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04-15-2008 Agenda SCHERTZ CITY COUNCIL REGULAR SESSION MUNICIPAL COMPLEX COUNCIL CHAMBERS 1400 SCHERTZ PARKWAY BUILDING #4 SCHERTZ, TEXAS 78154 AGENDA TUESDAY, APRIL 15, 2008 AT 6:30 P.M. CALL TO ORDER INVOCATION AND PLEDGES OF ALLEGIANCE TO THE FLAGS OF THE UNITED STATES AND STATE OF TEXAS. 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 5 minutes. 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. ANNOUNCEMENTS General Announcements (Council) General Announcements (Mayor) REGULAR AGENDA Minutes - 1.Consideration and/or action regarding the approval of the minutes of the Regular Meeting of April 8, 2008. Bid Award 08-PK-10-A-02 2.? Consideration and/or action awarding a bid to YMCA ofGreater San Antonio for a Swimming Pool Management Agreement. (G. Logan) This item was presented on 4/8/08 ? being brought back for details. Bid No. 08-PW-09-D-01 3.? Consideration and/or action awarding a bid for the E. Aviation Low Water Crossing Drainage Improvements. (S. Willoughby) Ordinance No. 08-D-18 ? 4.Consideration and/or action approving an ordinance amending Section 86-115 of the Schertz Code of Ordinances revising maximum limits on specific streets and providing a repealing clause. (Baptist Health Final Reading Drive)(B.Todd) Ordinance No. 08-M-19 ? ZC2008-003 5.? Consideration and/or action on approval of final reading of an ordinance to change a street name for a portion of Ware-Seguin Final Reading Road.(T. Rhodes) ìóïëóðè Ý±«²½·´ ß¹»²¼¿ Ordinance No. 08-S-20 ? SUP2008-001 6.? Consideration and/or action on approval of final reading of an ordinance for a Specific Use Permit to allow for residential uses Final Reading on Lots 27-45, Block 3 ? the future Schertz Forest Subdivision. (T. Rhodes) Resolution No. 08-S-022 7.? Consideration and/or action regarding approval of a resolution establishing thefee schedule forsign permits. (T. Rhodes) Ordinance No. 08-H-16 8.? Consideration and/or action on approving final reading of an Ordinance of the City of Schertz, Texas providing that the Code of Ordinances, for the City of Schertz, Texas, Chapter 54, Nuisances, be amended by deleting Chapter 54,Nuisances and replacing same with a revised Chapter 54, Nuisances; providing a penalty clause; providing servability clause; providing a repealing clause; and Final Reading providing an effective date.(L. Truitt) Ordinance No. 08-D-22 9.? Consideration and/or action approving an ordinance amending Section 86-115 of the Schertz Code of Ordinances revising maximum limits on specific streets and providing a repealing clause. (Ripps-Kreusler)(B.Todd) Ordinance No. 08-M-23 10.- Consideration and/or action approving an ordinance appointing the City Secretary and Assistant City Secretary as the designees for the officer for public information; and other matters in connection therewith. (D. Taylor) appointing the City Secretary as the official officer in regards to Open Records. (D. Taylor) DISCUSSION AND POSSIBLE ACTION City Hall Renovations 11.-Discussion and consideration and/oractionregardingthe proposedCity Hall Renovation. (L. Truitt) City Council Board Liaison Practices 12.?Discussion and consideration and/or action regarding the activity and practice of maintaining Council liaisons to City boards, committees and commissions. (M. Carpenter) Fund Raising Consultant Contract 13.? Discussion and consideration and/or action regarding hiring a fundraising firmfor the new Library. (G. Douglas) Zoning and ad valorem tax exemptions 14.- Discussion by City Attorney relating to zoning and ad valorem tax exemptions. Resolution No. 08-R-16 15.?Discussion and consideration and/or action on approving twodevelopment agreements in connection with the development of approximately 458 acres located within the extraterritorial jurisdiction of the City of Schertz, Texas, naming a member of the Board of Directors of the Crestmark Public Improvement District and other matters in connection therewith. (M. Spain) ìóïëóðè Ý·¬§ Ý±«²½·´ ß¹»²¼¿Ð¿¹»ó î ó ANNOUNCEMENTS ? CITY MANAGER AND STAFF EXECUTIVE SESSION Called under Section 551.071 Litigation; Section 551.072 Texas Government Code - Deliberation regarding the purchase, exchange, sale, lease, or value of real property and Section 551.074 ? Deliberate the appointment, employment, evaluation, reassignment, duties, discipline or dismissal of the City Engineer. RECONVENE TO REGULAR SESSION 16. Take any actiondeemed necessary as a result of the Executive Session. ADJOURNMENT CERTIFICATION I, BRENDA DENNIS, CITY SECRETARY OF THE CITY OF SCHERTZ, TEXAS, DO HEREBY CERTIFY THAT THE ABOVE AGENDA WAS POSTED ON THE OFFICIAL BULLETIN BOARDS ON THIS THE 10th DAY OF APRIL, 2008 AT 5:00 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. ûËØÏÙÜùØÏÏÔÊ BRENDA DENNIS, TRMC, CMC 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 _______________, 2008. ____________________________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 619-1030 at least 24 hours in advance of meeting. ìóïëóðè Ý·¬§ Ý±«²½·´ ß¹»²¼¿Ð¿¹»ó í ó COUNCIL ASSIGNMENTS Mayor BaldwinCouncilmember Wilenchik Liaison - Schertz Seguin Local Government Corporation Investment Advisory Committee Liaison - Schertz Historical/Preservation Committee Liaison - Schertz Chamber of Commerce Interview Board for Boards and Commissions Liaison - Board of Adjustments Investment Advisory Committee Audit Committee ASA Commuter Rail District Board Interview Board for Boards and Commissions Liaison ? TIRZ II Board AACOG Advisory Committee AACOG Economic Development TML Board of Directors TML Municipal Revenue & Taxation Committee Councilmember FowlerCouncilmember Carpenter Liaison - Schertz Economic Development Corporation Liaison - Library Advisory Board Liaison - Parks & Recreation Advisory Board Liaison - Planning and Zoning Commission th Interview Board for the Boards and Commissions Liaison - 50 Year Anniversary Committee Liaison - Schertz Youth Commission Liaison ? TIRZ II Board Councilmember ScagliolaMayor Pro-Tem Trayhan Liaison - Transportation Safety Advisory Commission Liaison - Schertz Housing Authority Liaison - Schertz Humane Society Audit Committee Alternate Interview Board for Boards and Commissions Liaison ? Schertz Sweetheart Court ìóïëóðè Ý·¬§ Ý±«²½·´ ß¹»²¼¿Ð¿¹»ó ì ó Agenda No. 1 CITY COUNCIL MEMORANDUM City Council Meeting: April 15, 2008 Department: Administration Subject: Minutes BACKGROUND On April 8, 2008 a Regular Meeting of the City Council was held at the Municipal Complex Council Chambers, 1400 Schertz Parkway Building #4. FISCAL IMPACT None RECOMMENDATION Staff recommends Council approval of the April 8, 2008 Minutes ATTACHMENT Minutes 4-8-08 MINUTES REGULAR MEETING April 8, 2008 A Regular Meeting was held by the Schertz City Council of the City of Schertz, Texas, on April 1, 2008, at 6:30 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 John Trayhan Council Member David Scagliola Council Member Jim Fowler Council Member Tony Wilenchik Council Member Michael Carpenter Staff Present: City Manager Don Taylor Assistant City Manager John Bierschwale Assistant City Manager David Harris City Secretary Brenda Dennis CALL TO ORDER REGULAR MEETING Mayor Baldwin called the meeting to order at 6:30 p.m. INVOCATION AND PLEDGES OF ALLEGIANCE TO THE FLAGS OF THE UNITED STATES AND STATE OF TEXAS. Council Member Fowler gave the Invocation followed by the Pledges of Allegiance to the Flags of the United States and State of Texas. HEARING OF RESIDENTS Mayor Baldwin recognized the following: Frances Rushing, President of the Schertz Chamber announced the following: -April 25, 2008 monthly Chamber Luncheon scheduled at noon at the Civic Center. -April 21, 2008 the Chamber will is hosting a ?Meet the Candidate Forum? scheduled for 7:00 p.m. at the Community Center. -Chamber is developing a ?Leadership Program? which will be a nine month program and at the end the Chamber will hold a graduation ceremony. th Gail Douglas, Library Director announced that not only is it the City?s 50 Year th Anniversary but also the Library will be celebrating their 30 Anniversary and during the month of April the Library is giving out pencils to patrons. Ms. Douglas presented Council with a pencil. Ms. Douglas also mentioned that Saturday the Library will be sponsoring a book sale. Robert Brockman, 1000 Elbel Rd, mentioned that this Saturday, the Library will be hosting a sidewalk book sale, which will be held at 10:00 a.m. Mr. Brockman also mentioned the vandalism that occurred at the playscape. He stated he also was glad to see the two recycle bins that were at the Library. Ý·¬§ Ý±«²½·´ Î»¹«´¿® Ó»»¬·²¹ 137 ß°®·´ èô îððè Council Member Wilenchik arrived at 6:45 p.m. ANNOUNCEMENTS Council General Announcements: Mayor Pro-Tem Trayhan Mentioned he would be attending the April 10, 2008 TML Region VII meeting the city will be hosting. He also mentioned he would be attending the April 14, 2008 Schertz Housing Authority meeting at 6:30 p.m. Council Member Fowler Mentioned that he and the Mayor recently helped sponsor the Plymouth Softball Team by winning the tournament at Olympic Hills. Council Member Scagliola Mentioned he took time this past Saturday to visit the Community Fine Arts network, they sponsored a golf tournament at the Northcliff Golf Course. Council Member Wilenchik Reminded everyone of upcoming TML Region VII meeting hosted by the City of Schertz. Council Member Carpenter Mentioned he was unable to attend the Library Board meeting, but also mentioned that it is th the 30 Anniversary of the Library. Council Member Carpenter mentioned he would like to see an item placed on a future agenda regarding adding a Parks & Recreation Foundation Board, with a Council liaison. Discussion regarding the activity and practice of maintaining Council liaisons to City boards, committees and commissions. Council concurred. Items by Mayor Mentioned that they fielded a team for the Samuel Clemens high school girl?s softball golf tournament that was held in Universal City and sponsored by Bexar Waste. Members of the team were himself, Michael Carpenter, Jim Fowler and a team ringer, the Mayors Grandson. Mayor stated they won the tournament. Mayor stated that he would like to reserve time at the end of the meeting to update the members regarding a recent meeting he attended with the Appraisal District regarding Section 11 housing information. PRESENTATION & DISCUSSION ITEMS Presentation and Discussion: Consider a request from the Schertz Youth Soccer Alliance. (G. Logan) Mayor Baldwin recognized Parks & Recreation Director George Logan who introduced this item. Mr. Logan stated that the Parks & Recreation Advisory Board has reviewed this proposal and unanimously passed this to take to the City Council for consideration. Mr. Logan introduced Abe Parazo, President of the Lions Futball Club who then gave a brief PowerPoint presentation answering questions from Council. The Lions Futball team Ý·¬§ Ý±«²½·´ Î»¹«´¿® Ó»»¬·²¹ 138 ß°®·´ èô îððè presented the Council with a t-shirt as a token of their appreciation. Mr. Parazo introduced Ed Kenny, President of SAYSAT who came forward further addressing the Council regarding their desire of this proposal. Mayor Baldwin recognized David Brinkman, Member of the Lions Futball club who also came forward speaking on the need for more fields. Mayor Baldwin called for a brief recess at 7:30 p.m. Mayor Baldwin called the meeting back to order at 7:45 p.m. REGULAR AGENDA Minutes 1.-Consideration and/or action regarding the approval of the minutes of the Regular Meeting of April 1, 2008. Mayor Baldwin recognized Mayor Pro-Tem Trayhan who moved, seconded by Council Vote was Member Fowler to approve the minutes of April 8, 2008 with correction noted. unanimous. Motion Carried Bid Award 08-PK-10-A-02 2. ? Consideration and/or action awarding a bid to YMCA of Greater San Antonio for a Swimming Pool Management Agreement. (G. Logan) Mayor Baldwin recognized Parks & Recreation Director George Logan who introduced this item answering questions from Council. Mr. Logan stated that upon recommendations No from legal, he would like to bring this item back to Council at their next meeting. action taken. Ordinance No. 08-T-17 3. ? Consideration and/or action regarding approval of final reading of Final Reading an ordinance regarding budget adjustments. (D. Harris) Mayor Baldwin recognized Assistant City Manager David Harris who introduced this item answering questions from Council. Council Member Wilenchik expressed his concern whether or not this ordinance violates the City Charter, legal stated that this ordinance was in no way violating what the City Charter stated. Council Member Scagliola also expressed his concerns. Mayor Baldwin recognized Mayor Pro-Tem Trayhan who moved seconded by Council The vote was 3-2-0 with Member Fowler to approve Ordinance No. 08-T-17 final reading. Council Members Scagliola and Wilenchik voting no. Motion Carried Ordinance No. 08-D-18 ? 4.Consideration and/or action approving an ordinance amending Section 86-115 of the Schertz Code of Ordinances revising maximum limits on specific First Reading streets and providing a repealing clause. (Baptist Health Drive)(B. Todd) Mayor Baldwin recognized Assistant Police Chief Beverly Todd who introduced this item answering questions from Council. Mayor Baldwin recognized Mayor Pro-Tem Trayhan who moved seconded by Council Member Carpenter to approve Ordinance No. 08-D-18 Vote was unanimous. Motion Carried first reading. Ý·¬§ Ý±«²½·´ Î»¹«´¿® Ó»»¬·²¹ 139 ß°®·´ èô îððè PUBLIC HEARINGS AND ORDINANCE APPROVAL Ordinance No. 08-M-19 ? ZC2008-003 5. ? Conduct a public hearing and consideration and/or action on approval of first reading of an ordinance to change a street name for a First Reading portion of Ware-Seguin Road. (T. Rhodes) Mayor Baldwin recognized Thomas Rhodes, Planning and Zoning Director who introduced this item answering questions from Council. Mayor Baldwin opened the public hearing, as no one spoke; Mayor Baldwin closed the public hearing. Mayor Baldwin recognized Council Member Carpenter who moved, seconded by Mayor Vote was unanimous. Pro-Tem Trayhan to approve Ordinance No. 08-M-19 first reading. Motion Carried Ordinance No. 08-S-20 ? SUP2008-001 6. ? Conduct a public hearing and consideration and/or action on approval of first reading of an ordinance for a Specific Use Permit to allow First for residential uses on Lots 27-45, Block 3 ? the future Schertz Forest Subdivision. Reading (T. Rhodes) Mayor Baldwin recognized Thomas Rhodes, Planning and Zoning Director who introduced this item answering questions from Council. Mayor Baldwin opened the public hearing and recognized Mr. Brockman, 1000 Elbel Road, who addressed Council regarding sidewalks, as no one else spoke; Mayor Baldwin closed the public hearing. Mayor Baldwin recognized Mayor Pro-Tem Trayhan who moved, seconded by Council Vote was 3-1-0 with Member Scagliola to approve Ordinance No. 08-S-20 first reading. Council Member Fowler voting no. Motion Carried Ordinance No. 08-H-16 7. ? Conduct a Public hearing and consideration and/or action on approving an Ordinance of the City of Schertz, Texas providing that the Code of Ordinances, for the City of Schertz, Texas, Chapter 54, Nuisances, be amended by deleting Chapter 54, Nuisances and replacing same with a revised Chapter 54, Nuisances; providing a penalty clause; providing servability clause; providing a repealing clause; and providing an effective First Reading date. (L. Truitt) Mayor Baldwin recognized Director of Development Services Leonard Truitt who introduced this item answering questions from Council. Council Members discussed the following: -Define Recreation Vehicle/RV/Motor Home ? Restrict Class (identify) define Class -Discussed junk vehicles, eliminate cover, include screen definitions Ý·¬§ Ý±«²½·´ Î»¹«´¿® Ó»»¬·²¹ 140 ß°®·´ èô îððè Mayor Baldwin opened the public hearing and recognized Mr. Brockman, 1001 Elbel who expressed his concerns regarding junk vehicles, prohibit parking RV?s , as no one else spoke; Mayor Baldwin closed the public hearing. Mayor Baldwin recognized Council Member Wilenchik who moved, seconded by Mayor Pro-Tem Trayhan to approve Ordinance No. 08-H-16 first reading with the following changes: to include definitions of a Recreation/Motor Vehicle (defining class), changing paragraph 54 34 C by placing a period after fence and deleting the next two sentences Vote was unanimous. Motion Carried regarding covers. ANNOUNCEMENTS ? ITEMS BY CITY MANAGER TAYLOR AND STAFF Mayor Baldwin recognized Assistant City Manager David Harris who reminded everyone of April 10, 2008 TML Region VII dinner which starts at 6:00 p.m. Mayor Baldwin stated that he, the City Manager and George Antuna recently attended the Appraisal District?s review of the housing project on FM 3009, the Review Board turned down their request for Section 11 housing and briefly went over details. Mayor stated that Mayors and Councils within the area need to lobby in Austin regarding the details of who will pay the remaining amounts of the rents. Legislation seems to keep imposing more unfunded mandates on cities. Mayor Baldwin adjourned the Regular Session into Executive Session at 8:50 p.m. EXECUTIVE SESSION Called under Section 551.071 Litigation; Section 551.072 Texas Government Code - Deliberation regarding the purchase, exchange, sale, lease, or value of real property and Section 551.074 ? Deliberate the appointment, employment, evaluation, reassignment, duties, discipline or dismissal of the City Engineer. Mayor Baldwin reconvened the Regular Session out of Executive Session at 9:19 p.m. RECONVENE TO REGULAR SESSION 8. Take any actiondeemed necessary as a result of the Executive Session. Mayor Baldwin recognized Council Member Fowler who moved, seconded by Council Member Scagliola to approve the sale and purchase contract for the acquisition of one (1) Vote lot in the Live Oak Hills Subdivision, at a cost of $3,000 with: Lynda Kathryn Frith. was unanimous. Motion Carried ADJOURNMENT As there was no further action, Mayor Baldwin adjourned the meeting at 9:21 p.m. ______________________________ Hal Baldwin, Mayor Ý·¬§ Ý±«²½·´ Î»¹«´¿® Ó»»¬·²¹ 141 ß°®·´ èô îððè ATTEST: _____________________________________ Brenda Dennis, TRMC, CMC City Secretary Ý·¬§ Ý±«²½·´ Î»¹«´¿® Ó»»¬·²¹ 142 ß°®·´ èô îððè Agenda No. 2 CITY COUNCIL MEMORANDUM/RESOLUTION City Council Meeting: April 15, 2008 Department: Parks and Recreation Subject: Management Services for Swimming Pools 08-PK-10-A-02 BACKGROUND Beginning on May 1, 2008, The City Parks and Recreation staff recommends that the YMCA of Greater San Antonio manage the swimming pools for the City of Schertz. The Parks and Recreation staff have negotiated a swimming pool contract with the YMCA, (see attached contract provided by our City Attorney), that will be signed by both parties after the City Council approves this recommendation with the YMCA for pool management services. Working with the Purchasing Department, the Parks and Recreation staff put together a Request for Proposals (RFP) for Swimming Pool Management Services. This RFP was advertised and published and provided to vendors that provide swimming pool management services. The proposed vendors would be responsible for managing the swimming pool services for Pickrell and Northcliffe pools for the summer program of 2008. Three vendors submitted proposals, with the YMCA of Greater San Antonio having the proposal that not only meets all the needs as specified in the RFP, but also was the most advantageous due to their proximity to Schertz, Texas, and their extensive swimming pool management experience. The YMCA, in accordance with the RFP will assist with the cleanliness of the pool, train lifeguards, provide swimming lessons, staff pool special events, and provide daily manager, cashier and lifeguard staffing. The Parks and Recreation Advisory Board on March 31, 2008, reviewed this management program and recommended by motion unanimously to bring this recommendation to City Council. I have attached a copy of the RFP that went out to the vendors and a tabulation and a score sheet from the RFP identifying vendors who returned a proposal for management services. FISCAL IMPACT For $179,878.00 the YMCA will manage and provide services at both Pickrell and Northcliffe Pools. Funds for this management agreement are located in the Parks and Recreation ?POOL? Budget. The City of Schertz will provide cash registers and receive all daily gate receipts in the amount of approximately $20,000 for both swimming pools in the General Fund Budget. Concessions will continue to be through vending machines at each pool. The parks Staff is also City Council Memorandum Page 2 looking to find a high school club that might want to run the concessions at the swimming pools for the summer, and pay the City of Schertz a small stipend for the service. RECOMMENDATION Staff recommends Council award this management services contract to The YMCA of Greater San Antonio. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ: That the above stated staff recommendations are hereby approved and authorized. PASSED AND APPROVED at a regular meeting of the City Council of the City of Schertz, Texas this 8th day of April, 2008, at which meeting a quorum was present, held in accordance with the provisions of V.T.C.A., Government Code, §551.001 et seq. APPROVED _________________________ Hal Baldwin, Mayor ATTEST: __________________________ Brenda Dennis, City Secretary - 1 - - 2 - - 3 - - 4 - - 5 - - 6 - - 7 - - 8 - - 9 - - 10 - - 11 - - 12 - - 13 - - 14 - - 15 - - 16 - - 17 - - 18 - - 19 - - 20 - - 21 - - 22 - Experience in Vendormanaging largePoint Proposal multiple pool facilities YMCA4010 AQUATIC MANAGEMENT4020 USA POOLS4015 RECOMMENDED VENDOR FOR SWIMMING POOL MAN A The ability, capacity, skill, reputation, and Record of experience of the firma performance based TOTAL nd the individual who on previous work POINTS AWARDED will perform the with the city or other contract and provide muncipalities required services 90 3010 80 1010 75 155 GEMENT AGREEMENT IS YMCA AT $179,878.0 A0 CITY AS DATES OF VENDORPROPOSALRENEWALINSURANCEADDITIONAL OPERATION INSURED 05-01-2008 YMCA213,474.00Year to YearYesYes TO 09-05-2008 YMCA05-24-08 TO 179,878.00Year to YearYesYes NEGOTIATED08-24-08 Year to Year 05-01-2008with Automatic AQUATIC199,750.00YesYes TO 09-05-2008Renewal on 9- 15-08 05-17-08; 05-18-08; USA194.880.0005-24-08 to 09-01-Year to YearYesYes 2008 PERSONNELEARLY STIPULATIONS PROVIDEDTERMINATION 2 Mgr; 2 Cashier; 12 NoneYes Lifeguards 2Mgr;2 Cashier;12 NoneYes Lifeguards 2 Mgr; 2 Cashier; 10 Pool Maintenance LimitedYes Lifeguards 2 Mgr; 2 Cashier; 10 Pool Maintenance and Yes LifeguardsOperations Limited Agenda No. 3 CITY COUNCIL MEMORANDUM/RESOLUTION City Council Meeting: April 15, 2008 Department: Public Works Subject: Bid No. 08-PW-09-D-01 - E. Aviation Low Water Crossing Drainage Improvements BACKGROUND Cibolo Creek water crossing (Aviation) is notoriously known for being closed when the surrounding areas receive moderate to heavy rainfalls. As a result the City of Universal City and the City of Schertz must coordinate their personnel in order to close the road off for water over the road. The Public Works Department recommends installing large culverts that will help reduce the amount of time the crossing is closed due to low creek flow and also relieve some issues with overtime for personnel having to come out after hours to close the road. This improved roadway will help with congestion from FM 78 and FM 1518 to and from Randolph Air Force Base, surrounding cities, local businesses, and local schools. FISCAL IMPACT Continuous of the 2006 Drainage Bonds $3,800,000 RECOMMENDATION Schertz Public Works Department received eight (8) bids for the construction of an improved low water crossing at E. Aviation across the Cibolo Creek using 8 foot X 10 foot box culverts. Public Works concurs with Engineering Design Group to award the bid to Winco Contractors in the amount of $427,691.56. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ: That the above stated Public Works recommends award the bid to Winco Contractors in the amount of $427,691.56. PASSED AND APPROVED at a regular meeting of the City Council of the City of Schertz, Texas this 15th day of April, 2008, at which meeting a quorum was present, held in accordance with the provisions of V.T.C.A., Government Code, §551.001 et seq. APPROVED _________________________ Hal Baldwin, Mayor City Council Memorandum Page 2 ATTEST: __________________________ Brenda Dennis, City Secretary Agenda No. 4 CITY COUNCIL MEMORANDUM City Council Meeting: April 15, 2008 Department: Police Department/Streets Subject:Ordinance No. 08-D-18 ? revising speed limit on Baptist Health Drive Final Reading BACKGROUND Consideration and/or action on approval of Ordinance No. 08-D-18 amending section 86- 115 of the Code of Ordinances regarding maximum speed limits. Due to the number of businesses and amount of traffic in this area, the streets department installed a speed limit sign of 20 mph on Baptist Health Drive this month. City Council passed this by a unanimous vote at their meeting of April 8, 2008. FISCAL IMPACT None RECOMMENDATION Staff recommends Council approve final reading of Ordinance No. 08-D-18 ATTACHMENT Ordinance No. 08-D-18 ORDINANCE NO. 08-D-18 BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS PROVIDING THAT THE CODE OF ORDINANCES OF THE CITY OF SCHERTZ, TEXAS BE AMENDED BY REVISING SECTION 86-115, MAXIMUM LIMITS ON SPECIFIC STREETS; AND PROVIDING A REPEALING CLAUSE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS: SECTION 1 THAT, Section 86-115 of the Code of Ordinances, City of Schertz, Texas is amended to add the following: ?Section 86-115, Maximum Limits on Specific Streets? a). The maximum reasonable, safe and prudent speed limit has been set and is hereby declared in force on the following street or portion thereof, and any speed in excess of the prescribed limit shall be prima facie evidence that the speed is not reasonable and prudent and that it is unlawful StreetExtentSpeed Limit Baptist Health Drive Entire length 20 MPH SECTION 2 1.All ordinances and resolutions, or parts thereof, in conflict with the provisions of this Ordinance are hereby repealed. 2.This Ordinance shall be in force and effect from and after its final passage. [The remainder of this page intentionally left blank.] PASSED AND APPROVED on the first reading the 8th day of April, 2008. th PASSED AND FINALLY APPROVED on final reading the 15 day of April, 2008. ____________________________________ Mayor ATTEST: _________________________________ City Secretary, City of Schertz Agenda No. 5 CITY COUNCIL MEMORANDUM City Council Meeting: April 15, 2008 Department: Planning & Zoning Subject:Ordinance No. 08-M-19? Consideration and/or action on final reading of an ordinance to change the street name for a Final portion of Ware-Seguin Road. Reading BACKGROUND: At the April 8, 2008 regular meeting, City Council approved first reading of Ordinance No. 08- M-19 to change the street name for a portion of Ware-Seguin Road. The street name change is necessary due to the development of the Schertz Forest Subdivision that includes an alternate route for Ware-Seguin Road that removed the first hard turn west of FM-1518. Staff requested this transition be included in the Schertz Forest development for safety reasons. The portion of right-of-way that is proposed as Ware-Seguin Loop supplies access to ten (10) lots, the remaining travelers of Ware-Seguin Road will be utilizing the new transition of the road. FISCAL IMPACT None RECOMMENDATION The City Council voted to approve this item on first reading at their April 8, 2008 regular meeting. Based on that vote, staff recommends approval of this ordinance on final reading. Staff recommends Council approve Ordinance No.08-M-19 on final reading. ORDINANCE NO. 08-M-19 AN ORDINANCE BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS CHANGING THE STREET NAME OF A PORTION OF WARE-SEGUIN ROAD WHEREAS , the City Council hereby recognizes that street name are an imperative public necessity and street name changes are necessary to alleviate confusion for emergency respondents and are in the interest of the public safety; now, therefore, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS : SECTION I THAT, the street name changes are necessary due to the development of Schertz Forest Subdivision and its public improvements requiring the following changes and as illustrated in the attached ?Exhibit A?: SECTION II THAT , The City Manager is hereby authorized and directed to provide for the timely installation of proper street signs in accordance with this Ordinance. SECTION III THAT , all new official or unofficial maps prepared by or authorized by the City subsequent to the final passage of this Ordinance shall bear the street designations contained in Section I of this Ordinance. SECTION IV THAT , the City Secretary is hereby authorized and directed to mail a copy of this Ordinance to the United States Post Office serving the City of Schertz, Texas and to any other appropriate jurisdiction. SECTION V This ordinance shall be cumulative of all other ordinances of the City of Schertz, and this ordinance shall not operate to repeal or affect any other ordinances of the City of Schertz except insofar as the provisions thereof might be inconsistent or in conflict with the provisions of this ordinance, in which event such conflicting provisions, if any, are hereby repealed. ZC2008-004 Street name changes SECTION VI The sections, paragraphs, sentences, clauses, and phrases of this ordinance are severable, and if any phrase, clause, sentence, paragraph or section of this ordinance shall be declared unconstitutional, such unconstitutionality or invalidity shall not affect any of the remaining phrases, clauses, sentences, paragraphs or section s of this ordinance, since the same would have been enacted by the City Council without the incorporation in this ordinance of any such unconstitutional or invalid phrase, clause, sentence, paragraph or section. th Approved on first reading the 8 day of April, 2008. th PASSED, APPROVED AND ADOPTED the 15 day of April, 2008. ____________________________________ Mayor, City of Schertz, Texas ATTEST: ________________________________ City Secretary, City of Schertz, Texas (SEAL OF THE CITY) ZC2008-004 Street name changes Agenda No. 6 CITY COUNCIL MEMORANDUM City Council Meeting: April 15, 2008 Department: Planning & Zoning Subject:Ordinance No. 08-S-20 ? Consideration and/or action on final reading of an ordinance amending Ordinance No. 96-S-28 being the Unified Development Code (UDC) granting a Specific Use Permit allowing single-family residential for 55.48± acres in the Air Instillation Compatible Use Zone (AICUZ) Accident Protection Zone-II Final Reading (APZ-2). BACKGROUND ß¬ ¬¸» ß°®·´ èô îððè ®»¹«´¿® ³»»¬·²¹ô Ý·¬§ Ý±«²½·´ ¿°°®±ª»¼ º·®¬ ®»¿¼·²¹ ±º Ñ®¼·²¿²½» Ò±ò ðèóÍóîð ¿³»²¼·²¹ ¬¸» Ë²·º·»¼ Ü»ª»´±°³»²¬ Ý±¼» øËÜÝ÷ ¹®¿²¬·²¹ ¿ Í°»½·º·½ Ë» Ð»®³·¬ ¿´´±©·²¹ ·²¹´»ó º¿³·´§ ®»·¼»²¬·¿´ º±® ëëòìèo ¿½®» ·² ¬¸» ß·® ×²¬¿´´¿¬·±² Ý±³°¿¬·¾´» Ë» Æ±²»ó×× øßÐÆóî÷ò Ì¸· °®±°»®¬§ · ¿ºº»½¬»¼ ¾§ ¬¸» ß×ÝËÆ øßÐÆóî÷ ¿²¼ · ®»¯«·®»¼ ¬± ±¾¬¿·² ¿ Í°»½·º·½ Ë» Ð»®³·¬ º±® »¿½¸ ·²¹´»óº¿³·´§ ®»·¼»²¬·¿´ ´±¬ò Ì¸» ±®¼·²¿²½» ²«³¾»® ©·´´ ¾» ¿¼¼»¼ ¬± ¬¸» °´¿¬ °®·±® ¬± ®»½±®¼·²¹ ¬± ª»®·º§ ¬¸¿¬ ¿´´ ¿ºº»½¬»¼ °®±°»®¬§ ±©²»® «²¼»®¬¿²¼ ¬¸¿¬ ¬¸»®» ¿®» ¿¼¼·¬·±²¿´ ®»¬®·½¬·±² ±² ¬¸»·® ´±¬ò Ú×ÍÝßÔ ×ÓÐßÝÌ Ò±²» ÎÛÝÑÓÓÛÒÜßÌ×ÑÒ The City Council voted to approve this item on first reading at their April 8, 2008 regular meeting. Based on that vote, staff recommends approval of this ordinance on final reading. Item 6 UP2008-001 Schertz Forest Unit 3 (AICUZ).doc ORDINANCE NO. 08-S-20 BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS AMENDING THE UNIFIED DEVELOPMENT CODE (UDC) ORDINANCE 96-S-28 BY GRANTING A SPECIFIC USE PERMIT FOR SINGLE-FAMILY RESIDENTIAL IN THE AIR INSTALLATION COMPADIBLE USE ZONE (AICUZ) FOR 55.48± ACRES OUT OF THE E. GOTARI SURVEY NO, 2, ABSTRACT NO. 5, COUNTY BLOCK 5193, AND THE JAMES P. HECTOR SURVEY NO. 1, ABSTRACT NO. 1147, COUNTY BLOCK 5061, BEXAR COUNTY, SCHERTZ, TEXAS; PROVIDING AN EFFECTIVE DATE; AND PROVIDING A REPEALING CLAUSE; AND PROVIDING A SERVABILITY CLAUSE; AND PROVIDING A PENALTY CLAUSE. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS : THAT: UDC Ordinance No. 96-S-28, as same may have heretofore been amended, of the City of Schertz, Texas is hereby amended in the following manner. SECTION I ?Grant a Specific Use Permit for 55.48± acres out of the E. Gortari Survey No. 2, Abstract No.5, County Block 5193, and the James P. Hector Survey No. 1, Abstract No, 1147, situated in Bexar County, Schertz Texas, more particularly described in the Field Notes and Map, as attached hereto as Exhibit A, to allow for single-family residential use of Lots 27 through 45 of Block 3 of the Schertz Forest Subdivision in the Air Installation Compatible Use Zone (AICUZ) Air Protection Zone ?II (APZ-2).? SECTION II The Official Zoning Map of the City of Schertz described and referred to in Article III, of the UDC, Ordinance 96-S-28 shall be changed to reflect the above amendments. SECTION III This Ordinance shall be effective immediately from and after its final passage and any publication in accordance with the requirements of the City of Schertz and the laws of the State of Texas. SUP2008-001 Schertz Forest Unit 3 SECTION IV This ordinance shall be cumulative of all other ordinances of the City of Schertz, and this ordinance shall not operate to repeal or affect any other ordinances of the City of Schertz except insofar as the provisions thereof might be inconsistent or in conflict with the provisions of this ordinance, in which event such conflicting provisions, if any, are hereby repealed. SECTION V The sections, paragraphs, sentences, clauses, and phrases of this ordinance are severable, and if any phrase, clause, sentence, paragraph or section of this ordinance shall be declared unconstitutional, such unconstitutionality or invalidity shall not affect any of the remaining phrases, clauses, sentences, paragraphs or section s of this ordinance, since the same would have been enacted by the City Council without the incorporation in this ordinance of any such unconstitutional or invalid phrase, clause, sentence, paragraph or section. SECTION VI Any person, firm, association of persons, corporation or other organization violating the provisions of this ordinance shall be deemed to be guilty of a misdemeanor and, upon conviction, shall be fined an amount not to exceed $2,000.00. Each day that a violation continues shall be deemed as a separate offence. th Approved on first reading the 8 day of April, 2008. PASSED, APPROVED AND ADOPTED the _________ day of __________________, 2008. ____________________________________ Mayor, City of Schertz, Texas ATTEST: ________________________________ City Secretary, City of Schertz, Texas (SEAL OF THE CITY) SUP2008-001 Schertz Forest Unit 3 Agenda No. 7 CITY COUNCIL MEMORANDUM City Council Meeting: April 15, 2008 Department: Planning & Zoning Subject:Resolution No. 08-S-22 ? Consideration and/or action on approval of a resolution establishing the fee schedule for sign permits. BACKGROUND At the April 1, 2008 City Council meeting, the City Council approved the revised Article IX, Sign Standards, in its entirety and made the ordinance effective. The previous sign ordinance included a fee schedule for sign permit fees; however, the revised sign ordinance did not include that schedule. The City will be adopting a master fee schedule for all fees in the City. At this time, the City needs to adopt a sign permit fee schedule to replace the fee schedule that was included in the previous ordinance. Below is a comparison of the current fees and the proposed: Permit Type Proposed Fee Existing Fee New Sign Permit Same as Building Permit Fee ? $250 Based on Valuation Repairs of Less than Fifty Same as Building Permit Fee ? $125 Percent (50%) Based on Valuation Temporary Signs $20.00 per sign permitted $75 Banner, Flags and Pennants None (Classified as Temporary $50 Signs) Development Sign $250.00 per sign permitted $250.00 Re-Inspection Fee $75.00 per inspection $65.00 FISCAL IMPACT None City Council Memorandum Page 2 RECOMMENDATION It is staff?s recommendation to approve the proposed fee schedule. This revised fee schedule is necessary to replace the fee schedule that was included in the previous Article IX, Sign Standards. ATTACHMENT Resolution No. 08-S-22 Fee Schedule RESOLUTION NO. 08-S-22 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS ESTABLISHING THE SIGN PERMIT FEE SCHEDULE FOR THE ISSUANCE OF SIGN PERMITS WITHIN THE CITY OF SCHERTZ. WHEREAS, the City Council recently adopted the revised Article IX, Sign Standards, of the Unified Development Code (UDC); and WHEREAS, the previous Article IX of the UDC contained the schedule of fees for the issuance of sign permits within the City of Schertz; and WHEREAS, the revised Article IX of the UDC does not contain a fee schedule for sign permits; and WHEREAS, the City recognizes the need to establish a fee schedule for the issuance of sign permits in the City. NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS THAT: SECTION I The sign permit fee schedule attached to this resolution, hereinafter known as Exhibit ?1? of Article IX, Sign Standards, of the UDC, shall establish the fees to be charged in relation to the issuance of sign permits within the City. SECTION II The sign permit fee schedule attached to this resolution replaces any and all previous fee schedules for the issuance of sign permits within the City. SECTION III This resolution shall be effective for the issuance of all sign permits immediately from and after its final passage. PASSED, APPROVED AND ADOPTED the _________ day of __________________, 2008. ____________________________________ Mayor, City of Schertz, Texas ATTEST: ________________________________ City Secretary, City of Schertz, Texas (SEAL OF THE CITY) Sign Permit Fee Schedule New Sign Permit Same as Building Permit Fee ? Based on Valuation Repairs of Less than Fifty Percent (50%) Same as Building Permit Fee ? Based on Valuation Temporary Sign Permits $20.00 per sign permitted Development Sign $250.00 per sign permitted Re-Inspection Fee $75 per inspection Agenda No. 8 CITY COUNCIL MEMORANDUM City Council Meeting: April 15, 2008 Department: Development Services Subject: Ordinance No. 08-H-16 ? Consideration and/or action regarding approval of first .Final reading of the Nuisance Ordinance Reading Reading . BACKGROUND After staff reviews they found that the current ordinance did not include the most recent state law changes. The city inspectors did not have sufficient enforcement power concerning property maintenance and adequate procedures to abate various nuisance violations. After considerable months of ordinance review, a rewrite was considered necessary and conducted in compliance with state law. City Council passed this on first reading at their meeting of April 8, 2008 with the following : changes to be made a final readingto include definitions of a Recreation/Motor Vehicle (defining class), changing paragraph 54 34 C by placing a period after fence and deleting the next two sentences regarding covers and a few minor correction. FISCAL IMPACT None RECOMMENDATION Staff recommends Council approve Ordinance No. 08-H-16 final reading. ATTACHMENT Ordinance No. 08-H-16 ORDINANCE NO. 08-H-16 AN ORDINANCE BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS PROVIDING THAT THE CODE OF ORDINANCES, CITY OF SCHERTZ, TEXAS, CHAPTER 54, NUISANCES, BE AMENDED BY DELETING CHAPTER 54, NUISANCES AND REPLACING SAME WITH A REVISED CHAPTER 54, NUISANCES; PROVIDING A PENALTY CLAUSE; PROVIDINGA [SERVABILITY][SEVERABILITY] CLAUSE; PROVIDING A REPEALING CLAUSE; AND PROVIDING AN EFFECTIVE DATE. