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2010R21-Comal County Senior Citizens Operating AgreementRESOLUTION NO. 10-R-21 A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS AUTHORIZING AN OPERATING AGREEMENT WITH THE COMAL COUNTY SENIOR CITIZENS' FOUNDATION, AND OTHER MATTERS IN CONNECTION THEREWITH WHEREAS, the City Council has determined that it is in the best interest of the City to contract with the Comal County Senior Citizens' Foundation pursuant to an Operating Agreement (the "Operating Agreement") consistent with the Letter of Intent attached hereto as Exhibit A (the "Agreement"). BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS THAT: Section 1. The City Council hereby authorizes the City Manager to execute and deliver the Operating Agreement with the Comal County Senior Citizens' Foundation in a form consistent with the Letter of Intent attached hereto as Exhibit A. If the City Manager, with the advice of the City Attorney, determines that the final form of the Operating Agreement is not consistent with the Letter of Intent, the City Manager shall request the City Council to approve the final Operating Agreement. Section 2. The recitals contained in the preamble hereof are hereby found to be true, and such recitals are hereby made a part of this Resolution for all ,purposes and are adopted as a part of the judgment and findings of the City Council. Section 3. All resolutions, or parts thereof, which are in conflict or inconsistent with any provision of this Resolution are hereby repealed to the extent of such conflict, and the provisions of this Resolution shall be and remain controlling as to the matters resolved herein. Section 4. This Resolution shall be construed and enforced in accordance with the laws of the State of Texas and the United States of America. Section 5. If any provision of this Resolution or the application thereof to any person or circumstance shall be held to be invalid, the remainder of this Resolution and the application of such provision to other persons and circumstances shall nevertheless be valid, and the City Council hereby declares that this Resolution would have been enacted without such invalid provision. Section 6. It is officially found, determined, and declared that the meeting at which this Resolution is adopted was open to the public and public notice of the time, place, and subject matter of the public business to be considered at such meeting, including this Resolution, was given, all as required by Chapter 551, Texas Government Code, as amended. Section 7. This Resolution shall be in force and effect from and after its final passage, and it is so resolved. Reso] 10-R-21.doc PASSED AND ADOPTED, this 27th day of April, 2010. CITY OF SC ERTZ, TEXAS Mayor ATTEST: City Secretary (CITY SEAL) Reso110-R-21.doc EXHIBIT A LETTER OF INTENT Resol 10-R-21.doc A-1 ~~C CITY o~ °4 s~~ w ~ N * N .r4 ~. cOtrnon.cr~•9~°~. April 12, 2010 1400 SCHERTZ PARKWAY SCHERTZ, TEXAS 78154-1634 (zlo> 619-loss FAX (210) 619-1050 Mr. Robert Lopez Executive Director Comal County Senior Citizens' Foundation 655 Landa Street New Braunfels, Texas 78130 Dear Mr. Lopez: DON E. TAYLOR CITY MANAGER The purpose of this Letter of Intent is to outline the terms of a proposed agreement between the City of Schertz (the "City") and the Comal County Senior Citizens' Foundation (the "Foundation") pursuant to which the Foundation will operate a program in the City of Schertz famishing nutrition and other services and activities for senior residents of the Schertz area. Except for the provisions of Sections 5, 6, 7, 8, 9, and 10 hereof (which are intended to be legally binding and enforceable), this Letter of Intent is not intended to constitute a contract or an offer to enter into a contract, nor to be binding upon either party, nor to create any legal obligations or rights for either party with respect to any of the matters set forth hel•ein. Execution of the Operating Agreement described herein is expected to occur on or before sixty (60) days after the date that the Foundation signs this Letter of Intent; however, the parties may extend this date by mutual agreement_ It is currently our mutual intention to proceed with the proposed transaction as follows: Proposed Program. There is a clear need for senior residents of the Schertz area to have access to lunch and other nutritional services as well as additional services and activities that can enhance their quality of life (the "Program"). The City has in the past funded a limited program providing some of such services but desires to enlarge the scope of services and activities and to contract with an experienced organization to manage and operate the Program at aCity-provided facility. The City understands that the Foundation is an established organization providing a variety of senior services at its New Braunfels facility and in the New Braunfels area and that the Foundation is interested in operating the Program for the City. It is anticipated that the Foundation will operate the Program for the City pursuant to an Operating Agreement described in greater detail in this Letter of Intent. 