY CONCEPT 1 ANIMAL CONTROL FACILITY CONCEPT 1 ANIMAL CONTROL FACILITY CONCEPT 1 ANIMAL CONTROL FACILITY CONCEPT 1 ANIMAL CONTROL FACILITY CONCEPT 1 ANIMAL CONTROL FACILITY CONCEPT 2 ANIMAL CONTROL FACILITY CONCEPT 2 ANIMAL CONTROL FACILITY CONCEPT 2 ANIMAL CONTROL FACILITY CONCEPT 2 ANIMAL CONTROL FACILITY CONCEPT 2 ANIMAL CONTROL FACILITY CONCEPT 3 ANIMAL CONTROL FACILITY CONCEPT 3 ANIMAL CONTROL FACILITY CONCEPT 3 ANIMAL CONTROL FACILITY CONCEPT 3 ANIMAL CONTROL FACILITY CONCEPT 3 ANIMAL CONTROL FACILITY CONCEPT 4 ANIMAL CONTROL FACILITY CONCEPT 4 ANIMAL CONTROL FACILITY CONCEPT 4 ANIMAL CONTROL FACILITY CONCEPT 4 ANIMAL CONTROL FACILITY CONCEPT 4 ANIMAL CONTROL FACILITY CONCEPT 5 ANIMAL CONTROL FACILITY CONCEPT 5 ANIMAL CONTROL FACILITY CONCEPT 5 ANIMAL CONTROL FACILITY CONCEPT 5 ANIMAL CONTROL FACILITY CONCEPT 5 ANIMAL CONTROL FACILITY CONCEPT 6 ANIMAL CONTROL FACILITY CONCEPT 6 ANIMAL CONTROL FACILITY CONCEPT 6 ANIMAL CONTROL FACILITY CONCEPT 6 ANIMAL CONTROL FACILITY CONCEPT 6 ANIMAL CONTROL FACILITY SOCCER FIELD RENOVATIONS ORIGINAL LAYOUT OF FIELDS SOCCER FIELD RENOVATIONS CONCEPT STUDY #1 SOCCER FIELD RENOVATIONS CONCEPT STUDY #2 SOCCER FIELD RENOVATIONS CONCEPT STUDY #3 SOCCER FIELD RENOVATIONS CONCEPT STUDY #3 SOCCER FIELD RENOVATIONS CONCESSION FLOOR PLAN SOCCER FIELD RENOVATIONS CONCESSION ELEVATIONS SOCCER FIELD RENOVATIONS CONCESSION ELEVATIONS SOCCER FIELD RENOVATIONS AQUATIC FACILITY PROPOSED SITE A Request for Qualifications for Design Services that was issued December 12, 2011 resulted in six firms submitting their qualifications for consideration on January 26, 2012. The six firms, in no particular order, are: ➢Kell Muñoz Architects ➢Atkins North America, Inc. ➢RVK, Inc ➢Brinkley Sargent Architects ➢Marmon Mok Architecture ➢O’Neil Conrad Oppelt (OCO) Architects, Inc. A selection team is currently evaluating the firms and will conduct interviews following the criteria listed in the RFQ. The team will then make a recommendation to Council . AQUATIC FACILITY PLAYSCAPE EXISTING PLAYSCAPE PLAYSCAPE EXISTING PLAYSCAPE PLAYSCAPE REPLICATION WITH MODERN MATERIALS PLAYSCAPE REPLICATION WITH MODERN MATERIALS PLAYSCAPE REPLICATION WITH MODERN MATERIALS PLAYSCAPE REPLICATION WITH MODERN MATERIALS PLAYSCAPE REPLICATION WITH MODERN MATERIALS EXISTING PLAYSCAPE PROPOSED MODERN MATERIALS Agenda No. 1 CITY COUNCIL MEMORANDUM City Council Meeting: February 28, 2012 Department: City Secretary Subject: Minutes BACKGROUND The City Council held a regular meeting on February 21, 2012. FISCAL IMPACT None RECOMMENDATION Staff recommends Council approve the minutes of the Regular Meeting of February 21, 2012. ATTACHMENT Minutes Regular meeting February 21, 2012. 02-21-2012 Minutes MINUTES REGULAR MEETING February 21, 2012 A Regular Meeting was held by the Schertz City Council of the City of Schertz, Texas, on February 21, 2012, at 6:00 p.m., in the Municipal Complex Council Chambers, 1400 Schertz Parkway, Building #4, Schertz, Texas. The following members present to-wit: Mayor Hal Baldwin Mayor Pro-Tem David Scagliola Councilmember Jim Fowler Councilmember George Antuna Councilmember Michael Carpenter Staff Present: City Manager John Kessel Executive Director John Bierschwale Executive Director David Harris Chief of Staff Bob Cantu City Attorney Michael Spain City Secretary Brenda Dennis Councilmember Cedric Edwards was absent. CALL TO ORDER REGULAR MEETING Mayor Baldwin called the meeting to order at 6:00 p.m. and welcomed everyone in attendance. Mayor Baldwin indicated that Councilmember Edward would not be in attendance this evening and that Councilmember Carpenter is running a little late. INVOCATION AND PLEDGES OF ALLEGIANCE TO THE FLAGS OF THE UNITED STATES AND STATE OF TEXAS. Councilmember Fowler gave the invocation followed by the Pledges of Allegiance to the Flags of the United States and the State of Texas. City Events Announcements of upcoming City Events (D. Harris/J. Bierschwale) No upcoming events announced. Worksession Items A. Discussion regarding the intent to revise Article 10, Parking Standards of the Unified Development Code. (J. Kessel/M. Sanchez) Mayor Baldwin recognized Development Services Director Michelle Sanchez who briefed the Council informing them that staff and senior management met and discussed the challenges that continue to be encountered in regards to the larger developments, i.e. office warehouses and distribution facilities in Schertz and found that many of the City’s 02-21-2012 Minutes parking standards do not apply entirely to the operations that take place in these locations. In the past, variances have been approved to remedy these issues. Developers have been requesting special accommodations, i.e. compact car spaces. Planning and Zoning would like to examine the parking standards and then make a recommendation to the Council regarding the developments with these types of operations. Ms. Sanchez advised the Council on the goals of the department in regards to parking standards. In the future, self-automation will result in fewer employees and therefore fewer parking spaces. Ms. Sanchez briefed the Council regarding the intent to revise Article 10, Parking Standards of the Unified Development Code and by revising these parking standards to be more applicable to the types of industry uses the community benefit will be an end result of an aesthetically pleasing area and well-landscaped parking lots, as well as provide a resolution to over abundant unused parking spaces and provide for safe and effective functional parking areas catered to the development. By revising Article 10, the City will be able to provide these opportunities. Mayor Baldwin requested a timeline for the process to occur and Ms. Sanchez indicated that Planning and Zoning would like to start the review at the next meeting on March 14, 2012. Mayor Baldwin recognized Mr. John Kessel, City Manager, who indicated the importance of remaining competitive when recruiting high investment developments. For the City to attract these businesses, an update to parking standards is necessary to insure that the City has the most current parking standards in place. Mayor Baldwin recognized Councilmember Fowler who questioned the areas; if this change is directed only to the larger developments and expressed his concerns on the affect these changes may have on the parking areas for mixed development uses such as Wal-Mart. Ms. Sanchez indicated that the review would include the entire Article 10 and not only for larger industrial development areas, but for retail areas, churches, and schools as well. Mayor Baldwin recognized Councilmember Scagliola who asked how the City would decide on the size of a parking space. Ms. Sanchez indicated that they would be benchmarking from other cities on the variations they use for parking. Mr. Kessel added that the American Planning Association has a plan advisory service subscription that is considered one of the definitive sources on parking standards from around the country. The Institute of Transportation Engineers also has a definitive study that looks at particular uses and accounts for vehicle trips in and out, etc. These are the two base references which the City will be using, as well as, using other cities as examples. As there were no further questions from Council, Mayor Baldwin closed the work session. Councilmember Carpenter arrived at 6:15 p.m. 02-21-2012 Minutes 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. 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 Baldwin recognized the following: • Mr. Steve Layton, 12231 Lost Meadows Drive, who spoke regarding a flood study he completed in the Laura Heights Estates subdivision. • Maggie Titterington, Schertz Chamber of Commerce President, who briefed Council on the current and upcoming Chamber events and thanked the Council for being active in the Chamber events. Mayor Baldwin recognized the following who spoke regarding their issues with their homes and Pulte Homebuilders. Mayor Baldwin reminded those present of the three-minute time limit and that passing time to other speakers would not be allowed. • Mr. Bruce Touve, 5213 Brookline • Mrs. Faye Touve, 5213 Brookline • Ralph Hogue, 660 Rooster Run • Heather Camelio, 5224 Brookline • Debbie Bishop, 5321 Storm King • John Fitzgerald, 5304 Storm King • Brenda Davis, 5603 Storm King • Kenny Knippa, 5560 Columbia • Ken Russell, 6034 Mule Deer • Molly Casas, 5228 Brookline • Sherry Clark, 5269 Brookline • Tricia Mattison, Homeowners for Better Building • Janet Ahmad, Homeowners for Better Building • Omar Mendoza, 5308 Storm King • Matt Summers, 5561 Columbia • Dan Munson, 4211 Warm Winds, San Antonio Mayor Baldwin recognized City Manager John Kessel who stated that it is important to recognize the role of the City. The City must follow the Constitution that says that the City cannot spend public funds on private property. The City is not a party to the contracts that were signed for the purchase of these homes, and the City cannot force Pulte to buy back these homes. The City can not write a 02-21-2012 Minutes check nor force Pulte to write a check. We have to follow national and state laws. The City must follow the laws of our country and this is why we are handling this issue as we have. • Dan Hollestell, 5525 Columbia Drive • Mark Allen, 5400 Storm King Mayor Baldwin recognized City Manager John Kessel who stated he really wanted to encourage the residents to really think about what he says. He doesn’t believe he is talking in circles. He is trying to provide very straight forward information. He indicated that the community can come to City Hall and express their concerns in an open forum and open door. He does his very best to greet and make residents feel welcome. He wants to make sure that every citizen feels comfortable in this public building. There is no question that this is a public building and this is a good place to be. Everyone on Council believes that it is a citizen’s right to be heard. Mr. Kessel indicated that he feels that it is unfair to say that the City should help solve a problem, when the City cannot actually force a solution. The only way we can help is by getting the two parties together to discuss things. If one or the other side does not wish to meet, then this is the extent of what the City can do. Mr. Kessel stated that he has mentioned to several residents that he is looking at the City ordinances regarding the City standards and will continue to look at