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ[,] TEXAS: SECTION [I.][1.]AMENDMENT. shallto Chapter 54, Nuisances,[] be amended [ read ]as follows: [?]CHAPTER 54, NUISANCES [TABLE OF CONTENTS] [ARTICLE I. IN GENERAL] [Section 54-1. Scope] [Section 54-2. Duties and Powers of the Code Official] [Section 54-3. Severability] [Section 54-4. Requirements not Covered by this Chapter] [Section 54-5. Abatement of Violation] [Section 54-6. General Notices and Orders] [Section 54-7. Reserved] [Section 54-8. Removal or Correction by the City] [Section 54-9. Restrictions Imposed on Property until Lien is Cleared] [Section 54-10. Statement of Expenses: Lien for and Interest on Expenses; Suit to Collect Expenses] [Section 54-11. Transfer of Ownership] [Section 54-12. Violations] [ARTICLE II. DEFINITIONS] [Section 54-13. Definitions] -- 1 50074337.2 [ARTICLE III. NOISE] [Section 54-14. Certain Acts Declared to be Noise Nuisances] [ARTICLE IV. ABANDONED HOUSEHOLD APPLIANCES] [Section 54-15. Abandoned Large Household Appliances] [Section 54-16. Responsibility of Owner or Person in Control] [ARTICLE V. PROPERTY MAINTENANCE REQUIREMENTS] [Section 54-17. Unsafe Structures and Equipment] [Section 54-18. Emergency Measures] [Section 54-19. Demolition] [Section 54-20. General Responsibilities] [Section 54-21. Exterior Property Areas; Nuisance Upon Premises] [Section 54-22. Swimming Pools, Spas and Hot Tubs] [Section 54-23. Parking Prohibited on Front and Side Yards] [Section 54-24. Exterior Structure] [Section 54-25. Interior Structure] [Section 54-26. Handrails and Guardrails] [Section 54-27. Rubbish and Garbage] [Section 54-28. Extermination] [Section 54-29. Light, Ventilation and Occupancy Limitations] [Section 54-30. Plumbing Facilities and Fixture Requirements] [Section 54-31. Mechanical and Electrical Requirements] [ARTICLE VI. JUNK VEHICLES] [Section 54-32. Declaration of Junk Vehicle as Public Nuisance] [Section 54-33. Junk Vehicle Notice] [Section 54-34. Exemptions] [Section 54-35. Antique or Special Interest Vehicles Located in a Residentially Zoned Neighborhood] [Section 54-36. Abatement of Junk Vehicles Declared a Public Nuisance] [Section 54-37. Disposal of Junk Vehicle] [Section 54-38. Right to an Appeal] [Section 54-39. Conflict of Law] -- 2 50074337.2 ARTICLE I. IN GENERAL[.] Section 54-1.Scope . The provisions of this Chapter shall apply to all residential and nonresidential structures and all premises, structures, equipment and facilities for light, ventilation, space, heating, sanitation, protection from the elements, life safety, safety from fire and other hazards, and for safe and sanitary maintenance, whether now existing or existing in the future; the responsibility of owners, operators and occupants; the occupancy of structures and premises, and for administration, enforcement and penalties within the jurisdiction of the City and property within 5,000 feet outside the limits of the City, whether or not within the extraterritorial jurisdiction of the City. Section 54-2.Duties and [powers][Powers] of the Code Official. a)Generally ? The City Health Official, hereinafter referred to in this chapterChapter [][] as the Code Official, is hereby authorized and directed to enforce the provisions of this Chapter and other related ordinances and regulations of the City. The Code Official shall have the authority to render interpretations of this Chapter and to adopt policies and procedures in order to clarify the application of its provisions. Such interpretations, policies and procedures shall be in compliance with the intent and purpose of this Chapter and shall not have the effect of waiving requirements specifically provided for in this Chapter. b)Appeals ? The City Manager or his designated representative shall hear and decide on all appeals or orders, decisions, or determinations made by the Code Official relative to the application and interpretation of this Chapter. c)Reports ? The Code Official shall give attention to the health and sanitary conditions of the City and report to the City Council once each month, making recommendations as necessary conducive to the cleanliness of the City and the general health of the citizens. d)Right of Entry ? It shall be unlawful for any person to interfere, hinder, or delay , the Code Official[] or other City deputies, inspectors, or officers in the discharge of any duties under this Chapter or to refuse to comply with the orders of the Code Official. The Code Official shall issue all necessary notices or orders to ensure compliance with this Chapter. -? e)Inspections [][] The Code Official shall respond to all complaints and make all inspections necessary to ensure compliance with all state and local requirements governing general property maintenance. -? f)Department Records [][] Official records shall be kept of all complaints, reports, citations, notices and orders issued. Such records shall be retained in the official records of the City pursuant to the City?s document retention policy. -- 3 50074337.2 g)No Liability ? The Code Official or employees charged with the enforcement of this Chapter while acting for the jurisdiction in good faith and without malice in the discharge of the duties required by this Chapter or other pertinent laws or ordinances, shall not thereby be rendered liable personally and are hereby relieved from personal liability for any damage accruing to persons or property as a result of any act or omission in the discharge of official duties. Any suit instituted against an officer or employee because of an act performed by the officer or employee in the lawful discharge of duties and under the provisions of this Chapter shall be defended by legal representative of the City until the final termination of the proceedings. The Code Official or any subordinate shall not be liable for cost in any action, suit or proceeding that is instituted in pursuance of the provisions of this Chapter. Section 54-3.Severability. If a section, subsection, sentence, clause or phrase of this Chapter is, for any reason, held to be unconstitutional, such decision shall not affect the validity of the remaining portions of this Chapter. Section 54-4.Requirements not [covered][Covered] by this Chapter. Requirements necessary for the strength, stability or proper operation of an existing fixture, structure, or equipment, or for the public safety, health and general welfare, not specifically covered by this Chapter, shall be determined by the Code Official or by other applicable departments of the City. Section 54-5.Abatement of [violation][Violation]. The imposition of the penalties herein prescribed shall not preclude the Code Official from instituting appropriate action to restrain, correct, or abate a violation, or to prevent illegal occupancy of a building, structure or premises, or to stop an illegal act, conduct business, or utilization of the building, structure or premises. Section 54-6.General [notices][Notices] and [orders][Orders] . person responsiblePerson Responsible a)Notice to [][] ? Whenever the Code Official determines that there has been a violation of this Chapter or has grounds to believe that a violation has occurred, notice shall be given in a manner prescribed below to the person responsible for the violation. b)Form ? Notices shall be in accordance with all the following: 1)Be in writing; 2)Include a description of the real estate sufficient for identification; 3)Include a statement of the violation or violations and why the notice is being issued; -- 4 50074337.2 4)Include a correction order allowing seven (7) days after the date of the notice to make the repairs and improvements required to bring the property or structure into compliance; /occupant 5)Inform the property owner[] of the right to appeal; 6)Include a statement regarding the City?s right to file a lien. c)Method of Service ? Such notice shall be deemed to be properly served if a copy thereof is: 1)Delivered personally; 2)Sent by certified or first-class mail addressed to the last known address of the property owner; or 3)By posting the notice on a placard attached to a stake driven into the ground on the property to which the violation relates. Refused or Unclaimed ? d)[]If the Code Official mails a notice to a person responsible for a violation and the United States Postal Service returns the notice as ?refused? or ?unclaimed?, the validity of the notice is not affected, and the notice is considered as delivered. Section 54-7.Reserved . Section 54-8.Removal or [correction][Correction] by the City . In the event the owner, tenant, lessee, agent or occupant of any lot, parcel or premises fails to remove or remedy any condition described in this Chapter within seven (7) days after notice has been given, the City may do whatever is deemed necessary to remove or remedy the condition, or cause the same to be done, and charge the expense incurred thereby to the owner, tenant, agent, lessee or occupant of the lot, parcel or premises, and such expense shall be as a lien assessed[] against the real estate upon which the work is done. A statement of expense incurred will be certified by the City Secretary and sent to the violator of this Chapter. That person will be given a period of fifteen (15) days for total reimbursement to the City. Upon the expiration of this 15-day period, the amount of such unpaid expenses shall bear ten percent (10%) per annum interest from the date certified by the City Secretary. Section 54-9.Restrictions [imposed][Imposed] on [property][Property] until [lien][Lien] is [cleared][Cleared] . In the event no collection can be made by the City of expenses incurred in removing or remedying any of the conditions and before and after a lien is filed against such property, the involved City shall have the right to impose the following restrictions on such property []until such lien is cleared: -- 5 50074337.2 , a)No building permit of any type will be issued by the City[] with respect to the property involved, including building improvement, remodeling or modification permits. of $200.00 b)A fee []will be levied against the violator as an administrative fee to (See Exhibit 1) cover the costs of filing a lien against the property.[] Section 54-10.Statement of [expenses: lien][Expenses: Lien] for and [interest on expenses; suit to collect expenses][Interest on Expenses; Suit to Collect Expenses]. The City Manager or his designated representative of the City shall file a statement of [505435]8 expenses incurred under section [][]-[][] stating the amount of such expenses and the municipal and the County Clerk of date of which costs of filing the lien with the []court clerk[ the county in which the lot or real estate is located ], and the City shall have a privileged lien on such lot or real estate upon which the work is done or improvement made to secure the expenditures and interest, suit may be instituted for recovery, and forfeiture of such lien may be cityCity had in the name of the [][]; and the statement of expenses so made, or certified copy thereof; shall be prima facie proof of the amount expended for such work or improvements. Section 54-11.Transfer of [ownership][Ownership] . It shall be unlawful for the owner of any dwelling unit or structure who has received a compliance order or upon whom a notice of violation has been served to sell, transfer, mortgage, lease, or otherwise dispose of such dwelling unit or structure to another until the provisions of the compliance order or notice of violation have been complied with, or until such owner shall first furnish the grantee, transferee, mortgagee or lessee a true copy of any compliance order or notice of violation used by the Code Official and shall furnish to the Code Official a signed and notarized statement from the grantee, transferee, mortgagee or lessee, acknowledging the receipt of such compliance order or notice of violation and fully accepting the responsibility without condition for making the corrections or repairs required by such compliance order or notice of violation. Section 54-12.Violations . actsActs a)Unlawful[][] ? It shall be unlawful for a person, firm or corporation to be in conflict with or in violation of any of the provisions of this Chapter. -? b)Penalties [][] Any violation by any person, firm or corporation of this Chapter is declared to be unlawful and a misdemeanor and any violation thereof shall be punished by a fine of not less than $40.00 or more than $2,000.00. Any person in violation of this Chapter and having paid a fine assessed for such violation shall not be relieved of the expense incurred by the City in removing or remedying the ArticleChapter condition prescribed in this [][]. Each day that a violation continues after due notice has been served shall be deemed a separate offense. -- 6 50074337.2 ARTICLE II. DEFINITIONS. Section 54-13.Definitions . The following words, terms and phrases, when used in this Chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicated a different meaning: is at Antique Vehicle ? is a passenger car or truck that[] least twenty-five (25) years old. Thethe Code Official ? [][] City Health Official who is charged with the administration and enforcement of this Chapter, or any duly authorized representative of such person. Nuisancenuisance General [][] ? means any condition or use of a building, structure, lot, parcel, or premises which is in an unsanitary, objectionable, or unsightly condition or injurious to public health, which is detrimental to the property of others, or which causes, or tends to cause diminution in the value of other property in the neighborhood in which such premises is located. Junk Vehicle ? is a vehicle that is self-propelled and; a)Does not have lawfully attached to it an unexpired license plate and a valid motor vehicle inspection certificate; and b)Is wrecked, dismantled or partially dismantled, or discarded; or c)Is inoperable and has remained inoperable for more than seventy-two (72) consecutive hours if the vehicle is on public property or thirty (30) consecutive days if the vehicle is on private property. Parcelparcel Lot or [][] ? is defined and considered as having ordinary meaning but shall include, in addition to the land within a lot or parcel boundary, all land adjacent to and extending beyond the property line to the curb line of adjacent streets and, where no curb exists, to the existing street surface. The word ?lot? or ?parcel? shall also include all land lying between the property line of any lot or parcel and the center of adjacent easements. Vehiclevehicle Motor [][] ? means a vehicle that is subject to registration under Chapter 501 of the Texas Transportation Code, as amended from time to time. Vehicle Collectorvehicle collectorMeansmeans Motor [][] ? [][] a person who: a)antique or special interest vehicles Antique Vehicle or Owns one or more [[ Special Interest Vehicle ]; and antique or special interest b)Acquires, collects, or disposes of an [ vehicleAntique Vehicle or Special Interest Vehicle ][] for personal use to restore antique or special interest vehicleAntique Vehicle or and preserve an [][ Special Interest Vehicle ] for historic interest. -- 7 50074337.2 NuisancenuisanceMeansmeans Noise [][] ? [][] any unreasonably loud, disturbing noise which causes material distress, discomfort or injury to persons of ordinary sensibilities in the immediate vicinity thereof and is hereby declared to be a nuisance. Anyany Owner ? [][] person, agent, operator, firm or corporation having a legal or equitable interest in the property in question; or recorded in the official records of the state, county or municipality as holding title to such property; or otherwise having control of such property, including the guardian of the estate of any such person, and the executor or administrator of the estate of such person if ordered to take possession of real property by a court. AsasArticleChapter Person? [][] used in this [][] shall be construed to impart the singular and plural as the case demands, and shall include corporations, companies, societies and associations. Isis Special Interest Vehicle ? [][] a motor vehicle of any age which has not been altered or ,, modified from the original manufacturer?s specifications[] and[] because of its historic interest, hobbyhobbyist is being preserved by a [][]. Structure shall meanmeans Structure ? [][] that which is built or constructed on any property within the City. Aa Tenant ? [][] person, corporation, partnership or group, whether or not the legal owner of record, occupying a building or portion thereof as a unit. ARTICLE III. NOISE[ NUISANCE]. Section 54-14.Certain [acts declared][Acts Declared] to be [noise nuisances][Noise Nuisances] . The following acts, among others, are declared to be nuisances in violation of this ChapterArticle, to wit [][], but said enumerations shall not be deemed to be exclusive[]: a)The playing of any radio, phonograph or other musical instrument in such a manner or with such volume, particularly during the hours between 10:00 pm and 7:00 am, as to disturb the quiet, comfort or repose of persons of ordinary sensibilities in any dwelling, hotel or other type of residence. b)The use of any stationary loudspeaker or amplifier to such intensity that disturbs persons of ordinary sensibilities in the immediate vicinity thereof; the use of any stationary loudspeaker or amplifier operated on any weekday between the hours of 10:30 pm and 7:00 am, or at any time on Sunday. c)The keeping of any animal or bird which by causing frequent or long-continued noise shall disturb the comfort and repose of any person of ordinary sensibilities in the immediate vicinity. d)The continued or frequent sounding of any horn or signal device on any automobile, motorcycle, bus, or other vehicle except as a danger or warning -- 8 50074337.2 signal; the creation by means of any such said device of any unreasonable loud or harsh noise for any unreasonable period of time. e)The running of any automobile, motorcycle, or vehicle so out of repair, so loud or in such manner as to create loud or grating, grinding, jarring, or rattling noise or vibration. f)The discharge into the open air of the exhaust of any steam engine, stationary internal combustion engine, motor vehicle or boat engine except through a muffler or other device which will effectively prevent loud or explosive noises there fromtherefrom [][]. g)The use of any mechanical device operated by compressed air, unless the noise to be created is effectively muffled and reduced. h)The erection, including excavation, demolition, alteration or repair work on any building other than between the hours of 7:00 am and 6:00 pm, on weekdays and 9:00 am to 5:00 pm on Saturdays, except in case of urgent necessity in the interest of the public safety and convenience, and then only by written permit from the City Manager or his designee, which permit may be renewed by the City Manager or his designee, during the time the emergency exists. All special requests must be submitted in writing. i)The creation of any excessive noise on any street adjacent to any school or institution of learning while in session or adjacent to any hospital which interferes with the working of such institutions, providing conspicuous signs are displayed in such manner indicating that the same is a school or hospital street. j)The creation of any loud and excessive noise in connection with the loading or unloading of any vehicle or the opening and destruction of bales, boxes, crates and containers. k)The raucous shouting and crying of peddlers, hawkers and vendors, which disturb the peace and quiet of the neighborhood. l)The use of any drum, loudspeaker or other instrument or device for the purpose of attracting attention by the creation of noise to any performance, show or sale of merchandise. ARTICLE IV. ABANDONED HOUSEHOLD APPLIANCES. Section 54-15.Abandoned [large household appliances][Large Household Appliances] . It shall be unlawful for any person to cause or permit to be or remain upon any premises under his control in a public or semi-public area that might be accessible to children, any large appliance (freezer, refrigerator, stove, dishwasher, clothes washer, clothes dryer and other similar appliances). -- 9 50074337.2 Section 54-16.Responsibility of [owner][Owner] or [person][Person] in [control][Control] . a)The owner or person in control of any large home appliance on any such property as described in section 54-15 shall not permit same to be discarded, abandoned, or stored as to create a public nuisance of safety hazards. b)It shall be the responsibility of any such owner or person in control to remove or have removed any self-closing or self?locking mechanism or door from the appliance to be discarded, abandoned, or stored in public or semi-public areas which might be accessible to children. ARTICLE V. PROPERTY MAINTENANCE REQUIREMENTS Section 54-17.Unsafe [structures][Structures] and [equipment][Equipment] . structureStructure a)Unsafe[][] ? An unsafe structure is one that is found to be dangerous to the life, health, property or safety of the public or the occupants of the structure by not providing minimum safeguards to protect or warn occupants in the event of fire, or because such structure contains unsafe equipment or is so damaged, decayed, dilapidated, structurally unsafe or of such faulty construction or unstable foundation, that partial or complete collapse is possible. equipmentEquipment b)Unsafe[][] ? Unsafe equipment includes any boiler, heating equipment, elevator, moving stairway, electrical wiring or device, flammable liquid containers or other equipment on the premises or within the structure which is in such disrepair or condition that such equipment is a hazard to life, health, property or safety of the public or occupants of the premises or structure. unfitUnfithuman occupancyHuman Occupancy c)Structure [][] for [][] ? A structure is unfit for human occupancy whenever the Code Official finds that such structure is unsafe, unlawful or because of the degree to which the structure is in disrepair or lacks maintenance, is unsanitary, vermin or rat infested, contains filth or other contamination, or lacks ventilation, illumination, sanitary or heating codeArticle facilities or other essential equipment required by this [][], or because the location of this structure constitutes a hazard to the occupants of the structure or to the public. structureStructure d)Unlawful[][] ? An unlawful structure is one found in whole or in part to be occupied by more persons than permitted under this CodeArticle [][], or which was erected, altered or occupied contrary to law. vacant structure -Vacant Structure ? e)Closing of [][] If the structure is vacant and unfit for human habitation and occupancy, and is not in danger of structural collapse, the Code Official is authorized to post a placard of condemnation on the premises and order the structure closed up so as not to be an attractive nuisance. Upon failure of the owner to close up the premises within the time specified in the order, the Code Official shall cause the premises to be closed and secured through -- 10 50074337.2 any available public agency or by contract or arrangement by private persons, and the cost thereof shall be charged against the real estate upon which the structure is located and shall be a lien upon such real estate and may be collected by any legal resources. Section 54-18.Emergency [measures][Measures] . When, in the opinion of the Code Official, there is imminent danger of failure or collapse of a building or structure which endangers life, or when any structure or part of a structure has fallen and life is endangered by the occupation of the structure, or when there is actual or potential danger to the building occupants or those in the proximity of any structure because of explosives, explosive fumes or vapors or the presence of toxic fumes, gases, or materials, or operation of defective or dangerous equipment, the Code Official is authorized and empowered to order and require the occupants to vacate the premises forthwith. The Code Official shall ?This structure cause to be posted at each entrance to such structure a notice reading as follows: is unsafe, and its occupancy has been prohibited by the City of Schertz Code Official? . It shall be unlawful for any person to enter such structure except for the purpose of securing the structure, making the required repairs, removing the hazardous condition or of demolishing the same. Section 54-19.Demolition . a)General ? The Code Official shall order the owner of any premises upon which is located any structure, which in the Code Official?s judgment is so old, dilapidated, or has become so out of repair as to be dangerous, unsafe, unsanitary or otherwise unfit for human habitation or occupancy, such that it is unreasonable to repair the structure, and to demolish and remove such structure; or if such structure is capable of being made safe by repairs, to repair and make safe and sanitary or to demolish and remove at the owner?s option; or where there has been a cessation of normal construction of any structure for a period of more than two years, to demolish and remove such structure. complyComply b)Failure to [][] ? If the owner of a premises fails to comply with a demolition order within the time prescribed, the Code Official shall cause the structure to be demolished and removed, either through an available public agency or by contract or arrangement with private persons, and the cost of such demolition and removal shall be charged against the real estate upon which the structure is located and shall be a lien upon such real estate. materialMaterial c)Salvage[][] ? When any structure has been ordered demolished and removed, the City or other designated officer under said contract or arrangement aforesaid shall havethe right to sell the salvage and valuable materials at the highest price reasonably obtainable. The net proceeds of such sale, after deducting the expenses of such demolition and removal, shall be promptly remitted with a report of such sale or transaction, including the items of expense and the amounts deducted, to the person who is entitled thereto, subject -- 11 50074337.2 to any order of a court. If such a surplus does not remain to be turned over, the report shall so state. Section 54-20.General [responsibilities][Responsibilities] . -?V a)Scope [][] The provisions of this Article []shall govern the minimum conditions and the responsibilities of persons for maintenance of structures, equipment, and exterior property. b)Responsibility ? The owner of the premises shall maintain the structures and exterior property in compliance with these requirements, except as otherwise V provided for in this Article[]. A person shall not occupy as owner-occupant or permit another person to occupy premises which are not in a sanitary and safe V condition and which do not comply with the requirements of this Article[]. Occupants of a dwelling unit, rooming unit or housekeeping unit are responsible for keeping in a clean, sanitary and safe condition that part of the dwelling unit, rooming unit, housekeeping unit or premises which they occupy and control. Maintenance ? c)[]All vacant structures and premises thereof or vacant land shall be maintained in a clean, safe, secure and sanitary condition as provided herein so as not to cause a blighting problem or adversely affect the public health and safety. Section 54-21.Exterior [property areas; nuisance upon premises][Property Areas; Nuisance Upon Premises] . a)No person owning, leasing, occupying or having charge of any premises shall maintain or keep any nuisance thereon, nor shall any such person keep or maintain such premises in a manner causing diminution in the value of the other property in the neighborhood in which such premises are located. b)It shall be unlawful for any person to permit or allow the keeping or the depositing on, or the scattering over the premises of any of the following: 1)Lumber, junk, trash, debris, brush, garbage or animal, vegetable or mineral matter and/or any composition of residue thereof; 2)Abandoned, discarded or unused objects or equipment such as furniture, stoves, refrigerators, freezers or other appliances and including empty and discarded cans or containers, inoperable motor vehicles, car parts, tires and structurally unsound fences. 3)Any sign, notice, pole, post, basketball goal, and any other obstruction placed or painted upon any sidewalk, street or in any public right-of-way within the corporate limits of the City. 4)Excessive growth of weeds or other vegetation that exceeds eight inches (8?) in height or is allowed to remain upon premises so as to become a -- 12 50074337.2 breeding place for flies, or insects or become offensive so as to emit foul or noxious odors; excluding trees, fruits, vegetables, farm crops, bushes, garden beds, flowers or other ornamental plants. 5)The accumulation of stagnant water permitted to remain thereon. 6)Inadequate or unsanitary sewage or plumbing facilities, contrary to public health, safety or welfare. 50fifty c)In other areas of the City that portion of any lot or parcel of land within [][] (50?)75 feetseventy-five feet[] of any open street or road or which is within [][ feet (75?) ] of any building shall be kept completely free and clear of excessive growth of weeds and vegetation that exceed eight inches (8?) in height. Abandoned and discarded equipment and rubbish and stagnant water are also prohibited. d)It shall be unlawful for any person owning, leasing, occupying or having charge of any premises to permit the overhanging or protrusions of trees, brush and shrubs over streets, sidewalk, alleys and easements. 1)Minimum clearance from street surface shall be fifteen feet (15?). 2)Minimum clearance in easements and alleys shall be fifteen feet (15?) in height from entire width of easement. 3)Minimum clearance over sidewalks shall be eight feet (8?). Sidewalks and driveways - e)[]All sidewalks, walkways, stairs, driveways, parking spaces and similar areas shall be kept in a proper state of repair, and maintained free from hazardous conditions. Rodent harborage ? f)[]All structures and exterior property shall be kept free from rodent harborage and infestation. Where rodents are found, they shall be promptly exterminated by approved processes, which will not be injurious to human health. After extermination, proper precautions shall be taken to eliminate rodent harborage and prevent re-infestation. Accessory structures ? g)[]All accessory structures, including detached garages, fences and walls, shall be maintained structurally sound and in good repair. Defacement of property? h)[]No person shall willingly or wantonly damage, mutilate or deface any exterior surface of any structure or building on any private or public property by placing thereon any marking, carving or graffiti. It shall be the responsibility of the owner to restore said surface to an approved state of maintenance and repair. -- 13 50074337.2 Section 54-22.Swimming [pools][Pools], [spas][Spas] and [hot tubs][Hot Tubs] . a)Swimming pools, spas and hot tubs shall be maintained in a clean and sanitary condition, and in good repair. b)Private swimming pools, spas and hot tubs containing water more than 24twenty-four (24?) [][] inches[] in depth shall be completely surrounded by a 48 inchesforty-eight inches (48?) fence or barrier at least [][] in height above the finished ground level measured on the side of the barrier away form the pool. Gates and doors in such barriers shall be self-closing and self-latching. Where the 54 inchesfifty-four inches (54?) self-latching device is less than [][] above the bottom of the gate, the release mechanism shall be located on the poolside of the gate. Self-closing and self-latching gates shall be maintained such that the gate 6 will positively close and latch when released from an open position of [ inchessix inches (6?) ][] from the gatepost. No existing pool enclosure shall be removed, replaced or changed in a manner that reduces its effectiveness as a safety barrier. Section 54-23.Parking [prohibited][Prohibited] on [front][Front] and [side yards][Side Yards] . a) motor It shall be unlawful for a person to park or allow to remain parked a[ vehicle, largevehicles, boatsvehicle, boat motor vehicle, construction [][], personal water craft or trailer of any kind at any time in the side or front yard in any single-family residential zoned district, unless parked on a well maintained parking area extending from the curb, street or alley in a contiguous course, and construction of concrete or asphalt. [ b)It shall be unlawful for a person to park or allow to remain parked a [ recreational vehicle (as defined below) for more than 72 hours (i) on a vacant lot or (ii) any other lot in any location in the portion of such lot between the street and the closest portion of a building structure on such lot to such street. For purposes of this section 54-23b), ?recreational vehicle? means a bus conversion, Class A camper, Class C camper, travel trailer, fifth wheel trailer, or pop-up camper. ] Section 54-24.Exterior Structure . a)General ? The exterior of a structure shall be maintained in good repair, structurally sound and sanitary so as not to pose a threat to public, health, safety or welfare. b)Protective Treatment ? All exterior surfaces, including but not limited to, doors, door and window frames, cornices, porches, trim, balconies, decks, and fences shall be maintained in good condition. Exterior wood surfaces, other than decay resistant woods, shall be protected from the elements and decay by painting or other protective covering or treatment. Peeling, flaking and chipped paint shall be eliminated and surfaces repainted. All siding and masonry joints as well as those -- 14 50074337.2 between the building envelope and the perimeter of windows, doors, and skylights shall be maintained weather resistant and water tight. All metal surfaces subject to rust or corrosion shall be coated to inhibit such rust and corrosion and all surfaces with rust or corrosion shall be stabilized and coated to inhibit future rust and corrosion. Oxidation stains shall be removed from exterior surfaces. Surfaces designed for stabilization by oxidation are exempt from this requirement. identificationIdentification c)Premises [][] ? Buildings shall have approved address numbers placed in a position to be plainly legible and visible from the street or road fronting the property. These numbers shall contrast with their background. Address numbers shall be Arabic numerals or alphabet letters. 4four(4?) Numbers shall be a minimum of [][] inches []high with a minimum 0.5one-half.(1/2?). stroke width of [][] inch[] [] membersMembers d)Structural [][] ? All structural members shall be maintained free from deterioration, and shall be capable of safely supporting the imposed dead and live loads. wallsWalls e)Foundation[][] ? All foundation walls shall be maintained plumb and free from open cracks and breaks and shall be kept in such condition so as to prevent the entry of rodents and other pests. wallsWalls f)Exterior[][] ? All exterior walls shall be free from holes, breaks, and loose or rotting materials and shall be maintained weatherproof and properly surface coated where required to prevent deterioration. drainage-Drainage ? g)Roofs and [][] The roof and flashing shall be sound, tight and not have defects that admit rain. Roof drainage shall be adequate to prevent dampness or deterioration in the walls or interior portion of the structure. Roof drains, gutters and downspouts shall be maintained in good repair and free from obstructions. Roof water shall not be discharged in a manner that creates a public nuisance. featuresFeatures h)Decorative[][] ? All cornices, belt courses, corbels, terra cotta trim, wall facings and similar decorative features shall be maintained in good repair with proper anchorage and in a safe condition. extensionsExtensions i)Overhang[][] ? All overhang extensions including, but not limited to canopies, marquees, signs, metal awnings, fire escapes, standpipes and exhaust ducts shall be maintained in good repair and be properly anchored so as to be kept in a sound condition. When required, all exposed surfaces of metal or wood shall be protected from the elements and against decay or rust by periodic application of weather-coating materials, such as paint or similar surface treatment. decksDecksporchesPorchesbalconiesBalconies j)Stairways,[][],[][] and [][] ? Every exterior stairway, deck, porch, and balcony, and all appurtenances attached -- 15 50074337.2 thereto, shall be maintained structurally sound, in good repair, with proper anchorage and capable of supporting the imposed loads. towersTowers k)Chimneys and [][] ? All chimneys, cooling towers, smoke stacks, and similar appurtenances shall be maintained structurally safe and sound, and in good repair. All exposed surfaces of metal or wood shall be protected from the elements and against decay or rust by periodic application of weather-coating materials, such as paint or similar surface treatment. guardsGuards l)Handrails and [][] ? Every handrail and guard shall be firmly fastened and capable of supporting normally imposed loads and shall be maintained in good condition. skylightSkylightdoor framesDoor Frames m)Window, [][] and [][] ? Every window, skylight, door and frame shall be kept in sound condition, good repair and weather tight. All glazing (glass) materials shall be maintained free from cracks and holes. Every window, other than a fixed window, shall be easily operable and capable of being held in position by window hardware. n)Insect Screens ? Every door, window and other outside opening required for ventilation of habitable rooms, food preparation areas, food service areas or any areas where products to be included or utilized in food for human consumption are processed, manufactured, packaged or stored shall be supplied with approved tightly fitting screens of not less than 16 mesh per inch and every screen door used for insect control shall have a self-closing device in good working condition. o)Doors ? Doors providing access to a dwelling unit, rooming unit or housekeeping unit that is rented, leased or let shall be equipped with a deadbolt lock designed to be readily operable from the side from which egress is to be made without the need for keys, special knowledge or effort and shall have a lock throw of not less 1one (1?) than [][] inch[]. Such deadbolt locks shall be installed according to manufacturer?s specifications and maintained in good working order. For the purpose of this section, a sliding bolt shall not be considered an acceptable deadbolt lock. 6six p)Windows ? Operable windows located in whole or in part within [][] feet (6?) []above ground level or a walking surface below that provide access to a dwelling unit, rooming unit, or housekeeping unit that is rented, leased, or let shall be equipped with a window sash locking device. - ? q)Garage Doors[][] Shall be capable of being closed reasonably plumb, properly attached and the exterior surface maintained weatherproof as required to prevent deterioration. Section 54-25.Interior Structure . Maintenance ? a)[]The interior of a structure and equipment therein shall be maintained in good repair, structurally sound and in a sanitary condition. -- 16 50074337.2 Occupants shall keep that part of the structure, which they occupy or control, in a clean and sanitary condition. Every owner of a structure containing a rooming house, housekeeping units, a hotel, a dormitory, two or more dwelling units or two or more nonresidential occupancies, shall maintain, in a clean and sanitary condition, the shared or public areas of the structure and exterior property. membersMembers b)Structural [][] ? All structural members shall be maintained structurally sound, and be capable of supporting the imposed loads. surfacesSurfaces c)Interior[][] ? All interior surfaces, including windows and doors, shall be maintained in good, clean and sanitary condition. Peeling, chipping, flaking or abraded paint shall be repaired, removed or covered. Cracked or loose plaster, decayed wood and other defective surface conditions shall be corrected. walking surfacesWalking Surfaces d)Stairs and [][] ? Every stair, ramp, landing, balcony, porch, deck or other walking surface shall be maintained in sound condition and good repair. guardsGuards e)Handrails and [][] ? Every handrail and guard shall be firmly fastened and capable of supporting normally imposed loads and shall be maintained in good condition. doorsDoors f)Interior[][] ? Every interior door shall fit reasonably well within its frame and shall be capable of being opened and closed by being properly and securely attached to jambs, headers or tracks as intended by the manufacturer of the attachment hardware. Section 54-26.Handrails and Guardrails . Every exterior and interior flight of stairs having more than three (3) risers shall have a handrail on one side of the stair and every open portion of a stair, landing, balcony, porch deck, 30thirty (30?) ramp, or other walking surface, which is more than [][] inches[] above the floor or 30thirty (30?) grade below, shall have a guards. Handrails shall not be less than [][] inches[] high 42forty-two (42?) or more than [][] inches[] high measured vertically above the nosing of the tread or above the finished floor of the landing or walking surface. Guards shall not be less than 30thirty (30?) [][] inches[] high above the floor of the landing, balcony, porch, deck, or ramp or other walking surface. Section 54-27.Rubbish and Garbage . rubbishRubbishgarbageGarbage a)Accumulation of [][] or [][] ? All exterior property and premises, and the interior of every structure, shall be free from any accumulation of rubbish or garbage. rubbishRubbish b)Disposal of [][] ? Every occupant of a structure shall dispose of all rubbish in a clean and sanitary manner by placing such rubbish in approved containers. The owner of every occupied premise shall supply approved covered -- 17 50074337.2 containers for rubbish, and the owner of the premises shall be responsible for the removal of rubbish. c)Refrigerators ? Refrigerators and similar equipment not in operation shall not be discarded, abandoned or stored on premises without first removing the doors. garbageGarbage d)Disposal of [][] ? Every occupant of a structure shall dispose of garbage in a clean and sanitary manner by placing such garbage in an approved garbage disposal facility or approved garbage containers. e)Containers ? The operator of every establishment producing garbage shall provide, and at all times cause to be utilized, approved leak proof containers provided with close-fitting covers for the storage of such materials until removed from the premises for disposal. Time of Disposal ? f)[]No trash or garbage containers will be placed on the curb line earlier than twenty-four (24) hours prior to the time of the collection or later than twenty-four (24) hours after the time of collection. Section 54-28.Extermination . -? a)Infestation [][] All structures shall be kept free from insect and rodent infestation. All structures in which insects or rodents are found shall be promptly exterminated by approved processes that will not be injurious to human health. After extermination, proper precautions shall be taken to prevent re-infestation. Where the infestations are caused by defects in the structure, the owner [ shall be responsible for extermination. ] b)Owner ? The owner of any structure shall be responsible for extermination within the structure prior to renting or leasing the structure. occupant structuresOccupancy Structures c)Single[][]? The occupant of a one- family dwelling or of a single tenant nonresidential structure shall be responsible for extermination on the premises. occupancy structuresOccupancy Structures d)Multiple [][]? The owner of a structure containing two or more dwelling units, a multiple occupancy, a rooming house or a nonresidential structure shall be responsible for extermination in the public or shared areas of the structure and exterior property. If infestation is caused by failure of an occupant to prevent such infestation in the area occupied, the occupant shall be responsible for extermination. theThe e)Occupant ? [][] occupant of any structure shall be responsible for the continued rodent and pest-free condition of the structure. [Exception: Where the infestations are caused by defects in the structure, the owner shall be responsible for extermination. ] -- 18 50074337.2 Section 54-29.Light, Ventilation and Occupancy Limitations . -? a)Responsibility [][] The owner of the structure shall provide and maintain light, V ventilation and space conditions in compliance with this Article[]. A person shall not occupy as owner-occupant, or permit another person to occupy, any V premises that do not comply with the requirements of this Article[]. b)Habitable Spaces ? Every habitable space shall have at least one window of approved size facing directly to the outdoors or to a court. The minimum total glazed area for every habitable space shall be 8 percent of the floor area of such room. Wherever walls or other portions of the structure face a window of any 3three(3?) room and such obstructions are located less than [][] feet []from the window and extend to a level above that of the ceiling of the room, such window shall not be deemed to face directly to the outdoors nor to a court and shall not be included as contributing to the required minimum total window area for the room. [Exception: Where natural light for rooms or spaces without exterior glazing areas is provided through an adjoining room, the unobstructed opening to the adjoining room shall be at least 8 percent of the floor area of the interior room or space, but not less than 25 square feet. The exterior glazing area shall be based on the total floor area being served. ] [Exception: Where natural light for rooms or spaces without exterior glazing areas is provided through an adjoining room, the unobstructed opening to the adjoining room shall be at least 8 percent of the floor area of the interior room or space, but not less than 25 square feet. The exterior glazing area shall be based on the total floor area being served. ] hallsHallsstairwaysStairways c)Common[][] and [][] ? Every common hall and stairway in residential occupancies, other than in one-and-two family dwellings, shall be lighted at all times with at least a 60 watt standard incandescent light bulb for each 200 square feet of floor area or equivalent illumination, provided that the 30thirty (30?) spacing between lights shall not be greater than [][] feet[]. In other than residential occupancies, means of egress, including exterior means of egress, stairways shall be illuminated at all times the building space served by the means of egress is occupied with a minimum of 1 foot-candle at floors, landings and treads. spacesSpaces d)Other[][] ? All other spaces shall be provided with natural or artificial light sufficient to permit the maintenance of sanitary conditions, and the safe occupancy of the space and utilization of the appliances, equipment and fixtures. e)Habitable Spaces ? Every habitable space shall have at least one openable [ window. The total openable area of the window in every room shall be equal to at least 45 percent of the minimum glazed area required in 50-29 (b). ] -- 19 50074337.2 e)Habitable Spaces ? Every habitable space shall have at least one openable [ window. The total openable area of the window in every room shall be equal to at least forty-five percent (45%) of the minimum glazed area required in [ section 54-29b). Exception: ] Where rooms and spaces without openings to the outdoors are ventilated through an adjoining room, the unobstructed opening to 8eight(8%) the adjoining room shall be at least [][] percent []of the floor area of twenty-five () the interior room or space, but not less than []25[] square feet. The ventilation openings to the outdoors shall be based on the total floor area being ventilated. toilet roomsToilet Rooms f)Bathrooms and [][] ? Every bathroom and toilet room shall comply with the ventilation requirements for habitable spaces in section 5054 ( [][]-29[]e), except that a window shall not be required in such spaces equipped with a mechanical ventilation system. Air exhausted by a mechanical ventilation system from a bathroom or toilet room shall discharge to the outdoors and shall not be recalculated. g)Cooking Facilities ? Unless approved through the certificate of occupancy, cooking shall not be permitted in rooming unit or dormitory unit, and a cooking facility or appliance shall not be permitted to be present in the rooming unit or Exceptions: ] dormitory unit. [ [Exceptions: ] 1)Where specifically approved in writing by the Code Official. 