2011-R-15 - Comal County Senior Center AgreementRESOLUTION NO. 11-R-15
A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF
SCHERTZ, TEXAS AUTHORIZING A SECOND AMENDMENT TO
OPERATING AGREEMENT WITH 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
enter into a Second Amendment to Operating Agreement with the Comal County Senior
Citizens' Foundation relating to the Schertz Senior Citizens' Center attached hereto as Exhibit A
(the "Amendment") amending the Operating Agreement dated May 18, 2010, as previously
amended on October 12, 2010.
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 Amendment in substantially the form set forth on Exhibit A.
Section 2. The recitals contained in the preamble hereof are hereby found to be tlue,
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any provision of this Resolution are hereby repealed to the extent of such conflict, and the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.
50409697.1
EXHIBIT A
SECOND AMENDMENT TO OPERATING AGREEMENT
See attached
504096921
PASSED AND ADOPTED, this 15'x' day of March, 2011.
ATTEST:
r y Secretary '
(CITY SEAL)
50409697.1
SECOND AMENDMENT TO OPERATING AGREEMENT
This Second Amendment to Operating Agreement (this "Second Amendment") dated as
of March I5, 2011 (the "Effective Date") is between the City of Schertz, Texas, a municipal
corporation and home-rule city of the State of Texas (the "City"), and the Corral County Senior
Citizens' Foundation, a Texas non-profit corporation (the "Foundation"). The City and the
Foundation may be referred to hereiu from time to time as a "Party" or collectively as the
"Parties".
RECITALS
WHEREAS, the City and the Foundation have previously entered into an Operating
Agreement dated May 18, 2010 (the "Original Agreement") which provides for the Foundation
to operate a senior citizens' center including meals and other nutritional services as well as
additional services and activities that can enhance seniors' quality of life (the "Program") at a
City-provided facility (the "City Program Facility");
WHEREAS, the City and the Fotmdation amended the Original Agreement, in order to
modify the term of the Agreement by entering into a First Amendment to Operating Agreement
on October 12, 2010 (the "First Amendment", and, together with the Operating Agreement, the
"Agreement");
WHEREAS, the City and the Foundation have agreed to enter into this Second
Arnendnrent to clarify certain matters relating to the Agreement; and
NOW THEREFORE, in consideration of the foregoing and the muhtal agreements,
covenants and payments herein and other valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties agree as follows:
ARTICLE I
AMENDMENTS
1.01 Amendment of Section 4.02. Section 4.02 of the Agreement is hereby amended
to add subsections (c), (d), (e), and (f), which read as follows:
"(c) The Foundation shall have the authority to sublicense the areas in
the Ciry Program Facility for the following specific purposes for arr agreed fee
(except as to (i) below) with the sublicensee:
(i) City of Schertz meetings (no fee);
(ii) organizations focusing on seniors' health;
(iii) organizations representing seniors and/or retirees;
(iv) organizations focusiug on seuiors' leisure or professional
activities;
(v) civic clubs;
(vi) non-profit organizations needing space for fiwdraising
events/planning meetings;
(vii) churches and/or Bible study groups; and
5040672.2
(viii) such other specific purposes as are approved in advance in
writing by the Ciry Manager and/or his/her designee.
All revenues received by the Foundation from sublicensing of the meeting room as
permitted above shall be separately identified in the Foundation's books and records for
the Program and shall be used in fiill by the Foundation in operating the Program in the
City Program Facility and for no other purpose.
(d) A Facility sublicense that involves exclusive reservation for a
group of the entire Facility or a room or rooms (excluding the meeting room not
used by the Foundation in its normal operations) must be scheduled for times
other thou during the Facility's publicized hours of operation. A Facility
sublicense (i) that provides a group exclusive use of the meeting room not used by
the Foundation in its normal operations or (ii) that does not provide a group
exclusive use of any portion of the Facility may not adversely affect members'
usage of the Facility during the Faciliry's publicized hours of operation.
(e) Any sublicense granted by the Foundation under this Section shall
be evidenced in writing using the form of Sublicense Agreement attached hereto
as Exhibit A. Such sublicense agreement shall be signed by both the Foundation
and the sublicensee. A copy of the executed sublicense agreement shall be
delivered to the City Manager or his/her designee no later than two (2) business
days after its execution.
(f) Tf the Foundation is unable to acconunodate a sublicensee
applicant because the meeting room is already reserved, it will refer the applicant
to the City's Civic Center Department for possible assistance in another City
facility."