them. These are issues moving forward. In regards to the City pulling building permits, once the Certificate of Occupancy is issued, then the building permit is replaced by the Certificate of Occupancy. The Certificate of Occupancy is the end of the permit, there is not a continuation of the building permit. Therefore, the City cannot pull these permits on homes that are complete and occupied. In regards to the role of the city engineer and how it differs from the private sector engineer, the private developer hires their own engineer to design the subdivision. They do all the calculations and the testing. They design the entirety of the subdivision. They review and seal the plans stamping their approval. The City relies on that seal. Once the plans are received, the city engineer makes sure that the plans meet the local standards such as street widths and street names. They also check to make sure that most of the calculations are on the plan. Their job is not to run the calculations. They are not the design engineer. They are there to grade the plans. The plans could be returned with requested changes, or they could be accepted as submitted by the City Engineer. Mr. Kessel continues to offer assistance with dialogue between Pulte and the Homeowners. He cannot force either party to communicate. He cannot force anyone to agree to meet; however, he will continue to work hard on the homeowner’s behalf to get Pulte to agree to meet with the homeowner and sit down at the table. The City can not make either side do anything; it’s not binding arbitration. Mayor Baldwin commented that his position remains as always, that he supports the homeowner and has done what he can do in regards to keeping these situations on the front burner with Pulte. He stated he has advised the homeowners to take this to Pulte, and you have done it. The homeowners continue to picket several Pulte subdivisions within the area, as well as the Pulte headquarters. That’s the right move. The City is taking the heat for Pulte, and the City has done nothing wrong. 02-21-2012 Minutes The City has provided all requested records that we have available. The City has provided the homeowners the opportunity to come and voice their complaints. He stated he has sat very patiently, listening to everyone’s plight and has sympathized with you. Mayor Baldwin publicly apologized for any miscommunication that may have occurred to make homeowners believe that he is tired of hearing their complaints. He stated to help future homeowners; he would recommend contacting the Legislators. Request laws concerning contracts on purchasing a home be changed, and you want this binding arbitration out and you wanted some way you can file suit against a defective builder. That would help others down the road, as well as yourselves. To clarify, he has no reason to support Pulte; they do not support him monetarily. Mayor Baldwin also mentioned that there are 210 homeowners in the subdivision, 70-80 homeowners want their homes bought back, and the homes have lost value and may face issues with reselling due to the public outcry that has been occurring. If Pulte bought back the homes, and then there would be 70- 80 homes boarded up in the subdivision. The remaining homeowners, regardless of whether they have any problems at all, may never be able to sell their home. It is his job as Mayor to represent all of the residents, including those who have problems and those who do not have problems. It is his responsibility to keep Fairhaven from turning into a ghost town and something that is unmarketable. Consent Agenda 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 February 14, 2012. 2. Resolution No. 12-R-16 – Consideration and/or action approving a Resolution authorizing a second amendment to the Regional Water Supply Contract between the Schertz-Seguin Local Government Corporation and the City of Converse, and other matters in connection therewith. (J. Bierschwale/A. Cockerell/M. Spain) Mayor Baldwin read the following caption into record: RESOLUTION NO. 12-R-16 A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS AUTHORIZING AN AMENDMENT TO THE REGIONAL WATER SUPPLY CONTRACT BETWEEN THE SCHERTZ SEGUIN LOCAL GOVERNMENT CORPORATION AND THE CITY OF CONVERSE, AND OTHER MATTERS IN CONNECTION THEREWITH 02-21-2012 Minutes Mayor Baldwin recognized Councilmember Fowler who moved, seconded by Councilmember Carpenter to approve the consent agenda items 1 and 2. The vote was unanimous. Motion carried. Discussion and/or Action Items 3. Resolution No. 12-R-17 – Consideration and/or action approving a Resolution authorizing the City Manager to submit a grant application for the FEMA Staffing for Adequate Fire and Emergency Response (SAFER) Grant. (J. Kessel/D. Covington) Mayor Baldwin read the following caption into record: RESOLUTION NO. 12-R-17 A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS AUTHORIZING THE CITY MANAGER TO SUBMIT FOR THE FEMA STAFFING FOR ADEQUATE FIRE & EMERGENCY RESPONSE (SAFER) GRANT Mayor Baldwin recognized Fire Chief David Covington who introduced this item addressing questions from Council. This item approves submission and acceptance, if approved, for an application to FEMA for a two-year SAFER grant to fund 6 firefighter positions (2 per shift, 3 shifts) to bring operations up to minimum recommended staffing per apparatus in the amount of $640,638 for salaries and benefits. The City will provide personal protective equipment for the positions at a cost of $26,918 in the first year and $4,800 in year two and thereafter. The City will realize $16,000 in overtime savings annually. There is no requirement to maintain the grant funded positions beyond the grant period, unlike previous SAFER grant programs. It is the recommendation of the Schertz Fire Department to apply for the SAFER Grant to add the needed manpower, and accept the grant if awarded. Mayor Baldwin recognized City Manager John Kessel who provided brief comments as to why he supports the application for the grant. Mr. Kessel provided information on how staff will be handling development of the South Schertz area, and the City’s responsibility to handle the development. He mentioned the need for a 3rd station, and training and hiring of fire personnel to staff that station. He mentioned the need to continue returning money back in reserves. Timing is everything and it is an exciting time in Schertz. Mayor Pro-Tem Scagliola applauded the Chief for seeking outside funds and additional resources. His personal opinion is, “If you are not ahead of the power curve, and if you’re not ahead of your infrastructural needs, then you’re falling behind.” He thanked the Chief for his forward thinking. Mayor Baldwin recognized Mayor Pro-Tem Scagliola who moved, seconded by Councilmember Antuna to approve the adoption of Resolution 12-R-17. The vote was unanimous. Motion carried. 02-21-2012 Minutes 4. PC2011-034 – Appeal – Conduct a public hearing and consideration and/or action regarding a decision made by the Planning and Zoning Commission to deny a preliminary plat and associated variance for the Hunter Estates Subdivision. The property is more specifically described as 24.269± acre tract of land out of the Stacy B. Lewis Survey No. 317 and the Antonio Zamora Survey No. 36, City of Schertz, Bexar County, Texas and is generally located east of Graytown Road. The property is zoned Residential Agricultural (RA). (J. Kessel/M. Sanchez) Mayor Baldwin recognized Development Services Director Michelle Sanchez who briefed the Council concerning the Planning and Zoning Commission’s action regarding Hunter Estates. Ms. Sanchez stated that as the Mayor indicated this is a public hearing and it does represent an appeal, requested by the applicant, to a decision which was made by the Planning Commission at their regular meeting of January 11, 2012. At that time, the preliminary plat was submitted with a request for variance. The request included a proposed 30 foot right of way with a 24 foot of pavement and a concrete header curb on both sides and would be open to the public. The property owner is Harry Hausman, his representative is David Earl of Earl and Associates and he is available for additional comment. Hunter Estates is zoned Residential Agricultural (RA). The plat would establish 30 residential lots with a minimum of half acre each. The applicant requested the preliminary plat be approved along with the variance request to allow a reduction in the right of way from 50 feet to 30 feet and to the pavement width of 24 feet as identified as Ivy Moon. The connection being proposed is between Laura Heights Estates to northeast and through Hunter Estates. The Planning Commission at the time along with the minutes that were included in your packet asked several questions of the applicant and applicant’s engineer. Following the discussion, the Planning Commission unanimously recommended disapproval of the preliminary plat and subject variance. Ms. Sanchez provided information on a proposal of an 86 foot right of way, which is part of the City’s Master Thoroughfare Plan. She stated eventually this would provide for the secondary means of access required by the Unified Development Code Transportation section Article 14. She stated that the applicant was trying to provide the secondary means of access from the subdivision. Initially there would only be one means of access. In trying to work with staff and management, it was determined that a secondary means of access could possibly go through the adjoining subdivision, referenced as Laura Heights and then through Hunter Estates, eventually providing for the 86 foot right of way and extension of Boeck Blvd. which would connect to Graytown Road. Providing the secondary means of access, the City’s code attempts is to insure two safe means of egress and ingress for not only the residents of the subdivision, but also to insure that emergency vehicles and utility vehicles have secondary options for accessing the subdivision. The proposed 30 foot right of way is intended to be a permanent means of access and identified as the local street (Ivy Moon). 