50298799.2 Resol 10-R-21.doc !~-2 Letter of Intent Comal County Senior Citizens' Foundation April 12, 2010 Page 2 2. Anticipated Foundation Obligations. It is anticipated that the Foundation will provide the following services and activities, which will be further described in the Operating Agreement: (a) The Foundation will work with the City to identify qualifying seniors in the Schertz area who are in need of assistance of the type to be offered in the Program and to solicit their participation in the Program. (b) The Foundation will provide one lunch meal five days per week and will also provide social services an<i activities for qualifying senior residents of the Schertz area. (c) The Foundation will provide these services and activities as scheduled with the City and qualifying senior residents of the Schertz area, excluding holidays as agreed to by the Foundation and the City. (d) The Program shall be conducted by the Foundation and its employees and/or independent contractors. None of such persons shall be, or be deemed to be, employees of the City. (e) The Foundation will provide managerial oversight of the Program. (f) The Foundation will be the fiscal agent for all Program operations. (g) The Foundation will provide monthly reports to the City. (h) The Foundation will establish and work closely with an advisory committee composed of senior residents of the Schertz area who participate in the Program and a City representative designated by the City Manager. (i) The Foundation will work with the advisory committee to seek out volunteers to assist in Program operations. (j) -The Foundation will seek funds in addition to agreed City funding to develop and operate the Program to promote and serve qualifying seniors within the Program area. (k) The Foundation will operate the City Program Facility described in Section 3(b) as a Senior Center. (1) Subject to approval by the City, the Foundation will install appropriate furniture and equipment ("F&E") and will fund appropriate interior building modifications, e.g. walls, restrooms, etc., to maximize the benefits and usefulness of the City Program Facility. All F&E installed in 50298799.2 Resol 10-R-21.doc A-3 Letter of Intent Comal County Senior Citizens' Foundation April l2, 2010 Page 3 the City Program Facility by the Foundation will belong to the Foundation; the improvements to the City Program Facility will otherwise belong to the City. (m) The Foundation will bear all costs of operating the City Program Facility. 3. Anticipated City Obligations. It is anticipated that the City will provide the following in connection with the Program, which will be further described in the Operating Agreement: (a) The City will work with the Foundation to identify qualifying seniors in the Schertz area who are in need of assistance of the type to be offered in the Program. (b) The City will provide the facility located at 608 Schertz Parkway as the City Program Facility pursuant to a license to be included in the Operating Agreement. (c) The City will use reasonable efforts to refer other entities to collaborate with the Foundation to provide additional Program opportunities to qualifying senior residents of the Schertz area. (d) The City will pay the Foundation $3,500 per month for two (2) years which the Foundation shall utilize to assist in modification of the City Program Facility and to operate the Program during such period. (e) The City will provide City-line digital telephone service to the City Program Facility. (f) The City wilt provide appropriate insurance coverage for the City Program Facility and the Program through the Texas Intergovernmental Risk Program. (g) The City will waive all City-required permit fees relating to the Foundation's activities relating to the City Program Facility or the Program. 4. Final Operating Agreement. The parties will commence and in good faith negotiate the Operating Agreement. The Operating Agreement will be drafted by the City Attorney for comment and negotiation by representatives of the City and the Foundation and will contain the detailed obligations of the parties as to the Program as well as appropriate representations, agreements, indemnities, and conditions, including, but not limited to (a) final approval by the City Council of the City and the Board of Directors of the Foundation; (b) the Foundation 502987992 Resol 10-R-21.doc A-4 Letter of Intent Comal County Senior Citizens' Foundation April 12, 2010 Page 4 obtaining such permits, approvals, and consents as necessary to operate the Program and the City Program Facility for the City; and (c) no material adverse change to the operations of the Foundation. For purposes of this Letter of Intent, "Material Adverse Change" shall include, but not be limited to, acts of Foundation management that would