1.02 Amendment of Section 3.01. Section 3.01 of the Agreement is hereby amended
to add subsections (r) and (s), which read as follows:
"(r) Except as otherwise allocated to the City as provided herein, the
Foundation will be responsible for all expenses related to the maintenance and
repair of those items noted below:
(i) Customary cleaning the interior of the City Program
Facility.
(ii) Removal of litter, hash and waste.
(iii) All of the Foundation's information technology systems
(iv) Re-painting of the interior walls, as required by the
Foundation.
(v) Re-carpeting as required by the Foundation.
(vi) Normal and routine maintenance and repair of the HVAC
systems serving the City Program Facility.
(vii) Signage installed by the Foundation.
50406372.2
(viii) All components of the interior of the City Program Facility
which are (i) not covered by any warranty applicable to the
construction of the City Program Facility, or any
component thereof, and (ii) not otherwise specifically
allocated to the City as set forth below.
(ix) Repairs to the City Program Facility described in
Section 4.01(n) resulting from damage caused by the
Foundation or We11Med, or their respective personnel,
members, customers, or visitors.
(s) The Foundation will provide the City prompt written notice of any
capital or other repairs and/or replacements to the City Program Facility for which
the City is responsible under the terms of this Agreement, whereupon the City
will ttse reasonable efforts (subject to public bidding requirements) to, promptly
initiate necessary repairs/replacement, and thereafter diligently and continuously
pursue the completion thereof; provided, however, that notice of emergency
repairs (those where there is inuninent danger to life or property) shall require the
City to respond immediately to either written or telephonic notice, and diligently
undertake efforts to alleviate the immediate danger to life or property, and
thereafter initiate necessary repairs/replacement as required above to diligently
and continuously pursue the repairh'eplacement process to completion.
Emergency repairs shall include, but shall not be limited to (i) water intension
causing damage to the interior of the City Program Facility and/or the property of
the Foundation, (ii) the failure of the HVAC system, (iii) the failure of any
essential utility component of the City Program Facility (including, but not
limited to water, elecG'ical or sewage service), and/or (iv) the presence of, or
introduction of, hazardous substance(s) in the City Program Facility. The City's
obligation to undertake emergency repairs pursuant to this Section may not
relieve the Foundation of the obligation to pay for such repairs, depending on
whether such emergency repairs were necessitated by actions of the Foundation or
WeI1Med, or theh'respectivepersormel, members, customers, or visitors."
1.03 Amendment of Section 4.01. Section 4.01 of the Agreement is hereby amended
to add subsection (n), which reads as follows:
"(n) Except to the extent caused by the Foundation, We11Med, or their
respective personnel, ntentbers, customers, or visitors, the City will be responsible
for all expenses related to the maintenance and repair of the following items:
1. The exterior of the City Program Facility, real property
grounds, and parking lot, and all related components.
2. The foundation, exterior walls, interior walls (excluding
routine re-painting as allocated to the Foundation above),
struchual walls, floors (excluding routine re-carpeting as
allocated to the Foundation above), ceilings (both struchtral
and drop) and other suuchu'al components of the City
Program Facility, roof, exterior doors, exterior door
50406372.2 3
hardware, fixtures, exterior plate glass windows, and water,
sewer, electrical, gas, telephone and cable facilities
installed as part of the City Program Facility, including, but
not limited to those inside the foundation, inside of any
wall, on the roof, or otherwise outside of the interior of the
City Program Facility, or on any other portion of the real
property.
3. Damage to any part of the City Program Facility due to any
water leaks.
4. Damage to any part of the City Program Facility dne to any
shnctm'al defect.
5. Mold, mildew or other environmental issues pertaining to
water iuh37sion or leaks.
6. All capital repairs to the City Program Facility (interior or
exterior).
7. Replacement of the HVAC systems, and related
components, for the City Program Facility
8. Signage installed by the City.
9. Exterior landscaping and all watering and irrigation
components (including replacement of damaged
landscaping and pruning of trees).
10. The parking lot, curbs, driveways, sidewalks, and exterior
lighting facilities (including striping of the parking lot).
11. Drainage channels, rights of way and other easements on
the real property.
12. Any security equipment or facilities installed by the City.
13. All items still covered under any original warranty
applicable as part of the construction of the City Program
Facility by the City."
ARTICLE II
GENERAL AND MISCELLANEOUS PROVISIONS
2.01 Le>?al Authority., The Parties represent, warrant, assure, and guarantee that they
have full Icgal authority to execute this Second Amendment on behalf of the City or tl3e
Foundation, respectively, and to bh3d the City or the Foundation to all of the terms, conditions,
provisions and obligations herein contained.