02-21-2012 Minutes In the summary of recommendations, again to emphasize the two means of access into the residential subdivision, the proposal is to provide that second means of access through the 30 foot right of way, known as Ivy Moon, to approve the preliminary plat and, to grant the variance as requested by the applicant. Mayor Baldwin recognized City Manager John Kessel who stated this issue has components which the Council should consider. One is a technical issue. Does this function as a fire lane? The purpose of the entire request revolves around providing a secondary access point for life safety reasons. It is a temporary condition. If Boeck Blvd. was already in place, it would not be necessary. In reviewing this, our primary concern was did it meet minimum standards for a fire lane? In visiting with the Chair of the Planning Commission, he brought up concerns regarding parking; this would not allow parking. There is also the side of dealing with the relationships between the City Council, the Planning Commission, and the developer. Each serves a different, but related role. Each has a particular part to play. This particular variance request is the issue. The City ordinance allows an applicant to request a variance, and as such, the City Council should consider a wide variety of items. This would allow a fare and balanced decision. Finally, how do we best advance the goals of the Community? Mayor Baldwin recognized Mr. David Earl of Earl & Associates who came forward stating he is speaking on behalf of the developer. He stated the subdivision is being recognized as to what it is bringing to the community and the developer wants to provide for of this for the City of Schertz. The important thing to recognize is that they want to make sure they comply with all necessary public safety requirements. This extra lane, to provide extra fire/police protection or access to the subdivision is critical. They are asking for the variance because this is just a handful of lots and the next step to a much larger subdivision. Plans in that unit will allow them to implement some modern techniques, such as curbing, open space, etc. to give it more detail. This all needs to be coordinated with the City’s Master Plan and Thoroughfare Plan. Based on the directive of City Staff, this would provide more than adequate access until the proposed Boeck Blvd. is constructed. In addition, they have been working on an overall traffic solution with the City that would provide for much better access to a larger planning area at less cost than the road being required by the Planning Commission. The road identified by the Planning Commission in the Major Thoroughfare Plan would require crossing large drainage basins and structures which would make the cost less feasible for timely construction. Mr. Earl continued to explain and identify the need for the variance and urged Council to approve with the recommended conditions staff identified. Mayor Baldwin opened the public hearing and recognized the following: • Ms. Clare Layton, 12231 Lost Meadows, who came forward, urging the Council to uphold the Planning Commissions decision. Ms. Layton provided an example for an alternative solution. 02-21-2012 Minutes • Mr. David Richmond, Chair of the Planning Commission who came forward stating the Commissions concern for the variance as it relates to the UDC and the street standards. • Mr. Steve White, 805 Main, who came forward, urging the Council to uphold the Planning Commissions decision. • Mr. Ken Greenwald, 205 Westchester, who came forward, urging Council to uphold the decision, stating the City, does not need substandard streets. • Mr. Michael Dahle, 9120 E. FM 1518, who agreed to deny the request for the variance. As no one else spoke, Mayor Baldwin closed the public hearing and asked for Council comments. Mayor Baldwin recognized Councilmember Carpenter who asked about the timing for the application and would there be time to refer this back to the Planning Commission to explore alternatives as discussed in detail by the Mayor, Council, and speakers. Ms. Sanchez stated that the Council is required to act on the appeal within 30 days, and this is the last Council meeting within the 30 day window. Mr. Kessel asked would it be possible for the applicant to waive that 30 day right voluntarily. The answer was yes. Councilmember Carpenter stated that the next point is there has been discussion about what might be acceptable, what might not be acceptable. It might be appropriate to refer this back to the Planning Commission and have staff and the developer explore some if items discussed. He is not excited about paving a road that is 30 feet wide and closing it off later and building a fence down the middle of the road. It is not an elegant solution; there must be a better way. If our primary concern is of safety, and we do not want to have a single entrance, why can’t we have a temporary access into this that is not paved, not developed, and simply has a breakaway gate? There are those today that remain in the City that were used up until the time it was fully developed and accesses came in. This is one of many solutions. Mr. Kessel stated there is a load and access requirement, as well as how this is managed once the road goes away. He provided examples of grass crete, asphalt of a flex base, there is also concrete, there are ways to do a fire lane where there is a grassy strip down the middle that would mimic the equivalent of a drive way later, etc. There are hundreds of different design solutions to resolve the issue. Mayor Baldwin recognized Mayor Pro-Tem Scagliola who asked where the parkland was on the development plat. Ms. Sanchez stated that the developer has the option of dedicating parkland. He chose not to; but, will be paying the parkland dedication fee along with the development fee, which will result in a $1,000 per lot. This is used to improve other parks throughout the City. Mr. Kessel stated that staff has been holding discussions with the developer on future developments which the City needs to have meaningful open space, trails, parkland, a place where the community can gather. 02-21-2012 Minutes Discussions continued on coming up with an appropriate solution for the road in the correct location. Council provided their recommendations and comments. Discussions continued regarding the need to complete Ivy Pond to the west edge of the subdivision and how Ivy Pond will connect with Graytown Road. Who will maintain the temporary access road during the development period? Mayor Baldwin recognized Mr. David Earl who stated that his developer needs a decision as timing is of the essence, and the need to proceed as to not lose current builders. Mayor Baldwin recognized City Attorney Michael Spain who provided a possible motion and solution with the consent of the developer that would move the project forward. Mayor Baldwin recessed the meeting at 9:07 p.m. to allow the City Attorney and the Mr. Earl to come up with a solution and appropriate motion. Mayor Baldwin reconvened the meeting at 9:23 p.m., and as the City Attorney worked on the motion, Mayor moved to continue to the rest of the agenda. Mayor Baldwin indicated that there was no need to meet this evening in Executive Session. Executive Session Called under Section 551.071 Texas Government Code 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. 5. Take any action deemed necessary as a result of the Executive Session. No action taken as Council did not meet. Requests and Announcements 6. Requests by Mayor and Councilmembers that items be placed on a future City Council agenda. Mayor Baldwin recognized Councilmember Fowler who stated that as staff is looking at revisions to the Unified Development Code he would like staff to provide inspection standards regarding construction of new homes with regard to the pouring of foundations. City Manager John Kessel stated that staff is already looking at the standards referencing certification requirements for licensed engineers and adding a time provision back in the inspection period to allow cure time. 7. Requests by Mayor and Councilmembers to City Manager and Staff for information. 02-21-2012 Minutes Mayor Baldwin recognized Mayor Pro-Tem Scagliola who wanted to make sure that the upcoming March 1, 2012, joint meeting included tangibles. He stated he is having difficulties seeing the vision with tangibles in their plan. City Manager John Kessel stated that most of significant work some have seen is with the rail location. This was all behind the scene which resulted in a rail location that was favorable to Schertz being added when it previously did not exist. This included negotiations with Union Pacific. These were necessary requisites for the Town Center. You will see land use plans based on that location, which include thoroughfare plans and proposed land uses in the northern part of town. You will also see thoroughfare plans and land use plans for the southern part of town. He stated you may not see particulars on the development criteria. Certainly at this time, there will not be information provided on the Main Street area, as they have had that portion of the contract for only a couple of weeks. This joint meeting will continue the engagement with the three different governmental entities as he had mentioned previously. This is the first of several, and certainly not the last engagement meetings that will be held. 8. 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 Mayor Baldwin recognized Mayor Pro-Tem Scagliola, Councilmember Antuna and Councilmember Fowler who stated they attended the Schertz Chamber of Commerce Luncheon today. Representatives from the cities of Selma, Cibolo and Schertz were there providing information on their respective town. He indicated hands down that they got to hear from the best City Manager in the entire Metrocom, Mr. Kessel. Each City Manager from the surrounding cities provided a State of the City report from their respective cities. Mayor Baldwin stated that he invited everyone to view the posters from two third grade classes of Our Lady of Perpetual Health that were presented to him which were hanging on the wall outside. Mayor Baldwin moved back to agenda item 4. 4. Continued… Mayor Baldwin recognized City Attorney Michael Spain who read the following recommended motion: I move that: 02-21-2012 Minutes A. We approve the preliminary plat for Hunter Estates Subdivision subject to the following requirements: 1. The developer and the related adjacent landowner shall complete Ivy Pond as shown on the Hunter Estates Subdivision plat to the western edge of the subdivision as a 60’- wide standard paved collector street. 