2)Devices such as coffee pots and microwave ovens shall not be considered cooking appliances. ventilationVentilation h)Process[][] ? Where injurious, toxic, irritating or noxious fumes, gases, dusts, or mists are generated, a local exhaust ventilation system shall be provided to remove the contaminating agent at the source. Air shall be exhausted to the exterior and not be recalculated to any space. dryer exhaustDryer Exhaust i)Clothes[][] ? Clothes dryer exhaust systems shall be independent of all other systems and shall be exhausted in accordance with the manufacturer?s instructions. dwellingDwelling j)Privacy ? [][] units, hotel units, housekeeping units, rooming units and dormitory units shall be arranged to provide privacy and be separate from other adjoining spaces. room widthsRoom Widths k)Minimum [][] ? A habitable room, other than a 7seven (7?) kitchen, shall be not less than [][] feet[] in any plan dimension. 3three (3?) Kitchens shall have a clear passageway of not less than [][] feet[] between counter fronts and appliances or counter fronts and walls. -- 20 50074337.2 ceiling heightsCeiling Heights l)Minimum [][] ? Habitable spaces, hallways, corridors, laundry areas, bathrooms, toilet rooms and habitable basement areas 7seven. (7?). shall have a clear ceiling height of not less than [][] feet[][ Exceptions:] [Exception:] 1)In one-and-two family dwellings, beams and girders spaced not less than 4four (4?)6six [][] feet[] on center and projecting not more than [][] inches[ (6?) ] below the required ceiling height. 2)Basement rooms in one-and-two family dwellings occupied exclusively for laundry, study or recreation purposes, having a ceiling height of not 6six8eight (6?8?)6six less than [][] feet [][] inches[] with not less than [][] 4four (6?4?) feet [][] inches[] of clear height under beams, girders, ducts, and similar obstructions. 3)Rooms occupied exclusively for sleeping, study or similar purposes and having a sloped ceiling over all or part of the room, with a clear ceiling 7seven (7?) height of at least [][] feet[] over not less than one-third of the required minimum floor area. In calculating the floor area of such rooms, 5five only those portions of the floor area with a clear ceiling height of [][] (5?) feet[] or more shall be included. bedroom areaBedroom Area m)Living and [][] ? Every living room shall contain at seventy () least 120 square feet and every bedroom shall contain at least []70[] square feet. bedroomsBedrooms n)Access from [][] ? Bedrooms shall not constitute the only means of access to other bedrooms or habitable spaces and shall not serve as the only means of egress from other habitable spaces. closet accessibilityCloset Accessibility o)Water [][] ? Every bedroom shall have access to at least one water closet and one lavatory without passing through another bedroom. Every bedroom in a dwelling unit shall have access to at least one water closet and lavatory located in the same story as the bedroom. occupancyOccupancy p)Prohibited[][] ? Kitchens and non-habitable spaces shall not be used for sleeping purposes. unitUnit V q)Efficiency[][] ? Nothing in this Article[] shall prohibit an efficiency living unit from meeting the following requirements: 1)A unit occupied by not more than two occupants shall have a clear floor area of not less than 220 square feet. A unit occupied by three occupants shall have a clear floor area of not less than 320 square feet. These Itemsitems required areas shall be exclusive of the areas required by [][] )3.3) below. 2[] and [][] -- 21 50074337.2 2)The unit shall be provided with a kitchen sink, cooking appliances and refrigeration facilities, each having a clear working space of not less than 30thirty(30?) [][] inches []in front. Light and ventilation conforming to articleArticle V this [][] shall be provided. 3)The unit shall be provided with a separate bathroom containing a water closet, lavatory and bathtub or shower. 4)The maximum number of occupants shall be three. preparationPreparation r)Food[][] ? All spaces to be occupied for food preparation purposes shall contain suitable space and equipment to store, prepare and serve foods in a sanitary manner. There shall be adequate facilities and service for the sanitary disposal of food wastes and refuses, including facilities for temporary storage. Section 54-30.Plumbing Facilities and Fixture Requirements[.] a)Responsibility ? The owner of the structure shall provide and maintain such plumbing facilities and plumbing fixtures in compliance with these requirements. A person shall not occupy as owner-occupant or permit another person to occupy any structure premises, which does not comply with the requirements of this V Article[]. unitUnit b)Dwelling[][] ? Every dwelling unit shall contain its own bathtub or shower, lavatory, water closet and kitchen sink which shall be maintained in a sanitary, safe working condition. The lavatory shall be placed in the same room as the water closet or located in close proximity to the door leading directly into the room in which such water closet is located. A kitchen sink shall not be used as a substitute for the required lavatory. housesHouses c)Rooming [][] - At least one water closet, lavatory and bathtub or shower shall be supplied for each four rooming units. d)Hotels ? Where private water closets, lavatories and baths are not provided, one water closet, one lavatory and one bathtub or shower having access from a public 4four hallway shall be provided for each [][] occupants. facilitiesFacilities e)Employees? [][] ? A minimum of one water closet, one lavatory and one drinking facility shall be available to employees. Drinking facilities shall be a drinking fountain, water cooler, bottled water cooler or disposable cups next to a sink or water dispenser. Drinking facilities shall not be located in toilet rooms or bathrooms. room privacyRoom Privacy f)Toilet[][] ? Toilet rooms and bathrooms shall provide privacy and shall not constitute the only passageway to a hall or other space, or to the exterior. A door and interior locking device shall be provided for all common or shared bathrooms and toilet rooms in a multiple dwelling. -- 22 50074337.2 g)Location ? Toilet rooms and bathrooms serving hotel units, rooming units or dormitory units or housekeeping units, shall have access by traversing not more than one flight of stairs and shall have access from a common hall or passageway. employee toilet facilitiesEmployee Toilet Facilities h)Location of [][] ? Toilet facilities shall have access from within the employees? working area. The required toilet facilities shall be located not more than one story above or below the employees? working area and the path of travel to such facilities shall not exceed a distance of 500 feet. Employee?s facilities shall either be separate facilities or [Exception: Facilities that are combined employee and public facilities. required for employees in storage structures or kiosk, which are located in adjacent structures under the same ownership, lease or control, shall not exceed a travel distance of 500 feet from the employees? regular working area to the facilities. ] [Exception: Facilities that are required for employees in storage structures or kiosk, which are located in adjacent structures under the same ownership, lease or control, shall not exceed a travel distance of 500 feet from the employees? regular working area to the facilities. ] systemsSystemsfixturesFixtures i)Plumbing [][] and [][] ? All plumbing fixtures shall be properly installed and maintained in working order, and shall be kept free from obstructions, leaks and defects and be capable of performing the function for which such plumbing fixture are designed. All plumbing fixtures shall be maintained in a safe, sanitary and functional condition. system hazardsSystem Hazards j)Plumbing [][] ? Where it is found that a plumbing system in a structure constitutes a hazard to the occupants or the structure by reason of inadequate service, inadequate venting, cross connection, backsiphonage, improper installation, deterioration or damage or for similar reasons, the Code Official shall require the defects to be corrected to eliminate the hazard. generalGeneral k)Water System in [][] ? Every sink, lavatory, bathtub or shower, drinking fountain, water closet or other plumbing fixture shall be properly connected to either a public water system or to an approved private water system. All kitchen sinks, lavatories, laundry facilities, bathtubs and showers shall be supplied with hot or tempered and cold running water in accordance with the International Plumbing Code. l)Contamination ? The water system shall be maintained free from contamination, and all water inlets from plumbing fixtures shall be located above the flood level rim of the fixture. Shampoo basin faucets, janitor sink faucets and other hose bibs or faucets to which hoses are attached and left in place shall be protected by an approved atmospheric type vacuum breaker or an approved permanently attached hose connection vacuum breaker. -- 23 50074337.2 m)Supply ? The water supply system shall be installed and maintained to provide a supply of water to plumbing fixtures, devices and appurtenances in sufficient volume and to pressures adequate to enable the fixtures to function properly, safely and free from defects and leaks. heating facilitiesHeating Facilities n)Water [][] ? Water heating facilities shall be properly installed, maintained and capable of providing an adequate amount of water to be drawn at every required sink, lavatory, bathtub, shower and laundry facility at a temperature of not less than 110ºF. A gas-burning water heater shall not be located in any bathroom, toilet room, bedroom or other occupied room normally kept closed, unless adequate combustion air is provided. An approved combination temperature and pressure relief valve and relief valve discharge pipe shall be properly installed and maintained on water heaters. drainage systemDrainage System o)Sanitary [][] ? All plumbing fixtures shall be properly connected to either a public sewer system or to an approved private sewage disposal system. p)Maintenance ? every plumbing stack, vent, waste and sewer line shall function properly and be kept free from obstructions, leaks, and defects. drainageDrainage q)Storm [][] ? Drainage of roofs and paved areas, yards and courts and other open areas on the premises shall not be discharged in a manner that creates a public nuisance. Section 54-31.Mechanical and Electrical Requirements . Electrical facilities and equipment in compliance with these requirements. A a)[ person shall not -? ]Responsibility [][] The owner of the structure shall provide electrical facilities and equipment in compliance and maintain mechanical and [ with these requirements. A person shall not ]occupy as owner-occupant or doesdo permit another person to occupy any premises, which [][] not comply with article.Article V. the requirements of this [][] b)Residential Occupancies ? Dwellings shall be provided with heating facilities capable of maintaining a room temperature of 68ºF in all habitable rooms, bathrooms, and toilet rooms. workspacesWorkspaces c)Occupiable[][] ? Indoor Occupiable workspaces shall be supplied with heat facilities capable of maintaining a room temperature of not Exceptions: ] less than 65ºF during the time the space is occupied. [ [Exception:] 1)Processing, storage and operation areas that require cooling or special temperature conditions. -- 24 50074337.2 2)Areas in which persons are primarily engaged in vigorous physical activities. equipmentEquipment d)Mechanical[][] ? All mechanical appliances, fireplaces, solid fuel-burning appliances, cooking appliances and water heating appliances shall be properly installed and maintained in a safe working condition and shall be capable of performing the intended function. e)Service ? The size and usage of appliances and equipment shall serve as a basis for determining the need for additional electrical supply in accordance with the National Electric Code. Dwelling units shall be served by a three-wire, 120/240- volt, single-phase electrical service having a rating of not less than 60 amperes. hazardsHazards f)Electrical[][] ? Where it is found that the electrical system in a structure constitutes a hazard to the occupants or the structure by reason of inadequate service, improper fusing, insufficient receptacle and lighting outlets, improper wiring or installation, deterioration or damage, or for similar reasons, the Code Official shall require the defects to be corrected to eliminate the hazard. g)Receptacles ? Every habitable space in a dwelling shall contain at least two separate and remote receptacle outlets. Every laundry area shall contain at least one grounded-type receptacle or a receptacle with a ground fault circuit interrupter. Every bathroom shall contain at least one receptacle. Any new bathroom receptacle outlet shall have ground fault circuit interrupter protection. escalatorsEscalatorsdumbwaitersDumbwaiters h)Elevators, [][] and [][] ? Shall be maintained in compliance with ASME A17.1. The most current certification of inspection shall be on display at all times within the elevator or attached to the escalator or dumbwaiter, or the certificate shall be available for public inspection and tests shall be performed at not less than the periodical intervals listed in ASME A17.1, Appendix N. i)Operation ? In buildings equipped with passenger elevators, at least one elevator shall be maintained in operation at all times when the building is occupied. [Exception: Buildings equipped with only one elevator shall be permitted to have the elevator temporarily out of service for testing or servicing. ] [Exception: Buildings equipped with only one elevator shall be permitted to have the elevator temporarily out of service for testing or servicing. ] ARTICLE VI. JUNK VEHICLES[.] Section 54-32.Declaration of [junk][Junk] Vehicle as [public nuisance][Public Nuisance] . vehiclesVehicles Junk [][] or parts thereof, that are located in a place where they are visible from a public place or public right-of-way are detrimental to the safety and welfare of the general public, tend to reduce the value of private property, invite vandalism, create a fire hazard, constitute an attractive nuisance creating a hazard to the health and safety of minors, and -- 25 50074337.2 are detrimental to the economic welfare of the City by producing urban blight adverse to the maintenance and continuing development of the City, and as such are declared to be a public nuisance. Section 54-33.Junk Vehicle Notice . junk vehicleJunk Vehicle a)A notice of a [][] violation must be personally , delivered[] or delivered by certified mail with a five (5) day return requested, or delivered by the United States Postal Service with signature confirmation service to: 1)The last known registered owner of the nuisance; 2)Each lien holder of record of the nuisance; and (i)the owner or occupant of the property on which the nuisance is [ located; or ] (i) the owner or occupant of the property on which the nuisance is 3)[ located; or (ii) ]if the nuisance is located on a public right-of-way, the /occupant owner[] of the property adjacent to the right-of-way. junk b)If the post office address of the last known registered owner of the [ vehicleJunk Vehiclejunk ][] is unknown, a notice may be placed on the [ vehicleJunk Vehicle ][], or if the owner is located, it may be personally delivered. c)If the notice is returned undelivered, action to abate the nuisance shall be continued to a date not earlier than the tenth (10th) day after the date of the return. d)This notice shall include: 1)A description of the vehicle or parts thereof; 2)The vehicle identification number if available; and 3)The license plate number if available. ThisTheshallmust e)[][] notice [][] state that: th 1)The nuisance must be abated and removed no later than the tenth (10) day after the date on which the notice was personally delivered or mailed; and tenthtenth 2)Any request for a hearing must be made before the [][] (10[]) period day []expires. Section 54-34.Exemptions . thethis VI The following shall not be abated under [][] Article[]: -- 26 50074337.2 a)A vehicle or vehicle parts that are completely enclosed within a building in a lawful manner where are not visible from a right-of-way or other public or private property. b)A vehicle or vehicle parts that are stored or parked in a lawful manner on property that is zoned and approved for automotive vehicle repair, if the vehicle or vehicle parts and the outdoor storage area are maintained in a manner so that they do not or safety constitute a health[] hazard. antique or special interest c)A vehicle or vehicle parts that is an [ vehicleAntique Vehicle or Special Interest Vehicle ][] stored by a motor vehicle collector on the collector?s property, if the motor vehicle or parts and the outdoor storage area are maintained in a manner so that they do not constitute a health , rapidly hazard and are screened from ordinary public view by means of a fence[ growing trees, shrubbery, or other appropriate means, including a clean serviceable fitted car cover constructed of durable opaque material. The cover shall be maintained in good repair for the length of time it is used for this purpose. The cover shall not be constructed from such things as parachutes, paint tarps and similar type tarps ]. Any variations from this section must have the approval of City Council. Section 54-35.Antique or Special Interest Vehicles Located in a Residentially Zoned Neighborhood . antique or special interest It shall be unlawful to maintain or store more than one [ vehicleAntique Vehicle or Special Interest Vehiclezonezoned ][] on a property [][] for residential use outlined within the Unified Development Code or Zoning Maps adopted by the City. Section 54-36.Abatement of Junk Vehicles Declared a Public Nuisance . AVehicleVehiclesisare []Junk [][], or parts thereof, [][] subject to being abated by the 33 of this Code Official in compliance with the notice requirements established in section 54-[ Article.33. ][] Section 54-37.Disposal of Junk Vehicle . vehiclesVehicles Junk [][] and parts thereof may be disposed of by the Code Official by removal to a scrap yard, a motor vehicle demolisher, or any suitable site to be processed as scrape or salvage in the manner provided under Texas Transportation Code § 683.078, as amended. Section 54-38.Right to an Appeal . Any person directly affected by a decision of the Code Official or a notice or order issued under this section shall have the right to appeal to the City Manager or designated representative provided that a written application for appeal is filed within ten (10) days after the day the decision, notice or order was served. -- 27 50074337.2 Section 54-39.Conflict of Law . JunkedJunk The authority to take possession of [][] Vehicles and procedures thereofrelating thereto VI [][], as adopted by the City under this Article[], are to be construed in lawthe general laws a manner consistent with [][] of the State of Texas. If the provisions or lawgeneral laws procedures adopted by the City should conflict with the [][] of the State of Stategeneral? Texas at any time, Texas [][] law shall prevail. [] * * * [] -- 28 50074337.2 [SECTION 2. SEVERABILITY.] If any provision of this Ordinance is illegal, invalid, or unenforceable under present [ or future laws, then and in that event, the remainder of this Ordinance shall not be affected thereby. ] [SECTION 3. EFFECTIVE DATE.] This Ordinance shall be in force and effect from and after its final passage and any [ publication required by law. ] th PASSED AND APPROVED on first reading the 8 day of April, 2008. [] PASSED AND FINALLY APPROVED on second and final reading the ____ day of [ April, 2008. ] [ Mayor ] ATTEST: [] City Secretary [] [CITY SEAL] [] 50074337.2 [Exhibit 1] Administrative fee: ] $200.00 [] 50074337.2 FINAL ORDINANCE NO. 08-H-16 AN ORDINANCE BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS PROVIDING THAT THE CODE OF ORDINANCES, CITY OF SCHERTZ, TEXAS, CHAPTER 54, NUISANCES, BE AMENDED BY DELETING CHAPTER 54, NUISANCES AND REPLACING SAME WITH A REVISED CHAPTER 54, NUISANCES; PROVIDING A PENALTY CLAUSE; PROVIDINGA SEVERABILITY CLAUSE; PROVIDING A REPEALING CLAUSE; AND PROVIDING AN EFFECTIVE DATE. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS: SECTION 1. AMENDMENT. Chapter 54, Nuisances, shall be amended to read as follows: ?CHAPTER 54, NUISANCES TABLE OF CONTENTS ARTICLE I. IN GENERAL Section 54-1. Scope Section 54-2. Duties and Powers of the Code Official Section 54-3. Severability Section 54-4. Requirements not Covered by this Chapter Section 54-5. Abatement of Violation Section 54-6. General Notices and Orders Section 54-7. Reserved Section 54-8. Removal or Correction by the City Section 54-9. Restrictions Imposed on Property until Lien is Cleared Section 54-10. Statement of Expenses: Lien for and Interest on Expenses; Suit to Collect Expenses Section 54-11. Transfer of Ownership Section 54-12. Violations ARTICLE II. DEFINITIONS Section 54-13. Definitions ARTICLE III. NOISE Section 54-14. Certain Acts Declared to be Noise Nuisances -- 1 Nusiance Ordn.doc ARTICLE IV. ABANDONED HOUSEHOLD APPLIANCES Section 54-15. Abandoned Large Household Appliances Section 54-16. Responsibility of Owner or Person in Control ARTICLE V. PROPERTY MAINTENANCE REQUIREMENTS Section 54-17. Unsafe Structures and Equipment Section 54-18. Emergency Measures Section 54-19. Demolition Section 54-20. General Responsibilities Section 54-21. Exterior Property Areas; Nuisance Upon Premises Section 54-22. Swimming Pools, Spas and Hot Tubs Section 54-23. Parking Prohibited on Front and Side Yards Section 54-24. Exterior Structure Section 54-25. Interior Structure Section 54-26. Handrails and Guardrails Section 54-27. Rubbish and Garbage Section 54-28. Extermination Section 54-29. Light, Ventilation and Occupancy Limitations Section 54-30. Plumbing Facilities and Fixture Requirements Section 54-31. Mechanical and Electrical Requirements ARTICLE VI. JUNK VEHICLES Section 54-32. Declaration of Junk Vehicle as Public Nuisance Section 54-33. Junk Vehicle Notice Section 54-34. Exemptions Section 54-35. Antique or Special Interest Vehicles Located in a Residentially Zoned Neighborhood Section 54-36. Abatement of Junk Vehicles Declared a Public Nuisance Section 54-37. Disposal of Junk Vehicle Section 54-38. Right to an Appeal Section 54-39. Conflict of Law ARTICLE I. IN GENERAL. Section 54-1.Scope . The provisions of this Chapter shall apply to all residential and nonresidential structures and all premises, structures, equipment and facilities for light, ventilation, space, heating, sanitation, protection from the elements, life safety, safety from fire and other hazards, and for -- 2 Nusiance Ordn.doc safe and sanitary maintenance, whether now existing or existing in the future; the responsibility of owners, operators and occupants; the occupancy of structures and premises, and for administration, enforcement and penalties within the jurisdiction of the City and property within 5,000 feet outside the limits of the City, whether or not within the extraterritorial jurisdiction of the City. Section 54-2.Duties and Powers of the Code Official. a)Generally ? The City Health Official, hereinafter referred to in this Chapter as the Code Official, is hereby authorized and directed to enforce the provisions of this Chapter and other related ordinances and regulations of the City. The Code Official shall have the authority to render interpretations of this Chapter and to adopt policies and procedures in order to clarify the application of its provisions. Such interpretations, policies and procedures shall be in compliance with the intent and purpose of this Chapter and shall not have the effect of waiving requirements specifically provided for in this Chapter. b)Appeals ? The City Manager or his designated representative shall hear and decide on all appeals or orders, decisions, or determinations made by the Code Official relative to the application and interpretation of this Chapter. c)Reports ? The Code Official shall give attention to the health and sanitary conditions of the City and report to the City Council once each month, making recommendations as necessary conducive to the cleanliness of the City and the general health of the citizens. d)Right of Entry ? It shall be unlawful for any person to interfere, hinder, or delay the Code Official or other City deputies, inspectors, or officers in the discharge of any duties under this Chapter or to refuse to comply with the orders of the Code Official. The Code Official shall issue all necessary notices or orders to ensure compliance with this Chapter. e)Inspections ? The Code Official shall respond to all complaints and make all inspections necessary to ensure compliance with all state and local requirements governing general property maintenance. f)Department Records ? Official records shall be kept of all complaints, reports, citations, notices and orders issued. Such records shall be retained in the official records of the City pursuant to the City?s document retention policy. g)No Liability ? The Code Official or employees charged with the enforcement of this Chapter while acting for the jurisdiction in good faith and without malice in the discharge of the duties required by this Chapter or other pertinent laws or ordinances, shall not thereby be rendered liable personally and are hereby relieved from personal liability for any damage accruing to persons or property as a result of any act or omission in the discharge of official duties. Any suit instituted against an officer or employee because of an act performed by the officer or employee in the lawful discharge of duties and under the provisions of this -- 3 Nusiance Ordn.doc Chapter shall be defended by legal representative of the City until the final termination of the proceedings. The Code Official or any subordinate shall not be liable for cost in any action, suit or proceeding that is instituted in pursuance of the provisions of this Chapter. Section 54-3.Severability. If a section, subsection, sentence, clause or phrase of this Chapter is, for any reason, held to be unconstitutional, such decision shall not affect the validity of the remaining portions of this Chapter. Section 54-4.Requirements not Covered by this Chapter. Requirements necessary for the strength, stability or proper operation of an existing fixture, structure, or equipment, or for the public safety, health and general welfare, not specifically covered by this Chapter, shall be determined by the Code Official or by other applicable departments of the City. Section 54-5.Abatement of Violation. The imposition of the penalties herein prescribed shall not preclude the Code Official from instituting appropriate action to restrain, correct, or abate a violation, or to prevent illegal occupancy of a building, structure or premises, or to stop an illegal act, conduct business, or utilization of the building, structure or premises. Section 54-6.General Notices and Orders . a)Notice to Person Responsible ? Whenever the Code Official determines that there has been a violation of this Chapter or has grounds to believe that a violation has occurred, notice shall be given in a manner prescribed below to the person responsible for the violation. b)Form ? Notices shall be in accordance with all the following: 1)Be in writing; 2)Include a description of the real estate sufficient for identification; 3)Include a statement of the violation or violations and why the notice is being issued; 4)Include a correction order allowing seven (7) days after the date of the notice to make the repairs and improvements required to bring the property or structure into compliance; 5)Inform the property owner of the right to appeal; 6)Include a statement regarding the City?s right to file a lien. -- 4 Nusiance Ordn.doc c)Method of Service ? Such notice shall be deemed to be properly served if a copy thereof is: 1)Delivered personally; 2)Sent by certified or first-class mail addressed to the last known address of the property owner; or 3)By posting the notice on a placard attached to a stake driven into the ground on the property to which the violation relates. d)Refused or Unclaimed ? If the Code Official mails a notice to a person responsible for a violation and the United States Postal Service returns the notice as ?refused? or ?unclaimed?, the validity of the notice is not affected, and the notice is considered as delivered. Section 54-7.Reserved . Section 54-8.Removal or Correction by the City . In the event the owner, tenant, lessee, agent or occupant of any lot, parcel or premises fails to remove or remedy any condition described in this Chapter within seven (7) days after notice has been given, the City may do whatever is deemed necessary to remove or remedy the condition, or cause the same to be done, and charge the expense incurred thereby to the owner, tenant, agent, lessee or occupant of the lot, parcel or premises, and such expense shall be assessed as a lien against the real estate upon which the work is done. A statement of expense incurred will be certified by the City Secretary and sent to the violator of this Chapter. That person will be given a period of fifteen (15) days for total reimbursement to the City. Upon the expiration of this 15-day period, the amount of such unpaid expenses shall bear ten percent (10%) per annum interest from the date certified by the City Secretary. Section 54-9.Restrictions Imposed on Property until Lien is Cleared . In the event no collection can be made by the City of expenses incurred in removing or remedying any of the conditions and before and after a lien is filed against such property, the City shall have the right to impose the following restrictions on such property until such lien is cleared: a)No building permit of any type will be issued by the City with respect to the property involved, including building improvement, remodeling or modification permits. b)A fee of $200.00 will be levied against the violator as an administrative fee to cover the costs of filing a lien against the property. -- 5 Nusiance Ordn.doc Section 54-10.Statement of Expenses: Lien for and Interest on Expenses; Suit to Collect Expenses. The City Manager or his designated representative of the City shall file a statement of expenses incurred under section 54-8 stating the amount of such expenses and the date of which costs of filing the lien with the municipal court clerk and the County Clerk of the county in which the lot or real estate is located, and the City shall have a privileged lien on such lot or real estate upon which the work is done or improvement made to secure the expenditures and interest, suit may be instituted for recovery, and forfeiture of such lien may be had in the name of the City; and the statement of expenses so made, or certified copy thereof; shall be prima facie proof of the amount expended for such work or improvements. Section 54-11.Transfer of Ownership . It shall be unlawful for the owner of any dwelling unit or structure who has received a compliance order or upon whom a notice of violation has been served to sell, transfer, mortgage, lease, or otherwise dispose of such dwelling unit or structure to another until the provisions of the compliance order or notice of violation have been complied with, or until such owner shall first furnish the grantee, transferee, mortgagee or lessee a true copy of any compliance order or notice of violation used by the Code Official and shall furnish to the Code Official a signed and notarized statement from the grantee, transferee, mortgagee or lessee, acknowledging the receipt of such compliance order or notice of violation and fully accepting the responsibility without condition for making the corrections or repairs required by such compliance order or notice of violation. Section 54-12.Violations . a)Unlawful Acts ? It shall be unlawful for a person, firm or corporation to be in conflict with or in violation of any of the provisions of this Chapter. b)Penalties ? Any violation by any person, firm or corporation of this Chapter is declared to be unlawful and a misdemeanor and any violation thereof shall be punished by a fine of not less than $40.00 or more than $2,000.00. Any person in violation of this Chapter and having paid a fine assessed for such violation shall not be relieved of the expense incurred by the City in removing or remedying the condition prescribed in this Chapter. Each day that a violation continues after due notice has been served shall be deemed a separate offense. ARTICLE II. DEFINITIONS. Section 54-13.Definitions . The following words, terms and phrases, when used in this Chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicated a different meaning: Antique Vehicle ? is a passenger car or truck that is at least twenty-five (25) years old. -- 6 Nusiance Ordn.doc Code Official ? the City Health Official who is charged with the administration and enforcement of this Chapter, or any duly authorized representative of such person. General nuisance ? means any condition or use of a building, structure, lot, parcel, or premises which is in an unsanitary, objectionable, or unsightly condition or injurious to public health, which is detrimental to the property of others, or which causes, or tends to cause diminution in the value of other property in the neighborhood in which such premises is located. Junk Vehicle ? is a vehicle that is self-propelled and; a)Does not have lawfully attached to it an unexpired license plate and a valid motor vehicle inspection certificate; and b)Is wrecked, dismantled or partially dismantled, or discarded; or c)Is inoperable and has remained inoperable for more than seventy-two (72) consecutive hours if the vehicle is on public property or thirty (30) consecutive days if the vehicle is on private property. Lot or parcel ? is defined and considered as having ordinary meaning but shall include, in addition to the land within a lot or parcel boundary, all land adjacent to and extending beyond the property line to the curb line of adjacent streets and, where no curb exists, to the existing street surface. The word ?lot? or ?parcel? shall also include all land lying between the property line of any lot or parcel and the center of adjacent easements. Motor vehicle ? means a vehicle that is subject to registration under Chapter 501 of the Texas Transportation Code, as amended from time to time. Motor vehicle collector ? means a person who: a)Owns one or more Antique Vehicle or Special Interest Vehicle; and b)Acquires, collects, or disposes of an Antique Vehicle or Special Interest Vehicle for personal use to restore and preserve an Antique Vehicle or Special Interest Vehicle for historic interest. Noise nuisance ? means any unreasonably loud, disturbing noise which causes material distress, discomfort or injury to persons of ordinary sensibilities in the immediate vicinity thereof and is hereby declared to be a nuisance. Owner ? any person, agent, operator, firm or corporation having a legal or equitable interest in the property in question; or recorded in the official records of the state, county or municipality as holding title to such property; or otherwise having control of such property, including the guardian of the estate of any such person, and the executor or administrator of the estate of such person if ordered to take possession of real property by a court. Person? as used in this Chapter shall be construed to impart the singular and plural as the case demands, and shall include corporations, companies, societies and associations. -- 7 Nusiance Ordn.doc Special Interest Vehicle ? is a motor vehicle of any age which has not been altered or modified from the original manufacturer?s specifications and, because of its historic interest, is being preserved by a hobbyist. Structure ? means that which is built or constructed on any property within the City. Tenant ? a person, corporation, partnership or group, whether or not the legal owner of record, occupying a building or portion thereof as a unit. ARTICLE III.NOISE. Section 54-14.Certain Acts Declared to be Noise Nuisances . The following acts, among others, are declared to be nuisances in violation of this Article, but said enumerations shall not be deemed to be exclusive: a)The playing of any radio, phonograph or other musical instrument in such a manner or with such volume, particularly during the hours between 10:00 pm and 7:00 am, as to disturb the quiet, comfort or repose of persons of ordinary sensibilities in any dwelling, hotel or other type of residence. b)The use of any stationary loudspeaker or amplifier to such intensity that disturbs persons of ordinary sensibilities in the immediate vicinity thereof; the use of any stationary loudspeaker or amplifier operated on any weekday between the hours of 10:30 pm and 7:00 am, or at any time on Sunday. c)The keeping of any animal or bird which by causing frequent or long-continued noise shall disturb the comfort and repose of any person of ordinary sensibilities in the immediate vicinity. d)The continued or frequent sounding of any horn or signal device on any automobile, motorcycle, bus, or other vehicle except as a danger or warning signal; the creation by means of any such said device of any unreasonable loud or harsh noise for any unreasonable period of time. e)The running of any automobile, motorcycle, or vehicle so out of repair, so loud or in such manner as to create loud or grating, grinding, jarring, or rattling noise or vibration. f)The discharge into the open air of the exhaust of any steam engine, stationary internal combustion engine, motor vehicle or boat engine except through a muffler or other device which will effectively prevent loud or explosive noises therefrom. g)The use of any mechanical device operated by compressed air, unless the noise to be created is effectively muffled and reduced. -- 8 Nusiance Ordn.doc h)The erection, including excavation, demolition, alteration or repair work on any building other than between the hours of 7:00 am and 6:00 pm, on weekdays and 9:00 am to 5:00 pm on Saturdays, except in case of urgent necessity in the interest of the public safety and convenience, and then only by written permit from the City Manager or his designee, which permit may be renewed by the City Manager or his designee, during the time the emergency exists. All special requests must be submitted in writing. i)The creation of any excessive noise on any street adjacent to any school or institution of learning while in session or adjacent to any hospital which interferes with the working of such institutions, providing conspicuous signs are displayed in such manner indicating that the same is a school or hospital street. j)The creation of any loud and excessive noise in connection with the loading or unloading of any vehicle or the opening and destruction of bales, boxes, crates and containers. k)The raucous shouting and crying of peddlers, hawkers and vendors, which disturb the peace and quiet of the neighborhood. l)The use of any drum, loudspeaker or other instrument or device for the purpose of attracting attention by the creation of noise to any performance, show or sale of merchandise. ARTICLE IV.ABANDONED HOUSEHOLD APPLIANCES. Section 54-15.Abandoned Large Household Appliances . It shall be unlawful for any person to cause or permit to be or remain upon any premises under his control in a public or semi-public area that might be accessible to children, any large appliance (freezer, refrigerator, stove, dishwasher, clothes washer, clothes dryer and other similar appliances). Section 54-16.Responsibility of Owner or Person in Control . a)The owner or person in control of any large home appliance on any such property as described in section 