2.02 Severability. The provisions of this Second Amendment are severable, and if any
word, phrase, clause, sentence, paragraph, section or other part of this Second Amendment or the
application thereof to any person or circumstance shall ever be held by auy court of competent
jurisdiction to be invalid or unconstitutional for any reason, the remainder of this Second
Amendment and the application of such word, phrase, clause, sentence, paragraph, section or
other part of this Second Amendment to t13e other persons or circumstances shall not be affected
thereby.
50406372.2 4
2.03 Sole Agreements. The Agreement, as amended by the Fhst Amendment, this
Second Amendment, and the WeIIMed Operating Agreement, constitute the entire agreement
between the Parties relative to the subject matter hereof. There have been and are no
agreements, covenants, representations, or warranties between the Parties as to the subject matter
hereof other than those expressly stated or provided for herein.
2.04 Ratification of Agreement. Except as amended by the First Amendment, this
Second Amendment, and the We11Med Operating Agreement, the Parties hereby ratify and
confirm the terms of the Agreement.
2.05 Counterparts. This Second Amendment maybe executed in several counterparts,
each of which shall be deemed an original, and all such counterparts together shall constihute one
and the same inshuntent.
[Tire rernaincler of this page intentionally left blank.]
50406372.2 5
fN WITNESS WHEREOF, the Parties have executed this Second Amendment in multiple
copies, each of which shall be deemed an original as of the date and year first written above.
CITY OF SCHERTZ
By: ~
Don Taylor, City Manage
COMAL COUNTY SENIOR CITIZENS'
FOUNDATION
Lopez, Executive Director
50406372.2 s-I
EXffiBIT A
FORM OF SUBLICENSE AGREEMENT
saaosnz.z A-I
CITY OF SCHERTZ/SENIOR CENTER
RESERVATION APPLICATION
Preferred room:
Organization:
Proposed use of the reserved space:
Date(s) of proposed use:
Estimated attendance:
Contact Person
Name:
Address:
City, State, Zip Code:
Email:
Telephone:
Alternate Telephone:
Time of use (set-up and clean-up time must be included in the time of use): From To
Event official starting and ending times: From
Attachment 1-City of Schertz/Senior Center Sublicense Agreement
Attaclnnent 2 -Decoration Restrictions and Clean-up Requirements
To
soao6nz.z A-2
AI[aclmnent I
CITY OF SCHERTZ/SENIOR CENTER
SUBLICENSE AGREEMENT
This City of Schertz/Senior Center Sublicense Agreement (this "Agreement") is between the
Corral County Senior Citizens' Foundation (the "Foundation"), acting with authority of the City of
Schertz, Texas, a municipal corporation of the State of Texas (the "City"), and
(the "User").
1. FACILITY AND EVENT:
The Foundation agrees to furnish the User with the following described space located in the City
of Schertz Senior Center:
to be used for the purpose of
and for no other purpose without the written consent of the Foundation for a term commencing:
(Time) (Month) (Day) (Year)
And terminating:
(Time) (Month) (Day) (Year)
The User agrees to pay $ to the Foundation for use of said space and premises,
which includes a $ security deposit. The User fiuther agrees to pay the Foundation on demand
any and all sums which may be due to the Foundation for additional services, acconunodations,
materials, or damages.
2. GENERAL TERMS AND CONDITIONS
This Agreement is made and entered into upon the following express covenants and conditions,
all and every one of which the User hereby covenants and agrees to keep and perform. This Agreement
is a sublicense agreement, not a lease. The User acknowledges that this Agreement creates no real
property interest in favor of the User. The City shall be a third-party beneficiary of this Agreement.
3. DAMAGE TO FACILITY:
In case the facility, or any part thereof, shall be desh~oyed or damaged by fire or by any other
cause, or if any other casualty or unforeseen occurrence shall render the fiilfilhnent of this Agreement by
the Foundation impossible, neither the Foundation nor the City shall be liable or responsible to the User
for any damage or consequential damage caused thereby, provided that the User shall be refunded the
unused portion of payments made.
soaabsn.z 1-1
4. CONTROL OF FACILITY:
In allowing the User to use the facility, the Foundation does not relinquish the right to control the
management thereof and to enforce all necessary and proper rules for the management and operation of
the same; and the employees of the Foundation and the City may enter the same, and all the premises, at
any time and on any occasion.
5. REMOVAL OF MATERIALS:
All materials and installations placed in the facility by the User shall be removed from the
facility by the end of the contracted time. In the event that this is not done, time will be marked as if the
facility continues in use by the User until the facility is vacated, and the User will be responsible for
continued rental charges.