2. The developer and/or the related adjacent landowner shall connect Ivy Pond to Graytown Road with an all-weather temporary construction/ emergency secondary access drive for Hunter Estates Subdivision, with such temporary access drive built to City standards for a dust-free, all- weather surface able to support a design fire engine/truck, including necessary drainage, pursuant to plans approved by the City Engineer, which shall be built in conjunction with the construction of the Hunter Estates Subdivision infrastructure. 3. The developer and/or the related adjacent landowner (or subsequent owner(s) of any portion of the adjacent property) shall maintain the temporary access road throughout the entire temporary period. 4. The developer and/or the related adjacent landowner (or subsequent owner(s) of any portion of the adjacent property) shall replace the temporary access road with a full 60’-wide standard paved collector street, as a condition to approval of any subsequent preliminary plat of any portion of the adjacent property. B. The proposed Ivy Moon variance on the Hunter Estates Subdivision preliminary plat is hereby denied and shall be removed from the plat. Mayor Baldwin recognized Councilmember Carpenter who moved, seconded by Councilmember Fowler to approve the motion as read by the City Attorney. The vote was unanimous. Motion carried. 9. Announcements by City Manager Mayor Baldwin recognized City Manager John Kessel who stated he wanted to compliment the Planning and Zoning Commission, the Developer, City Staff, and Council for coming up with an answer that worked this evening for all. Mr. Kessel mentioned that Ms. Jennifer Hillard has a blog on MySpace, and it references the hot spots for medical office facilities and Schertz is one of them. Adjournment Mayor Baldwin adjourned the meeting at 9:57 p.m. 02-21-2012 Minutes ___________________________________ Mayor Hal Baldwin ATTEST: _______________________________________ Brenda Dennis, TRMC, MMC City Secretary 50501288.1 RESOLUTION NO. 12-R-18 A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS AUTHORIZING A SECOND AGREEMENT REGARDING SEWER FACILITIES WITH SCHERTZ-CIBOLO- UNIVERSAL CITY INDEPENDENT SCHOOL DISTRICT, CROTON PROPERTIES, LLC, FRED DEVELOPMENT, LLC, AND GORDON V. HARTMAN ENTERPRISES, L.P., AND OTHER MATTERS IN CONNECTION THEREWITH WHEREAS, the City staff of the City of Schertz (the “City”) has recommended that the City enter into a Second Agreement Regarding Sewer Facilities with Schertz-Cibolo-Universal City Independent School District, a political subdivision of the State of Texas (the “District”), Croton Properties, LLC, a Texas limited liability company (“Croton”), Fred Development, LLC, a Texas limited liability company (“Fred Development”), and Gordon V. Hartman Enterprises, L.P., a Texas limited partnership (“Hartman Enterprises”), relating to the transfer of a right of first refusal to acquire not more than 95 equivalent dwelling units of capacity in certain sewer facilities; and WHEREAS, the City Council has determined that it is in the best interest of the City to contract with the District, Croton, Fred Development, and Harman Enterprises pursuant to the Second Agreement Regarding Sewer Facilities attached hereto as Exhibit A (the “Agreement”). BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS THAT: Section 1. The City Council hereby authorizes the City Manager to execute and deliver the Agreement with the District, Croton, Fred Development, and Harman Enterprises 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. 50501288.1 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 28th day of February, 2012. CITY OF SCHERTZ, TEXAS Mayor ATTEST: City Secretary (CITY SEAL) 50501288.1 A-1 EXHIBIT A SECOND AGREEMENT REGARDING SEWER FACILITIES 50494210.2 1 After Recording, Please Return To: Fulbright & Jaworski L.L.P. 300 Convent Street, Suite 2100 San Antonio, Texas 78205 Attn: Katherine A. Tapley STATE OF TEXAS § § COUNTY OF BEXAR § SECOND AGREEMENT REGARDING SEWER FACILITIES This Second Agreement Regarding Sewer Facilities (this “Agreement”), is entered into to be effective as of the ___ day of _____________, 2012 (the “Effective Date”), among the City of Schertz, Texas, a Texas municipal corporation (the “City”), the Schertz-Cibolo-Universal City Independent School District, a political subdivision of the State of Texas (the “District”), Croton Properties, LLC, a Texas limited liability company (“Croton”), Fred Development, LLC, a Texas limited liability company (“Fred Development”), and Gordon V. Hartman Enterprises, L.P., a Texas limited partnership (“Hartman Enterprises”) (each a “Party”, and collectively, the “Parties”). Recitals WHEREAS, Croton and the District entered into an Agreement dated as of September 19, 2008 (the “Croton/District Agreement”), regarding the construction of certain sewer facilities (the “Sewer Facilities”). WHEREAS, in Section 1.4 of the Croton/District Agreement, the District granted to Croton, or Croton’s successor in title to the Croton Property (as hereinafter defined), a “right of first refusal” to acquire not more than 1,348 equivalent dwelling units (“EDUs”) of capacity in the Sewer Facilities (the “Croton Property Right of First Refusal”), with such EDUs of capacity to be used only to serve the Croton Property, which is more fully described on Exhibit “A” attached hereto and incorporated herein for all purposes (the “Croton Property”). WHEREAS, pursuant to an Agreement Regarding Sewer Facilities between the City, the District, Croton, Fred Development, and Cygnet Limited, a Texas limited partnership (“Cygnet”), dated as of September 2011 and recorded October 6, 2011 as Document Number 20110178945 in the Official Public Records of Bexar County, Texas (the “Sewer Agreement”), the parties to the Sewer Agreement agreed that to the extent that the description of the Croton Property in the Croton/District Agreement conflicts with the description of the Croton Property contained in the Sewer Agreement, the parties to the Sewer Agreement intended for the description of the Croton Property contained in the Sewer Agreement to control. WHEREAS, the description of the Croton Property contained in this Agreement matches the description of the Croton Property contained in the Sewer Agreement. WHEREAS, Section 1.4 of the Croton/District Agreement stipulates that the Croton Property Right of First Refusal runs with title to the Croton Property. 50494210.2 2 WHEREAS, the City, by its acknowledgement of the Croton/District Agreement, consented to the Croton Property Right of First Refusal. WHEREAS, the City and the District entered into an Interlocal Agreement Between Schertz-Cibolo-Universal City Independent School District and the City of Schertz dated as of November 4, 2008, regarding the Sewer Facilities (the “Interlocal Agreement”). WHEREAS, in the Interlocal Agreement, the District and the City agreed that the District Property (as defined in the Interlocal Agreement) and the surrounding areas would be served by the Sewer Facilities with a total capacity of 1,728 EDUs, with the District requiring 380 EDUs to serve future school facilities within the service area of the Sewer Facilities. The Croton Property Right of First Refusal covers the remaining 1,348 EDUs of capacity in the Sewer Facilities. WHEREAS, Sections 3.5, 3.6, 3.7, and 3.8 of the Interlocal Agreement set forth the methods for calculating the cost to be paid by the third party per EDU of capacity in the Sewer Facilities. WHEREAS, Section 3.9 of the Interlocal Agreement requires the City to make a Sewer Facility Reimbursement Payment to the District within thirty (30) days after receiving the Sewer Facilities Reimbursement Fee (the “SFR Fee”) and the fifteen percent (15%) management fee (the “Management Fee”), both more fully described in the Interlocal Agreement, from a third party. WHEREAS, the SFR Fee and the Management Fee are not in lieu of impact fees for wastewater hookup that are required to be paid at the time of hookup to the Sewer Facilities. WHEREAS, pursuant to the Sewer Agreement, Croton transferred a portion of the Croton Property Right of First Refusal with respect to 250 EDUs of capacity in the Sewer Facilities (the “Fred Development Property Right of First Refusal”), from the Croton Property to property owned by Fred Development which property is more particularly described on Exhibit “B” attached hereto and incorporated herein for all purposes (the “Original Fred Development Property”). WHEREAS, the City and the District consented to the transfer of the Fred Development Property Right of First Refusal from the Croton Property to the Original Fred Development Property in the Sewer Agreement. WHEREAS, Fred Development desires to transfer a portion of the Fred Development Property Right of First Refusal from the Original Fred Development Property to other property owned by Fred Development, which property is more particularly described on Exhibit “C” attached hereto and incorporated herein for all purposes (the “New Fred Development Property”). WHEREAS, Croton also desires to transfer a portion of the remaining Croton Property Right of First Refusal to the New Fred Development Property. 50494210.2 3 WHEREAS, the New Fred Development Property is located within the service area of the Sewer Facilities. WHEREAS, when the Sewer Agreement was signed, Croton had entered into an agreement with Cygnet (the “Cygnet Agreement”) to sell to Cygnet a portion of the Croton Property. As a result, Cygnet signed the Sewer Agreement to consent to the terms of the Sewer Agreement. Since that time, the Cygnet Agreement has terminated, and therefore, Cygnet is not a necessary party to this Agreement. WHEREAS, Croton has since entered into an agreement to sell a portion of the Croton Property to Hartman Enterprises (the “Hartman Enterprises Agreement”). WHEREAS, the transfer of a portion of the Fred Development Property Right of First Refusal requires the consent of the City, the District, and Fred Development. WHEREAS, the transfer of a portion of the Croton Property Right of First Refusal requires the consent of the City, the District, and Croton. WHEREAS, the Parties desire to agree to certain terms related to the Sewer Facilities in accordance with the provisions of this Agreement. Agreement NOW, THEREFORE, in consideration of the foregoing and the agreements contained herein, the Parties agree as follows: Section 1.1. Consent to the Transfer of Part of the Fred Development Property Right of First Refusal. (a) The City, the District, and Fred Development hereby consent to the transfer of a portion of the Fred Development Property Right of First Refusal with respect to 21 EDUs of capacity in the Sewer Facilities (the “First New Fred Development Property Right of First Refusal”) from the Original Fred Development Property to the New Fred Development Property. (b) The First New Fred Development Property Right of First Refusal shall run with title to the New Fred Development Property and shall not be transferable to any other property without the prior written consent of (i) the City, (ii) the District, and (iii) the owner(s) of record title to the New Fred Development Property. (c) The remaining portion of the Fred Development Property Right of First Refusal, which shall cover 229 EDUs of capacity in the Sewer Facilities (the “Remaining Fred Development Property Right of First Refusal”), shall continue to run with title to the Original Fred Development Property and shall not be transferable to any other property without the prior written consent of (i) the City, (ii) the District, and (iii) the owner(s) of record title to the Original Fred Development Property. 