54-15 shall not permit same to be discarded, abandoned, or stored as to create a public nuisance of safety hazards. b)It shall be the responsibility of any such owner or person in control to remove or have removed any self-closing or self?locking mechanism or door from the appliance to be discarded, abandoned, or stored in public or semi-public areas which might be accessible to children. -- 9 Nusiance Ordn.doc ARTICLE V.PROPERTY MAINTENANCE REQUIREMENTS Section 54-17.Unsafe Structures and Equipment . a)Unsafe Structure ? An unsafe structure is one that is found to be dangerous to the life, health, property or safety of the public or the occupants of the structure by not providing minimum safeguards to protect or warn occupants in the event of fire, or because such structure contains unsafe equipment or is so damaged, decayed, dilapidated, structurally unsafe or of such faulty construction or unstable foundation, that partial or complete collapse is possible. b)Unsafe Equipment ? Unsafe equipment includes any boiler, heating equipment, elevator, moving stairway, electrical wiring or device, flammable liquid containers or other equipment on the premises or within the structure which is in such disrepair or condition that such equipment is a hazard to life, health, property or safety of the public or occupants of the premises or structure. c)Structure Unfit for Human Occupancy ? A structure is unfit for human occupancy whenever the Code Official finds that such structure is unsafe, unlawful or because of the degree to which the structure is in disrepair or lacks maintenance, is unsanitary, vermin or rat infested, contains filth or other contamination, or lacks ventilation, illumination, sanitary or heating facilities or other essential equipment required by this Article, or because the location of this structure constitutes a hazard to the occupants of the structure or to the public. d)Unlawful Structure ? An unlawful structure is one found in whole or in part to be occupied by more persons than permitted under this Article, or which was erected, altered or occupied contrary to law. e)Closing of Vacant Structure ? If the structure is vacant and unfit for human habitation and occupancy, and is not in danger of structural collapse, the Code Official is authorized to post a placard of condemnation on the premises and order the structure closed up so as not to be an attractive nuisance. Upon failure of the owner to close up the premises within the time specified in the order, the Code Official shall cause the premises to be closed and secured through any available public agency or by contract or arrangement by private persons, and the cost thereof shall be charged against the real estate upon which the structure is located and shall be a lien upon such real estate and may be collected by any legal resources. Section 54-18.Emergency Measures . When, in the opinion of the Code Official, there is imminent danger of failure or collapse of a building or structure which endangers life, or when any structure or part of a structure has fallen and life is endangered by the occupation of the structure, or when there is actual or potential danger to the building occupants or those in the proximity of any structure because of explosives, explosive fumes or vapors or the presence of toxic fumes, gases, or materials, or operation of defective or dangerous equipment, the Code Official is authorized and empowered -- 10 Nusiance Ordn.doc to order and require the occupants to vacate the premises forthwith. The Code Official shall ?This structure cause to be posted at each entrance to such structure a notice reading as follows: is unsafe, and its occupancy has been prohibited by the City of Schertz Code Official? . It shall be unlawful for any person to enter such structure except for the purpose of securing the structure, making the required repairs, removing the hazardous condition or of demolishing the same. Section 54-19.Demolition . a)General ? The Code Official shall order the owner of any premises upon which is located any structure, which in the Code Official?s judgment is so old, dilapidated, or has become so out of repair as to be dangerous, unsafe, unsanitary or otherwise unfit for human habitation or occupancy, such that it is unreasonable to repair the structure, and to demolish and remove such structure; or if such structure is capable of being made safe by repairs, to repair and make safe and sanitary or to demolish and remove at the owner?s option; or where there has been a cessation of normal construction of any structure for a period of more than two years, to demolish and remove such structure. b)Failure to Comply ? If the owner of a premises fails to comply with a demolition order within the time prescribed, the Code Official shall cause the structure to be demolished and removed, either through an available public agency or by contract or arrangement with private persons, and the cost of such demolition and removal shall be charged against the real estate upon which the structure is located and shall be a lien upon such real estate. c)Salvage Material ? When any structure has been ordered demolished and removed, the City or other designated officer under said contract or arrangement aforesaid shall havethe right to sell the salvage and valuable materials at the highest price reasonably obtainable. The net proceeds of such sale, after deducting the expenses of such demolition and removal, shall be promptly remitted with a report of such sale or transaction, including the items of expense and the amounts deducted, to the person who is entitled thereto, subject to any order of a court. If such a surplus does not remain to be turned over, the report shall so state. Section 54-20.General Responsibilities . a)Scope ? The provisions of this Article V shall govern the minimum conditions and the responsibilities of persons for maintenance of structures, equipment, and exterior property. b)Responsibility ? The owner of the premises shall maintain the structures and exterior property in compliance with these requirements, except as otherwise provided for in this Article V. A person shall not occupy as owner-occupant or permit another person to occupy premises which are not in a sanitary and safe condition and which do not comply with the requirements of this Article V. Occupants of a dwelling unit, rooming unit or housekeeping unit are responsible -- 11 Nusiance Ordn.doc for keeping in a clean, sanitary and safe condition that part of the dwelling unit, rooming unit, housekeeping unit or premises which they occupy and control. c)Maintenance ? All vacant structures and premises thereof or vacant land shall be maintained in a clean, safe, secure and sanitary condition as provided herein so as not to cause a blighting problem or adversely affect the public health and safety. Section 54-21.Exterior Property Areas; Nuisance Upon Premises . a)No person owning, leasing, occupying or having charge of any premises shall maintain or keep any nuisance thereon, nor shall any such person keep or maintain such premises in a manner causing diminution in the value of the other property in the neighborhood in which such premises are located. b)It shall be unlawful for any person to permit or allow the keeping or the depositing on, or the scattering over the premises of any of the following: 1)Lumber, junk, trash, debris, brush, garbage or animal, vegetable or mineral matter and/or any composition of residue thereof; 2)Abandoned, discarded or unused objects or equipment such as furniture, stoves, refrigerators, freezers or other appliances and including empty and discarded cans or containers, inoperable motor vehicles, car parts, tires and structurally unsound fences. 3)Any sign, notice, pole, post, basketball goal, and any other obstruction placed or painted upon any sidewalk, street or in any public right-of-way within the corporate limits of the City. 4)Excessive growth of weeds or other vegetation that exceeds eight inches (8?) in height or is allowed to remain upon premises so as to become a breeding place for flies, or insects or become offensive so as to emit foul or noxious odors; excluding trees, fruits, vegetables, farm crops, bushes, garden beds, flowers or other ornamental plants. 5)The accumulation of stagnant water permitted to remain thereon. 6)Inadequate or unsanitary sewage or plumbing facilities, contrary to public health, safety or welfare. c)In other areas of the City that portion of any lot or parcel of land within fifty feet (50?) of any open street or road or which is within seventy-five feet (75?) of any building shall be kept completely free and clear of excessive growth of weeds and vegetation that exceed eight inches (8?) in height. Abandoned and discarded equipment and rubbish and stagnant water are also prohibited. -- 12 Nusiance Ordn.doc d)It shall be unlawful for any person owning, leasing, occupying or having charge of any premises to permit the overhanging or protrusions of trees, brush and shrubs over streets, sidewalk, alleys and easements. 1)Minimum clearance from street surface shall be fifteen feet (15?). 2)Minimum clearance in easements and alleys shall be fifteen feet (15?) in height from entire width of easement. 3)Minimum clearance over sidewalks shall be eight feet (8?). e)All sidewalks, walkways, stairs, driveways, parking spaces and similar areas shall be kept in a proper state of repair, and maintained free from hazardous conditions. f)All structures and exterior property shall be kept free from rodent harborage and infestation. Where rodents are found, they shall be promptly exterminated by approved processes, which will not be injurious to human health. After extermination, proper precautions shall be taken to eliminate rodent harborage and prevent re-infestation. g)All accessory structures, including detached garages, fences and walls, shall be maintained structurally sound and in good repair. h)No person shall willingly or wantonly damage, mutilate or deface any exterior surface of any structure or building on any private or public property by placing thereon any marking, carving or graffiti. It shall be the responsibility of the owner to restore said surface to an approved state of maintenance and repair. Section 54-22.Swimming Pools, Spas and Hot Tubs . a)Swimming pools, spas and hot tubs shall be maintained in a clean and sanitary condition, and in good repair. b)Private swimming pools, spas and hot tubs containing water more than twenty- four inches (24?) in depth shall be completely surrounded by a fence or barrier at least forty-eight inches (48?) in height above the finished ground level measured on the side of the barrier away form the pool. Gates and doors in such barriers shall be self-closing and self-latching. Where the self-latching device is less than fifty-four inches (54?) above the bottom of the gate, the release mechanism shall be located on the poolside of the gate. Self-closing and self-latching gates shall be maintained such that the gate will positively close and latch when released from an open position of six inches (6?) from the gatepost. No existing pool enclosure shall be removed, replaced or changed in a manner that reduces its effectiveness as a safety barrier. -- 13 Nusiance Ordn.doc Section 54-23.Parking Prohibited on Front and Side Yards . a)It shall be unlawful for a person to park or allow to remain parked a motor vehicle, construction vehicle, boat, personal water craft or trailer of any kind at any time in the side or front yard in any single-family residential zoned district, unless parked on a well maintained parking area extending from the curb, street or alley in a contiguous course, and construction of concrete or asphalt. b)It shall be unlawful for a person to park or allow to remain parked a recreational vehicle (as defined below) for more than 72 hours (i) on a vacant lot or (ii) any other lot in any location in the portion of such lot between the street and the closest portion of a building structure on such lot to such street. For purposes of this section 54-23b), ?recreational vehicle? means a bus conversion, Class A camper, Class C camper, travel trailer, fifth wheel trailer, or pop-up camper. Section 54-24.Exterior Structure . a)General ? The exterior of a structure shall be maintained in good repair, structurally sound and sanitary so as not to pose a threat to public, health, safety or welfare. b)Protective Treatment ? All exterior surfaces, including but not limited to, doors, door and window frames, cornices, porches, trim, balconies, decks, and fences shall be maintained in good condition. Exterior wood surfaces, other than decay resistant woods, shall be protected from the elements and decay by painting or other protective covering or treatment. Peeling, flaking and chipped paint shall be eliminated and surfaces repainted. All siding and masonry joints as well as those between the building envelope and the perimeter of windows, doors, and skylights shall be maintained weather resistant and water tight. All metal surfaces subject to rust or corrosion shall be coated to inhibit such rust and corrosion and all surfaces with rust or corrosion shall be stabilized and coated to inhibit future rust and corrosion. Oxidation stains shall be removed from exterior surfaces. Surfaces designed for stabilization by oxidation are exempt from this requirement. c)Premises Identification ? Buildings shall have approved address numbers placed in a position to be plainly legible and visible from the street or road fronting the property. These numbers shall contrast with their background. Address numbers shall be Arabic numerals or alphabet letters. Numbers shall be a minimum of four inches (4?) high with a minimum stroke width of one-half inch (1/2?). d)Structural Members ? All structural members shall be maintained free from deterioration, and shall be capable of safely supporting the imposed dead and live loads. e)Foundation Walls ? All foundation walls shall be maintained plumb and free from open cracks and breaks and shall be kept in such condition so as to prevent the entry of rodents and other pests. -- 14 Nusiance Ordn.doc f)Exterior Walls ? All exterior walls shall be free from holes, breaks, and loose or rotting materials and shall be maintained weatherproof and properly surface coated where required to prevent deterioration. g)Roofs and Drainage ? The roof and flashing shall be sound, tight and not have defects that admit rain. Roof drainage shall be adequate to prevent dampness or deterioration in the walls or interior portion of the structure. Roof drains, gutters and downspouts shall be maintained in good repair and free from obstructions. Roof water shall not be discharged in a manner that creates a public nuisance. h)Decorative Features ? All cornices, belt courses, corbels, terra cotta trim, wall facings and similar decorative features shall be maintained in good repair with proper anchorage and in a safe condition. i)Overhang Extensions ? All overhang extensions including, but not limited to canopies, marquees, signs, metal awnings, fire escapes, standpipes and exhaust ducts shall be maintained in good repair and be properly anchored so as to be kept in a sound condition. When required, all exposed surfaces of metal or wood shall be protected from the elements and against decay or rust by periodic application of weather-coating materials, such as paint or similar surface treatment. j)Stairways, Decks, Porches and Balconies ? Every exterior stairway, deck, porch, and balcony, and all appurtenances attached thereto, shall be maintained structurally sound, in good repair, with proper anchorage and capable of supporting the imposed loads. k)Chimneys and Towers ? All chimneys, cooling towers, smoke stacks, and similar appurtenances shall be maintained structurally safe and sound, and in good repair. All exposed surfaces of metal or wood shall be protected from the elements and against decay or rust by periodic application of weather-coating materials, such as paint or similar surface treatment. l)Handrails and Guards ? Every handrail and guard shall be firmly fastened and capable of supporting normally imposed loads and shall be maintained in good condition. m)Window, Skylight and Door Frames ? Every window, skylight, door and frame shall be kept in sound condition, good repair and weather tight. All glazing (glass) materials shall be maintained free from cracks and holes. Every window, other than a fixed window, shall be easily operable and capable of being held in position by window hardware. n)Insect Screens ? Every door, window and other outside opening required for ventilation of habitable rooms, food preparation areas, food service areas or any areas where products to be included or utilized in food for human consumption are processed, manufactured, packaged or stored shall be supplied with approved tightly fitting screens of not less than 16 mesh per inch and every screen door used for insect control shall have a self-closing device in good working condition. -- 15 Nusiance Ordn.doc o)Doors ? Doors providing access to a dwelling unit, rooming unit or housekeeping unit that is rented, leased or let shall be equipped with a deadbolt lock designed to be readily operable from the side from which egress is to be made without the need for keys, special knowledge or effort and shall have a lock throw of not less than one inch (1?). Such deadbolt locks shall be installed according to manufacturer?s specifications and maintained in good working order. For the purpose of this section, a sliding bolt shall not be considered an acceptable deadbolt lock. p)Windows ? Operable windows located in whole or in part within six feet (6?) above ground level or a walking surface below that provide access to a dwelling unit, rooming unit, or housekeeping unit that is rented, leased, or let shall be equipped with a window sash locking device. q)Garage Doors ? Shall be capable of being closed reasonably plumb, properly attached and the exterior surface maintained weatherproof as required to prevent deterioration. Section 54-25.Interior Structure . a)Maintenance ? The interior of a structure and equipment therein shall be maintained in good repair, structurally sound and in a sanitary condition. Occupants shall keep that part of the structure, which they occupy or control, in a clean and sanitary condition. Every owner of a structure containing a rooming house, housekeeping units, a hotel, a dormitory, two or more dwelling units or two or more nonresidential occupancies, shall maintain, in a clean and sanitary condition, the shared or public areas of the structure and exterior property. b)Structural Members ? All structural members shall be maintained structurally sound, and be capable of supporting the imposed loads. c)Interior Surfaces ? All interior surfaces, including windows and doors, shall be maintained in good, clean and sanitary condition. Peeling, chipping, flaking or abraded paint shall be repaired, removed or covered. Cracked or loose plaster, decayed wood and other defective surface conditions shall be corrected. d)Stairs and Walking Surfaces ? Every stair, ramp, landing, balcony, porch, deck or other walking surface shall be maintained in sound condition and good repair. e)Handrails and Guards ? Every handrail and guard shall be firmly fastened and capable of supporting normally imposed loads and shall be maintained in good condition. f)Interior Doors ? Every interior door shall fit reasonably well within its frame and shall be capable of being opened and closed by being properly and securely attached to jambs, headers or tracks as intended by the manufacturer of the attachment hardware. -- 16 Nusiance Ordn.doc Section 54-26.Handrails and Guardrails . Every exterior and interior flight of stairs having more than three (3) risers shall have a handrail on one side of the stair and every open portion of a stair, landing, balcony, porch deck, ramp, or other walking surface, which is more than thirty inches (30?) above the floor or grade below, shall have a guards. Handrails shall not be less than thirty inches (30?) high or more than forty-two inches (42?) high measured vertically above the nosing of the tread or above the finished floor of the landing or walking surface. Guards shall not be less than thirty inches (30?) high above the floor of the landing, balcony, porch, deck, or ramp or other walking surface. Section 54-27.Rubbish and Garbage . a)Accumulation of Rubbish or Garbage ? All exterior property and premises, and the interior of every structure, shall be free from any accumulation of rubbish or garbage. b)Disposal of Rubbish ? Every occupant of a structure shall dispose of all rubbish in a clean and sanitary manner by placing such rubbish in approved containers. The owner of every occupied premise shall supply approved covered containers for rubbish, and the owner of the premises shall be responsible for the removal of rubbish. c)Refrigerators ? Refrigerators and similar equipment not in operation shall not be discarded, abandoned or stored on premises without first removing the doors. d)Disposal of Garbage ? Every occupant of a structure shall dispose of garbage in a clean and sanitary manner by placing such garbage in an approved garbage disposal facility or approved garbage containers. e)Containers ? The operator of every establishment producing garbage shall provide, and at all times cause to be utilized, approved leak proof containers provided with close-fitting covers for the storage of such materials until removed from the premises for disposal. f)Time of Disposal ? No trash or garbage containers will be placed on the curb line earlier than twenty-four (24) hours prior to the time of the collection or later than twenty-four (24) hours after the time of collection. Section 54-28.Extermination . a)Infestation ? All structures shall be kept free from insect and rodent infestation. All structures in which insects or rodents are found shall be promptly exterminated by approved processes that will not be injurious to human health. After extermination, proper precautions shall be taken to prevent re-infestation. Where the infestations are caused by defects in the structure, the owner shall be responsible for extermination. -- 17 Nusiance Ordn.doc b)Owner ? The owner of any structure shall be responsible for extermination within the structure prior to renting or leasing the structure. c)Single Occupancy Structures ? The occupant of a one-family dwelling or of a single tenant nonresidential structure shall be responsible for extermination on the premises. d)Multiple Occupancy Structures ? The owner of a structure containing two or more dwelling units, a multiple occupancy, a rooming house or a nonresidential structure shall be responsible for extermination in the public or shared areas of the structure and exterior property. If infestation is caused by failure of an occupant to prevent such infestation in the area occupied, the occupant shall be responsible for extermination. e)Occupant ? The occupant of any structure shall be responsible for the continued rodent and pest-free condition of the structure. Section 54-29.Light, Ventilation and Occupancy Limitations . a)Responsibility ? The owner of the structure shall provide and maintain light, ventilation and space conditions in compliance with this Article V. A person shall not occupy as owner-occupant, or permit another person to occupy, any premises that do not comply with the requirements of this Article V. b)Habitable Spaces ? Every habitable space shall have at least one window of approved size facing directly to the outdoors or to a court. The minimum total glazed area for every habitable space shall be 8 percent of the floor area of such room. Wherever walls or other portions of the structure face a window of any room and such obstructions are located less than three feet (3?) from the window and extend to a level above that of the ceiling of the room, such window shall not be deemed to face directly to the outdoors nor to a court and shall not be included as contributing to the required minimum total window area for the room. Exception: Where natural light for rooms or spaces without exterior glazing areas is provided through an adjoining room, the unobstructed opening to the adjoining room shall be at least 8 percent of the floor area of the interior room or space, but not less than 25 square feet. The exterior glazing area shall be based on the total floor area being served. c)Common Halls and Stairways ? Every common hall and stairway in residential occupancies, other than in one-and-two family dwellings, shall be lighted at all times with at least a 60 watt standard incandescent light bulb for each 200 square feet of floor area or equivalent illumination, provided that the spacing between lights shall not be greater than thirty feet (30?). In other than residential occupancies, means of egress, including exterior means of egress, stairways shall be illuminated at all times the building space served by the means of egress is occupied with a minimum of 1 foot-candle at floors, landings and treads. -- 18 Nusiance Ordn.doc d)Other Spaces ? All other spaces shall be provided with natural or artificial light sufficient to permit the maintenance of sanitary conditions, and the safe occupancy of the space and utilization of the appliances, equipment and fixtures. e)Habitable Spaces ? Every habitable space shall have at least one openable window. The total openable area of the window in every room shall be equal to at least forty-five percent (45%) of the minimum glazed area required in Exception: section 54-29b). Where rooms and spaces without openings to the outdoors are ventilated through an adjoining room, the unobstructed opening to the adjoining room shall be at least eight percent (8%) of the floor area of the interior room or space, but not less than twenty-five (25) square feet. The ventilation openings to the outdoors shall be based on the total floor area being ventilated. f)Bathrooms and Toilet Rooms ? Every bathroom and toilet room shall comply with the ventilation requirements for habitable spaces in section 54-29e), except that a window shall not be required in such spaces equipped with a mechanical ventilation system. Air exhausted by a mechanical ventilation system from a bathroom or toilet room shall discharge to the outdoors and shall not be recalculated. g)Cooking Facilities ? Unless approved through the certificate of occupancy, cooking shall not be permitted in rooming unit or dormitory unit, and a cooking facility or appliance shall not be permitted to be present in the rooming unit or Exceptions: dormitory unit. 1)Where specifically approved in writing by the Code Official. 2)Devices such as coffee pots and microwave ovens shall not be considered cooking appliances. h)Process Ventilation ? Where injurious, toxic, irritating or noxious fumes, gases, dusts, or mists are generated, a local exhaust ventilation system shall be provided to remove the contaminating agent at the source. Air shall be exhausted to the exterior and not be recalculated to any space. i)Clothes Dryer Exhaust ? Clothes dryer exhaust systems shall be independent of all other systems and shall be exhausted in accordance with the manufacturer?s instructions. j)Privacy ? Dwelling units, hotel units, housekeeping units, rooming units and dormitory units shall be arranged to provide privacy and be separate from other adjoining spaces. k)Minimum Room Widths ? A habitable room, other than a kitchen, shall be not less than seven feet (7?) in any plan dimension. Kitchens shall have a clear passageway of not less than three feet (3?) between counter fronts and appliances or counter fronts and walls. -- 19 Nusiance Ordn.doc l)Minimum Ceiling Heights ? Habitable spaces, hallways, corridors, laundry areas, bathrooms, toilet rooms and habitable basement areas shall have a clear ceiling Exceptions: height of not less than seven feet (7?). 1)In one-and-two family dwellings, beams and girders spaced not less than four feet (4?) on center and projecting not more than six inches (6?) below the required ceiling height. 2)Basement rooms in one-and-two family dwellings occupied exclusively for laundry, study or recreation purposes, having a ceiling height of not less than six feet eight inches (6?8?) with not less than six feet four inches (6?4?) of clear height under beams, girders, ducts, and similar obstructions. 3)Rooms occupied exclusively for sleeping, study or similar purposes and having a sloped ceiling over all or part of the room, with a clear ceiling height of at least seven feet (7?) over not less than one-third of the required minimum floor area. In calculating the floor area of such rooms, only those portions of the floor area with a clear ceiling height of five feet (5?) or more shall be included. m)Living and Bedroom Area ? Every living room shall contain at least 120 square feet and every bedroom shall contain at least seventy (70) square feet. n)Access from Bedrooms ? Bedrooms shall not constitute the only means of access to other bedrooms or habitable spaces and shall not serve as the only means of egress from other habitable spaces. o)Water Closet Accessibility ? Every bedroom shall have access to at least one water closet and one lavatory without passing through another bedroom. Every bedroom in a dwelling unit shall have access to at least one water closet and lavatory located in the same story as the bedroom. p)Prohibited Occupancy ? Kitchens and non-habitable spaces shall not be used for sleeping purposes. q)Efficiency Unit ? Nothing in this Article V shall prohibit an efficiency living unit from meeting the following requirements: 1)A unit occupied by not more than two occupants shall have a clear floor area of not less than 220 square feet. A unit occupied by three occupants shall have a clear floor area of not less than 320 square feet. These required areas shall be exclusive of the areas required by items 2) and 3) below. 2)The unit shall be provided with a kitchen sink, cooking appliances and refrigeration facilities, each having a clear working space of not less than -- 20 Nusiance Ordn.doc thirty inches (30?) in front. Light and ventilation conforming to this Article V shall be provided. 3)The unit shall be provided with a separate bathroom containing a water closet, lavatory and bathtub or shower. 4)The maximum number of occupants shall be three. r)Food Preparation ? All spaces to be occupied for food preparation purposes shall contain suitable space and equipment to store, prepare and serve foods in a sanitary manner. There shall be adequate facilities and service for the sanitary disposal of food wastes and refuses, including facilities for temporary storage. Section 54-30.Plumbing Facilities and Fixture Requirements. a)Responsibility ? The owner of the structure shall provide and maintain such plumbing facilities and plumbing fixtures in compliance with these requirements. A person shall not occupy as owner-occupant or permit another person to occupy any structure premises, which does not comply with the requirements of this Article V. b)Dwelling Unit ? Every dwelling unit shall contain its own bathtub or shower, lavatory, water closet and kitchen sink which shall be maintained in a sanitary, safe working condition. The lavatory shall be placed in the same room as the water closet or located in close proximity to the door leading directly into the room in which such water closet is located. A kitchen sink shall not be used as a substitute for the required lavatory. c)Rooming Houses - At least one water closet, lavatory and bathtub or shower shall be supplied for each four rooming units. d)Hotels ? Where private water closets, lavatories and baths are not provided, one water closet, one lavatory and one bathtub or shower having access from a public hallway shall be provided for each four occupants. e)Employees? Facilities ? A minimum of one water closet, one lavatory and one drinking facility shall be available to employees. Drinking facilities shall be a drinking fountain, water cooler, bottled water cooler or disposable cups next to a sink or water dispenser. Drinking facilities shall not be located in toilet rooms or bathrooms. f)Toilet Room Privacy ? Toilet rooms and bathrooms shall provide privacy and shall not constitute the only passageway to a hall or other space, or to the exterior. A door and interior locking device shall be provided for all common or shared bathrooms and toilet rooms in a multiple dwelling. -- 21 Nusiance Ordn.doc g)Location ? Toilet rooms and bathrooms serving hotel units, rooming units or dormitory units or housekeeping units, shall have access by traversing not more than one flight of stairs and shall have access from a common hall or passageway. h)Location of Employee Toilet Facilities ? Toilet facilities shall have access from within the employees? working area. The required toilet facilities shall be located not more than one story above or below the employees? working area and the path of travel to such facilities shall not exceed a distance of 500 feet. Employee?s facilities shall either be separate facilities or combined employee and public Exception: facilities. Facilities that are required for employees in storage structures or kiosk, which are located in adjacent structures under the same ownership, lease or control, shall not exceed a travel distance of 500 feet from the employees? regular working area to the facilities. i)Plumbing Systems and Fixtures ? All plumbing fixtures shall be properly installed and maintained in working order, and shall be kept free from obstructions, leaks and defects and be capable of performing the function for which such plumbing fixture are designed. All plumbing fixtures shall be maintained in a safe, sanitary and functional condition. j)Plumbing System Hazards ? Where it is found that a plumbing system in a structure constitutes a hazard to the occupants or the structure by reason of inadequate service, inadequate venting, cross connection, backsiphonage, improper installation, deterioration or damage or for similar reasons, the Code Official shall require the defects to be corrected to eliminate the hazard. k)Water System in General ? Every sink, lavatory, bathtub or shower, drinking fountain, water closet or other plumbing fixture shall be properly connected to either a public water system or to an approved private water system. All kitchen sinks, lavatories, laundry facilities, bathtubs and showers shall be supplied with hot or tempered and cold running water in accordance with the International Plumbing Code. l)Contamination ? The water system shall be maintained free from contamination, and all water inlets from plumbing fixtures shall be located above the flood level rim of the fixture. Shampoo basin faucets, janitor sink faucets and other hose bibs or faucets to which hoses are attached and left in place shall be protected by an approved atmospheric type vacuum breaker or an approved permanently attached hose connection vacuum breaker. m)Supply ? The water supply system shall be installed and maintained to provide a supply of water to plumbing fixtures, devices and appurtenances in sufficient volume and to pressures adequate to enable the fixtures to function properly, safely and free from defects and leaks. n)Water Heating Facilities ? Water heating facilities shall be properly installed, maintained and capable of providing an adequate amount of water to be drawn at -- 22 Nusiance Ordn.doc every required sink, lavatory, bathtub, shower and laundry facility at a temperature of not less than 110ºF. A gas-burning water heater shall not be located in any bathroom, toilet room, bedroom or other occupied room normally kept closed, unless adequate combustion air is provided. An approved combination temperature and pressure relief valve and relief valve discharge pipe shall be properly installed and maintained on water heaters. o)Sanitary Drainage System ? All plumbing fixtures shall be properly connected to either a public sewer system or to an approved private sewage disposal system. p)Maintenance ? every plumbing stack, vent, waste and sewer line shall function properly and be kept free from obstructions, leaks, and defects. q)Storm Drainage ? Drainage of roofs and paved areas, yards and courts and other open areas on the premises shall not be discharged in a manner that creates a public nuisance. Section 54-31.Mechanical and Electrical Requirements . a)Responsibility ? The owner of the structure shall provide and maintain mechanical and electrical facilities and equipment in compliance with these requirements. A person shall not occupy as owner-occupant or permit another person to occupy any premises, which do not comply with the requirements of this Article V. b)Residential Occupancies ? Dwellings shall be provided with heating facilities capable of maintaining a room temperature of 68ºF in all habitable rooms, bathrooms, and toilet rooms. c)Occupiable Workspaces ? Indoor Occupiable workspaces shall be supplied with heat facilities capable of maintaining a room temperature of not less than 65ºF Exceptions: during the time the space is occupied. 1)Processing, storage and operation areas that require cooling or special temperature conditions. 2)Areas in which persons are primarily engaged in vigorous physical activities. d)Mechanical Equipment ? All mechanical appliances, fireplaces, solid fuel-burning appliances, cooking appliances and water heating appliances shall be properly installed and maintained in a safe working condition and shall be capable of performing the intended function. e)Service ? The size and usage of appliances and equipment shall serve as a basis for determining the need for additional electrical supply in accordance with the National Electric Code. Dwelling units shall be served by a three-wire, 120/240- volt, single-phase electrical service having a rating of not less than 60 amperes. -- 23 Nusiance Ordn.doc f)Electrical Hazards ? Where it is found that the electrical system in a structure constitutes a hazard to the occupants or the structure by reason of inadequate service, improper fusing, insufficient receptacle and lighting outlets, improper wiring or installation, deterioration or damage, or for similar reasons, the Code Official shall require the defects to be corrected to eliminate the hazard. g)Receptacles ? Every habitable space in a dwelling shall contain at least two separate and remote receptacle outlets. Every laundry area shall contain at least one grounded-type receptacle or a receptacle with a ground fault circuit interrupter. Every bathroom shall contain at least one receptacle. Any new bathroom receptacle outlet shall have ground fault circuit interrupter protection. h)Elevators, Escalators and Dumbwaiters ? Shall be maintained in compliance with ASME A17.1. The most current certification of inspection shall be on display at all times within the elevator or attached to the escalator or dumbwaiter, or the certificate shall be available for public inspection and tests shall be performed at not less than the periodical intervals listed in ASME A17.1, Appendix N. i)Operation ? In buildings equipped with passenger elevators, at least one elevator shall be maintained in operation at all times when the building is occupied. Exception: Buildings equipped with only one elevator shall be permitted to have the elevator temporarily out of service for testing or servicing. ARTICLE VI.JUNK VEHICLES. Section 54-32.Declaration of Junk Vehicle as Public Nuisance . Junk Vehicles or parts thereof, that are located in a place where they are visible from a public place or public right-of-way are detrimental to the safety and welfare of the general public, tend to reduce the value of private property, invite vandalism, create a fire hazard, constitute an attractive nuisance creating a hazard to the health and safety of minors, and are detrimental to the economic welfare of the City by producing urban blight adverse to the maintenance and continuing development of the City, and as such are declared to be a public nuisance. Section 54-33.Junk Vehicle Notice . a)A notice of a Junk Vehicle violation must be personally delivered, or delivered by certified mail with a five (5) day return requested, or delivered by the United States Postal Service with signature confirmation service to: 1)The last known registered owner of the nuisance; 2)Each lien holder of record of the nuisance; and 3)(i) the owner or occupant of the property on which the nuisance is located; or (ii) if the nuisance is located on a public right-of-way, the owner of the property adjacent to the right-of-way. -- 24 Nusiance Ordn.doc b)If the post office address of the last known registered owner of the Junk Vehicle is unknown, a notice may be placed on the Junk Vehicle, or if the owner is located, it may be personally delivered. c)If the notice is returned undelivered, action to abate the nuisance shall be continued to a date not earlier than the tenth (10th) day after the date of the return. d)This notice shall include: 1)A description of the vehicle or parts thereof; 2)The vehicle identification number if available; and 3)The license plate number if available. e)The notice must state that: th 1)The nuisance must be abated and removed no later than the tenth (10) day after the date on which the notice was personally delivered or mailed; and 2)Any request for a hearing must be made before the ten (10) day period expires. Section 54-34.Exemptions . The following shall not be abated under this Article VI: a)A vehicle or vehicle parts that are completely enclosed within a building in a lawful manner where are not visible from a right-of-way or other public or private property. b)A vehicle or vehicle parts that are stored or parked in a lawful manner on property that is zoned and approved for automotive vehicle repair, if the vehicle or vehicle parts and the outdoor storage area are maintained in a manner so that they do not constitute a health or safety hazard. c)A vehicle or vehicle parts that is an Antique Vehicle or Special Interest Vehicle stored by a motor vehicle collector on the collector?s property, if the motor vehicle or parts and the outdoor storage area are maintained in a manner so that they do not constitute a health hazard and are screened from ordinary public view by means of a fence. Any variations from this section must have the approval of City Council. -- 25 Nusiance Ordn.doc Section 54-35.Antique or Special Interest Vehicles Located in a Residentially Zoned Neighborhood . It shall be unlawful to maintain or store more than one Antique Vehicle or Special Interest Vehicle on a property zoned for residential use outlined within the Unified Development Code or Zoning Maps adopted by the City. Section 54-36.Abatement of Junk Vehicles Declared a Public Nuisance . Junk Vehicles, or parts thereof, are subject to being abated by the Code Official in compliance with the notice requirements established in section 54-33. Section 54-37.Disposal of Junk Vehicle . Junk Vehicles and parts thereof may be disposed of by the Code Official by removal to a scrap yard, a motor vehicle demolisher, or any suitable site to be processed as scrape or salvage in the manner provided under Texas Transportation Code §683.078, as amended. Section 54-38.Right to an Appeal . Any person directly affected by a decision of the Code Official or a notice or order issued under this section shall have the right to appeal to the City Manager or designated representative provided that a written application for appeal is filed within ten (10) days after the day the decision, notice or order was served. Section 54-39.Conflict of Law . The authority to take possession of Junk Vehicles and procedures relating thereto, as adopted by the City under this Article VI, are to be construed in a manner consistent with the general laws of the State of Texas. If the provisions or procedures adopted by the City should conflict with the general laws of the State of Texas at any time, Texas general law shall prevail.? * * * -- 26 Nusiance Ordn.doc SECTION 2. SEVERABILITY. If any provision of this Ordinance is illegal, invalid, or unenforceable under present or future laws, then and in that event, the remainder of this Ordinance shall not be affected thereby. SECTION 3. EFFECTIVE DATE. This Ordinance shall be in force and effect from and after its final passage and any publication required by law. th PASSED AND APPROVED on first reading the 8 day of April, 2008. PASSED AND FINALLY APPROVED on second and final reading the ____ day of April, 2008. Mayor ATTEST: City Secretary [CITY SEAL] S-1 Nusiance Ordn.doc Agenda No. 9 CITY COUNCIL MEMORANDUM City Council Meeting: April 15, 2008 Department: Police Department/Streets Subject:Ordinance No. 08-D-22 ? revising speed limit on Ripps-Kreusler First Reading BACKGROUND Consideration and/or action on approval of Ordinance No. 08-D-22 amending section 86- 115 of the Code of Ordinances regarding maximum speed limits. Due to the number of businesses and amount of traffic in this area, the streets department installed a speed limit sign of 20 mph on Ripps ? Kreusler.. FISCAL IMPACT None RECOMMENDATION Staff recommends Council approve first reading of Ordinance No. 08-D-22 ATTACHMENT Ordinance No. 08-D-22 ORDINANCE NO. 08-D-22 BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS PROVIDING THAT THE CODE OF ORDINANCES OF THE CITY OF SCHERTZ, TEXAS BE AMENDED BY REVISING SECTION 86-115, MAXIMUM LIMITS ON SPECIFIC STREETS; AND PROVIDING A REPEALING CLAUSE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS: SECTION 1 THAT, Section 86-115 of the Code of Ordinances, City of Schertz, Texas is amended to add the following: ?Section 86-115, Maximum Limits on Specific Streets? a). The maximum reasonable, safe and prudent speed limit has been set and is hereby declared in force on the following street or portion thereof, and any speed in excess of the prescribed limit shall be prima facie evidence that the speed is not reasonable and prudent and that it is unlawful StreetExtentSpeed Limit Ripps - Kreusler Entire length 20 MPH SECTION 2 1.All ordinances and resolutions, or parts thereof, in conflict with the provisions of this Ordinance are hereby repealed. 