In the event that the facility is not vacated by the User on the above stated date at the end of the
term for which the facility is reserved, the Foundation is hereby auUlorized to remove from the facility
and to store at the expense of the User, all goods, wares, merchandise, and property of any and all kinds
and description which may be then occupying the portion of the facility on which the term of this
Agreement has expired; and neither the Foundation nor the City shall be liable for any damage or loss to
such goods, wares, merchandise, or other propelty which may be sustained, either by reason of such
removal or the place to which it maybe removed, altd THE USER ANll ANY OTHER PERSON HAVING AN
INTEREST IN SUCH PROPERTY HEREBY EXPRESSLY RELEASE THE FOUNDATION AND THE CITY FROl\•i
ANI' ANll ALL CLAIDIS FOR DADIAGES OF w'HA'1'EVER KIND OR NATURE.
6. EXTRA HELP:
In case it is necessary to employ outside assistance in the handling of the property of the User,
such employment shall be at the expense of the User.
7. OBSERVANCE OF LAW:
The User agrees that every contractor, employee, or agent connected with the purpose for which
the facility is made available to the User shall abide by, conform to, and comply with all of the
applicable laws of the United States and the State of Texas, and all the applicable ordinances of the City,
together with all rules and requirements of the Police and Fire Departments of the City, and will not do,
nor permit to be done, anything on such premises, during the term of this Agreement, in violation of any
such roles, laws, or ordinances, and if the attention of the User is called to such violation, the User will
immediately desist from and correct such violations.
8. SEATING CAPACITY:
In no event shall tickets be sold or dispensed ilt excess of the seating capacity of tl~e facility, as
determined by the City's Fire Chief.
9. NO DEFACEMENT OF FACILITY OR BUILDING:
The User shall not injure or mar or in any manner deface the facility or the building in which it is
located, and shall not cause nor permit anything to be done whereby such premises shall be in any
manner injured, marred, or defaced, nor shall the User drive, or permit to driven, any nails, hooks, tacks,
or screws in any part of said building, nor shall the User make, or allow to be made, any alterations of
any kind therein. Also, the User shall be responsible to insure no objects shall be placed in the drains,
50406372,2 1-2.
restr'oom facilities, or any other part of the water or sewer system so that maiutenauce or repair to the
pltunbing is required.
10. RESPONSIBILITY FOR INJURY:
If the facility, or any portion of the building iu which it is located, during the term of this
Agreement, shall be damaged by the act, default, or negligence of the User, or of the User's agents,
employees, patrons, guests, or any persons admitted to such premises by the User, the User will pay to
the City, upon demand, such sum as shall be necessary to restore such premises to their present
condition. The User hereby assumes full responsibility for the character, acts, and conduct of all persons
admitted to the premises, or to any portion of the facility or building with the consent of or invitation by
the User, or by or with the consent of the User or the User's employees or any person acting for or on
behalf of the User, and the Foundation reserves the right to require the User to have on hand at all times
sufficient security to maintain order and protect persons and property. In such case, the City's policies
regarding security in City facilities shall apply.
I I. AISLES CLEAR:
The User will permit no chairs, movable seats, or other obstructions to be or remain in the
entrances, exits, or passageways of the facility m- building and will keep same clear at all times.
12. NO OBSTRUCTIONS TO SIDEWALKS, ETC:
No portion of the sidewalks, entries, passages, vestibules, halls, or ways of access to public
utilities of the facility or the building in which it is located shall be obstructed by the User or used for
any purpose other than for ingress and egress, to and from the premises. The doors, windows, skylights,
or other openings that reflect a• admit light into any place in the building, including hallways, corridors,
and passageways, shall not be obshucted by the User.
13. TAXES:
The User shall pay all taxes, if any, on tickets or admissions to the premises during the term
hereof and any license fees and taxes lawfully levied against it during the term hereof.
14. INDEMNITY:
THE USER WILL PROVIDE THE DEFENSE POR, INDEMNIFY AND HOLD THE CITY AND THE
FOUNDATION HARMLESS FROM ALL COSTS FROM ANY AND ALL CLAIMS, SUITS, CAUSES OF ACTION,
AND LIABILITY FOR DAMAGES OR INJURIES TO ANI' PERSON(S~ OR DAMAGE TO PROPERTY OCCASIONED
BY OR IN CONNECTION \VITH THE USER'S USE OF THE PREMISES AND/OR RESULTING FROM THE
PRESENTATION OF ANY COPYRIGHTED \VORK OR MATERIAL OR VIOLATION OF ANY OTIIER
PROPRIETARY RIGHTS.
15. NO ALCOHOL:
Alcoholic beverages are not permitted in the facility at any time.
soaoe3~z.z 1-3
16. ATTORNEY'S FEES:
if the Foundation or the City is required to file suit to collect any amount owed it under this
Agreement for the User's use of the premises, the Fouudation and the Ciry shall be entitled to collect
reasonable attorney's fees.