50494210.2 4 Section 1.2. Consent to the Transfer of Part of the Croton Property Right of First Refusal. (a) The City, the District, and Croton hereby consent to the transfer of a portion of the Croton Property Right of First Refusal with respect to 74 EDUs of capacity in the Sewer Facilities (the “Second New Fred Development Property Right of First Refusal”) from the Croton Property to the New Fred Development Property. (b) The Second New Fred Development Property Right of First Refusal shall run with title to the New Fred Development Property and shall not be transferable to any other property without the prior written consent of (i) the City, (ii) the District, and (iii) the owner(s) of record title to the New Fred Development Property. (c) The remaining portion of the Croton Property Right of First Refusal, which shall cover 1,024 EDUs of capacity in the Sewer Facilities (the “Remaining Croton Property Right of First Refusal”), shall continue to run with title to the Croton Property and shall not be transferable to any other property without the prior written consent of (i) the City, (ii) the District, and (iii) the owner(s) of record title to the Croton Property. Section 1.3. Transfer of the First New Fred Development Property Right of First Refusal. The First New Fred Development Property Right of First Refusal is hereby transferred and conveyed from the Original Fred Development Property to the New Fred Development Property. Section 1.4. Transfer of the Second New Fred Development Property Right of First Refusal. The Second New Fred Development Property Right of First Refusal is hereby transferred and conveyed from the Croton Property to the New Fred Development Property. Section 1.5. Agreement Regarding Fees to be Paid. (a) The Parties acknowledge and agree that each time that one or more EDUs of capacity in the Sewer Facilities are conveyed by the City to a party other than the District, such third party shall pay to the City the SFR Fee and the Management Fee attributable to each EDU of capacity in the Sewer Facilities conveyed to that party. Such fees have been calculated in accordance with Sections 3.6 – 3.8 of the Interlocal Agreement. The SFR Fee shall be Nine Hundred Twenty-Two and 07/100 Dollars ($922.07) per EDU of capacity in the Sewer Facilities, and the Management Fee shall be One Hundred Thirty-Eight and 31/100 Dollars ($138.31) per EDU of capacity in the Sewer Facilities, for a total fee of One Thousand Sixty and 38/100 Dollars ($1,060.38) per EDU of capacity in the Sewer Facilities. (b) Croton, on behalf of itself and all future owners of all or any part of the Croton Property, reaffirms, acknowledges, and agrees that for each EDU of capacity in the Sewer Facilities that is conveyed to benefit all or any portion of the Croton Property (including, without limitation, through the exercise of the Remaining Croton Property Right of First Refusal), the SFR Fee and the Management Fee attributable to that EDU of capacity shall be paid to the City at the time that the EDU of capacity is conveyed for the benefit of the Croton Property. 50494210.2 5 (c) Fred Development, on behalf of itself and all future owners of all or any part of the Original Fred Development Property, acknowledges and agrees that for each EDU of capacity in the Sewer Facilities that is conveyed to benefit all or any portion of the Original Fred Development Property (including, without limitation, through the exercise of the Remaining Fred Development Property Right of First Refusal), the SFR Fee and the Management Fee attributable to that EDU of capacity shall be paid to the City at the time that the EDU of capacity is conveyed for the benefit of the Original Fred Development Property. (d) Fred Development, on behalf of itself and all future owners of all or any part of the New Fred Development Property, acknowledges and agrees that for each EDU of capacity in the Sewer Facilities that is conveyed to benefit all or any portion of the New Fred Development Property (including, without limitation, through the exercise of either the First New Fred Development Property Right of First Refusal or the Second New Fred Development Property Right of First Refusal), the SFR Fee and the Management Fee attributable to that EDU of capacity shall be paid to the City at the time that the EDU of capacity is conveyed for the benefit of the New Fred Development Property. (e) As used in this Section 1.5, “conveyance” of EDUs of capacity in the Sewer Facilities shall be deemed to occur upon recordation of a plat, and the above-described fees, which are to be paid upon conveyance, shall be due and payable to the City prior to recordation of the applicable plat. (f) The Parties acknowledge and agree that the SFR Fee and the Management Fee are not in lieu of wastewater impact fees. At the time of hookup to the Sewer Facilities, the applicable property owner, except the District, shall be required to pay any and all wastewater impact fees to the City. Section 1.6. Hartman Enterprises Joinder. By its joinder in this Agreement, Hartman Enterprises consents to the terms and agreements set forth herein and acknowledges and agrees that the portion of the Croton Property subject to the Hartman Enterprises Agreement (the “Hartman Enterprises Property”), and the present and future owners of any part of the Hartman Enterprises Property, shall be bound by the terms of this Agreement. Section 1.7. Implied Waiver. The failure of a Party hereto to insist, in any one or more instances, upon performance of any of the terms, covenants, or conditions of this Agreement shall not be construed as a waiver or relinquishment of the future performance of any such term, covenant, or condition by the other Parties hereto, but the obligation of such other Parties with respect to such future performance shall continue in full force and effect. Section 1.8. Recitals and Exhibits. The recitals and exhibits are incorporated herein fully as matters of contract and not mere recitals and exhibits. Section 1.9. Notice. Any notices contemplated under this Agreement shall be deemed effectively given (i) when personally delivered or (ii) five (5) business days after being correctly deposited in the United States mail and mailed certified mail, return receipt requested, to the noticed Party at its address set forth below: 50494210.2 6 If to the City: City of Schertz 1400 Schertz Parkway Schertz, Texas 78154 Attn: John C. Kessel, City Manager with a copy to: Fulbright & Jaworski L.L.P. 300 Convent Street, Suite 2100 San Antonio, Texas 78205 Attn: Michael L. Spain and Katherine A. Tapley If to the District: Schertz-Cibolo-Universal City Independent School District 1060 Elbel Road Schertz, Texas 78154-209 Attn: Superintendent of Schools with a copy to: Walsh, Anderson, Brown, Gallegos & Green, P.C. 100 N.E. Loop 410, Suite 900 San Antonio, Texas 78216 Attn: George E. Grimes, Jr. If to Croton: Croton Properties, LLC 23003 Fossil Peak San Antonio, Texas 78261 Attn: Todd Burek with a copy to: Earl & Associates, P.C. 15303 Huebner, Bldg. #15 San Antonio, Texas 78248 Attn: David Earl If to Fred Development: Fred Development, LLC 1202 W. Bitters, Bldg. 1, Suite 1200 San Antonio, Texas 78216 Attn: Gordon V. Hartman with a copy to: Law Office of Ronald W. Hagauer 1602 N. Loop 1604 West, Suite LL102 San Antonio, Texas 78248 Attn: Ronald W. Hagauer If to Hartman Enterprises: Gordon V. Hartman Enterprises, L.P. 1202 W. Bitters, Bldg. 1, Suite 1200 San Antonio, Texas 78216 Attn: Gordon V. Hartman 50494210.2 7 with a copy to: Law Office of Ronald W. Hagauer 1602 N. Loop 1604 West, Suite LL102 San Antonio, Texas 78248 Attn: Ronald W. Hagauer Any Party may change its address for notice to any other address within the United States by providing the other Parties with at least ten (10) business days prior written notice of such change in the manner set forth herein for notices. Section 1.10. Severability. The provisions of this Agreement are severable, and if any word, phrase, clause, sentence, paragraph, section, or other part of this Agreement or the application thereof to any person or circumstance shall ever be held by any court of competent jurisdiction to be invalid, unconstitutional, illegal, or unenforceable for any reason, the remainder of this Agreement and the application of such word, phrase, clause, sentence, paragraph, section, or other part of this Agreement to the other persons or circumstances shall not be affected thereby, and it is also the intention of the Parties that, in lieu of each provision that is found to be invalid, unconstitutional, illegal, or unenforceable, to the extent legally permissible a provision be added to this Agreement which is valid, constitutional, legal, and enforceable, which is as similar in terms as possible to the provision being replaced, and which does not deprive the Parties of the benefit of the bargain described in the original form of this Agreement. Section 1.11. Entire Agreement. This Agreement constitutes the entire agreement between the Parties relative to the subject matter hereof. There have been and are no agreements, covenants, representations, or warranties between the Parties as to the subject matter hereof other than those expressly stated or provided for herein. Section 1.12. Headings. The headings in this Agreement are for convenience only and shall not be construed to expand, limit, or otherwise modify the terms of the Agreement. Section 1.13. Governing Law and Venue. This Agreement is governed by the laws of the State of Texas, and the Parties agree that venue shall be in the courts of Guadalupe County, Texas. Section 1.14. Further Assurances. Each Party agrees that it will take such actions and execute such documents as reasonably necessary to fully carry out the purpose and intent of this Agreement. Section 1.15. Counterparts. This Agreement may be executed in multiple counterparts but will be considered as a single instrument when it has been finally executed by all of the Parties. Section 1.16. List of Exhibits. Exhibit “A” Legal Description of the Croton Property Exhibit “B” Legal Description of the Original Fred Development Property Exhibit “C” Legal Description of the New Fred Development Property 50494210.2 8 [Signatures and Acknowledgments on the following pages.] 