2.This Ordinance shall be in force and effect from and after its final passage. [The remainder of this page intentionally left blank.] PASSED AND APPROVED on the first reading the 15th day of April, 2008. PASSED AND FINALLY APPROVED on final reading the 22nd day of April, 2008. ____________________________________ Mayor ATTEST: _________________________________ City Secretary, City of Schertz Agenda No. 10 CITY COUNCIL MEMORANDUM City Council Meeting: April 15, 2008 Department: City Manager Subject:Ordinance No. 08-M-23 ? Appointment of a Public Information Officer BACKGROUND Under the Texas Public Information Act, the City has certain responsibilities regarding receipt of requests for public information and dissemination of responses as a result of those requests. Under the Public Information Act, the ?chief administrative officer? of the City is the City?s Public Information Officer. The City Manager is the City?s ?chief administrative officer?. Historically, the City Manager has delegated the obligations to comply with the Public Information Act to the Records Management Officer, Evelyn Boggess. The City Manager proposes to change the Public Information Officer designee to the City Secretary and, in her absence, the Assistant City Secretary. The attached Ordinance makes that re-designation and directs the City Attorney to work with the City Manager and the City Secretary to draft a set of procedures for the receipt and processing of Public Information Act requests. FISCAL IMPACT None RECOMMENDATION Adoption of Ordinance No. 08-M-23 ATTACHMENT Ordinance No. 08-M-23 PIA Officer Memo.doc ORDINANCE NO. 08-M-23 AN ORDINANCE BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS APPOINTING THE CITY SECRETARY AND ASSISTANT CITY SECRETARY AS THE DESIGNEES FOR THE OFFICER FOR PUBLIC INFORMATION; AND OTHER MATTERS IN CONNECTION THEREWITH. WHEREAS, Section 552.201 of the Texas Public Information Act states that the chief administrative officer of a governmental body is the ?officer for public information?; WHEREAS, Section 5.03 of the City of Schertz, Texas (the ?City?) Home Rule Charter names the City Manager as the chief administrative officer of the City; WHEREAS, Section 552.202 of the Public Information Act states that each department head is an agent of the officer for public information for the purposes of complying with this chapter; and WHEREAS, the City Manager desires to appoint the City Secretary and, in the City Secretary?s absence, the Assistant City Secretary as his designees for handling matters related to his duties as officer for public information of the City. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS: SECTION 1 The City Secretary and the Assistant City Secretary are hereby appointed as official designees of the City Manager, in his role as officer for public information of the City. SECTION 2 The City Attorney and the City Manager, with the assistance of the City Secretary, are directed to prepare written procedures for the processing of Public Information Act requests by the City, and the appointments in Section 1 of this Ordinance shall take effect when such procedures have been finalized. SECTION 3 1. All ordinances and resolutions, or parts thereof, in conflict with the provisions of this Ordinance are hereby repealed. 2. This Ordinance shall be in force and effect from and after its final passage. [The remainder of this page intentionally left blank.] PIA Officer Ordn.doc PASSED AND APPROVED on first reading the ____ day of April, 2008 PASSED AND FINALLY APPROVED on second and final reading the ____ day of _________, 2008. Mayor ATTEST: City Secretary [CITY SEAL] -1 S PIA Officer Ordn.doc Agenda No. 11 CITY COUNCIL MEMORANDUM City Council Meeting: April 15, 2008 Department: Administration Subject:City Hall Renovation BACKGROUND As you are aware the administrative building has been completed and departments have moved. The old city hall building was planned for remodeling and this project was originally funded to improve the court area in the amount of $200,000. After further review, staff finds that additional money is needed to bring the building up to-date as shown in the following exhibits. FISCAL IMPACT Estimate $179,000 RECOMMENDATION Staff recommends Council approve. ATTACHMENT Exhibits Schertz City Hall Remodel Start Date: Mana ement: Schertz City Hall Remodel Com letion Date: Pro~ect Mana er: Construction Bud et: Su erintendent: Start Work Date: Foreman: Sco a of work: Sub Contractors: Cost: Design Work $19,600.00 Project Management $37,488.00 Temp Facilities Clean Up $4,000.00 Dumpster $3,700.00 Port o Let $600.00 Temp Power Demolition $32,400.00 Electrical $27,000.00 Plumbing $3,100.00 HVAC $17,000.00 Interior Framing New walls 210 LF $8,800.00 Existing wall to paint 11660 SF $25,000.00 Drywall New walls 4000 SF $4,400.00 Tape/Float/Paint/Texture 2100 SF new walls $7,200.00 Flooring Carpet - 6265 SF $31,000.00 ceramic the breakroom - 215 SF $3,400.00 Acoustical Ceiling 6479 SF $17,200.00 Int. Door, metal frames & hardware (14) $15,000.00 Cabinets, countertops 36 LF $4,400.00 Storefront 12 LF $6,200.00 5000 ENG Conference Room Add-on 572 SF $20,800.00 2000 ENG Courtroom Add-on Remodel $41,000.00 Misc Furniture $20,000.00 Total: $349,288.00 Agenda No. 12 CITY COUNCIL MEMORANDUM City Council Meeting: April 15, 2008 Department: Subject: Administration City Council Board Liaison Practices BACKGROUND At the City Council meeting on April 8, 2008 Council Member Carpenter requested an item be placed on the agenda to discuss the activity and practice of maintaining Council liaisons to City boards, committees and commissions. FISCAL IMPACT None RECOMMENDATION None CITY COUNCIL MEMORANDUM Agenda Item 13 City Council Meeting: April 15, 2008 Department: Subject: Grants and Fundraising Fund Raising Consultant Contract BACKGROUND On Jan. 15th, 2008 Council voted to award a library construction bid in the amount of $6,497,423, which meant that the library project would be approximately $500,000 over budget. It was determined at that time that serious fundraising efforts would be necessary. Staff reorganization resulted in extra staff time for the fund raising effort, but professional consulting services were deemed necessary as well. The firm of Bacon, Lee and Associates was contacted and representatives were interviewed twice. The firm was recommended by the staff of Tye Preston Library in Canyon Lake, where they've raised 1.9 million dollars with the help of Bacon, Lee and Associates and by the library director of Boerne Public Library in Boerne who reported that Bacon, Lee and Associates had helped them raise over 1 million dollars so far. FISCAL IMPACT The contract is for $8000 per month for 3 months, which is no small amount, however if we raise the needed $500,000, then it is an excellent investment. RECOMMENDATION It is recommended that the City Council consider entering into a contract with Bacon, Lee and Associates for 3 months of consultation at a total cost of $24,000. ATTACHMENTS Letter from Bacon Lee & Associates Agenda No. 14 CITY COUNCIL MEMORANDUM City Council Meeting: April 15, 2008 Department: Subject: City Attorney Zoning and Property Taxes BACKGROUND The City Attorney will discuss a proposed zoning change that will address the property tax exemption issue discussed by the Mayor during last week's Announcements by the Mayor. FISCAL IMPACT N/A RECOMMENDATION N/A ATTACHMENT None Zoning and Property Taxes Memo.doc Agenda No. 15 CITY COUNCIL MEMORANDUM City Council Meeting: April 15, 2008 Department: City Manager Subject: Resolution No. 08-R-16 -Development Agreements with Crestmark Public Improvement District. BACKGROUND Crestmark Homes SA, LLC (the "Developer") desires to develop approximately 458 acres on the southern boundary of the City as a master planned mixed use development and to finance certain infrastructure for that property through the creation of a Public Improvement District (the "Crestmark PID") through Bexar County. Presentations have previously been made to the City Council regarding this matter. The Developer has presented proposed development agreements and related documents to the City which have been reviewed by the City Attorney and City Staff. A Resolution approving three such agreements is attached. The agreements include a City of Schertz Development Agreement between the City and the Developer which governs a number of matters relating to land use within the Crestmark PID. There is also a Development Agreement between Bexar County and the Developer, which will be agreed to by the PID Board of Directors, which also contains a number of development requirements that the County will impose upon the Developer and as to which the City will be a third-party beneficiary. Finally, a Declaration of Covenants, Conditions, and Restrictions for Crestmark Development is attached, containing the homeowner's association restrictions for the proposed development. The City will have substantial land use enforcement rights under this document as well. Under the Resolution, final changes to the three agreements can be negotiated by the City Manager with the advice of the City Attorney. FISCAL IMPACT RECOMMENDATION Adoption of Resolution No. 08-R-16 ATTACHMENT Resolution No. 08-R-16 Exhibit A -City of Schertz Development Agreement Exhibit B -County Development Agreement Crestmark PID Memo.doc City Council Memorandum Page 2 Exhibit C - HOA Declaration DEVELOPMENT AGREEMENT This Development Agreement (hereinafter referred to as this "Agreement") is between BEXAR COUNTY, TEXAS, a political subdivision of the State of Texas (hereinafter called the "COUNTY"), and CRESTMARK HOMES SA, LLC, a Texas limited liability company (hereinafter referred to as the "DEVELOPER"), regarding the creation, financing and implementation of a Project Plan, Finance Plan and Service Plan for a Public Improvement District (hereinafter referred to as the "PID" or the "District") to be created pursuant to Texas Local Government Code Chapter 372, as amended. WITNESSETH: WHEREAS, the COUNTY recognizes the importance of its continued role in economic development; and WHEREAS, the DEVELOPER has petitioned the COUNTY to create a PID pursuant to the provisions of Chapter 372, Subchapter A, as amended, of the Texas Local Government Code (hereinafter called the "Act") to provide drainage and to cause the construction of other infrastructure to allow the property within the District to be developed as a master planned mixed use development and to provide a method of financing for such drainage and infrastructure; and WHEREAS, the PID will be created to promote development and redevelopment in the District, which development and redevelopment would not otherwise occur solely through private investment in the reasonably foreseeable future; and 50071954.2 1 WHEREAS, the Act authorizes the imposition of assessments to raise funds within a PID, the payment of expenditures made or anticipated to be made, and the payment of monetary obligations incurred or estimated to be incurred, by a PID established by the COUNTY, the payment or reimbursement of costs by the PID for public improvements in the PID, plus other costs incidental to those expenditures and obligations, consistent with the Service Plan of the PID, which expenditures and monetary obligations constitute project costs, as defined in the Act ("Authorized Improvements"); and WHEREAS, pursuant to the Act, the COUNTY and the PID each has authority to enter into agreements that it considers necessary or convenient to implement the planned improvements and Service Plan and to achieve the purposes of developing the PID Property, as hereinafter defined; and WHEREAS, pursuant to said authority above, the COUNTY, through the PID, desires to enter into a binding agreement with the COUNTY, the PID, and the DEVELOPER for the DEVELOPER to develop the PID Property as specified in the Service Plan and as specified in this Agreement; NOW, THEREFORE, in consideration of the mutual promises, covenants, obligations, and benefits contained in this Agreement, the COUNTY and the DEVELOPER hereby agree as follows: I. DEFINITIONS 1.1 "Act" shall mean Chapter 372, Subchapter A of the Texas Local 50071954.2 2 Government Code, as amended. 1.2 "Agreement' shall mean this document by and between the COUNTY and the DEVELOPER, and agreed to by the PID, which Agreement may be amended from time to time, pursuant to the provisions contained herein. 1.3 "Available Assessment' shall mean the "PID assessment' as defined in Section 372.015 of the Act. 1.4 "Board of Directors of the PID" or "Board" shall mean the seven member board appointed to manage the business of the PID and, by appointment, vested with the power and duties of the PID pursuant to the Act. The Board shall be composed as follows: a) Four members appointed by the COUNTY who meet the requirements for membership as prescribed by the Act; b) One member appointed by the Schertz-Cibolo-Universal City Independent School District; and c) One member appointed by the City of Schertz. 1.5 "Certificate of Completion" shall mean a written acknowledgement by the DEVELOPER that public improvements were constructed as specified in the Service Plan and this Agreement, and that said improvements comply with all COUNTY and City of Schertz codes and published standards for the particular type of improvement constructed. 1.6 "City" shall mean the City of Schertz, Texas, acting through its duly elected City Council and its administrative staff. 1.7 "Completion" shall mean construction of public improvements in the PID 50071954.2 3 Property substantially in accordance with the Service Plan, with this Agreement, and with the applicable standards of COUNTY and City rules and regulations so that the particular improvements can be used and maintained for their intended purpose. 1.8 "Contract Progress Payment Request' shall mean a request for payment due to the DEVELOPER for successfully completed work on a specific improvement in the PID Property or provision of a specified service, accompanied by documentation satisfactory to the PID, including the name and address of the entity that performed the work, a description of the contract pursuant to which the payment is made, the amount of such payment, the original contract amount, total payments made to date on such contract, cancelled checks and invoices for said payments, if available, an estimate of remaining work to be completed on the specific improvement, the cost of such remaining work, and any customary lien and/or subcontractor releases. 1.9 "COUNTY" shall mean the governmental body of Bexar County, Texas, acting through its duly elected County Commissioners and County Judge and its administrative staff. 1.10 "DEVELOPER" shall mean Crestmark Homes SA, LLC, its successors or assigns. 1.11 "Development Agreement' shall mean this document between the COUNTY and the DEVELOPER, and agreed to by the PID, as it may be amended. 1.12 "Phase" shall mean a portion of the Project that is being constructed by the DEVELOPER normally being a set number of units and/or acres out of the PID Property being constructed together during a specific timeline. 1.13 "PID" shall mean the Public Improvement District described in this 50071954.2 4 Agreement. 1.14 "PID Property" shall mean the real property subject to the Service Plan and financing method of the PID, said property being +/-458 acres, more specifically described in the legal description attached as Exhibit "A". 1.15 "Project" shall mean the design, construction, assembly, installation and implementation of the improvements and/or activities as more specifically detailed in the Service Plan attached as Exhibit "B" and in this Agreement as (either or both) may be amended from to time. 1.16 "Project Costs" shall mean costs, together with agreed interest, for the provision or construction of the improvements and/or services set forth and described in Section 372.003 of the Act, that are included in the Service Plan for the Project. The Project Costs include public infrastructure improvements and related capital costs, including streets, streetlights, drainage, utilities, sidewalks, landscaping and rights-of- way, and other costs including, but not limited to, engineering, architectural, legal, and other professional services incidental to those expenditures, obligations, and supplemental services defined in Section 372.003 (13) and (14) of the Act. The Project Costs for the PID are estimated by the DEVELOPER to be approximately Thirty Three Million Eight Hundred Thousand Dollars ($33,800,000.00) in the aggregate for the life of the PID, plus interest [FLOW IS INTEREST TO BE CALCULATED?]. 1.17 "Public infrastructure improvements" shall be those improvements authorized in Chapter 372 of the Act, and as more specifically detailed in the Service Plan as maybe amended from time to time. 1.18 "Service Plan" shall mean the final service plan as defined in the Act, as 50071954.2 5 approved and as may be amended from time to time by recommendation of the Board of Directors of the PID and by action of the COUNTY. The initial Service Plan for the PID shall be the document entitled "Crestmark PID Service Plan" that is attached hereto as Exhibit "B" and is made a part hereof for all purposes as if fully set forth herein. 1.19 "Special Improvement District Fund" or "PID Fund" shall mean the fund created by the COUNTY at the time the PID is created for the deposit of PID assessments and related revenues from other sources, such as bond proceeds, for the PID entitled "Crestmark Public Improvement District Fund" from which obligations of the PID are paid, pursuant to the requirements of the Act and this Agreement. 1.20 Singular and Plural: Words used herein in the singular, where the context so permits, also includes the plural and vice versa, unless otherwise specified. IL REPRESENTATIONS 2.1 The COUNTY and the DEVELOPER represent each to the other that the COUNTY and the PID shall use available PID assessment funds to finance a maximum total payment of Thirty Three Million Eight Hundred Thousand dollars ($33,800,000.00) plus agreed interest for reimbursement to the DEVELOPER for designing and constructing the public infrastructure improvements designated under the Service Plan and this Agreement, pursuant to Article V and for the payment of costs and services identified in the Service Plan. 2.2 The DEVELOPER represents that it understands that any contributions made by it in anticipation of reimbursement from PID assessments shall not be, nor construed to be, financial obligations of the COUNTY, but solely of the PID. The 50071954.2 6 DEVELOPER shall bear all risks associated with reimbursement from incorrect estimates of PID assessments, changes in assessment rates, changes in market or economic conditions impacting the Project, changes in interest rates or capital markets, changes in development code requirements for which the Project does not enjoy statutory or constitutional vested rights, and/or unanticipated effects covered under legal doctrine of force majuere. III. THE PROJECT 3.1 The Project. The PID Property, which is owned by the DEVELOPER, is approximately +/- 458 acres of land to be located wholly in the extraterritorial jurisdiction of the City, as more fully depicted on the survey map attached hereto as Exhibit "C" and the Preliminary Development Plan and Preliminary Financing Plan attached as Exhibit «~» 3.2 The Public Infrastructure Improvements. The public infrastructure improvements to be reimbursed with Available Assessment funds are those identified in the Service Plan and shall include, but not be limited to, the following items: street excavation and installation, curbing, sidewalks, drainage improvements and services, lighting, traffic control, highway improvements, signage and fencing, off-site sewer, utilities, landscaping, acquisition of water rights, and other public improvements allowed under the Act. 3.3 Construction of Public Improvements. Project Costs eligible for reimbursement through PID proceeds shall be publicly bid by the PID Board in compliance with the requirements of the Texas Local Government Code, as amended. 50071954.2 7 3.4 Financing. The cost of the public infrastructure improvements and all other improvement expenses associated with the Project shall be initially paid through the use of the DEVELOPER'S own capital or through (a) commercial or private construction loans/lines of credit secured by the DEVELOPER; or (b) PID assessment revenue bonds or notes issued by the COUNTY for the PID pursuant to §372.024, et sec . of the Act and other applicable Texas law. The DEVELOPER may use any or part of the PID Property owned by the DEVELOPER as collateral for the construction loan or loans as required for the financing of the Project. Subject to completion pursuant to the Service Plan and this Agreement, the COUNTY and the PID Board pledge to use Available Assessment funds, up to the maximum amount provided herein, to reimburse the DEVELOPER for constructing the Project, managing the Project, and providing services as authorized by the Service Plan. IV. DUTIES AND OBLIGATIONS OF DEVELOPER 4.1 The DEVELOPER agrees to complete, or cause to be completed, the improvements described in the Service Plan and in this Agreement which include, but are not limited to, construction of park and recreational areas, installation of trees and landscaping, sewer and water improvements, streets, curbs, sidewalks, provision of drainage improvements and services, construction of signage, and the other items identified in the Service Plan. The DEVELOPER agrees to provide, or cause to be provided, all materials, labor and services for completing the Project. The DEVELOPER also agrees, when required in connection with improving the Project, to obtain or cause to be obtained, all necessary permits and approvals from the COUNTY, 50071954.2 g the City, and/or all other governmental agencies having jurisdiction (legal or contractual) over the construction of improvements in the PID. All improvements will be completed in accordance with the Service Plan and this Agreement. The DEVELOPER and/or its subcontractors shall complete the above improvements during the term of the Project. 4.2 The DEVELOPER shall be responsible for paying, or causing to be paid, to the COUNTY, the City, and all other governmental agencies the cost of all applicable permit fees and licenses required for construction of the Project. 4.3 The DEVELOPER agrees to start and complete the Project in accordance with the Service Plan set forth in this Agreement in Exhibit `B". 4.4 The DEVELOPER shall submit to the COUNTY and to the PID Board written annual reports, starting twelve months after the commencement of construction and annually thereafter through the duration of the Project, on its construction progress and expenses. 4.5 The DEVELOPER shall diligently work to successfully complete, or have completed, any and all required improvements that are not completed before the PID terminates in accordance with the terms of this Agreement. Such completion shall be at no additional cost to the PID, the COUNTY or any other taxing entity. 4.6 The DEVELOPER shall prepare, or cause to be prepared, plans and specifications for each Phase of public infrastructure improvements prior to starting any construction in said Phase. Furthermore, the DEVELOPER shall not commence any construction on the Project (a) until the plans and specifications for a Phase have been 50071954.2 9 approved in writing by the appropriate department of the COUNTY and the City and (b) until twenty-one (21) days after the effective date of the creation of the PID. 4.7 The DEVELOPER agrees to provide (or cause to be provided) construction management of the Project and to cause the construction to be performed substantially in accordance with the Service Plan and the plans and specifications approved by the appropriate department of the COUNTY and the City. The DEVELOPER also agrees to provide periodic reports of such construction to the COUNTY and the City. 4.8 If substantial completion of the Project is delayed by reason of war, civil commotion, acts of God, inclement weather, governmental restrictions, regulations, fire or other casualty, court injunction, necessary condemnation proceedings, interference by third parties, or any circumstances reasonably beyond the DEVELOPER's control, then following written request of the DEVELOPER, the schedule set forth in the Service Plan shall be extended by the period of each such delay. 4.9 Community Agreements. In order to assure community benefit from the creation of the PID and to properly integrate the Project into the existing cultural and neighborhood resource that has been established and maintained by the property owners surrounding the Project and the long-term residents of the community, the DEVELOPER has agreed to the following commitments and restrictions, and such are hereby made a binding part of this Agreement between the DEVELOPER, the PID, the COUNTY, and the City for the benefit of the community. 50071954.2 10 a. The DEVELOPER and the PID shall develop the Project in a manner that assures all occupied portions of the Project has safe, un-flooded, and all- weather access from any occupiable structure or building to existing roadways, such as FM 1518 or Schaefer Road. The access provided must take into account the 100-year flood and rain events (as identified using FEMA-approved methods) and sheet flow and ponding hazards. b. The Project will fully comply with the COUNTY'S policy prohibiting the cause of a rise in base flood elevations (100-year FIRM as identified using FEMA-approved methods) from development of the Project and will assure no increase on said flood plain elevation or sheet flow or ponding will be caused to property located immediately upstream or downstream from the Project Property. c. The DEVELOPER shall fully support coordination with and construction of the flood control project known as "Schaefer Road Phase P' and shall coordinate the design, location and construction of the drainage improvements within the Project to facilitate the continuation of the benefits of said Project. d. The Project will be designed to use drainage features along the northern- most boundary of the Project generally parallel to Schaefer Road to provide a method for the interception and positive drainage of water from upstream neighboring property to prevent additional ponding on such properties and provide a drainage mechanism for sheet flow exiting such upstream property. 50071954.2 11 e. The DEVELOPER shall protect the preservation of existing land uses from encroachment by the Project through the creation and filing of restrictions and covenants on the Project Property that provide notice to purchasers acquiring land in the Project that lands located adjacent to the property are the subject of uses such as livestock, farming, dog kennel, recreation and assembly facility (with live music and outdoor lighting), and other uses in specified areas and that prevent the purchasers of property in the Project from interfering with such preexisting and legal uses of surrounding property owners. £ The DEVELOPER shall support the approval and installation of traffic lights by the Texas Department of Public Safety at the intersection of FM 1518 and Schaefer Road, at FM 1518 and Lower Seguin Road, and at the intersection of any roads serving the school or commercial development within or adjacent to the Project and FM 1518 and shall coordinate with community representatives in efforts to achieve such approvals and installations. Additionally, the DEVELOPER agrees that, to address the future increased traffic on FM 1518 as requested by the community, the DEVELOPER shall comply with all requests of Texas Department of Transportation (hereinafter referred to as "TXDOT") that are reasonably related to the development of the Project at the time of platting including, but not limited to, the dedication of an additional 40-feet of right of way along the existing right of way line of FM 1518 for road expansion g. To protect the character of the existing neighborhood located along 50071954.2 12 Schaefer Road, the DEVELOPER agrees that the Project will not include any "non-emergency" access to or from the Project and Schaefer Road along the north property line of the Project, unless such access is mandated by the COUNTY or the City. With regard to this provision, "non- emergency" access shall mean any driveway or road intended or planned for usual or ordinary ingress or egress to or from the development, but shall not include limited access points from which ingress and egress as usually prohibited and restricted by means of a physical barrier, such as a gate or railing, but which can be used when needed by police, fire, EMS or other emergency response vehicles to provide access and assistance to the existing community or to the Project for a limited time period, if required. h. The DEVELOPER agrees that it shall not seek an extension of this Agreement beyond thirty (30) years after the effective date of this Agreement. i. The DEVELOPER agrees to deed restrict against and prohibit the use of the +/- 42 acre commercial tract within the Project for any use that is not allowed by the "Development Agreement" between the DEVELOPER and the City that is attached hereto as Exhibit "E". j. The DEVELOPER hereby affirms that it is not relying on or requesting the construction of a north-south roadway, such as the one being proposed by TXDOT, in the area east of the Project and west of Cibolo Creek. The DEVELOPER further agrees to cooperate with community representatives in requesting that any funding budgeted by TXDOT for 50071954.2 13 such a project be redirected and used to fund traffic lights as described in subsection 4.9f and the upgrade and improvement to FM 1518 between IH35 and Lower Seguin Road, as well as other projects identified jointly by the community and the DEVELOPER acting as apart of the community. The DEVELOPER agrees that it shall create a mandatory Property Owners' Association that shall apply to and bind the DEVELOPER and all future owners of real property within the Project. To foster integration with the surrounding community and to assure the input and embrace the protection of the existing community, the DEVELOPER agrees to create a permanent "Surrounding Community Liaison" position on the board of the Property Owners' Association. While the Liaison board position will not be a voting member of the board, it will be notified of all meetings and events, be entitled to a seat and voice of representation at every meeting, and be given equal rights (other than voting and the requirement to pay dues or assessments) as any other member of the board. The initial board member appointed by the DEVELOPER by the covenants shall be one of the three community representatives appointed by the community group ( or ) as decided by a majority vote among the three, for a term of two years, and thereafter shall be appointed by the majority vote of any neighborhood or community association that is created, provided the membership of such organization includes at least 51% or more of the owners of real property that are located within 1,000 feet of the northern outer property line of the Project boundary. If no such organization or association is in existence at the expiration of the initial term of the Liaison board position, then such position shall 50071954.2 14 terminate and be no longer in place. The requirements of this Section 4.9 shall be enforceable either by the COUNTY, the PID, the DEVELOPER, the Property Owners' Association to be created by the DEVELOPER, the City, or the neighborhood or community association from which the Liaison Board Member is appointed (if any). V. DUTIES AND OBLIGATIONS OF COUNTY AND PID. 5.1 The COUNTY and the PID shall use Available Assessment funds to pay up to a maximum total payment of approximately Thirty Three Million Eight Hundred Thousand dollars ($33,800,000.00), plus agreed interest as full reimbursement for designing and constructing the improvements described in the Service Plan and this Agreement and related services. This payment includes infrastructure improvements, acquisition of water rights, and other qualifying Project Costs. 5.2 If Available Assessment funds do not exist in an amount sufficient to make such payments in full when the payments are due to the DEVELOPER under this Agreement, PID funds shall be used to make partial payments to the DEVELOPER and pay the remainder as and to the extent Available Assessment funds become available. The PID is not obligated above and beyond what is actually collected as PID assessment funds. There shall also be no recourse against the COUNTY, or any general revenues or holdings of the COUNTY, its public officials, the PID, or the PID Board if all or part of the DEVELOPER contributions or costs are not reimbursed due to insufficient PID assessment revenue being generated by the PID at the rate to be assessed in the attached Service Plan. 50071954.2 15 5.3 The COUNTY agrees to recognize this Agreement as a permit, pursuant to Texas Local Government Code Chapter 245, as amended. VL INSURANCE 6.1 The DEVELOPER's financial integrity is of interest to the COUNTY; therefore, subject to the DEVELOPER's right to maintain reasonable deductibles in such amounts as are approved by the PID, the DEVELOPER shall obtain and maintain in full force during all public infrastructure construction required by the Project Plan, and any extension hereof, at the DEVELOPER's sole expense, insurance coverage written on an occurrence basis, except for professional liability coverage, by companies authorized and admitted to do business in the State of Texas and rated "A -" or better by AM Best Company and/or otherwise acceptable to the PID, in the following types and amounts: Type (1) Worker's Compensation & Statutory Employer's Liability Amount $ 5 00, 000/$ 5 00, 000/$ 5 00, 000 (2) Commercial General Liability (Including Broad Form Coverage, Contractual Liability, Bodily and Personal Injury, and Completed Operations Combined limits of $500,000 per occurrence and $ in the aggregate or its equivalent in umbrella or excess liability coverage 50071954.2 16 (3) Business Automobile Liability (any auto, including employer's non-owned and hired auto coverage) $500,000 combined single limit per occurrence 6.2 The COUNTY and the PID shall be entitled, upon request and without expense, to receive copies of the policies and all endorsements thereto as they apply to the limits required by this Agreement and may make a reasonable request for deletion, revision or modification of particular policy terms, conditions, limitations or exclusions (except where policy provisions are established by law or regulation binding upon either of the parties hereto or the underwriter of any such policies). Upon such request by the COUNTY or the PID, the DEVELOPER shall exercise reasonable efforts to accomplish such changes in policy coverage. 6.3 With the exception of the workers' compensation and professional liability (if any) policies, the DEVELOPER agrees that with respect to the above-required insurance, all insurance contracts and Certificate(s) of Insurance shall include the COUNTY, the City, and the PID as a named additional insured with respect to operations and activities of, or on behalf of, the named insured that are performed under this Agreement. 6.4 If the DEVELOPER fails to maintain the aforementioned insurance or fails to secure and maintain the aforementioned endorsements, the PID shall obtain such 50071954.2 l7 insurance and deduct and retain the amount of the premiums for such insurance from any sums due under this Agreement; however, procuring of said insurance by the PID is an alternative to other remedies the PID may have and is not the exclusive remedy for failure of the DEVELOPER to maintain said insurance or to secure such endorsement. In addition to any other remedies the PID may have upon the DEVELOPER's failure to provide and maintain any insurance or policy endorsements to the extent and within the time herein required, the PID shall have the right to order the DEVELOPER to stop work hereunder and/or to withhold any payment(s) that become due to the DEVELOPER hereunder until the DEVELOPER demonstrates compliance with the requirements hereof. 6.5 Nothing herein contained shall be construed as limiting in any way the extent to which the DEVELOPER may be held responsible for payments of damages to persons or property resulting from the DEVELOPER's or its subcontractors' performance of the work covered under this Agreement. 6.6 The DEVELOPER shall also indemnify the COUNTY, the City, the PID, the Board of Directors of the PID, and their respective officials and employees from and against any and all claims, losses, damages, causes of actions, suits and liabilities arising out of the DEVELOPER's and the DEVELOPER's subcontractors' actions related to the performance of this Agreement and the construction of public infrastructure improvements. 6.7 The DEVELOPER shall also require each of its subcontractors working on this Project to indemnify the Board of Directors of the PID and the COUNTY and 50071954.2 Ig their respective officials and employees from and against any and all claims, losses, damages, causes of actions, suits and liabilities arising out of the DEVELOPER's actions related to the performance of this Agreement, utilizing the same indemnification language contained herein, in its entirety. VII. DEFAULT 7.1 In the event that the DEVELOPER fails to commence construction of the Project, fails to complete construction of the Project, or fails to perform any other obligation pursuant to the terms of this Agreement, the PID may terminate this Agreement if the DEVELOPER does not take adequate steps to cure its failure within one hundred twenty (120) calendar days after receiving written notice from the PID requesting the failure be cured. In the event the DEVELOPER fails to cure a default within said time after receiving notice, this Agreement may be terminated by the COUNTY or the PID. If this Agreement or the PID is terminated and the DEVELOPER has, prior to such termination, incurred expenditures for public infrastructure that were specifically approved by the Board of Directors of the PID and such infrastructure has been completed, then the DEVELOPER shall be reimbursed for such expenditures out of the PID Fund, despite termination of this Agreement. VIII. INDEMNIFICATION 8.1 The DEVELOPER covenants and agrees to fully indemnify and hold harmless, the COUNTY, the City, the PID, the Board of Directors of the PID from and against any and all costs, claims, liens, damages, losses, expenses, fees, fines, penalties, proceedings, actions, demands, causes of action, liability, and suits of any 50071954.2 19 kind and nature by third parties, including but not limited to, personal or bodily iniury, death and property damage, made upon the COUNTY, the City, the PID, or the Board of Directors of the PID that arise out of, result from or are related to the DEVELOPER'S activities under this Agreement, including any acts or omissions of the DEVELOPER and its respective officers, agents, employees, directors, and representatives while in the exercise of performance of the rights or duties under this Agreement. The indemnity provided for in this paragraph shall not apply to any liability resulting from the negligence of the COUNTY, the City, the PID, or the Board of Directors of the PID. In the event the DEVELOPER, the City, the PID, and/or the COUNTY are found iointly liable by a court of competent iurisdiction, liability shall be apportioned comparatively in accordance with the laws of the State of Texas, without, however, waiving any governmental immunity available to the COUNTY, the City, the PID, the Board of Directors of the PID, and the other taxing entities participating in the PID under Texas law and without waiving any defenses of the parties under Texas law. While performing its duties under this Agreement, the DEVELOPER shall be acting as an went of the PID, a governmental subdivision of the State, and shall have the right to assert all immunity to suit and liability enioined by the DEVELOPER in such capacity as to the claims of third parties. The provisions of this indemnification are solely for the benefit of the parties hereto and the City and not intended to create or grant any rights, contractual or otherwise, to any other person or entity. The DEVELOPER shall promptly advise the COUNTY, the City, and/or the PID in writing of any claim or 50071954.2 20 demand against the DEVELOPER known to the DEVELOPER related to or arising out of the DEVELOPER'S activities under this Agreement. IX. SITE INSPECTION 9.1 The DEVELOPER shall allow the COUNTY, the City, and/or the Board of Directors of the PID reasonable access to the Project site for inspections during and upon completion of construction of the Project, and to documents and records necessary for the COUNTY, the City, and/or the Board of Directors of the PID to assess the DEVELOPER's compliance with this Agreement. 