materially adversely affect the Foundation's operation of the Program for the City. The Operating Agreement will include provisions regarding the matters set forth in Sections 1, 2, and 3 above. The Operating Agreement shall have an initial term of two (2) years, which may be terminated on reasonable notice at the end of the first year. Thereafter, the Operating Agreement shall be extended for successive one-year extension terms with any modifications to the Operating Agreement to be agreed to by the City and the Foundation, unless either pasty elects to terminate the Operating Agreement. Upon termination of the Operating Agreement, the City will have the right to purchase and retain any or all of the F&E installed by the Foundation pursuant to Section 2(1) above for a purchase price of the then depreciated value thereof. In addition, the Operating Agreement will include provisions relating to the City's reimbursement to the Foundation for certain upgrades made by the Foundation to the City Program Facility upon the City's termination of the Operating Agreement. 5. General. Upon execution of this Letter of Intent, (a) the Foundation and the City shall as soon as reasonably possible each deliver or make available to the other all appropriate records relating to investigating the viability of the Foundation operating the Program and the City Program Facility for the City; (b) the City will provide the Foundation and its representatives and consultants access to the City Program Facility so that the Foundation may inspect such Facility to determine its present condition, and its adaptability to the requirements of the Program. All due diligence shall be coordinated for the City by Bob Cantu, and for the Foundation by Robert Lopez. 6. Confidentiality and Publicity. Except as and to the extent required by law or to obtain any consents or approvals or as necessary to fulfill obligations under this Letter of Intent or the Operating Agreement, without the prior written consent of the other party, neither the City nor the Foundation will, and each will direct its representatives not to make, directly or indirectly, any comment, statement, or communication with respect to, or otherwise to disclose to any third party or to any employee or contractor of the other (other than employees and other persons directly involved in the due diligence or negotiation process) or to permit the disclosure of the existence of discussions regarding a possible transaction between the City and the Foundation or any of the terms, conditions, or other aspects of the transaction proposed in this Letter of Intent. If a party is required by law to make any such disclosure, it must first provide the other party the content of the 50298799.2 Resol 10-R-21.doc A-5 Letter of Intent Comal County Senior Citizens' Foundation April 12, 2010 Page 5 proposed disclosure, the reasons that such disclosure is required by law, and the tune and place that the disclosure will be made. 7. Non-Disclosure or Use of Confidential Information. To the extent permitted by law, neither party will disclose or use, and will direct its representatives not to disclose or use to the detriment of the other party, any confidential information acquired or furnished to it or its respective representatives at any time or in any manner in connection with its evaluation of the transaction proposed in this Letter of Intent. 8. Termination. It is the intent of the parties to sign the Operating Agreement within sixty (60) days after the date the Foundation has signed this Letter of Intent. If the Operating Agreement has not been signed by sixty (60) days after date of date that the Foundation signs this Letter of Intent, either party may terminate this Letter of Intent upon written notice to the other party. 9. Expenses. Each party shall bear its own expenses in connection with the proposed transaction and the implementation of this Letter of Intent and the Operating Agreement. All tests, due diligence costs, and license, filing, and/or regulatory fees will be the responsibility of the party ordering or requiring the same. 10. Governing Law. This Letter of Intent and the transaction contemplated hereby shall be governed by and construed under the laws of the State of Texas. 11. Counterparts. This Letter of Intent may be executed in two or more counterparts, and with facsimile signatures, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. [REST OF PAGE INTENTIONALLY LEFT BLANK) 5029799.2 Resol 10-R-21.doc A-6 Letter of Intent Comal County Senior Citizens' Foundation April 12, 2010 Page 6 If the above accurately sets forth you intention with respect to the ri•ansactions outlined above, please so indicate by signing and dating this letter in the spaces provided below and returning it to me. Sincerely, By: ~ .i- Don E. Taylor City Manager Accepted and agreed to this ~ day of /', , 2010. Comal County S nior • izens' Foundation By: R opez xecutive Director 50298799.2 Resol 10-R-21.doc A-7