50494210.2 S-1 SIGNATURE PAGE TO SECOND AGREEMENT REGARDING SEWER FACILITIES IN WITNESS WHEREOF, the undersigned has entered into this Second Agreement Regarding Sewer Facilities as of the date of the acknowledgement to be effective as of the Effective Date. CITY OF SCHERTZ, TEXAS, a Texas municipal corporation By: John C. Kessel, City Manager STATE OF TEXAS § § COUNTY OF GUADALUPE § This instrument was acknowledged before me on the ___ day of _____________, 2012, by John C. Kessel, the City Manager of the City of Schertz, Texas, a Texas municipal corporation, on behalf of the City. [ SEAL ] Notary Public in and for the State of Texas Printed Name of Notary: My Commission Expires: 50494210.2 S-2 SIGNATURE PAGE TO SECOND AGREEMENT REGARDING SEWER FACILITIES IN WITNESS WHEREOF, the undersigned has entered into this Second Agreement Regarding Sewer Facilities as of the date of the acknowledgement to be effective as of the Effective Date. SCHERTZ-CIBOLO-UNIVERSAL CITY INDEPENDENT SCHOOL DISTRICT, a political subdivision of the State of Texas By: Greg Gibson, Ed.D., Superintendent of Schools STATE OF TEXAS § § COUNTY OF GUADALUPE § This instrument was acknowledged before me on the ___ day of _____________, 2012, by Greg Gibson, Ed.D., the Superintendent of Schools of Schertz-Cibolo-Universal City Independent School District, a political subdivision of the State of Texas, on behalf of the Independent School District. [ SEAL ] Notary Public in and for the State of Texas Printed Name of Notary: My Commission Expires: 50494210.2 S-3 SIGNATURE PAGE TO SECOND AGREEMENT REGARDING SEWER FACILITIES IN WITNESS WHEREOF, the undersigned has entered into this Second Agreement Regarding Sewer Facilities as of the date of the acknowledgement to be effective as of the Effective Date. CROTON PROPERTIES, LLC, a Texas limited liability company By: Todd Burek, its Managing Member STATE OF TEXAS § § COUNTY OF ___________________ § This instrument was acknowledged before me on the ___ day of _____________, 2012, by Todd Burek, the Managing Member of Croton Properties, LLC, a Texas limited liability company, on behalf of said limited liability company. [ SEAL ] Notary Public in and for the State of Texas Printed Name of Notary: My Commission Expires: 50494210.2 S-4 SIGNATURE PAGE TO SECOND AGREEMENT REGARDING SEWER FACILITIES IN WITNESS WHEREOF, the undersigned has entered into this Second Agreement Regarding Sewer Facilities as of the date of the acknowledgement to be effective as of the Effective Date. FRED DEVELOPMENT, LLC, a Texas limited liability company By: Gordon V. Hartman President STATE OF TEXAS § § COUNTY OF ___________________ § This instrument was acknowledged before me on the ___ day of _____________, 2012, by Gordon V. Hartman, President of Fred Development, LLC, a Texas limited liability company, on behalf of said limited liability company. [ SEAL ] Notary Public in and for the State of Texas Printed Name of Notary: My Commission Expires: 50494210.2 S-5 SIGNATURE PAGE TO SECOND AGREEMENT REGARDING SEWER FACILITIES IN WITNESS WHEREOF, the undersigned has entered into this Second Agreement Regarding Sewer Facilities as of the date of the acknowledgement to be effective as of the Effective Date. GORDON V. HARTMAN ENTERPRISES, LP, a Texas limited partnership By: GVH ENTERPRISES MANAGEMENT, LLC, a Texas limited liability company, its general partner By: Gordon V. Hartman, President STATE OF TEXAS § § COUNTY OF ___________________ § This instrument was acknowledged before me on the ___ day of _____________, 2012, by Gordon V. Hartman, President of GVH Enterprises Management, LLC, a Texas limited liability company, the general partner of Gordon V. Hartman Enterprises, LP, a Texas limited partnership, on behalf of said entities. [ SEAL ] Notary Public in and for the State of Texas Printed Name of Notary: My Commission Expires: 50494210.2 Exhibit “A”, Page 1 Exhibit “A” Legal Description of the Croton Property Tract One: 50494210.2 Exhibit “A”, Page 2 50494210.2 Exhibit “A”, Page 3 Tract Two: 50494210.2 Exhibit “A”, Page 4 50494210.2 Exhibit “B”, Page 1 Exhibit “B” Legal Description of the Original Fred Development Property 50494210.2 Exhibit “B”, Page 2 50494210.2 Exhibit “C”, Page 1 Exhibit “C” Legal Description of the New Fred Development Property Agenda No. 3 CITY COUNCIL MEMORANDUM City Council Meeting: February 28, 2012 Department: City Manager Subject: Resolution No. 12-R-19 - Funding for New Executive Director Position in the City Manager Department BACKGROUND Goal To provide funding for the new Executive Director of Development position in the FY 2011- 12 budget. This new program will have its budget comprised of funds from the savings due to the vacant planning manager position and contingency without affecting the bottom line. Community Benefit By moving the budget around to fit the new employee it will not reduce the amount set aside to be put back into fund balance. Summary of Recommended Action Approve reallocating funds from Planning & Zoning personnel lines and contingency to fund the Executive Director position without reducing the funds earmarked to increase the fund balance. FISCAL IMPACT There will be no fiscal impact from this action. $77,570 will be moved from Planning & Zoning and $1,773 from contingency to the City Manger personnel accounts. No effect to the bottom line. RECOMMENDATION Approve reallocating funds from Planning & Zoning personnel lines and contingency to fund the Executive Director of Development position without reducing the funds earmarked to increase the fund balance. ATTACHMENT Budget Adjustment Request with account details. Resolution No. 12-R-19 RESOLUTION NO. 12-R-19 A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS AUTHORIZING A BUDGET ADJUSTMENT TO FUND THE NEW EXECUTIVE DIRECTOR POSITION, AND OTHER MATTERS IN CONNECTION THEREWITH WHEREAS, the City staff of the City of Schertz (the “City”) has recommended that the City modify the FY 2011-12 budget to include funds for the Executive Director position; and WHEREAS, the City Council has determined that it is in the best interest of the City to reorganize the current budget to maintain the current allocation of funds to be returned to fund balance by following the budget transfer attached hereto as Exhibit A (the “Budget Adjustment Request”). BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS THAT: Section 1. The City Council hereby authorizes the City Manager to execute and deliver the budget adjustment as depicted in 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 28th day of February, 2012. CITY OF SCHERTZ, TEXAS Mayor ATTEST: City Secretary (CITY SEAL) 50494755.1 A-1 BUDGET ADJUSTMENT REQUEST "EXHIBIT A" Requesting Department:City Manager Effective Date:2/28/2012 Description: Set up budget for new Executive Director position in the City Manager Department using funds from the unfilled Planning Manager position and Contingencies. Transfer From 101-167-532900 Contingency 1,773.00$ 101-154-511110 Regular 58,712.00$ 101-154-511310 FICA-Employer 4,492.00$ 101-154-511500 Workers Comp 184.00$ 101-154-511180 LTD 182.00$ 101-154-511410 Health-Employer 4,838.00$ 101-154-511350 TMRS-Employer 9,162.00$ Total:79,343.00$ Transfer To: 101-151-511110 Regular 61,250.00$ 101-151-511310 FICA-Employer 4,712.00$ 101-151-511500 Workers Comp 193.00$ 101-151-511180 LTD 191.00$ 101-151-511410 Health-Employer 3,386.00$ 101-154-511350 TMRS-Employer 9,611.00$ Total:79,343.00$ City Manager or Designee Date Council Approval Date: Resolution Number: Agenda No. 4 CITY COUNCIL MEMORANDUM City Council Meeting: February 28, 2012 Department: Police, Fire, EMS, City Marshall, ACO Subject: Resolution No. 12-R-20 – Approval of Interlocal Cooperation Agreement Between the City of Live Oak, Texas and the City of Schertz, Texas BACKGROUND The City of Live Oak has provided an 800 MHz radio system for use by our Public Safety agencies for over five years. Recently, they have undertaken significant steps to upgrade and improve this system for future growth and to take advantage of upcoming technology advances. One significant step that Live Oak has taken is to partner with the Lower Colorado River Authority’s (LCRA) radio system. As this partnership grows and matures, it will not only improve our radio coverage throughout the tri-county area but will provide us with reliable radio coverage across all of south Texas during times of disaster. The City of Live Oak, as a piece of this partnership with LCRA, has updated the inter-local agreement between themselves and their customer cities. This updated agreement establishes Live Oak as our vendor and has a three (3) year term with up to three (3) 3-year extensions. FISCAL IMPACT There is no fiscal impact by signing this agreement in the current fiscal year. For the past five years including the current fiscal year, the City has paid $25 per radio per month to Dailey Wells, the company that sold the system to Live Oak. $20 of that went to pay for the system and $5 was used for a maintenance plan for all of our radios. Now that Live Oak has total control of their system, $20 per radio per month will be paid to Live Oak. The remaining $5 per month will continue to be paid to Dailey Wells for at least the remainder of this fiscal year. If the results of our Public Safety Communications Review recommends remaining with the Live Oak system into the future this will require new radio purchases by the end of 2014. RECOMMENDATION Approval of Resolution No. 12-R-20 ATTACHMENT Resolution No. 12-R-20 with Interlocal Cooperation Agreement between the City of Live Oak and the City of Schertz attached as Exhibit A 50503087.1 RESOLUTION NO. 12-R-20 A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS AUTHORIZING AN INTERLOCAL COOPERATION AGREEMENT BETWEEN THE CITY OF LIVE OAK, TEXAS AND THE CITY OF SCHERTZ, TEXAS AND OTHER MATTERS IN CONNECTION THEREWITH WHEREAS, the City staff of the City of Schertz (the “City”) has recommended that the City enter into an Interlocal Cooperation Agreement with the City of Live Oak, a political subdivision of the State of Texas (“Live Oak”) relating to an emergency radio communications system; and WHEREAS, the City Council has determined that it is in the best interest of the City to contract with Live Oak pursuant to the Interlocal Cooperation Agreement Between the City of Live Oak, Texas and the City of Schertz, Texas attached hereto as Exhibit A (the “Agreement”). BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS THAT: Section 1. The City Council hereby authorizes the City Manager to execute and deliver the Agreement with Live Oak 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. 