9.2 All personnel supplied or used by the DEVELOPER in the performance of this Agreement shall be deemed employees, contractors or subcontractors of the DEVELOPER and shall not be considered employees, agents or subcontractors of the COUNTY, the City, the PID, the Board of Directors of the PID, for any purpose whatsoever. The DEVELOPER shall be solely responsible for the compensation of all such personnel. 9.3 The directors, officers, elected or appointed officials, employees and agents of the COUNTY, the City, the PID, and the Board of Directors of the PID, shall be protected from personal responsibility for any liability arising under or growing out of this Agreement. X. EXAMINATION OF RECORDS 10.1 The COUNTY and the City reserve the right to conduct examinations, during regular business hours and following notice to the Board of Directors of the PID 50071954.2 21 and the DEVELOPER, of the books and records related to this Agreement (including such items as contracts, paper, correspondence, copy, books, accounts, billings and other information related to the performance of the Board of Directors of the PID and/or the DEVELOPER's services hereunder) no matter where books and records are located. The COUNTY and the City also reserve the right to perform any and all additional audit tests relating to the Board of Directors of the PID and/or the DEVELOPER's services, provided that such audit tests are related to those services performed by the Board of Directors of the PID and/or the DEVELOPER for the COUNTY and the City. These examinations shall be conducted at the offices maintained by the Board of Directors of the PID and/or the DEVELOPER. Nothing in this Agreement shall constitute a waiver of any legal privilege held by any party such as attorney-client privilege, legislative privilege, or exemption under the Texas Public Information Act as to any privileged or confidential materials. XI. NON-WAIVER 11.1 Any provision of this Agreement may be amended or waived if done in writing and if signed by the COUNTY, through an order passed and approved by the COUNTY, the City, the Board of Directors of the PID, and the DEVELOPER. XII. ENTIRE AGREEMENT 12.1 This Agreement, including the Exhibits hereto, embodies the final and entire agreement between the parties hereto as to the subj ect matter hereof and may not be contradicted by evidence of prior or contemporaneous written agreements or any subsequent oral agreements of the parties. 50071954.2 22 12.2 The exhibits attached to this Agreement are incorporated herein and shall be considered a part of this Agreement for the purposes stated herein, except that if there is a conflict between an exhibit and a provision of this Agreement, the provision of this Agreement shall prevail over the exhibit. The parties acknowledge that the DEVELOPER has (or will) enter into a Development Agreement with the City and a Joint Utility Development Agreement with the Schertz-Cibolo-Universal City Independent School District, which agreements are attached hereto as Exhibits "E" and "F", respectively. The DEVELOPER agrees to comply with the terms of these agreements as a condition of this Agreement. XIII. CHANGES AND AMENDMENTS 13.1 Except when the terms of this Agreement expressly provide otherwise, any alterations, additions, or deletions to the terms hereof shall be by amendment in writing executed by the COUNTY, the PID and the DEVELOPER (and the City to the extent any such matter relates to or affects the City) and evidenced by passage of a subsequent the COUNTY order as to the COUNTY's approval. Changes that are minor in nature will only be required to be approved by the PID and the DEVELOPER to be effective, provided they are agreed to in writing and notice of the minor change is provided to the COUNTY and the City. For the purpose of this Agreement, a change is a "minor change" only if it does not: a. reduce or increase the total amount of authorized reimbursement that is available to the DEVELOPER; b. waive or reduce any rights of the COUNTY or the City; 50071954.2 23 c. release the DEVELOPER of any substantive obligation; d. reduce the security or lien for collection of assessments approved under the Service Plan; e. cause a default by the PID, the DEVELOPER and/or the COUNTY on any legal or monetary obligation; and f. waive any agreement made by the DEVELOPER with the Schertz- Cibolo-University City Independent School District, the City or a "community agreement' (identified in part IV above), and does not create a liability on the part of the COUNTY. Changes in sequencing of construction, phasing of the Project, administrative procedures for interaction between the PID and the DEVELOPER, approval of assignments, and/or allocation of funding within the Service Plan between construction cost line items shall be considered "minor changes" provided they do not violate subsections 13.1a through 13.1f of this Section. 13.2 It is understood and agreed by the parties hereto that changes in local, state and federal rules, regulations or laws applicable to the PID and the DEVELOPER's services hereunder may occur during the term of this Agreement, and the parties agree to amend this Agreement to reflect such changes in rules, regulations or laws while honoring the spirit and intent of the original Agreement to the maximum degree reasonably possible. 50071954.2 24 XIV. SEVERABILITY 14.1 If any clause or provision of this Agreement is held invalid, illegal or unenforceable under present or future federal, state or local laws, including but not limited to the COUNTY codes or orders of the COUNTY, then and in that event it is the intention of the parties hereto that such invalidity, illegality or unenforceability shall not affect any other clause or provision hereof and that the remainder of this Agreement shall be construed as if such invalid, illegal or unenforceable clause or provision was never contained herein; it is also the intention of the parties hereto that in lieu of each clause or provision of this Agreement that is invalid, illegal or unenforceable, there be added as a part of this Agreement a clause or provision as similar as may be possible to such invalid, illegal or unenforceable clause or provision that is legal, valid and enforceable. XV. VENUE AND GOVERNING LAW 15.1 THIS AGREEMENT SHALL BE CONSTRUED UNDER AND IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. 15.2 Any legal action or proceeding brought or maintained by the COUNTY, the City, the PID or the DEVELOPER, directly or indirectly, among or between one or more of the parties, as a result of this Agreement shall be heard and determined in Bexar COUNTY, Texas. XVI. TAXES & ASSESSMENTS 16.1 The DEVELOPER shall pay, on or before their respective due dates to the appropriate collecting authority, all Federal, State, and local taxes and fees that are now or may hereafter be levied or assessed upon its property, including, without 50071954.2 25 limitations, all appropriate PID assessments created and imposed in conjunction with this Agreement and the Project. XVIL NOTICE 17.1 Any notice sent under this Agreement (except as otherwise expressly required) must be written and mailed with sufficient postage, sent by certified mail, return receipt requested, or delivered personally to an officer of the receiving party at the following addresses: The COUNTY: County Judge (Nelson Wolff) 100 Dolorosa, Suite 120 San Antonio, Texas 78205 Phone: (210) 335-2626 Eax: (210) 335-2926 The PID: President Board of Directors Crestmark Public Improvement District Texas 78 Phone: (210) - Fax: (210) - The DEVELOPER: Crestmark Homes SA, LLC. c/o Mr. Dale DeLisse 9330 Corporate Dr., Suite #610 Selma, Texas 78154 Phone: (210) 651-3311 Fax: (210) 651-3301 The DEVELOPER'S ATTORNEYS: Earl & Associates, P.C. Attn: David L. Earl 15303 Huebner, Bldg. # 15 San Antonio, Texas, 78248 Phone: (210) 222-1500 Eax: (210) 222-9100 The CITY OF SCHERTZ: 1400 Schertz Parkway Schertz, Texas 78154 Attention: City Manager Phone: (210) 619-1020 Eax: (210) 619-1050 17.2 Each party may change its address by written notice in accordance with this Article. Any communication delivered by facsimile transmission shall be deemed 50071954.2 26 delivered when such transmission is made if during normal business hours or at the beginning of the next business day if the transmission is made after normal business hours. Any communication delivered in person shall be deemed received when receipted for by or actually received by an officer of the party to whom the communication is properly addressed. XVIIL BONDS 18.1 By execution of this Agreement, the DEVELOPER is hereby requesting the COUNTY to issue bonds, as allowed by the Act, for the purpose of facilitating financing of the public infrastructure improvements; utility services, rights and capacity; drainage improvements; and other community services identified in the Service Plan attached as Exhibit `B". The DEVELOPER further represents and warrants to the COUNTY that the said public infrastructure improvements, services, rights, capacity, and drainage improvements are currently needed to protect the public health, safety, welfare, and orderly development of the community, but may not be funded or available to the Project, the City, the surrounding community, or the Schertz-Cibolo-Universal City Independent School District without the financing provided by the issuance of the PID revenue bonds requested above. With the exception of a limited portion of the sewer improvements, the community, the City, the Schertz-Cibolo-Universal City Independent School District or the DEVELOPER would not have the funds immediately available for the required public benefits. In order to expedite the improvements for the community, the economic development of the area, and orderly development of the Project, and the protection of the health, safety and welfare of the public, the DEVELOPER is willing to 50071954.2 27 commit to developing such pubic infrastructure improvements and providing such rights and benefits identified in the Service Plan upon approval of the PID and accelerating such benefits upon the issuance of PID revenue bonds by the COUNTY. 18.2 As an inducement to issuance of the PID revenue bonds by the COUNTY, the DEVELOPER agrees to subject its real property and improvements to the PID assessments identified in the Service Plan and to bind itself, its successors, assigns and transferors to the obligation to pay said assessments when due; to be bound by this Agreement and its attachments; and to pledge, to the full extent of its entitlement, the PID Property and appurtenances within the Project to secure the issuance and repayment of such bonds. 18.3 The parties agree that any bonds that are issued by the COUNTY for the benefit of the PID under the Act shall be secured o~ by the assessment revenue of the PID (or revenue assessed from performance of the Service Plan) and IN NO EVENT shall such bonds become the general obligation of the COUNTY, or of the general treasury of the COUNTY or any of its revenue sources from taxes, special assessments, grants, programs, or other services, save and except from the revenue stream and funds generated directly from the PID. 18.4 In consideration for the duties assumed by the DEVELOPER under this Agreement and to facilitate the financing and reimbursement of the DEVELOPER in performing such services, the COUNTY agrees to earnestly examine and consider the issuance of PID revenue bonds under the Act to assist in implementing the financing of the Service Plan. Upon recommendation by the PID Board to do so, the COUNTY 50071954.2 2g agrees to consider the issuance of such bonds to the extent and in the amount that maybe legally and financially advisable. 18.5 The COUNTY makes no guarantee, either expressed or implied, that any PID bonds will be authorized or issued by the COUNTY or that, if issued, such bonds will raise sufficient revenue for the financing of all or part of the Service Plan. The DEVELOPER expressly agrees that, in the event the COUNTY does not issue the requested PID revenue bonds, the DEVELOPER will nonetheless be bound to the terms of this Agreement and may be required to be delayed in receiving reimbursement from the PID depending on the DEVELOPER's compliance with this Agreement and the availability of PID assessment revenues. 18.6 In furtherance of and subject to this Agreement, the COUNTY agrees that it shall begin consideration of the issuance of the requested PID revenue bonds in the amount required to finance the cost of performance of the Service Plan related to the sewer lift station and force main, the acquisition of water capacity, and the drainage improvements upon receipt of a recommendation by the Board of Directors of the PID to consider such request. 18.7 In the event the COUNTY issues PID revenue bonds as requested, the PID assessment received shall first be pledged and required to go toward the payment of debt service and reserves for such bonds, to the extent required annually, before becoming available for any other purpose. It is further agreed that the revenue from the sale of such bonds will be required to be applied to reimbursement to the Schertz-Cibolo-Universal City Independent School District before being available for reimbursement to the 50071954.2 29 DEVELOPER for any other purpose in compliance with the attached Joint Utility Development Agreement attached as Exhibit "F" XIX. CAPTIONS 19.1 All captions used herein are only for convenience of reference and shall not be construed to have any effect or meaning as to the agreement between and among the parties hereto. XX. THIRD PARTY BENEFICIARY 20.1 The DEVELOPER, the PID, and the COUNTY agree that the City is and shall be a third-party beneficiary of this Agreement. XXI. EFFECTIVE DATE 21.1 This Agreement shall become effective upon the date of execution hereof by the DEVELOPER and the COUNTY and agreement hereto by the PID (the "Effective Date"). This Agreement shall terminate on the earliest of (i) the date the DEVELOPER receives the final payment for completing the Project; (ii) the date of a termination by default (provided that all existing warranties on the Project shall survive termination of this Agreement); (iii) expiration of the PID pursuant to the order of the COUNTY creating the PID and applicable State law; or (iv) thirty (30) years after the Effective Date. Upon issuance of revenue bonds, this Agreement shall be continual (subject to the thirty (30) year limitation above), to the extent required as may be legally mandated by the language and requirements of said Bonds and to fulfill the obligations of the parties as to such bonds. The COUNTY and the DEVELOPER agree that the term of the revenue bonds shall in no event extend beyond thirty (30) years after the Effective 50071954.2 30 Date. Any other provision of this Agreement notwithstanding this Agreement is contingent upon the creation of the PID by the COUNTY, the adoption and performance of the Service Plan by the COUNTY, and the approval and execution of this Agreement by the PID acting by its duly appointed Board of Directors. Any other provisions of this Agreement notwithstanding this Agreement and its obligations are contingent upon the creation of the PID by the COUNTY. The rest of this page is intentionally left blank. 50071954.2 3 1 IN WITNESS THEREOF, the parties hereto have caused this instrument to be duly executed this day of , 2008. BEXAR COUNTY, TEXAS By: Name: Title: STATE OF TEXAS § COUNTY OF BEXAR § This instrument was acknowledged before me on the day of 2008, by COUNTY, Texas. on behalf of Bexar Notary Public, State of Texas My commission expires: 50071954.2 S-1 CRESTMARK HOMES SA, LLC By: Name: Title: STATE OF TEXAS § COUNTY OF BEXAR § This instrument was acknowledged before me on the day of , 200 by ,for Crestmark Homes SA, LLC, a Texas limited liability company. Notary Public, State of Texas My commission expires: 50071954.2 S-2 CRESTMARK PUBLIC IMPROVEMENT DISTRICT By: Name: Title: STATE OF TEXAS § COUNTY OF BEXAR § This instrument was acknowledged before me on the day of , 200 by ,for Crestmark Public Improvement District. Notary Public, State of Texas My commission expires: 50071954.2 S-3 EXHIBIT A PID PROPERTY 50071954.2 A-1 EXHIBIT B SERVICE PLAN 50071954.2 B-1 EXHIBIT C SURVEY MAP 50071954.2 C-1 EXHIBIT D PRELIMINARY DEVELOPMENT PLAN AND PRELIMINARY FINANCING PLAN 50071954.2 D-1 EXHIBIT E CITY OF SCHERTZ DEVELOPMENT AGREEMENT 50071954.2 E-1 EXHIBIT F JOINT UTILITY DEVELOPMENT AGREEMENT 50071954.2 F-1 RESOLUTION NO. 08-R-16 A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS AUTHORIZING AND APPROVING TWO DEVELOPMENT AGREEMENTS IN CONNECTION WITH THE DEVELOPMENT OF APPROXIMATELY 458 ACRES LOCATED WITHIN THE EXTRATERRITORIAL JURISDICTION OF THE CITY OF SCHERTZ, TEXAS, NAMING A MEMBER TO THE BOARD OF DIRECTORS OF THE CRESTMARK PUBLIC IMPROVEMENT DISTRICT, AND OTHER MATTERS IN CONNECTION THEREWITH WHEREAS, Crestmark Homes SA, LLC (the "Developer") desires to develop approximately 458 acres (the "Crestmark Property") to be located within the extraterritorial jurisdiction of the City of Schertz, Texas (the "City") as a master planned mixed use development and to finance certain infrastructure for the Crestmark Property through the creation of a public improvement district (the "Crestmark PID"); WHEREAS, the City Council (the "City Council") of the City has determined that it is in the best interest of the City to enter into a City of Schertz Development Agreement (the "Schertz Development Agreement") with the Developer relating to the Crestmark Property and the Crestmark PID; WHEREAS, the City Council of the City has further determined it is in the best interest of the City to approve a Development Agreement of which the City will be a third-party beneficiary (the "County Development Agreement") between Bexar County, Texas and the Developer relating to the Crestmark Property and the Crestmark PID; and WHEREAS, the City is permitted to appoint one member to the Board of Directors of the Crestmark PID and desires to appoint John Bierschwale, the Assistant City Manager of the City, to the Board of Directors; now therefore, THAT: BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS Section 1. The City Council hereby approves and authorizes the City Manager to execute and deliver the Schertz Development Agreement between the City and the Developer in substantially the form set forth on Exhibit A, with such changes therein as may be recommended by the City Manager with the advice of the City Attorney. Section 2. The City Council hereby approves the County Development Agreement between Bexar County, Texas and the Developer in substantially the form set forth on Exhibit B, with such changes therein as may be recommended by the City Manager with the advice of the City Attorney. Section 3. The City Council hereby approves the Declaration of Covenants, Conditions and Restrictions for Crestmark Development in substantially the form set forth on Exhibit C, with such changes therein as may be recommended by the City Manager with the advice of the City Attorney. 50068077.1 1 Section 4. The City Council hereby names John Bierschwale, Assistant City Manager, to the Board of Directors of the Crestmark PID; Section 5. 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 6. 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 7. This Resolution shall be construed and enforced in accordance with the laws of the State of Texas and the United States of America. Section 8. 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 9. 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 10. This Resolution shall be in force and effect from and after its final passage, and it is so resolved. PASSED AND ADOPTED, this 15th day of April, 2008. CITY OF SCHERTZ, TEXAS Mayor ATTEST: City Secretary (CITY SEAL) 50068077.1 2 EXHIBIT A CITY OF SCHERTZ DEVELOPMENT AGREEMENT 50068077.1 A-1 EXHIBIT B COUNTY DEVELOPMENT AGREEMENT 50068077.1 B-1 EXHIBIT C DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR CRESTMARK DEVELOPMENT 50068077.1 B-1 CITY OF SCHERTZ DEVELOPMENT AGREEMENT This CITY OF SCHERTZ DEVELOPMENT AGREEMENT (this "Agreement') is between the City of Schertz, Texas, a Texas home-rule municipality (hereinafter referred to as the "CITY"), and Crestmark Homes SA, LLC, a Texas limited liability company, its successors and permitted assigns (hereinafter collectively referred to as the "DEVELOPER"), for the purpose of setting forth the terms and obligations between the CITY and the DEVELOPER (hereinafter referred to collectively as the "Parties"), with respect to the development more specifically described on the Service Plan and map attached hereto as Exhibit "A" (hereinafter the "Project'), of +/- 458 acres of land to be wholly located within the extraterritorial jurisdiction of the CITY, being more specifically identified on Exhibit "B" attached hereto (hereinafter the "Project Property") as follows: WHEREAS, the DEVELOPER has requested Bexar County, Texas (hereinafter the "County") to create a Public Improvement District (hereinafter referred to as "PID") pursuant to Chapter 372 of the Texas Local Government Code, as amended (hereinafter the "Act'), to provide drainage and to cause the construction of other public infrastructure improvements to allow the Project Property to be developed as a master planned mixed use development; WHEREAS, the CITY has required the execution of this Agreement pursuant to Chapters 42 and 43 and Section 212.172 of the Texas Local Government Code ("LGC §212.172"), as amended, to protect the best interests of the CITY and its citizens and to assure the development of a properly planned and sustainable development with proper restrictions and conditions and to assure that the Project is constructed and built to the standards and specifications required by the laws, regulations, and codes of the CITY; WHEREAS, the County requires confirmation that the CITY has no objection to creation of the PID prior to the PID being created, and the DEVELOPER has agreed to the terms herein in consideration for such confirmation by the CITY; and WHEREAS, the CITY and the DEVELOPER, in mutual consideration for this Agreement, have agreed to the terms and conditions herein in order to promote the development of the Proj ect in such a manner that provides additional economic development and increased tax base within the jurisdiction of the CITY for the orderly development of the CITY and the creation of a desirous location where new businesses will wish to locate and families will wish to reside; NOW THEREFORE: The Parties agree as follows: Terms and Conditions A. Terms and Conditions. Except as otherwise indicated within this Agreement, the DEVELOPER shall comply with all codes, regulations, policies and criteria of the CITY in the development and operation of the Project as further described on Exhibit "A". Description of the Project Property. The DEVELOPER'S Project Property is +/- 458 acres of land to be located in the extraterritorial 50071957.2 - 1 - jurisdiction of the CITY, in Bexar County, Texas as more fully depicted on the survey map attached hereto as Exhibit `B". 2. Duration. Pursuant to LGC §212.172, the CITY and the DEVELOPER agree that the terms of the PID and this Agreement shall be for a period of fifteen (15) years, which term shall thereafter be extended automatically in one-year extensions, with a maximum term, including all such extensions, not to exceed the lesser of (i) the final payment of all PID obligations and (ii) December 31, 2039, unless extended by mutual agreement of the Parties. The agreement to extend may be refused by the CITY at its sole and complete discretion. In the event the PID expires or is otherwise terminated prior to the expiration of the above term, as extended, then this Agreement shall also terminate. 3. Density permitted and development requirements on the Project Property. The average density for single-family residential lots developed on the Project Property shall be no more than 1,200 over the total acreage designated for single-family residential use. Non-single family residential, commercial and governmental uses may also be developed in the Project as permitted herein. The restrictions and requirements relating to any subdivision development within the CITY of the City's Unified Development Code, as amended from time to time, regarding (by way of example and not limitation) utility facility placement requirements, utility pole size and materials, sidewalks, lot size, set-backs, ,and approval, inspection, and fee requirements, are hereby agreed to apply to the Project as if it were within the city limits of the CITY. 4. Design and Platting. The DEVELOPER shall comply with all platting requirements of the CITY as if the Project Property were within the city limits of the CITY, including those related to drainage, utility connection, street construction, traffic, and other similar and related requirements and shall be subject to the requirements for platting and development of property according to the CITY's Unified Development Code and other applicable standards. 5. Uses permitted on the Project Property. Due to the fact that the zoning regulations of the CITY do not extend over the Project, in the CITY's extraterritorial jurisdiction, all land use within the Project shall be governed by this Agreement as if it were within the city limits of the CITY. a. Uses described in zoning classifications [single family residential classifications; neighborhood services classifications; governmental services; and ] of the CITY (as modified and/or re-numbered from time to time) shall be permitted on the Project Property. 50071957.2 - 2 - b. Uses described in zoning classifications [multifamily housing classifications; light commercial classifications; and ] of the CITY (as modified and/or renumbered from time to time) shall be permitted on the Project Property with the specific written consent of the CITY. c. The following uses shall never be permitted on the Project Property: (i) sexually oriented business; (ii) heavy industrial uses; (iii) any use with emission of excessive noise or odor that would be offensive to the surrounding residential uses or other land uses in existence at the time of this Agreement. 6. Open Space Requirements. The DEVELOPER shall dedicate appropriate amounts of open space and/or joint use open space with said open space being a minimum of 30 acres of the Project Property (herein the "Open Space") as agreed with the CITY in conformance with the CITY's parks policies through a conservation easement or some other form of dedication instrument to the PID and/or the Crestmark Property Owners' Association to be established by the DEVELOPER as further described in paragraph 8 below (the "Property Owner's Association") that prohibits development of the Open Space and that requires the Open Space to be used as parks, joint use facilities (drainage/park facilities), or that protects the natural resources of the Open Space. The CITY may determine that it is in the public interest that all or a portion of the Open Space should be dedicated to the CITY for the above-described purposes, in which case the DEVELOPER (if no dedication of the subject Open Space to the PID or the Property Owner's Association has occurred) or the PID or the Property Owner's Association shall, on the written request of the CITY, dedicate the requested Open Space to the CITY. The CITY acknowledges and agrees that such dedication of Open Space to the PID or the Property Owners' Association or the CITY is in lieu of any future Open Space or park regulations or requirements of the CITY in existence or enacted after the effective date of this Agreement otherwise applicable to the Project Property. The Open Space dedicated to the PID or the Property Owners' Association and not transferred to the CITY as described above shall be maintained by the PID or the Property Owner's Association, and the CITY shall have no obligation to take ownership or to maintain such Open Space, even after the Project Property is annexed by the CITY. 7. Drainage Requirements. The DEVELOPER shall provide properly- sized drainage facilities within the Project Property as approved by the CITY to properly handle all stormwater resulting from development of the Project Property. These drainage facilities shall be engineered in a manner 50071957.2 - 3 - that facilitates the handling of proper quantity and flow rates to assure a 100-year storm handling capability, including proper detention. All drainage facilities shall be designed and constructed in accordance with the CITY's drainage standards and capacity requirements as if the Project Property were within the city limits of the CITY. 8. Property Owners' Association. The DEVELOPER agrees that it shall file restrictive covenants and declarations acceptable to the CITY in substantially the form attached hereto as Exhibit "C" (the "Declaration") that shall be applicable to the Project Property that shall run with the land, and shall be binding on all successors or assigns of the DEVELOPER. The declarations and restrictive covenants shall provide for property maintenance of all yards and Open Space, the formation of a mandatory Property Owners' Association for enforcement of deed restrictions and restrictions pertaining to proper maintenance of lawns and homes, maintenance of parks and Open Space, as well as provisions pertaining to architectural review to prevent the modification or alteration of any structure in a manner that would reduce the taxable value of the properties or cause harm to the overall sustainability of the Project. The provisions and restrictions contained in the declarations and restrictive covenants shall, in addition to being enforceable by the Property Owners' Association, be specifically made enforceable by the PID or the CITY. The CITY shall have the absolute right to enforce any said restriction within the Project Property, but shall have no obligation to do so. The restrictions shall provide that, in the event the CITY is required to take enforcement action to enforce the provisions of the restrictive covenants and declarations, the CITY shall be entitled to recover reasonable costs and attorney's fees from the party that is the subject of enforcement action in the event the CITY prevails in the action for enforcement. In addition, the terms of this Agreement shall be fully incorporated into the said restrictions and covenants and shall run with the land and be binding on all subsequent holders of title to all or any part of the Property. The CITY is intended to be a third-party beneficiary of the restrictive covenants and said provisions benefiting the CITY shall not be subject to revision by the Property Owners' Association or the DEVELOPER without agreement by the CITY. 9. Dedication of Land. The DEVELOPER agrees that it shall dedicate to the CITY a tract of approximately 2.7 acres approved by the CITY for public use as a municipal facilities site for fire, police, EMS, and other civic services in the general location depicted on Exhibit `B". The dedication shall be completed prior to the platting or development of any property adjacent to the dedication site. 10. Annexation. Pursuant to Chapters 42 and 43 and LGC § 212.172, the Parties agree that the Project Property shall remain in the extraterritorial jurisdiction of the CITY until the earlier of the PID being dissolved due to it having paid all of its financial obligations or the expiration of this 50071957.2 - 4 - Agreement. The CITY and the DEVELOPER expressly agree that, pursuant to Section 43.0715 of the Texas Local Government Code, as amended, the PID is apolitical subdivision and a Special District furnishing drainage services to the Project, and, during the term set forth above, the CITY shall not annex the Project Property within the PID unless the provisions of Section 43.0715 of the Texas Local Government Code, as amended, are complied with. 11. Order of Disannexation. Pursuant to Section 43.145, Texas Local Government Code, as amended, the DEVELOPER hereby requests, and the CITY hereby agrees, that the area located in the strip of land to be located within the PID that is currently within the CITY's incorporated area, being the area identified in Exhibit "D" attached hereto (which the DEVELOPER hereby represents and warrants is owned in whole by the DEVELOPER), shall be disannexed. In support of the above provision, the DEVELOPER and the CITY agree that: a. the CITY has a population of 4,000 or more; b. the County has a population of more than 205,000; and c. the area to be disannexed that is identified in Exhibit "D" contains more than three (3) contiguous acres that are unimproved and adjoin the CTTY's municipal boundaries. For the purpose of compliance with Section 43.148 of the Local Government Code, as amended, the DEVELOPER acknowledges that all money heretofor collected by the CITY in property taxes and fees from the disannexed property was spent for the direct benefit of the area during the time it was annexed, and the DEVELOPER waives any right to a refund of such money collected. 12. Landscaping. The DEVELOPER agrees to comply with all of the CITY's landscaping requirements, as modified from time to time, as if the Project Property were in the city limits of the CITY. At a minimum, [DESCRIBE MINIMUM RESIDENTIAL AND NON RESIDENTIAL LANDSCAPING REQUIREMENTS]. 13. Architecture. All structures will meet or exceed the architectural criteria set forth in the Declaration and the DEVELOPER and the Property Owners' Association shall provide for the use of materials, scale, architectural detailing, roof pitch, entryway, parking arrangements and similar issues to assure sustainability of value and sense of community as if the Project Property were in the city limits of the CITY. 14. Water and Wastewater Services; Drainage Services. All water utility service within the Project shall be provided by the CITY. All water infrastructure shall be built by the DEVELOPER to the specifications 50071957.2 - 5 - required by the CITY's utility regulations as if the Project Property were in the city limits of the CITY. [DESCRIBE WASTEWATER SERVICES AND COMPLIANCE WITH CITY AND CCMA DESIGN REQUIREMENTS.] The DEVELOPER shall be required to dedicate to the CITY and CCMA, as required, any and all easements for water and wastewater infrastructure, as well as all water and wastewater infrastructure constructed in said easements, through the platting process. Such infrastructure and easements shall be dedicated, without reservation, to the CITY and CCMA, as required, upon platting of the respective units of development within the Project. All potable water connections within the Project shall be the customers of the CITY and CCMA, respectively, for the purpose of water and wastewater service, and all fees for wastewater and water service shall be paid to the CITY or CCMA, as applicable, according to its fee schedules applicable to other portions of the CITY or CCMA, as applicable, for sewer and water customers. By agreement between the CITY and CCMA, the CITY may assume responsibility for wastewater services. The PID shall provide all drainage services within the boundaries of the PID pursuant to design parameters acceptable to the CITY. 15. Dedication of Water Rights. The DEVELOPER shall be required to locate, purchase, and dedicate to the CITY fee ownership of (a) transferable withdrawal rights from the Edwards Aquifer or (b) land including water rights that is adjacent to property owned by the Schertz- Seguin Local Government Corporation (that is acceptable to the CITY) in sufficient quantity for each Equivalent Dwelling Unit (hereafter "EDU") [MODIFY TO USE LUEs NOT EDUs?] of service being platted within the Project. 15.1 For the purpose of this Agreement, [SUBJECT TO FURTHER REVIEW AND MODIFICATION ACCEPTABLE TO THE CITY] it is agreed that one-acre foot of withdrawal rights is sufficient to serve one (1) [EDU] of development service demand. It is further agreed that the amount of [EDUs] that will be required to be dedicated to the CITY by the DEVELOPER shall be determined by the land use of the area being platted within the Project. By way of example, one platted single-family residential lot shall equal one [EDU] of service and shall require the dedication of one acre-foot of permanent transferable withdrawal rights from the Edwards Aquifer or of land and water rights in Gonzalez County acceptable to the CITY, and one unit of other types of development may require a greater or lesser amount based on the schedule of [EDUs] contained in the utility regulations of the CITY as applied to the entire service area of the CITY. 15.2 The Edwards Aquifer Water Withdrawal Rights, or title to real property including water rights in Gonzalez County, shall be dedicated to the CITY through proper documentation with the Edwards Aquifer Authority and/or any other instruments approved by the CITY, such as deeds to water 50071957.2 - 6 - rights, warranty deeds, or other written evidence acceptable to the CITY. In order to qualify as a dedication under this provision, the water rights must be dedicated in fee and may not be leased. Further, the water rights to be dedicated must be categorized as municipal or industrial withdrawal rights when transferred to the CITY and may not be agricultural or irrigation withdrawal rights. Further, the withdrawal rights must be capable of being withdrawn from the San Antonio pool of the Edwards Aquifer or be from land adjacent to facilities owned by the Schertz-Seguin Local Government Corporation and readily usable by the CITY's public water utility system. If Edwards Aquifer Authority withdrawal rights, the water rights shall be transferred and assigned to a public drinking water supply well within the CITY's water utility service area that is owned and operated by the CITY and designated to the DEVELOPER by the CITY. 15.3 The DEVELOPER shall be required to pay all costs associated with the acquisition and transfer of water rights to the CITY, and such transfer and dedication of water rights must occur for any property being platted at the time of platting of the real property, or at the time of connection, as allowed pursuant to Chapter 395 of the Texas Local Government Code, as amended. The CITY, and not the DEVELOPER or subsequent property owner, shall be solely responsible for the payment of all management fees subsequent to the transfer of the water rights from the DEVELOPER to the CITY. The DEVELOPER agrees to provide the CITY with proof that it owns or controls twenty five percent (25%) of the total water needed to complete the project (250 acre feet) prior to filing of the first plat with the CITY. [TIMING SUBJECT TO FURTHER REVIEW AND MODIFICATION BY THE CITY] 16. Public Services. During the term of this Agreement, while the Project is located within the extraterritorial jurisdiction of the CITY, the CITY shall not be required to provide police, fire, emergency services or code enforcement services, and shall not be required to expend any the CITY funds thereon. This provision shall not preclude such services being made available by the CITY if provided for by a separate agreement between the Parties with independent consideration. 17. Future Tax Base. The DEVELOPER projects that the new tax base to be created by the establishment of the PID and development of the Project that will be available to the CITY upon annexation will have a value in 20 of approximately $340,000,000.00. II. General Provisions A. Severability Should any provision of this Agreement be found to be illegal, unconstitutional or otherwise unenforceable, the remaining provisions shall be enforceable as if the offensive provision were not included herein. 