17. NO DISCRIMINATION:
It is understood that the premises are owned by the Ciry and that any discrimination by the User,
its agents, or employees, on account of race, sex, color, religion, or national origin in the use of or
admission to the premises is prohibited.
18. ABANDONED ITEMS:
The Fouudation shall have the sole right to collect and have custody of articles left in the facility
or building by persons attending any performance, exhibition, or entertainment given or held on the
premises.
19. CANCELLATION BY CITY
Violation by the User of any covenant, agreement, or condition contained herein shall be cause
for termination hereof by the Foundation, in which case the User shall be entitled only to refund of the
unused portion of any payment made by it. In addition, the Foundation may likewise cancel this
Agreement if the User should, prior to the date of occupancy hereunder, violate any covenant,
agreement, or condition in any other agreement which the User might have for lease of any other the
City facilities. The Foundation and/or the City reserve the right to cancel this Agreement at any time,
e.g. before, during, or after any emergency situation deemed by the Foundation or the City to exist. At
such time, notification will be made by telephone or most expedient method reasonably available.
Neither the Foundation nor the City shall be liable or responsible to the User for any datnages or
inconvenience caused thereby, provided that the User shall be refunded the unused portion of payments
made by it.
20. CANCELLATION BY USER
All cancellations of contracted events must be submitted to the Foundation iu writing. Deposits
paid upon rental reservation will be forfeited if an event is cancelled or if there is a change in the rental
date(s) less than (__) days prior to an event.
21. HEADINGS:
The paragraph headings contained herein are fm~convenieuce in reference and are not intended
to define, extend, or limit any provision in this Agreement.
22. ASSIGNMENTS:
The User shall not assign this Agreement, nor permit any use of the premises other than herein
specified, without the prior written consent of the Ciry Manager.
50406372.2 1-4
23. NO RESPONSIBILITY FOR PROPERTY IN BUILDING:
Neither the Fouudation nor the City assumes any responsibility whatever for any property placed
iu the facility or building, and both the Foundation and the City is hereby expressly released from
responsibility far any loss of or damage to the User's or any guest's persaral property that may be
sustained by reason of the occupancy under this Agreement.
24. FACILITY ACCESS/SETUP/CLEANUP TIME:
Fouudation staff is scheduled based on the time needed to sehip/cleanup for the User's event. If
the User's representative is not present at the contracted time to enter the facility, the person on duty will
wait thhty (30) minutes after which time he or she will leave. The User will need to call the employee
on dory to reschedule a time to eater the facility.
If cleanup extends beyond 1:00 a.m., a $75.00 per hour fee will be deducted front the
security/cancellation deposit.
IN WITNESS WHEREOF, we have affixed our signahu~es, this day of , 20_.
USER:
Signature:
Printed Name:
COMAL COUNTY SENIOR
CITIZENS' FOUNDATION:
Robert Lopez, Executive Director
Nnuae and arkh•ess for security/cancellation rleposlt refund (if applicaLle):
Name:
Address:
City, State, Zip Code:
soaocnz.z 1-5
AttachnFe~tt 2
Decoration Restrictions and Clean-up Requirements
***The Damage Deposit Will Nat be Refunded if the Decoration Restrictions
and Clean-up Requirements are Violated***
Decoration restrictions
Nails, thumb tacks, and push pins will not be permitted to be driven into or applied to the walls,
floors, partitions, or any other portion of the facility.
Tape (masking, scotch, painters, or duct) will not be permitted to be used or applied to walls,
floors, partitions, ceiling, or any other portion of the building unless approved in advance by the
Foundation.
Glitter, rice, birdseed, cmrfetti, grains, etc. inside the facility is strictly prohibited.
Clean-un requirements
The User will be respmrsible for the following:
Litter: All paper, cups, plates, foil, and decorations, etc. must be picked up and placed in
a trash receptacle.
2. Tables and Chairs: Must be cleaned of litter and wiped off to rid them of spilled drinks
and foodstuff. The User will not be required to dismantle or fold tables and chairs.
3. Restrooms: All personal items, paper products, etc. must be picked up and placed in a
hash receptacle.
The User will be required to remove all persona] effects and decorations from the facility.
The person named below will be responsible on behalf of the User to see that the facility
is clean and to check for damages. The security/cancellation damage deposit refund will be
mailed to the person who sigoed the City of Schertz/Foundation Facility Sublicense Agreement.
Printed Name:
Address:
Ciry, State:
Phone Number:
Signature of the User's Representative:
50406372.2 2.-1