50503087.1 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 28th day of February, 2012. CITY OF SCHERTZ, TEXAS Mayor ATTEST: City Secretary (CITY SEAL) 50503087.1 A-1 EXHIBIT A INTERLOCAL COOPERATION AGREEMENT BETWEEN THE CITY OF LIVE OAK, TEXAS AND THE CITY OF SCHERTZ, TEXAS Interlocal Agreement Between LIVE OAK and SCHERTZ Page 1 INTERLOCAL COOPERATION AGREEMENT BETWEEN THE CITY OF LIVE OAK, TEXAS AND THE CITY OF SCHERTZ, TEXAS This Interlocal Cooperation Agreement (“Agreement”) is entered into by and between, as Parties, City of Schertz (“User”), a local government, being a political subdivision of the State of Texas and the City of Live Oak, Texas (“Live Oak”), a Home Rule municipality and a political subdivision of the State of Texas, pursuant to the authority granted and in compliance with the provisions of the Texas Interlocal Cooperation Act (Chapter 791, Texas Government Code) to be effective for all purposes as of April 1, 2012 (the “Effective Date”). RECITALS User is authorized by law to license peace officers for the protection of property and the general public and the enforcement of state law and User’s rules and regulations. LIVE OAK operates a Trunked Radio System per an agreement with the Lower Colorado River Authority (“LCRA”) which has the capability to provide interconnectivity and key communications links between public safety entities throughout the central Texas region. LIVE OAK and User wish to establish this Agreement allowing LIVE OAK to provide communications equipment, facilities, and technical services required for the operation of 800MHz radio equipment, as more specifically set out herein, to assist User with deploying and maintaining radio communications for public safety operations, response to catastrophic or large-scale incidents or natural disasters, and radio communications support for local emergency and other public services. The Parties are authorized to enter into such an arrangement by Chapter 791 of the Texas Government Code, commonly referred to as the Inter-local Cooperation Act, and more particularly Section 791.025, Texas Government Code. Interlocal Agreement Between LIVE OAK and SCHERTZ Page 2 AGREEMENT In consideration of the mutual benefits received by both Parties and the public under the terms of this Agreement, the receipt of which is hereby acknowledged, the Parties agree as follows: 1. Scope of Agreement. 1.1. LIVE OAK will provide User with an interconnection to the Trunked Radio System, using antennas, switch gear, billing systems and other communication infrastructure pursuant to its agreement with LCRA. 1.2. User shall pay to LIVE OAK the user fees for programmed radios and other authorized facilities deployed with this Agreement as set out in the schedule attached hereto as Attachment A. 1.3. Any radio service provider for User must obtain a separate, written approval by LIVE OAK prior to programming radios for use on the Live Oak radio system. 1.4. Prior to performing any changes to the equipment as it applies to the Live Oak Trunked Radio System, User shall receive written authority from LIVE OAK, which will authorize and approve all proposed changes to communications, design and programming for User prior to implementing any changes to the subscriber equipment as it applies to the Live Oak. 1.5. User is responsible for the purchase and maintenance of its subscriber equipment (i.e. radios or other equipment purchased by User to use in conjunction with interconnection provided by LIVE OAK for the Trunked Radio System.) 1.6. Live Oak radio system usage is limited to whom Live Oak has determined provides services related to public safety and there is a need for interoperable communications related to public safety to protect public health, and welfare of the citizens of Texas, which includes User. 2. Services to be Provided. 2.1. LIVE OAK will support maintenance to the radio system infrastructure, including antennas, switch gear, billing systems and other communication infrastructure in the Trunked Radio System under this Agreement. 2.2. LIVE OAK will continue to support the EDACS system until December 31, 2014. On January 1, 2015 the EDACS system will be shut down and removed and the system will be 100% P-25 digital. Interlocal Agreement Between LIVE OAK and SCHERTZ Page 3 2.3 User is required to obtain equipment and switch to the P-25 phase 2 digital system and equipment no later than December 31, 2014. LIVE OAK is not responsible for any communication errors or lapse in service to User under this Agreement for User’s failure to comply with Section 2.3 above. 2.4 There will be a user’s group meeting quarterly at the Live Oak Police Department Training Room. This meeting will be open for the area police chiefs and department heads who are a paying participant on the Live Oak Trunked Radio System. Meetings will be held the first Tuesday at 10am of each quarter beginning 6/5/12. 3. Compensation. 3.1. User agrees to compensate LIVE OAK in accordance with the terms of this Agreement for the Equipment and for the services LIVE OAK provides pursuant to this Agreement at the stated fees or rates. 3.2. LIVE OAK shall bill User for the services performed by LIVE OAK. Invoices will be itemized as to the number of radios and shall be paid by User as provided for herein. 3.3 Invoices will be sent monthly on or before the first of each month with the first invoice beginning 05/01/12. 3.4. Invoices will be paid to LIVE OAK within 30 days of the invoice date. 3.5. Overdue invoices shall incur interest at 5% per month up to 90 days. If after 90 days User is still in arrears for overdue invoices, LIVE OAK reserves the right to disconnect all radio services provided under this Agreement. 4. Liability. The Parties agree to be responsible for their own acts and sole negligence for any and all claims, demands, costs or expenses for loss, damage or injury to persons or property in any manner directly or indirectly connected with or growing out of each City’s respective activities under this Agreement committed by its agents, servants, contractors or employees. 5. Survivability of Actions. 5.1. The Parties' obligations pursuant to this Agreement shall survive termination of this Agreement with respect to any act, occurrence, or omission occurring prior to termination of this Agreement. 6. Consequential and Incidental Damages. Interlocal Agreement Between LIVE OAK and SCHERTZ Page 4 6.1. IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER ANY PROVISION OF THIS AGREEMENT FOR ANY LOSSES, DAMAGES, COSTS OR EXPENSES FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFIT OR REVENUE, LOSS OF THE USE OF EQUIPMENT, COST OF CAPITAL, COST OF TEMPORARY EQUIPMENT OR SERVICES, WHETHER BASED IN WHOLE OR IN PART IN CONTRACT, IN TORT, INCLUDING NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER THEORY OF LIABILITY; PROVIDED, HOWEVER, THAT DAMAGES FOR WHICH A PARTY MAY BE LIABLE TO THE OTHER PARTY UNDER ANY OTHER AGREEMENT BETWEEN THE PARTIES WILL NOT BE CONSIDERED TO BE SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES HEREUNDER. 7. Terms. 7.1. Initial Term: The Agreement shall begin as of the Effective Date of this Agreement and shall terminate May 31, 2015, unless terminated earlier in accordance with the provisions of this Agreement. 7.2. Renewal Terms: This Agreement will be automatically renewed for up to three (3) three (3) year renewal periods unless a Party gives the other party at least 180 days (6 months) written notice of non-renewal prior to the end of the then existing initial or renewal term. 7.3. Termination: Either Party may terminate this Agreement upon eighteen (18) months prior written notice of the Party's intent to terminate sent to the other Party. In the event there are circumstances that prevent LIVE OAK from performing under this Agreement, including force majeure, LIVE OAK shall provide written notice to the User and this Agreement shall terminate immediately. 7.4. Default: If either Party fails to perform in accordance with the terms and conditions of this Agreement, the Party claiming injury from the alleged default shall give the allegedly defaulting Party thirty (30) days’ written notice to cure such default. In the event the default is not cured within such 30-day period, the Party claiming injury may terminate this Agreement. Interlocal Agreement Between LIVE OAK and SCHERTZ Page 5 8. Notices. 8.1. Correspondence, notices, and invoices shall be in writing and mailed to the Parties' representatives set forth below. If a Party changes the designated recipient of notices, written notification of the change shall be provided to the other Party. All notices shall be effective upon receipt and shall be deemed to be received when actually delivered by hand delivery, facsimile transmission, or overnight courier, or two days after deposit in a regularly maintained receptacle of the United States Mail, registered or certified, return receipt request, postage prepaid, addressed as follows: User: John C. Kessel City Manager 1400 Schertz Parkway Schertz, Texas, 78154 Phone: (210) 619-1000 Fax: (210) 619-1009 LIVE OAK: City Manager City of Live Oak 8001 Shin Oak Drive Live Oak, TX 78233 Phone: 210/653-9140 Fax: 210/653-2766 9. Authority. 