50071957.2 - 7 - B. Modification and Notification Any modification to this Agreement must be in writing and signed by each Party hereto, or its successors, or they shall not be binding upon any of the Parties hereto. C. Successors and Assigns The terms of this Agreement shall be binding upon and inure to the benefits of the Parties and their respective successors, assigns, and legal representatives. The Parties agree that, upon execution, this Agreement shall be filed with the City Secretary of the CITY and in the Real Property Records of Bexar County, Texas, and shall run with the land binding all future owners or purchasers of all or any part of the Project Property and shall be incorporated into the Declaration and all Property Owners' Association documents. Upon creation of the Property Owners' Association, the DEVELOPER will cause the Property Owners' Association to assume all the obligations of the DEVELOPER under this Agreement through execution of an Addendum hereto. The execution of this Addendum must be completed prior to the filing of any application for platting with the CITY. D. No Partnership Neither this Agreement nor any part thereof shall be construed as creating a partnership, joint venture or other business affiliation between the Parties or otherwise. E. Entire Agreement This Agreement and the exhibits hereto supersede any and all other prior contemporaneous agreements, oral or written, between the Parties hereto with respect to the development of the Project Property. F. Notices All notices given with respect to this Agreement shall be in writing and being delivered upon receipt if hand delivered or sent by confirmed facsimile transmission and, if mailed, deemed received on the third business day after deposit in the United States Mail, postage prepaid, addressed to the Parties as shown below. If to the CITY: City Manager City of Schertz 1400 Schertz Parkway, Building 1 Schertz, TX 78154 With copy to: Michael Spain Fulbright & Jaworski L.L.P. 50071957.2 - g - 300 Convent, Suite 2200 San Antonio, TX 78205 If to the DEVELOPER: Dale DeLisse Crestmark Homes SA, LLC 9330 Corporate Drive, Suite #610 San Antonio, TX 78154 With copy to: David Earl Earl & Associates, P.C. 15303 Huebner Road, Building 15 San Antonio, TX 78248 G. Enforcement This Agreement may be enforced against either Party by the other Party through specific performance. Either Party shall have the right to cure any default within thirty (30) days after notice of said default having been provided by the non- defaulting Party. In the event legal action is necessary to enforce the terms of this Agreement, the prevailing party shall be entitled to attorney's fees, court costs, as well as any other damages found by a court of competent jurisdiction to be owed as a result of the breach. H. Signature Warranty Clause The signatories in this Agreement represent and warrant that they have the authority to execute this Agreement on behalf of the CITY and the DEVELOPER, respectively. 50071957.2 - 9 - SIGNED and EFFECTNE as of this day of , 2008. III. CITY OF SCHERTZ By Don Taylor, City Manager STATE OF TEXAS § COUNTY OF GUADALUPE § This instrument was acknowledged before me on the day of , 2008, by Don Taylor, City Manager, on behalf of City of Schertz. CRESTMARK HOMES SA, LLC, a limited liability company By: Name: Title: STATE OF TEXAS § COUNTY OF BEXAR § Notary Public, State of Texas My commission expires: This instrument was acknowledged before me on the day of , 2008, by for Crestmark Homes SA, LLC, a Texas limited liability company. Notary Public, State of Texas My commission expires: 50071957.2 S-1 TO BE SIGNED AFTER CREATION OF PROPERTY OWNERS' ASSOCIATION: The Crestmark Property Owners' Association, acting by its duly authorized agent, after approval by its Board of Directors on day of , 2008, agrees to and binds itself to the terms of this Agreement. 2008 Date CRESTMARK PROPERTY OWNERS' ASSOCIATION By:_ Name: Title: 50071957.2 S-2 EXHIBIT A The Project (Service Plan And Map) 50071957.2 A-1 EXHIBIT B Project Property (Survey Map) 50071957.2 B-1 EXHIBIT C Declaration of Covenants, Conditions and Restrictions 50071957.2 C-1 EXHIBIT D Property to be Disannexed 50071957.2 D-1 IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OF THE FOLLOWING INFORMATION FROM THIS INSTRUMENT BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR DRIVER' S LICENSE NUMBER. DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR CRESTMARK DEVELOPMENT THE STATE OF TEXAS § § KNOW ALL PERSONS BY THESE PRESENTS COUNTY OF BEXAR § THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR CRESTMARK DEVELOPMENT (this "Declaration"), is made on the date hereinafter set forth by CRESTMARK HOMES SA, LLC ("Declarant"), for the purpose of evidencing the covenants, conditions and restrictions contained herein. WITNESSETH: WHEREAS, (i) Declarant is the owner of that certain real property being developed as the Crestmark Development ("Subdivision" or "Development") and that is the subject of Development Agreements with Bexar County, Texas (the "County") and the City of Schertz, Texas (the "City") (together, the "Development Agreements"), said real property, +/-450 acres, as described by metes and bounds and legal descriptions attached hereto as Exhibits "A1" through "A" (the "Property"); NOW, THEREFORE, Declarant hereby declares that all of the Property shall be held, sold and conveyed subject to the following easements, restrictions, covenants and conditions, all 50072284.2 1 of which are for the purpose of enhancing and protecting the value, desirability and attractiveness of the Property and complying with the terms of the said Development Agreements. These easements, covenants, restrictions and conditions shall run with the Property and be binding on all parties and assigns, and shall insure to the benefit of the Declarant, each owner thereof, and the County and City. ARTICLE I ADDITIONAL DEFINITIONS 1.1 Areas of Common Responsibility. "Areas of Common Responsibility" shall mean those areas listed below which the Association shall maintain, upkeep and repair: (a) Any and all common areas, including parks, as may be depicted on the Project Plan attached hereto as Exhibit "B" and on the future plats subdividing the Property for the Development; (b) Any and all landscaping, entry way features, signage, landscaping and monument signage, fences, screening walls, irrigation systems, lighting and improvements located within the areas of common responsibility within the Development including, but not limited to, the entry features and signage, parks, open space and screening areas within the Development; and (c) Any and all landscape easements, detention ponds, private streets (if any), and common areas that may be depicted on the Project Plan and future plats to the extent the same is not maintained by the hereinafter described PID or any other entity. 50072284.2 2 1.2 Association. "Association" shall mean and refer to the Crestmark Property Owners Association, Inc., its successors and assigns [CERTIFICATE OF FORMATION AND BYLAWS TO BE REVIEWED]. 1.3 Builder. The term "Builder" shall mean a third party purchaser or owner of a lot or lots who purchases such lot or lots for the sole purpose of building a single family residential home, commercial building or other structure for a permitted use. Under no circumstances will a Builder, or any of its officers, directors, employees or others associated with the Builder occupy any residence constructed on a lot, unless such residence and lot are conveyed by deed to the individual occupying the residence. 1.4 City "City" shall mean the City of Schertz, Texas. 1.5 Commercial Building. "Commercial Building" shall mean a structure to be occupied for a permitted use other than asingle-family residence, including retail, restaurant, multi-family, etc. 1.6 Coun "County" shall mean Bexar County, Texas. 1.7 Declarant. The term "Declarant" shall mean Crestmark Homes SA, LLC (and its affiliated entities) and any party to whom it shall expressly assign in writing, its rights, powers, privileges and prerogatives hereunder. 1.8 Home. "Home" shall mean asingle-family residential unit constructed on a Lot being a part of the Property, including the parking garage utilized in connection therewith, if applicable, and the Lot upon which the Home is located. 50072284.2 3 19 Lienholder or Mort~a~ee. "Lienholder" or "Mortgagee" shall mean the holder of a first mortgage lien, second lien construction or home improvement mortgage lien or a home equity lien, either on any Home and/or any Lot. 1.10 Lot. "Lot" or "Lots" shall mean and refer to a portion of the Property designated as a Lot on a Plat of the Property, excluding open space, streets, alleys and an Area of Common Responsibility. Where the context requires or indicates, the term Lot shall include the Home or other building on a Lot and all other improvements, which are or will be constructed on the Lot. 1.11 Member. "Member" shall mean and refer to every person or entity who holds membership in the Association. The Declarant and each Owner shall be a Member in the Association. 1.12 Owner. "Owner" shall mean and refer to the record Owner, other than Declarant whether one or more persons or entities, of a fee simple title to any Lot and shall include any Builder, but shall exclude those having such interest merely as security for the performance of an obligation. However, the term "Owner" shall include any Lienholder or Mortgagee who acquires fee simple title to any Lot through deed in lieu of foreclosure or through judicial or nonjudicial foreclosure. 1.13 PID. The term "PID" shall mean the Crestmark Public Improvement District, established by the County, acting by its Board and/or duly authorized agents. 50072284.2 4 ARTICLE II PROPERTY RIGHTS 2.1 Maintenance of Areas of Common Responsibility by the Declarant and the Association. Initially, the Declarant will construct or create the Areas of Common Responsibility in a prudent manner to enhance the safety, security and overall appearance of the Development. The Association will be solely obligated to maintain and improve the Areas of Common Responsibility after they are conveyed to the Association by the Developer or the PID. As such, the Declarant and Association shall not, except as the Declarant or Association may reasonably deem appropriate to comply with applicable laws or to protect the health, safety or welfare of the Development or the Members, cause (i) any buildings or permanent structures to be constructed within the Areas of Common Responsibility, or (ii) allow any interference or conflict with the natural or planted vegetation or trees in the Areas of Common Responsibility. The Association shall have the following rights with regard to the Areas of Common Responsibility: (a) the right to dedicate or transfer all or any part of the Areas of Common Responsibility to any public agency or authority subject to such conditions as may be agreed to by the Members in accordance with this Declaration [and the Bylaws of the Association] and the requirements and limitations of the Development Agreements attached hereto as Exhibits "C" and "D". No such dedication or transfer shall be effective unless (a) an instrument of agreement to such dedication or transfer, signed by three-fourths (3/4) of the Board members entitled to vote (determined pursuant to Section 3.2 hereof), is properly recorded in the Real Property Records of County, (b) a written notice of proposed action under this Section is sent to every Owner (including Lienholder or Mortgagees) not less than thirty (30) days, nor more than sixty 50072284.2 5 (60) days in advance of said action, and (c) the City consents in writing to the dedication or transfer; (b) the right to borrow money to be secured by a lien against the Areas of Common Responsibility; however, the rights under such improvement mortgage shall be subordinate and inferior to the rights of the City and of the Owners hereunder; and (c) the right to enter upon and make rules and regulations relating to the use of the Areas of Common Responsibility and the right to entry upon any access, maintenance or other easements for the purposes of maintaining the Areas of Common Responsibility. 2.2 Title to Areas of Common Responsibility. The recordation of this Declaration shall serve as a dedication and conveyance to the Association of the fee simple title to the Areas of Common Responsibility owned by Declarant free and clear of monetary liens and encumbrances other than those created in or subordinate to this Declaration. It is agreed by Declarant and the Association that such dedication and conveyance is for adequate consideration. 2.3 Compliance with Development Agreements. All property under the purview of these restrictions shall be subject to the conditions and restrictions on use contained in the Development Agreements, copies of which are attached hereto as Exhibits "C" and "D" and are made a part hereof for all purposes. ARTICLE III ASSOCIATION MEMBERSHIP AND VOTING RIGHTS 31 Membership. Declarant, during the time it owns any Lots, and each person or entity who is an Owner of a fee or undivided interest in any Lot shall be a Member of the Association. The foregoing is not intended to include persons or entities that hold an interest merely as security for the performance of an obligation. Membership shall be appurtenant to and 50072284.2 6 may not be separated from any ownership of any Lot, which is subject to assessment by the Association or the PID. Transfer of ownership of a Lot, either voluntarily or by operation of law, shall terminate such Owner's membership in the Association as to such Lot, and membership shall be vested in the transferee of such Lot; provided, however, that no such transfer shall relieve or release such Owner from any personal obligation with respect to assessments which have accrued prior to such transfer. 3.2 Voting Rights. The Association shall have three (3) classes of voting membership. (a) Class "A". The Class "A" Members shall be all Owners. The Class "A" Members shall be entitled to one vote for each Lot owned. When more than one person holds an interest in any Lot, all such persons shall be Members. The vote for such Lot shall be exercised as they among themselves determine, but in no event shall more than one vote be cast with respect to any Lot. (b) Class `B". The Class "B" Member shall be Declarant. Declarant shall be entitled to three votes for each Lot it owns; provided however that Declarant shall cease to be a Class "B" Member and shall become a Class "A" Member entitled to one vote per Lot on the happening of either of the following events: (i) when the total votes outstanding in the Class "A" membership equals the total votes outstanding in the Class "B" membership, or (ii) the expiration of ten (10) years after the recording date of this instrument in the Real Property Records of the County. (c) Class "C". Adjoining Community Member. There shall be one (1) Member appointed from the adjoining community to serve as a liaison with the community of 50072284.2 7 property owners in existence at the time of recording of these restrictions. The Class "C" Member shall be appointed pursuant to Section of the Development Agreement between the Declarant and the County. The Class "C" Member shall not be a voting Member, but shall be entitled to attend all Association meetings and functions and shall be entitled to speak on any issue as if the Class "C" Member were a Class "A" or "B" Member. The Association shall inform the Class "C" Member of all meetings and functions in the same manner as notice is provided to any other Member. The Class "C" membership shall remain in effect for so long as one such member is properly appointed by the surrounding community under the restrictions and limitations provided for in the Development Agreement between the Declarant and the County, but not thereafter. 3.3 No Cumulative Voting. At all meetings of the Association, there shall be no cumulative voting. Prior to all meetings, the Board of Directors shall determine the total number of votes outstanding and entitled to vote by the Members. 3.4 Association's Powers. In addition to the rights of the Association set forth in other sections of this Declaration, the Association shall have the right and obligation to enforce the covenants under this Declaration and maintain all Areas of Common Responsibility, to the extent the same is not provided for by the PID, and shall have the right, power, and authority to do any act which is consistent with or required by the provisions of this Declaration and the Association's Bylaws, whether the same be expressed or implied including, but not limited to, the following: (a) The power to levy and collect Assessments (as hereinafter defined in Section 4.1), of whatever nature for the maintenance, repair or replacement of the Areas of 50072284.2 g Common Responsibility existing on the Property and for such other purposes as are herein provided; (b) The power to keep accounting records with respect to the Association's activities; (c) The power to contract with and employ others for maintenance, repair, private security, or other lawful functions; and (d) The power to adopt rules and regulations concerning the operation of the Association. ARTICLE IV ASSESSMENTS MAINTENANCE FUND AND ASSESSMENT LIENS 4.1 Creation of the Lien and Personal Obligation for Assessments. Each Owner of a Lot by acceptance of a deed therefore, whether or not it shall be expressed in any such deed or other conveyance, covenants and agrees to pay to the Association (i) annual assessments or charges, (ii) charges in connection with the transfer of a Lot, and (iii) any special assessments for capital improvements. Such assessments (collectively, the "Assessments") are to be fixed, established and collected as provided herein. Assessments, together with such interest thereon and costs of collection thereof, as hereinafter provided, shall be a charge on the Lot and shall be secured by a continuing lien which is hereby created and impressed for the benefit of the Association upon the Lot against which each such Assessment is made. The Owner of each Lot shall also be required to pay all assessments of the PID as they are due. Each such Assessment, together with such interest costs and reasonable attorney's fees shall also constitute a personal obligation of the person or entity that was the Owner of such Lot at the time of the Assessment. The personal obligation for delinquent Assessments shall not pass to successors in title unless 50072284.2 9 expressly assumed in writing by such successors; however, the lien upon the Lot shall continue until paid. 4.2 Purpose of Assessments. The Assessments levied by the Association shall be used exclusively for the purpose of promoting the recreation, health, safety and welfare of the Owners of the Lots, the improvements and maintenance of the Areas of Common Responsibility and any other property owned by the Association, and the performance and/or exercise of the rights and obligation of the Association arising hereunder. Assessments shall include, but not be limited to, funds to cover actual Association costs (including reasonable reserves) for all taxes, insurance, repair, replacement, maintenance and other activities as may from time to time be authorized by the Board of Directors; legal and accounting fees, and any fees for management services; expenses incurred in complying with any laws, ordinances or governmental requirements applicable to the Association or the Property; reasonable replacement reserves and the cost of other facilities and service activities including, but not limited to, mowing grass, grounds care, sprinkler system, landscaping, and other charges required or contemplated by this Declaration and/or that which the Board of Directors of the Association shall determine to be necessary to meet the primary purpose of the Association, including the establishment and maintenance of a reserve for repair, maintenance, taxes and other charges as specified herein including, but not limited to, the community center, park facilities and open space, and other Areas of Common Responsibility. 4.3 Basis and Maximum of Annual Assessments and Transfer Fees on the Sale of Lots. 50072284.2 10 (a) From and after January 1st of the first full year after the date of recordation of this Declaration, the regular annual Assessment of the Association may be increased by the Board of Directors at a maximum rate of twenty percent (20%) per year, compounded annually ("Allowed Increase"). Any increase over and above the Allowed Increase shall be done only by the prior written approval of sixty-six and two-thirds percent (66-2/3%) of the outstanding votes (determined pursuant to Section 3.2 herein) held by the Members at a meeting at which a quorum is present. These provisions shall not apply to the assessments of the PID, which are set solely by the County Commissioners Court and the Board of Directors of the PID pursuant to applicable law. (b) In addition to the regular annual Assessment, as a condition to the sale of every Lot by an Owner in the Development, other than a Lot owned by a Builder, a transfer fee of $100.00 shall be charged to the seller of such Lot being conveyed (except for sales by Declarant), and a transfer fee of $100.00 shall be charged to the purchaser of the Lot being conveyed and the pro-rata share of annual Assessments then due on such Lot shall be paid by the purchaser of the Lot to the Association. No refund of any paid Assessment shall be payable to the Seller of the Lot upon such transfer. The transfer fee provided for herein shall be for the benefit of the Association, to be used to establish a capital reserve for the Association and shall only increase by an amount to be determined by the Board of Directors. 4.4. Special Assessments. In addition to the regular annual Assessment and transfer fees payable on the sale of Lots authorized above, the Association may levy, in any assessment year, a Special Assessment applicable to that year only, for the purpose of defraying, in whole or in part, the costs incurred by the Association pursuant to the provisions of this Declaration, provided that any such Assessment shall have the prior written approval of sixty-six and two- 50072284.2 ll thirds percent (66-2/3%) of the outstanding votes (determined pursuant to Section 3.2 hereof) held by the Members at a meeting at which a quorum is present. As to a particular Owner, any Special Assessment shall be prorated based on the period of time the Owner owns the Lot during such year. 4.5 Notice and Quorum for any Action Authorized Under Sections 4.3 and 4.4. Written notice of any meeting called for the purpose of taking any action authorized under Sections 4.3 and 4.4 hereunder shall be given to all Members not less than ten (10) days nor more than twenty (20) days in advance of such meeting. At such meeting, the presence of Members or of written proxies entitled to cast sixty percent (60%) of all the votes entitled to be cast by the Members of the Association shall constitute a quorum. If the required quorum is not present, another meeting maybe called subject to the same notice requirements, but the required quorum at the subsequent meeting shall be thirty percent (30%) of all votes entitled to be cast by the Members of the Association. 4.6 Uniform Rate Assessment. Both the regular annual Assessments and Special Assessments shall be fixed at a uniform rate for all Lots, and shall commence and be due in accordance with the provisions of Section 4.7 hereof. Each Owner (other than Declarant who is required only to pay the deficiency described below), shall pay one hundred percent (100%) of the established Assessment for each Lot he or it owns. 4.7 Date of Commencement of Annual Assessments; Due Dates. (a) The obligation to pay regular annual Assessments provided for herein shall commence no earlier than the date this Declaration is recorded. The Assessments shall then be due on January 1 of each year or on such other payment date as may be established by the 50072284.2 12 Board of Directors of the Association from time to time. Assessments shall be due and payable on an annual basis unless otherwise designated by the Board of Directors of the Association. (b) As long as Declarant is a Class "B" Member pursuant to Section 3.2 hereof, Declarant shall pay the deficiency resulting in the event the cost of maintenance of the Areas of Common Responsibility exceeds the amount of the Assessments received from the Owners; provided, however, in such event, Declarant shall not otherwise be required to pay Assessments with respect to portions of the Property owned by Declarant, and Declarant shall have the right to seek reimbursement of such costs expended by Declarant from the PID; and further, provided, however, in no event shall Declarant be required to pay an amount which is in excess of one hundred percent (100%) of the established Assessment for each Lot it owns. When the Declarant is converted to a Class "A" Member, the Declarant (i) shall no longer be responsible for contributing shortfalls outlined in the preceding sentence but rather, (ii) shall commence paying regular annual Assessments and Special Assessments pursuant to Sections 4.3 and 4.4 hereof calculated on the number of Lots Declarant then owns. (c) Unless provided above, the annual Assessments for the first Assessment year shall be fixed by the Association prior to the sale of the first Lot to an Owner. A Builder shall be exempt from payment of Assessments during the first year on the Builder's Lots that are vacant at the time of the due date for payment of the Assessments. Except for the first Assessment year, the Association shall fix the amount of the annual Assessment at least thirty (30) days in advance of each Assessment year, which shall be the calendar year; provided, however, that the Association shall have the right to adjust the regular annual Assessment upon thirty (30) days written notice given to each Owner, as long as any such adjustment does not exceed the maximum permitted amount pursuant to Section 4.3(a) hereof. Written notice of the 50072284.2 13 regular annual Assessment shall be given as soon as is practicable to every Owner subject thereto. The Association shall, upon demand at any time, furnish a certificate in writing signed either by the President, Vice President or the Treasurer of the Association setting forth whether the annual and special Assessments on a specified Lot have been paid and the amount of any delinquency. A reasonable charge may be made by the Association for the issuance of these certificates. Such certificates shall be conclusive evidence of payment of any Assessment therein stated to have been paid. (d) No Owner may exempt himself from liability for Assessments by waiver of the use or enjoyment of any portion of the Development or Areas of Common Responsibility or by abandonment of his Lot or Home. (e) The Assessments charged and collected by the Association (if any) shall be separate and apart from, and shall be in addition to, any assessments charged by the PID. 4.8 Effects of Non-Payment of Assessments; Remedies of the Association. (a) All payments of the Assessments shall be made to the Association at its principal place of business in Bexar County, Texas or at such place as the Association may otherwise direct or permit in writing to the Members. Payment shall be made in full regardless of whether any Owner has any dispute with Declarant, the Association, any other Owner or any other person or entity regarding any matter to which this Declaration relates or pertains. Payments of the Assessments shall be both a continuing affirmative covenant personal to the Owner and a continuing covenant running with the Lot. (b) Any Assessment provided for in this Declaration, which is not paid when due shall be delinquent. If any such Assessment is not paid within thirty (30) days after the date of delinquency, the Assessment shall bear interest from the date of delinquency (with no notice 50072284.2 14 required to be given), until paid, at the rate of eighteen percent (18%) per annum or the maximum rate allowed by law, whichever is the lesser. The Association may, at its option, bring an action at law against the Owner personally obligated to pay the same, or, upon compliance with the notice provisions hereof, foreclose the lien against the Lot as provided in Subsections 4.8 (c) hereof. There shall be added to the amount of such Assessments the costs of preparing and filing the complaint in such action, and, in the event a judgment is obtained, such judgment shall include said interest and reasonable attorney's fees, together with the costs of actions. Each Owner vests in the Association or its assigns, the right and power to bring all actions at law or in equity foreclosing such lien against such Owner, and the expenses incurred in connection therewith, including interest, costs and reasonable attorney's fees shall be chargeable to the Owner in default. Under no circumstances, however, shall Declarant or the Association be liable to any Owner or to any other person or entity for failure or inability to enforce any Assessments. (c) Without limiting the enforcement authority stated in this Section, the Assessment lien established herein may be enforced by judicial or nonjudicial foreclosure. To secure the payment of Assessments, Special Assessments and reimbursements and to ensure compliance with the applicable covenants, conditions, restrictions and easements set forth herein, each Owner, upon acceptance of his or her deed to a Lot conveys the Lot to the Trustee hereinafter named, in trust, for so long as these covenants, conditions, restrictions and easements shall remain in effect, such conveyance operating as a Special Deed of Trust. If an Owner fails to tender payment of Assessments, Special Assessments, or reimbursements when due, or if an Owner fails to perform any of the Obligations under or maintain any condition required by this Declaration, the Association may perform those obligations, advance whatever funds may be required, and then be reimbursed by the Owner on demand for any sums so advanced, including 50072284.2 15 attorney's fees, plus interest on those sums from the dates of payment at the highest legal rate. The sum to be reimbursed shall be secured by this Special Deed of Trust. If the Owner fails on demand to reimburse the Association for the sums advanced or for the Assessments owed, and such failure continues after the Association gives the Owner notice of the failure and the time within which it must be cured, as may be required by law or by written agreement, then the Association, as the Beneficiary of this Special Deed of Trust, may (1) request the Trustee appointed herein, or his successor, to foreclose the liens created herein, in which case the Association shall give notice of the foreclosure sale as provided by Section 51.002 et. seq. of the Texas Property Code (as amended) then in effect or any successor statute thereto; and (2) sell the Lot at any foreclosure sale by offering the highest bid and then have the bid credited to the reimbursement or satisfaction of the outstanding indebtedness owed to the Association. The Association shall have the right, but not the obligation, to purchase the Lot if it is the highest bidder at the foreclosure sale. If the Association shall foreclose this lien, the Trustee shall (a) personally or by agent give notice of the foreclosure sale as required by Section 51.002 et. seq. of the Texas Property Code then in effect (or any successor statute thereto), (b) sell and convey the Lot to the highest bidder for cash with a general warranty binding the Owner, subject to prior liens and to other exceptions to conveyance and warranty; and (c) from the proceeds of the sale, pay, in this order, (i) expenses of foreclosure, including a commission to Trustee of five percent (5%) of the successful bid; (ii) to the Association, the full amount advanced, attorney's fees, and other charges due and unpaid; (iii) any amounts required by law to be paid before payment to the Owner; and (iv) to the Owner, any remaining balance. A management company will be appointed Trustee by the Association for the purpose of enforcing the covenants, conditions and restrictions imposed by this Declaration, and also for the collection of Assessments. The 50072284.2 16 Association, as Beneficiary, may appoint a substitute or successor trustee, succeeding to all rights and responsibilities of the Trustee appointed herein, by filing an appropriate designation of substitute trustee among the Real Property Records of Bexar County, Texas. From and after any such foreclosure, the occupants of such Lot shall be required to pay a reasonable rent for the use of such Lot and such occupancy shall constitute atenancy-at-sufferance. The purchaser at such foreclosure shall be entitled to the appointment of a receiver to collect such rents and, further, shall be entitled to sue for recovery of possession of such Lot by forcible detainer without further notice. It is the intent of the provisions of this Section to comply with the provisions of Texas Property Code Section 51.002 as may be amended hereafter, and, which amendment is applicable hereto. The President of the Association, acting without joinder of any Owner or Mortgagee of any Owner, but with the prior written consent of the City, may, by amendment to this Declaration filed in the office of the County Clerk of Bexar County, Texas, amend the provisions hereof so as to comply with said amendments to 51.002. (d) Upon the timely curing of any default for which a notice of claim of lien was filed by the Association, the officers of the Association are hereby authorized to file or record, as the case maybe, an appropriate release of such notice, upon payment by the defaulting Owner of a fee, to be determined by the Association but not to exceed the actual cost of preparing and filing or recording the lien and the release. The Assessment lien and the right to foreclosure sale hereunder shall be in addition to and not in substitution of all other rights and remedies which the Association and its successors or assigns may have hereunder and by law, including the right of suit to recover a money judgment for unpaid Assessments, as above provided. 50072284.2 17 (e) In exercising the rights and remedies set out in this part IV, and in all other respects as applicable to the this Declaration, the provisions of the Texas Property Code, Section 209, Texas Residential Property Owners Protection Act shall apply and shall take precedence over any provision in conflict therewith. 4.9 Subordination of Lien to Mortgages or PID Liens. The lien securing the Assessments provided for herein shall be expressly subordinate to the lien of any first lien mortgage on any Lot, any second lien construction of home improvement lien, any home equity lien on any Lot, or any lien for PID assessments. The sale or transfer of any Lot shall not affect the Assessment lien. [However, the sale or transfer of any first lien mortgage, pursuant to a decree of foreclosure or anon-judicial foreclosure under such first lien mortgage or any proceeding in lieu of foreclosure thereof, shall extinguish the lien of such Assessments as to payments thereof which became due prior to such sale or transfer. [WHY?] No sale or transfer shall relieve such Lot from liability for any Assessment thereafter becoming due, in accordance with the terms herein provided.] 4.10 Management and Service Agreements. The Association shall be authorized to enter into management agreements or service agreements with third parties in connection with the operation and management of the development and the performance of its obligations hereunder and/or for general services, such as solid waste collection, for each Lot. A copy of all such agreements shall be available to each Owner at the Association's offices. The Association may, at its discretion, assume self-management of the development by the Association. 4.11 Insurance Requirements. The Association shall obtain insurance policies covering the Areas of Common Responsibility covering all damage or injury caused by the negligence of the Association, any of its employees, officers, directors and/or agents, including, 50072284.2 Ig but not limited to, commercial general liability insurance, directors and officers liability insurance, and such other insurance as the Association may from time to time deem necessary or appropriate. 4.12 Independent Accounting Firm Review. The Association shall have its income and expense statements, balance sheets and other books and records reviewed by an independent accounting firm annually (beginning the first full calendar year in which a new Home is sold), such review to be performed within 90 days following the end of the Association's fiscal year. The review shall be performed in accordance with guidelines established by the American Institute of Certified Public Accountants. ARTICLE V ARCHITECTURAL REVIEW COMMITTEE 5.1 Appointment of Members. The Board of Directors of the Association shall appoint three (3) Owners to serve as the Architectural Control Committee (the "Committee") All matters before the Committee shall be decided by a majority vote of its members. In the event of death, incapacity or resignation of a member of the Committee, the successor for such member shall be appointed by the Board of Directors of the Association. Declarant and Builders are not subject to any determinations of the Architectural Control Committee for any new Home construction in the Subdivision. 5.2 Submission of Plans to Architectural Control Committee. No building, fence, wall, parking area, swimming pool, spa, pole, mail box, driveway, fountain, pond, tennis court, sign, exterior shape, or modification of a structure shall be commenced, erected or maintained upon any Lot, nor shall any exterior addition to or change or alteration therein be made until the 50072284.2 l9 plans and specifications showing the nature, kind, shape, height, materials and location of the same are submitted to and approved by the Committee. Plans and specification shall be submitted to the Committee at least thirty (30) days prior to the commencement of any construction or modification. The following shall be submitted for approval: a site plan showing the entire Lot with existing improvements, and floor plan and elevations of all faces of the proposed structure; and a description of all exterior construction materials. A copy of the above described plans and specifications may be retained by Declarant. 5.3 Approval of Plans. The Committee shall review the plans and specifications and notify the Owner in writing of its approval or disapproval. If the Committee fails to approve or disapprove said plans and specifications within thirty (30) days after the same has been submitted to it, no approval will be required, and the Owner may proceed; however any non- action on the part of the Committee shall not be deemed approval by the Committee. Any disapproval given by the Committee shall set forth the elements disapproved and the reason or reasons thereof. The judgment of the Committee in this respect in the exercise of its sole and absolute discretion shall be final and conclusive, and the Owner shall promptly correct the plans and specifications (if disapproved) and resubmit them for approval. The Committee may not approve any plans that are or will be in conflict with the applicable codes or requirements of the City that would apply if the Development were within the city limits of the City. No construction, alteration, change or modification shall commence until (i) thirty (30) days after such construction, alteration, change or modification is presented to the Committee for approval or (ii) approval has been granted by the Committee. The Committee may approve any deviation from these covenants and restrictions as the Committee, in its sole and absolute discretion, deems consistent with the purpose hereof, provided they do not conflict with the codes or requirements 50072284.2 20 of the City that would apply if the Development were within the city limits of the City. No member of the Committee shall be liable to any Owner for any claims, causes of action or damages arising out of the denial of any submittal or grant of any deviation to an Owner. Future requests for deviations submitted hereunder shall be reviewed separately and apart from other such requests and the grant of a deviation to any Owner shall not constitute a waiver of the Committee's rights to strictly enforce the Declaration and the architectural standards provided herein against any other Owner. Approval by the Committee of the plans and specifications or its determination that the completed construction or modification has been constructed in accordance with the plans and specifications shall be deemed to be an acknowledgment by the Committee that such are in accordance with this Declaration and such acknowledgment shall be binding against the Owners of the Lots and the Property. 5.4 Committee Members' Liability. The Owners agree that neither the Declarant, the Association, the Board, the Committee nor any employees, officers, directors or members thereof shall be liable for damages or otherwise to anyone submitting plans and specifications for approval or to any Owner affected by this Declaration by reason of mistake of judgment, negligence or nonfeasance arising out or in connection with the approval or disapproval or failure to approve or disapprove any plans or specifications. Any errors in or omissions from the plans of the site plan submitted to the Committee shall be the responsibility of the Owner of the Lot to which the improvements relate, and the Committee shall have no obligation to check for errors in or omissions from any such plans, or to check for such plans' compliance with the general provisions of this Declaration, City codes and regulations, state statutes, or the common law, whether the same relate to Lot lines, building lines, easements or any other issue. 50072284.2 21 ARTICLE VI CONSTRUCTION OF IMPROVEMENTS AND USE OF LOTS 6.1 Residential Use. The tracts of Property that are platted as residential subdivisions shall be used for single-family residential purposes only. Commercial, multi- family, or institutional uses shall be allowed only on tracts of property that are platted for commercial or other than single-family residential purposes. No single-family home or building shall be erected, altered, placed or permitted to remain on any Lot other than one (1) detached single family residence per residential Lot, which residence may not exceed two and one-half (2 1/2) stories in height and a private garage as provided below, if applicable, which residence shall be constructed to minimum Federal Housing Authority ("FHA") and Veteran's Administration ("VA") standards and the applicable standards of the City, which by contract apply to the Development. The ground floor area of the main structure, exclusive of one-story open porches, terraces, patios or garages, whether attached or detached, shall be a minimum of 1,000 square feet insofar as a single-story dwelling is concerned. The total floor area of the main structure exclusive of one-story open porches, terraces, patios or garages, whether attached or detached, shall be a minimum of 1,200 square feet insofar as a two-story dwelling is concerned. 6.2 Single Family Use. Each residence shall be limited to occupancy by only one family consisting of persons related by blood, adoption or marriage or no more than two unrelated persons residing together as a single housekeeping unit, in addition to any household or personal servant staff. 50072284.2 22 6.3 Restrictions on Resubdivision. No platted single-family Lot shall be subdivided into smaller Lots without the authorization of the City and the Board of Directors of the Association. 6.4 Driveways. All driveways shall be surfaced with concrete or similar substance approved by the Committee. 