9.1. The Parties certify that (1) the services described herein and to be provided under this Agreement are necessary and essential for activities that are properly within the Parties' statutory functions; and (2) the proposed arrangements serve the interests of efficient and economical administration of the Parties’ authorized functions. 10. Miscellaneous. 10.1. Whenever the context of this Agreement requires, the masculine, feminine, or neuter gender and the singular of plural number shall each be deemed to include the others. Any portion of this Agreement held by a court of competent jurisdiction to be invalid, illegal, or ineffective shall not impair, invalidate, or nullify the remainder of this Agreement, which shall remain in full force and effect in accordance with the original intent of the Parties, but the effect thereof shall be confined to the Interlocal Agreement Between LIVE OAK and SCHERTZ Page 6 clause, sentence, provision, paragraph, or article so held to be invalid, illegal, or ineffective. 10.2. This is the complete and entire Agreement between the parties with respect to the matters herein and supersedes all prior negotiations, agreements, representations, and understandings, if any, but does not amend or modify any other existing agreements on other matters. This Agreement may not be modified, discharged, or changed in any respect whatsoever except by a further agreement in writing duly executed by the Parties hereto. No official, representative, or employee of either Party has any authority to modify this Agreement, except pursuant to such express authority as may be granted by the governing body of the Party. 10.3. Nothing in this Agreement, express or implied, is intended to confer upon any person, other than the Parties hereto, any benefits, rights, or remedies under or by reason of this Agreement. It is expressly understood and agreed that in the execution of this Agreement, no Party waives, nor shall be deemed to waive, any immunity or defense otherwise available to it against any claims by third parties. 10.4. It is understood and agreed that, under the terms of this Agreement and in providing the services, User personnel are not employees of LIVE OAK for any purpose, nor are employees of LIVE OAK employees of User. This Agreement does not create any partnership, employee, fiduciary, insurance, or agency relationship between the Parties or any of their agents, employees, volunteers, or officers. No Party to this Agreement will be responsible for the acts of the other Party or any agent or officer of the other Party by virtue of this Agreement, except as may be decreed against that Party by a judgment of a court of competent jurisdiction. 10.5. Nothing in this Agreement is intended to waive any immunity from suit or liability to which a Party may be entitled by law, except for acts in violation of the criminal laws. 10.6. Neither Party shall be liable for delays, nonperformance, damage or losses due to causes beyond its reasonable control, including but not limited to action of the elements, severe weather, fires, floods, sabotage, government or regulatory action including withholding of approvals, strikes, embargoes, or delays beyond the control of vendors or contractors. 10.7. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas. Jurisdiction and venue for any litigation between the Parties shall be exclusively in the state courts located in Bexar County, Texas. 10.8. This Agreement and its attachments may be signed in several counterparts, each of which shall be an original for all purposes but all of which taken together shall constitute a single agreement. Headings used in this Agreement are for convenience and shall not control the meaning or interpretation of this Agreement. Interlocal Agreement Between LIVE OAK and SCHERTZ Page 7 10.9. The Parties agree to conduct periodic reviews at the request of either Party to coordinate operations and related administrative or management activities with regard to the services. The Parties may loan equipment to each other in furtherance of this Agreement, but any such equipment shall remain the property of the loaning agency and must be returned after requested within a reasonable period of time to insure non- interruption of official duties and services. 10.10. This Agreement is binding on and shall inure to the benefit of the Parties and their successors and assigns; provided, however, neither Party shall assign this Agreement without written consent from the other. 10.11. By executing this Agreement, the individuals signing below acknowledge and warrant they are duly authorized and are acting with full authority to bind their respective Parties and their respective governing board or council to these terms and conditions. USER – City of Schertz By: Date: John C. Kessel City Manager CITY OF LIVE OAK, TEXAS By: Date: Name Title Randolph Metro Emergency Communication System (R-MECS)Attachment (A) AGENCY NAME (PLEASE PRINT) City of Schertz AGENCY ADDRESS 1400 Schertz Parkway CITY STATE ZIP PHONE FAX Schertz TX 78154 210-619-1000 210-619-1099 CONTACT NAME PHONE FAX Mr. John Kessel 210-619-1000 210-619-1099 BILLING ADDRESS, IF DIFFERENT FROM ABOVE SAA CITY STATE ZIP TAX EXEMPT FEDERAL TAX ID YES 74-1469344 PURCHASE ORDER EFFECTIVE DATE 4/1/2012 Use of (R-MECS) No. of Units Cost per Unit Per Month BASIC SERVICE Mobiles *67 $20.00 Portables *104 $20.00 Conventional Interface 0 $62.50 Maestro Consoles 0 $125.00 Desktop Control Station *8 $20.00 Back-up Control Station 0 $6.25 Host ID (data port on EDG)0 $24.90 TOTAL BASICMONTHLY SERVICE FEES OPTIONS I-CALL $6.25 DATA - Status Messaging $12.50 DATA - AVL $12.50 TOTAL OPTION FEES TOTAL MONTHLY FEES All fees will be paid directly to the City of Live Oak. Participant Official Signature:Date: Live Oak Official Signature:Date: Date Received: Live Oak Official Signature:Date: Date Received: Attachment (A) 210-619-1099 210-619-1099 FEDERAL TAX ID 74-1469344 Total per Month 1,340.00$ 2,080.00$ -$ -$ 160.00$ -$ -$ 3,580.00$ $0.00 $0.00 $0.00 $0.00 $3,580.00 50496767.1 Workshop Discussion Item CITY COUNCIL MEMORANDUM City Council Meeting: February 28, 2012 Department: Development Services Subject: Discussion regarding the intent to revise Article 7, Non-Conforming Uses, Lots and Structures, Unified Development Code BACKGROUND The restated and amended Unified Development Code was adopted on May 24, 2011 and includes Article 7 – Non Conforming Uses, Lots and Structures. The Inspections Division recently received an application for expansion of an existing residential structure on FM 482. The subject property, like many in the general area of North Schertz, is zoned M-1 Industry Light. Because single family residential use is not a permitted use in an M-1 District, the existing use and homes are Non-Conforming Uses and Structures. In reviewing Article 7, Non Conforming Uses, Lots and Structures, staff verified that an expansion or an addition to an existing non-conforming use that will occupy more land than the original use or structure did at the time of adoption of the UDC is specifically prohibited. A copy of Article 7 is attached and highlighted. In working with Gateway Planning Group to study both North and South Schertz, one of the more obvious and compelling discoveries is that much of both areas is occupied by homesteads and residentially used property and farm/agriculturally used land. With much of the current zoning being that of industry or commercial; virtually no one who lives on property zoned in that manner will be able to expand or make an addition to an existing non-conforming use or structure. The only option at this time is for the applicant to request a variance. The current applicant is on a self designated time table and would prefer to seek a change in the Unified Development Code rather than go through the variance process. As staff and management have discussed this issue and examined the UDC, we feel the restriction, although intended to control development and to limit the continuance of a non- conforming use or structure, the restriction on expansion of occupied homes appears to be overly restrictive. A person should be able to make an addition to their home. GOAL 50496767.1 Staff’s intent and desire is to re-examine Article 7 to determine a fair and equitable solution for folks that have lived in their homes for years; that were annexed into the city limits and that may have a zoning designation that is not conducive to their current use and occupancy of the property. We want folks to be able to make an addition to an existing home or business, to be able to build non-habitable supporting or secondary use structures such as a storage shed, a swimming pool or a barn and to encourage them to obtain building permits and inspections, otherwise, they will proceed to do so without a permit, which is not an option that we wish to encourage. COMMUNITY BENEFIT To provide residents and business owners of the City the ability to continue to live comfortably on their property; to be able to make additions and expansions to existing structures that will increase property value and to ensure property owners that the City supports their efforts to beautify and improve their home. SUMMARY OF RECOMMENDED ACTION If City Council agrees to authorize staff and management to begin the revision process to provide suggested changes to the Planning and Zoning Commission and City Council on UDC Article 7, Non-Conforming Uses, Lots and Structures; we propose that during the revision process, that applications received for residents to make an addition or expansion to their home that does not change the occupancy or use of the property be administratively considered on a case-by-case basis. This is not intended to include placement of a new residential structure on existing land or vacant land or to increase the number of residentially occupied structures on existing land or vacant land. FISCAL IMPACT None. RECOMMENDATION To authorize staff and management to begin the revision process to provide suggested changes to the Planning and Zoning Commission and City Council on UDC Article 7, Non-Conforming Uses, Lots and Structures; and that applications received for residents to make an addition or expansion to their home that does not change the occupancy or use of the property be administratively considered by the Inspections Division and the Development Services Department on a case-by-case basis. This is not intended to include placement of a new residential structure on existing land or vacant land or to increase the number of residentially occupied structures on existing land or vacant land.