6.5 Uses Specifically Prohibited. (a) No temporary dwelling shop, trailer or mobile home of any kind or any improvement of a temporary character (except children's playhouses, dog houses, greenhouses, gazebos and buildings for storage of lawn maintenance equipment which may be placed on a Lot only in places which are not visible from any street on which the Lot fronts) shall be permitted on any Lot except that a Builder or Builder's contractor may have temporary improvements (such as a sales office and/or construction trailer) on a specifically permitted Lot during construction of the residence or buildings on that Lot or sales by any Builder of Homes on commercial property in the Development. No building material of any kind or character shall be placed or stored upon the Property until construction is ready to commence, and then such material shall be placed totally within the property lines of the Lot upon which the improvements are to be erected. (b) No boat, marine craft, hovercraft, aircraft, recreational vehicle, pick-up camper, travel trailer, motor home, camper body or similar vehicle or equipment may be parked for storage in the driveway or front yard of any single-family residential dwelling or parked on any public street on the Property within asingle-family residential area, nor shall any such vehicle or equipment be parked for storage in the side or rear yard of any residence unless fully 50072284.2 23 concealed from public view. No such vehicle or equipment shall be used as a residence or office temporarily or permanently. This restriction shall not apply to any vehicle, machinery or equipment temporarily parked while in use for the construction, maintenance or repair of a Home in the Development. (c) Trucks with tonnage in excess of one and one-half (1'/2) tons and any commercial vehicle with painted advertisement shall not be permitted to park overnight on the Property except those used by a Builder during the construction of improvements. (d) No vehicle of any size which transports flammable or explosive cargo may be kept on the Property at any time. (e) No motorized vehicle or similar equipment shall be parked or stored in an area visible from any street except passenger automobiles, passenger vans, motorcycles, pick-up trucks (including those with attached bed campers) that are in operating condition and have current license plates and inspection stickers and are in current use. (f) No structure of a temporary character, such as a trailer, tent, shack, barn, underground tank or structure or other out-building shall be used on the Property at any time as a dwelling house; provided, however, that any Builder may maintain and occupy model houses, sales offices and construction trailers during the construction period, but not as a residence. (g) No oil drilling, oil development operation, oil refining quarrying or mining operations of any kind shall be permitted in or on the Property, nor shall oil wells, tanks, tunnels, mineral excavations or shafts be permitted upon or in any part of the Property. No derrick or other structure designed for use in quarrying or boring for oil, natural gas or other minerals shall be erected, maintained or permitted on the Property. 50072284.2 24 (h) No animals, livestock or poultry of any kind shall be raised, bred or kept on the Property except that dogs, cats or other qualified domestic animals may be kept as household pets. Animals are not to be raised, bred or kept for commercial purposes or for food. It is the purpose of these provisions to restrict the use of the Property so that no person shall quarter on the premises cows, horses, bees, hogs, sheep, goats, guinea fowls, ducks, chickens, turkeys, skunks or any other animals that may interfere with the peace and quiet and health and safety of the community. The number of pets permitted on each Lot is that permitted by the City from time to time. Pets must be restrained or confined to the homeowner's rear yard within a secure fenced area or within the house. It is the pet owner's responsibility to keep the Lot clean and free of pet debris or odor noxious to adjoining Lots. All animals must be properly registered and tagged for identification in accordance with ordinances of the City as if the Development were in the city limits of the City. (i) No Lot or other area of the Property shall be used as a dumping ground for rubbish or accumulation of unsightly materials of any kind, including without limitation, broken or rusty equipment, disassembled or inoperative cars and discarded appliances and furniture. Trash, garbage or other waste shall not be kept except in sanitary containers in compliance with applicable governmental ordinances, rules and regulations of the City as if the Development were in the city limits of the City. All containers for the storage or other disposal of such material shall be kept in clean and sanitary condition and must be hidden from public view except when awaiting collection on a regularly scheduled collection day. Materials incident to construction of improvements may only be stored on Lots during construction of the improvement thereon. (j) No individual water supply system shall be permitted on any Lot. 50072284.2 25 (k) No individual sewage disposal system shall be permitted on any Lot. (1) No garage, garage house or other out-building (except for sales offices and construction trailers during the construction period) shall be occupied by any Owner, tenant or other person prior to the erection of a residence. (m) No air-conditioning apparatus shall be installed on the ground in front of a residence. No air-conditioning apparatus shall be attached to any front wall or window of a residence. No evaporative cooler shall be installed on the front wall or window of a residence. (n) Except with the written permission of the Committee or as preempted by the FCC or other governmental agency, no antennas, satellite dishes or other equipment for receiving or sending sound or video signals shall be permitted in or on the Property except antennas for AM or FM radio reception and UHF and VHF television reception, except that one satellite dish or similar antenna that must be no greater than one (1) meter in diameter and must be placed in the least conspicuous location on a Lot where an acceptable quality signal can be received so long as it is completely screened from view from any adjacent street or other public area. (o) No Lot or improvement thereon shall be used for a business, professional, commercial or manufacturing purposes of any kind for any length of time. No business activity shall be conducted on the Property which is not consistent with single family residential purposes. No noxious or offensive activity shall be undertaken on the Property, nor shall anything be done which is or may become an annoyance or nuisance to the neighborhood. Nothing in this subparagraph shall prohibit a Builder's temporary use of a residence as a sales/construction office for so long as such Builder is actively engaged in construction on the Property. 50072284.2 26 (p) No shrub, tree, object or thing which obstructs sight lines at elevations between two (2) and six (6) feet above the roadway shall be placed or permitted to remain on any corner lot within the triangular area formed by the street property lines of such lot and a line connecting such property lines at point located on each said street property lines at a distance of twenty-five (25) feet from the point where such lines intersect or would intersect if extended; nor shall any such obstruction be placed or permitted to remain on any lot within the triangular area formed by the street side property lines of such lot, the edge line of any driveway or alley pavement, and a line connecting said lines at points located on each of said lines at a distance often (10) feet from the point at which said lines intersect or would intersect if extended. (c~ Except for children's playhouses, dog houses, greenhouses, gazebos and buildings for storage of lawn maintenance equipment, no building previously constructed elsewhere shall be moved onto any Lot, it being the intention that only new construction be placed and erected on the Property. (r) Within those easements on each Lot as designated on the Plat or any subsequent approved and recorded Plat of the Development, no improvement, structure, planting or materials shall be placed or permitted to remain which might damage or interfere with the installation, operation and maintenance of public utilities, or which might alter the direction of flow within drainage channels or which might obstruct or retard the flow of water through drainage channels. The general grading, slope and drainage plan of a Lot as established by Declarant's approved development plans may not be altered without the approval of the City and/or other appropriate agencies having authority to grant such approval. (s) An Owner shall be entitled to display one sign on his Lot from time to time for purposes of selling or renting the property; provided, that each face of such sign shall be 50072284.2 27 rectangular in shape and shall not exceed five (5) square feet in surface area, and that the content of such sign be limited to the words "Sold", "For Sale", or "For Rent" or similar language and the name and telephone number of the seller or real estate agent, and the words "Shown by Appointment Only". No "Sold" signs shall remain on a lot more than two (2) weeks after completion of the sale. In addition, during the period of Lot sales and construction of new residences, Builders maintaining a sales or construction office within the Subdivision, Declarant, and other Builders with consent of Declarant shall have the right to place a reasonable number of directional signs and other "Sold" and "For Sale" signs (not exceeding eight square feet in size) in the Subdivision. An Owner shall have the right to install one sign noting the existence of a residential security system; no such sign shall be placed greater than two (2) feet from the residence. The Association may place signs on Lots noting special accomplishments, such as awards for "Yard of the Month", holiday decorating, and landscaping. Owners may also place holiday decorations in yards. No other sign, advertisement, billboard or advertising structure of any kind may be erected or maintained within subdivision boundaries without first having obtained the consent in writing of the Board of Directors of the Association, which consent may be withheld without cause and which consent shall not be given unless the Board finds that the sign will create a benefit for the general membership of the Association. The Board of Directors of the Association shall have the right to remove any unpermitted sign, advertisement, billboard or structure which is erected or placed on any lot or adjacent easement or right-a-way without such consent, and in so doing, the Owner agrees that the Board and the Association shall not be subj ect to any liability for trespass or other tort in connection therewith. 50072284.2 28 No sign shall be displayed on any motor vehicle, trailer, bus, boat, camper or related means of transportation, except for commercial vehicles upon which the following may appear: (1) the name of the business owning or leasing the vehicle, (2) the street address of the business owning or leasing the vehicle, (3) the telephone number of the business owning or leasing the vehicle, (4) any license number of the business owning or leasing the vehicle required by a regulatory authority, and (5) any logo of the business owning or leasing the vehicle. As used herein the term "commercial vehicle" shall mean a motor vehicle that (1) is owned or leased by a business, (2) is utilized solely in the furtherance of the business purpose, (3) is utilized solely for transporting equipment, parts and tools used for the business purpose, (4) is covered by a policy of insurance as a commercial vehicle, and (5) is not used for general transportation of the primary driver. No sign of a temporary nature, i.e. magnetic or easily removed and replaced, shall be allowed. No sign of any kind shall be placed or allowed to remain on any private street, public street, or right-of--way except authorized governmental signs. The provisions of this Article VI may be enforced at any time by any person or entity named, referenced or identified on any sign. (t) Outdoor clothes lines and drying racks visible to adjacent Lots are prohibited. Owners or residents of Lots where the rear yard is not screened by solid fencing or other such enclosures shall construct a drying yard or other suitable enclosure or screening to shield from public view clothes drying racks, yard maintenance equipment and/or storage of materials. 50072284.2 29 (u) Except within fireplaces in the main residential dwelling and equipment for outdoor cooking, no burning of anything shall be permitted anywhere on the Property. 6.6 Sidewalks. All walkways along public right-of--ways shall conform to the minimum property standards of the City, FHA and VA. 6.7 Windows. Windows, jambs and mullions shall be composed of anodized or painted aluminum or wood. All front elevation windows shall have baked-on painted or anodized aluminum windows (no mill finish). 6.8 General Maintenance of Lots. Following occupancy of the Home upon any Lot, each Owner shall maintain and care for the Home, all improvements and all trees, foliage, plants, and lawns on the Lot and otherwise keep the Lot and all improvements thereon in good condition and repair and in conformity with the general character and quality of properties in the immediate area, such maintenance and repair to include, but not be limited to (i) the replacement of worn and/or rotted components, (ii) the regular painting of all painted exterior surfaces, (iii) the maintenance, repair and replacement of roofs, rain gutters, downspouts, exterior walls, windows, doors, walks, drives, parking areas and other exterior portions of the improvements to maintain an attractive appearance, and (iv) regular mowing and edging of lawn and grass areas. Upon failure o£ any Owner to maintain a Lot owned by him in the manner prescribed herein, Declarant or the Association, or either of them, at its option and discretion, but without any obligation to do so, but only after ten (10) days written notice to such Owner to comply herewith, may enter upon such Owner's Lot and undertake to maintain and care for such Lot to the condition required hereunder, and the Owner thereof shall be obligated, when presented with an itemized statement, to reimburse said Declarant and/or Association for the cost of such work within ten (10) days after presentment of such statement. This provision, however, shall in no 50072284.2 30 manner be construed to create a lien in favor of any party on any Lot for the cost or charge of such work or the reimbursement for such work. 6.9 City Development Agreement. All of the Owners agree that the terms and restrictions of the City Development Agreement attached hereto as Exhibit "D", as it may be amended from time to time, are specifically incorporated herein, and the Owners and the Association shall comply with all of such terms and restrictions applicable to Lots in the Development. ARTICLE VII GENERAL PROVISIONS 7.1 Additional Easements. (a) Utilitv and Telecommunication Utilitv Easements. Declarant hereby reserves the right to grant perpetual, non-exclusive easements in gross for the benefit of Declarant or its designees, upon, across, over, through and under any portion of the Property designated on the plat thereof for easements or public right-of--ways for the purpose of ingress, egress, installation, replacement, repair, maintenance, use and operation of any and all utility and service lines and service systems, public and private, including, without limitation, telephone, cable, fiber optic and any other cable or wiring system designed to provide or deliver communication of any form, video or telecommunications, computer access, "Internet" or email access, security monitoring or other services to any Owner. Declarant also reserves the right to grant perpetual, non-exclusive easements in gross for the benefit of Declarant or its designees across and over any portion of the Property for the purpose of delivering satellite, "broadband", cellular or other wireless communication designed to provide or deliver communication of any 50072284.2 31 form, video or telephone communications, computer access, "Internet" or email access, security monitoring or other services to any Owner. In addition, Declarant also reserves the right to grant perpetual, non-exclusive easements in gross in the Areas of Common Responsibility to erect one or more transmission towers as required, to facilitate the providing or delivering of satellite, "broadband", cellular or other wireless communication, designed to provide communication of any form, video or telephone communications, computer access, "Internet" or email access, security monitoring and other services to any Owner. Declarant, for itself and its designees, reserves the right to retain or transfer title to any and all wires, pipes, conduits, lines, cables, transmission towers or other improvements installed on or in such easements and to enter into franchise or other agreements with private or public providers of telecommunication type packages that are designed to provide such services to the Development. (b) Continued Maintenance Easement. In the event that the Owner fails to maintain the Lot as required herein, or in the event of emergency, or in the event the Association requires entry upon any Lot to repair or maintain any Area of Common Responsibility, the Association shall have the right to enter upon the Lot to make emergency repairs and to do other work reasonably necessary for the proper maintenance and operation of the Property. The Owner agrees that entry upon the Lot as provided herein shall not be deemed a trespass, and neither the Board of Directors nor the Association shall be liable for any damage so created unless such damage is caused by the Association's willful misconduct or gross negligence. (c) Drainage Easements. Easements for installation and maintenance of utilities, stormwater retention/detention ponds, and/or a conservation area are reserved as maybe shown on the Plat or any subsequent approved and recorded Plat. Within these easement areas, 50072284.2 32 no structure, planting or other material shall be placed or permitted to remain which may damage or interfere with the installation and maintenance of utilities, or which may hinder or change the direction of flow of drainage channels or slopes in the easements. The easement area of each Lot and all improvements contained therein shall be maintained continuously by the Owner of the Lot, except for those improvements for which a public authority, PID, utility company or the Association is responsible. Declarant hereby reserves for the benefit of Declarant and any Builder, a blanket easement on, over and under the ground within the Property to maintain and correct drainage of surface waters and other erosion controls in order to maintain reasonable standards of health, safety and appearance and shall be entitled to remove trees or vegetation, without liability for replacement or damages, as may be necessary to provide adequate drainage facilities. Notwithstanding the foregoing, nothing herein shall be interpreted to impose any duty upon Declarant or any Builder to correct or maintain any drainage facilities within the Property. The Owner of each Lot shall maintain the original drainage design and construction of drainage on the Lot. The original drainage design and construction shall not be altered without prior written approval by the Committee; also during the first ten (10) years of the existence of each Lot, no approval for alteration of the drainage design or construction of any Lot shall be effective unless Declarant has given its written approval of such change. Declarant shall have no liability of any kind for its approval or rejection of any request for alteration of drainage. The Owner of the Lot upon which drainage is altered shall have the sole responsibility for any damages arising therefrom. No landscape plan or design, which would have the effect of altering the drainage of any individual Lot to hold water or would increase the flow of water to another Lot, may be approved. Each Owner is solely responsible for changes to the drainage upon each 50072284.2 33 Owner's Lot including, but not limited to, damages to such Owner's property and surrounding properties. (d) Temporary Completion Easement. All Lots shall be subject to an easement of ingress and egress for the benefit of the Declarant and any Builder, their employees, subcontractors, successors and assigns, over and upon the front, side and rear yards of the Property as may be expedient or necessary for the construction, servicing and completion of dwellings and landscaping upon Lots adjacent thereto, provided that such easement shall terminate twelve (12) months after the date such burdened Lot is conveyed to the Owner by the Declarant or a Builder. (e) Universal Easements. The Owner of each Lot (including Declarant so long as Declarant is the Owner of any Lot) is hereby granted an easement not to exceed three (3) feet in width over all adjoining Lots for the purpose of accommodating any encroachment or protrusion due to engineering or fence line errors, trees, landscaping or retaining wall located along property lines, errors in original construction, surveying settlement or shifting of any building, or any other cause. There shall be easements for the maintenance of said encroachment, protrusion, settling or shifting; provided, however, that in no event shall an easement for encroachment or protrusion be created in favor of an Owner or Owners of said encroachment or protrusion that occurred due to willful misconduct of said Owner or Owners. In addition, the Owner of each Lot is hereby granted an easement for encroachments not to exceed three (3) feet in width by misplaced fences or fence lines and overhanging roofs, eaves or other improvements as originally constructed over each adjoining Lot and for the maintenance thereof. Each of the easements hereinabove referred to shall be deemed to be established upon the 50072284.2 34 recordation of this Declaration and shall be appurtenant to each affected Lot and shall pass with each conveyance of said Lot. 7.2 Enforcement. The Declarant or the Association, the PID, the City, the County, or any Owner, shall have the right to enforce, by any proceeding at law or in equity, all restrictions, conditions, covenants, reservations, liens and charges now or hereafter imposed by the provisions of this Declaration, or the Bylaws and Certificate of Formation of the Association. Failure by the Association or by any Owner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter. With respect to any litigation hereunder, the prevailing party shall be entitled to recover reasonable attorneys fees from the non-prevailing party. 7.3 Severability. If any condition, covenant or restriction herein contained shall be invalid, which invalidity shall not be presumed until the same is determined by the final judgment or order of a court of competent jurisdiction, such invalidity shall in no way affect any other condition, covenant or restriction, each of which shall remain in full force and effect. 7.4 Term. The covenants and restrictions of this Declaration shall run with and bind the Property, and shall insure to the benefit of and be enforceable by Declarant (during the time it owns any Lots), the Association, or the Owner of any Lot subject to this Declaration, their respective legal representatives, heirs, successors and assigns, the City, the PID, and the County for a term of twenty-five (25) years after the date this Declaration is recorded, after which time said covenants shall be automatically extended for successive periods of ten (10) years, unless the City and the then Owners of 67% of the Lots agree in writing to terminate or change this Declaration in whole or in part and such writing is recorded in the Real Property Records of the 50072284.2 35 County. Any change or modification of these restrictions that would effect or alter any right or obligation of the City, the County, or the PID must be approved in writing by such public entity(ies) prior to such change or modification becoming effective. 7.5 Amendment. (a) This Declaration may be amended or modified upon the express written consent of at least sixty seven percent (67%) of the outstanding votes (determined pursuant to Section 3.2 hereof) held by Members at a meeting at which a quorum is present. All proposed amendments or any proposed termination of this Declaration must be approved by the City, which approval shall not be unreasonably withheld, for such amendment to be effective. Any and all amendments, if any, shall be recorded in the real property records of the County. Notwithstanding the foregoing, Declarant shall have the right to execute and record amendments to this Declaration without the consent or approval of any other party other than the City, which consent shall not be unreasonably withheld, if the sole purpose of the amendment is for the purpose of correcting technical errors or for purposes of clarification. (b) Declarant intends that this Declaration may be amended to comply (if not in compliance with all requirements of the Federal Home Loan Mortgage Corporation ("FHLMC"), Federal National Mortgage Association ("FNMA"), FHA and VA. Notwithstanding anything to the contrary contained herein, if this Declaration does not comply with FHLMC, FNMA, VA or FHA requirements, the Board and/or the Declarant shall have the power in its discretion (on behalf of the Association and each and every Owner), with prior written notice to the City, to amend the terms of this Declaration or to enter into any agreement with FHLMC, FNMA, VA, and FHA, or their respective designees, reasonably required by FHLMC, FNMA, VA or FHA to allow this Declaration to comply with such requirements. 50072284.2 36 Should the FHLMC, FNMA, VA or FHA subsequently delete any of their respective requirements which necessitate any of the provisions of this Declaration or make any such requirements less stringent, the Board and/or the Declarant, without approval of the Owners, may, upon reasonable justification, cause an amendment to this Declaration to be executed and recorded to reflect such changes. 7.6 Gender and Grammar. The singular wherever used herein shall be construed to mean the plural when applicable, and the necessary grammatical changes required to make the provisions hereof apply either to corporations or individuals, men or women, in all cases shall be assumed as though fully expressed in each case. 7.7 Remedies. Enforcement of these covenants and restrictions shall be by any proceeding at law or in equity, including, without limitation, an action for injunctive relief, it being acknowledged and agreed that a violation of the covenants, conditions and restrictions contained herein could cause irreparable injury to Declarant and/or the other Owners and that the Declarant's and/or the other Owners' remedies at law for any breach of the Owners' obligations contained herein would be inadequate. Enforcement maybe commenced by the Association, the Declarant, the City, the PID, the County, or any Owner against any person or persons violating or attempting to violate them, and failure by any such entity or person to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter. The rights created herein are unique and enforceable by specific performance. In addition to the remedies set forth herein, the Association will also have the right and power to levy fines against any Owner in breach of their obligations set forth in this Declaration. 7.8 Notices to Member/Owner. Any notice required to be given to any Member and/or Owner under the provisions of this Declaration shall be deemed to have been properly 50072284.2 37 delivered forty-eight (48) hours after deposited in the United States Mail, postage prepaid, certified or registered mail, and addressed to the last known address of the person who appears as Member or Owner on the records of the Association at the time of such mailing. 7.9 Headings. The headings contained in this Declaration are for reference purposes only and shall not in any way affect the meaning or interpretation of this Declaration. Words of any gender used herein shall be held and construed to include any other gender and words in the singular, shall be held to include the plural and visa versa unless the context requires otherwise. 7.10 Formation of Association; Inspection of Documents, Books and Records. The Association shall be formed by Declarant as anon-profit corporation in accordance with the laws of the State of Texas. Management and governance of the Association shall be implemented and/or undertaken in accordance with its Certificate of Formation, in accordance with this Declaration, and in accordance with the Bylaws which shall be adopted by the Association following its formation. The Association shall make available copies of the Declaration, Bylaws, Certificate of Formation, rules and regulations governing the Association as well as the books, records and financial statements of the Association for inspection by Owners, the City, the County, or any Mortgagee during regular business hours or other reasonable times. 7.11 Indemnity. THE ASSOCIATION SHALL INDEMNITY, DEFEND AND HOLD HARMLESS THE DECLARANT, THE BOARD, THE COMMITTEE, THE CITY AND EACH DIRECTOR, OFFICER, EMPLOYEE AND AGENT OF THE DECLARANT, THE BOARD, THE COMMITTEE AND THE CITY FROM ALL J[TDGMENTS, PENALTIES (INCLUDING EXCISE AND SIMILAR TAXES), FINES, SETTLEMENTS AND REASONABLE EXPENSES INCLUDING ATTORNEYS' FEES) 50072284.2 38 INCURRED BY SUCH INDEMNIFIED PERSON UNDER OR IN CONNECTION WITH THIS DECLARATION OR THE PROPERTY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. SUCH INDEMNITY TO INCLUDE MATTERS ARISING AS A RESULT OF THE SOLE OR CONCURRENT NEGLIGENCE OF THE INDEMNIFIED PARTY, TO THE EXTENT PERMITTED BY APPLICABLE LAW. 7.12 FHA/VA Approval Requirement. As long as there remains any Class B membership and any first lien mortgage is in effect with respect to any Lot which is insured by FHA or VA, the following actions shall require prior approval of FHA or VA if such approval is required under the then applicable FHA or VA regulations: amendment of the Certificate of Formation, Declaration or Bylaws; annexation of additional property; mortgaging or dedication of the Open Space; and dissolution of the Association. 7.13 Failure of Declarant or Association to Perform Duties. Should Declarant or the Association fail to carry out its duties as specified in this Declaration, the City, County or PID, or its lawful agents (the "Public Entity") shall have the right and ability, after due notice to Declarant or the Association, to remove any landscape systems, features or elements that are the responsibility of and cease to be maintained by Declarant or the Association; to perform the responsibilities of Declarant or the Association if either party fails to do so in compliance with any of the provisions of this Declaration or of any applicable City codes, Development Agreements, or regulations; to assess Declarant or the Association for all costs incurred by the Public Entity in performing said responsibilities if Declarant or the Association fails to do so; and/or to avail itself of any other enforcement actions available to the Public Entity pursuant to state law, Development Agreement, or City codes and regulations. SHOULD THE PUBLIC ENTITY EXERCISE ITS RIGHTS AS SPECIFIED ABOVE, DECLARANT AND THE 50072284.2 39 ASSOCIATION SHALL INDEMNIFY AND HOLD HARMLESS THE PUBLIC ENTITY FROM ANY AND ALL COSTS, EXPENSES, SUITS, DEMANDS, LIABILITIES OR DAMAGES, INCLUDING ATTORNEY'S FEES AND COSTS OF SUIT, INCURRED OR RESULTING FROM THE PUBLIC ENTITY'S REMOVAL OF ANY LANDSCAPE SYSTEMS, FEATURES OR ELEMENTS THAT CEASE TO BE MAINTAINED BY DECLARANT OR THE ASSOCIATION OR FROM THE PUBLIC ENTITY'S PERFORMANCE OF THE AFOREMENTIONED OPERATIONS, MAINTENANCE OR SUPERVISION RESPONSIBILITIES OF DECLARANT OR THE ASSOCIATION'S FAILURE TO PERFORM SAID DUTIES. The obligations described in this paragraph are solely obligations of the Association (and Declarant, if Declarant remains so obligated), and no other party, including without limitation, Declarant (assuming Declarant is no longer so obligated) or any Owner, shall have any liabilities or obligations in connection therewith. 7.14 Binding Effect. Each of the conditions, covenants, restrictions and agreements herein contained is made for the mutual benefit of, and is binding upon, each and every person acquiring any part of the Property, it being understood that such conditions, covenants, restrictions and agreements are not for the benefit of the owner of any land except land in the Development. This Declaration, when executed, shall be filed of record in the real property records of the County so that each and every owner or purchaser of any portion of the Development is on notice of the conditions, covenants, restrictions and agreements herein contained. 7.15 Recorded Plat; Other Authorities. All dedications, limitations, restrictions and reservations that are shown on the Plat or any subsequent approved and recorded plats comprising the Development and the Project are deemed to be incorporated herein and shall be 50072284.2 40 construed as being adopted in each contract, deed or conveyance executed or to be executed by Declarant, conveying the Lots or any tract in the Development Project, whether specifically referred to therein or not. If other authorities, such as the City or the County or the PID, impose more demanding, expensive, extensive or restrictive requirements than those that are set forth herein (through zoning or otherwise), the requirements of such authorities shall be complied with. Other authorities' imposition of lesser requirements than those that are set forth herein shall not supersede or diminish the requirements that are set forth herein. 7.16 Additions to the Development. Additional property may become subject to this Declaration in any of the following manners: (a) Declarant may add or annex additional real property to the scheme of this Declaration by filing of record additional Plats for the Crestmark Development or by filing of record a Supplementary Declaration of Covenants, Conditions and Restrictions which shall extend the scheme of this Declaration to such property, provided, however, that such Supplementary Declaration may contain such complementary additions and modifications of the covenants, conditions and restrictions contained in this Declaration as may be necessary to reflect the different character, if any, of the added properties and as are not inconsistent with this Declaration. (b) In the event any person or entity other than Declarant desires to add or annex additional non-residential or residential and/or common areas to the scheme of this Declaration, such annexation must have the prior written consent and approval of the majority of the outstanding votes within each voting class of the Association and written notice thereof shall be given to the City; however, so long as Declarant owns any Lot in the Development, it has the right to veto any addition or annexation pursuant to this Section 7.17 (b), at its sole and absolute 50072284.2 41 discretion. Any additions made pursuant to paragraphs (a) and (b) of this Section, when added, shall automatically extend the jurisdiction, functions, duties and membership of the Association to the properties added. (c) Declarant shall have the right and option, without the j oinder, approval or consent of any person(s) or entity(ies), to cause the Association to merge or consolidate with any similar association then having jurisdiction over real property located (in whole or part) within 1 mile of any real property then subject to the jurisdiction of this Association and written notice thereof shall be given to the City. Upon a merger or consolidation of the Association with another association, its properties, rights and obligations may, by operation of law, be transferred to another surviving or consolidated association or, alternatively, the properties, rights and obligations of another association may, by operation of law, be added to the properties, rights and obligations of the Association as a surviving corporation pursuant to a merger. The surviving or consolidated- association may administer the covenants and restrictions established by this Declaration within the Property together with the covenants and restrictions established upon any other properties as one scheme. 7.17 No Warranty of Enforceability. While Declarant has no reason to believe that any of the restrictive covenants or other terms or provisions contained in this Declaration are or maybe invalid or unenforceable for any reason or to any extent, Declarant makes no warranty or representation as to the present or future validity or enforceability of any such restrictive covenants. Any Owner acquiring a Lot or tract in the Development in reliance on one or more of such restrictive covenants, terms or provisions shall assume all risks of the validity and enforceability thereof and, by acquiring the Lot, agrees to hold Declarant, the Association, the 50072284.2 42 Committee, and the City harmless therefrom. Declarant shall not be responsible for the acts or omissions of any individual, entity or other Owners. 7.18 Right of Enforcement. The failure by Declarant or the Committee to enforce any provision of this Declaration shall in no event subject Declarant or the Committee, or the City, the County or the PID to any claims, liability, costs or expense; it being the express intent of this Declaration to provide Declarant with the right (such right to be exercised at its sole and absolute discretion), but not the obligation to enforce the terms of this Declaration for the benefit of any Owner(s) of any Lot(s) in the Development. 7.19 Residential Construction Liability Act. Without waiving any rights under law or equity, all Owners acknowledge, covenant and agree that residential construction defect claims regarding any Home against Declarant or any Builder in Texas are controlled by the Texas Residential Construction Liability Act (Tex. Prop. Code §27.001 et seq., as amended) which preempts the Texas Deceptive Trade Practices Act (Tex. Bus. & Com. Code § 17.41 et seq., as amended) and any other law. 7.20 EPA Compliance. The Owner of each Lot agrees to comply with all EPA rules and regulations regarding erosion control and compliance with a Storm Water Pollution Prevention Plan affecting the Lots (the "Plan"), which will include elements necessary for compliance with the nationwide general permit for construction activities administered by the EPA under the National Pollutant Discharge Elimination System. Each Owner acknowledges that Declarant and any Builder will not bear any responsibility for complying with a Plan on any Lot upon the sale of each Lot in the subdivision. 7.21 Soil Movement. Each Owner acknowledges that the failure or excessive movement of any foundation of any Home in the Subdivision can result in the diminished value 50072284.2 43 and overall desirability of the entire Development. Each Owner agrees and understands that the maintenance of the moisture content of the soils on each Lot is necessary to preserve the structural integrity of each home in the Development. Each Owner also acknowledges that the long term value and desirability of the Development is contingent upon each Owner maintaining their Home so that no structural failure or excessive soil movement occurs within the Development. EACH OWNER IS HEREBY NOTIFIED THAT THE SOIL COMPOSITION IN TEXAS IN GENERAL AND THE DEVELOMPENT IN PARTICULAR AND THE CONDITION OF THE LOTS MAY RESULT IN THE SWELLING AND/OR CONTRACTION OF THE SOIL IN AND AROUND THE LOT IF THE OWNER OF THE LOT DOES NOT EXERCISE THE PROPER CARE AND MAINTENANCE OF THE SOIL REQUIRED TO PREVENT SOIL MOVEMENT. If the Owner fails to exercise the necessary precautions, damage, settlement, movement or upheaval to the foundation may occur. Owners are highly encouraged to install and maintain proper irrigation around their Home or take such other measures to ensure even, proportional, and prudent watering around the foundation of the Home. By each Owner's acceptance of a warranty deed to any Lot, each Owner, on behalf of Owner and Owner's representatives, successors and assigns, hereby acknowledge that the developer, Declarant, all Builders in the Subdivision, the Association, the Committee and the City shall not be responsible or liable for any damage, settlement, movement or upheaval to the foundation or any other part of the residence constructed on said Lot and hereby releases and forever discharges, developer, all Builders in the Subdivision, Declarant, Association, the 50072284.2 44 Committee and the City, and their respective shareholders, members, officers, directors, partners, employees, agents, representatives, affiliates, attorneys, successors and assigns, of and from any and all claim for the relief and/or causes of actions, liabilities, damages and claims whatsoever, known or unknown direct or indirect, arising from or relating to the foundation and/or the residence constructed upon the Lot, including but not limited to any damage thereto caused by and/or related in any fashion to the soil condition upon which the same are constructed, the presence of groundwater and any other subsurface condition affecting the Lot and/or from the failure or improper or uneven watering of the Lot, inadequate grading or drainage facilities to carry water away from the foundation, or planting of improper vegetation near the foundation or any action which affects the drainage of any Lot. The Owner of each Lot, and the Owner's legal representatives, successors and assigns, shall assume all risk and consequences to the residential structure, including but not limited to those arising or relating to the subsurface and surface soil condition in and around the Lot, the failure of the Owner or any other person or entity to exercise prudent maintenance procedures and/or the Owner's negligence in protecting and maintaining the integrity of the foundation and structure of the residence. The remainder of this page is intentionally left blank. 50072284.2 45 IN WITNESS WHEREOF, the undersigned, being the Declarant herein, has hereto set its hand this the day of 2008. DECLARANT CRESTMARK HOMES SA, LLC By: Name: Its ACKNOWLEDGEMENT STATE OF TEXAS COUNTY OF BEXAR § This instrument was acknowledged before me on the day of by , 2008, of Notary Public, State of Texas 50072284.2 S-1 EXHIBIT A THE PROPERTY 50072284.2 A-1 EXHIBIT B PROJECT PLAN 50072284.2 B-1 EXHIBIT C COUNTY DEVELOPMENT AGREEMENT 50072284.2 C-1 EXHIBIT D CITY DEVELOPMENT AGREEMENT 50072284.2 D-1