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05-06-2014 Agenda with backupREGULAR SESSION CITY COUNCIL May 6, 2014, 6:00 P.M. HAL BALDWIN MUNICIPAL COMPLEX COUNCIL CHAMBERS 1400 SCHERTZ PARKWAY BUILDING #4 SCHERTZ, TEXAS 78154 Policy Values Economic Prosperity Fiscally Sustainable Family Friendly for All Ages High Quality of Life Safe Community Essential Services Attractive Community Innovative and Proactive Service Oriented Friendly City Call to Order — City Council Regular Session Invocation and Pledges of Allegiance to the Flags of the United States and State of Texas. (Mr. Ken Ratcliff, Schertz Church of Christ) City Events and Announcements • Announcements of upcoming City Events (J. Bierschwale /B. James) • Announcements and recognitions by City Manager (J. Kessel) Presentation • Presentation regarding the City Secretary Department (B. Dennis/D. Schmoekel) • Proclamation Municipal Clerks Week (Mayor Carpenter) • Presentation regarding different methods City Departments and Council use to interact with Citizens (Requested by Councilmember Duke) (B. Cantu /L. Klepper) Hearing of Residents This time is set aside for any person who wishes to address the City Council. Each person should fill out the speaker's register prior to the meeting. Presentations should be limited to no more than 3 minutes. All remarks shall be addressed to the Council as a body, and not to any individual member thereof. Any person making personal, impertinent, or slanderous remarks while addressing the Council may be requested to leave the meeting. 05 -06 -2014 Council Agenda Discussion by the Council of any item not on the agenda shall be limited to statements of specific factual information given in response to any inquiry, a recitation of existing policy in response to an inquiry, and /or a proposal to place the item on a future agenda. The presiding officer, during the Hearing of Residents portion of the agenda, will call on those persons who have signed up to speak in the order they have registered. Workshop • Discussion and update regarding the development and transition plan for the Schertz Senior Center. (Requested by Mayor Pro -Tem Scagliola) (B. James /C. VanZandt) • General discussion and possible action regarding how to honor former Mayors and Community Leaders. (Requested by Mayor Carpenter) (J. Kessel) Consent Agenda Items The Consent Agenda is considered self - explanatory and will be enacted by the Council with one motion. There will be no separate discussion of these items unless they are removed from the Consent Agenda upon the request of the Mayor or a Councilmember. 1. Minutes — Approve the minutes of the regular meeting of April 22, 2014 Q. Kessel /B. Dennis) 2. Ordinance No. 14 -S -19 — Approval of an Ordinance amending the Unified Development Code (UDC) by granting a Specific Use Permit for 4202 Wensledale Drive. Final Reading (B. James/M. Sanchez /L. Wood) 3. Ordinance No. 14 -D -21 — Approve an Ordinance amending the Code of Ordinances of the City of Schertz, Texas to prohibit parking on the south side of Arroyo Verde from the driveway of the Oaks of Green Valley Shopping Center to the bridge structure. Final Reading (K. Woodlee/L. Busch) 4. Resolution No. 14 -R -39 — Approval of a Resolution authorizing a Master Lease Agreement for the Parks, Recreation, and Community Services Department. (B. James /C. VanZandt/M. Trainor) 5. Resolution No. 14 -R -41 — Approval of a Resolution authorizing an agreement with Wellmed Medical Management, Inc. (J. Kessel /B. James) 6. Resolution No. 14 -R -42 — Approval of a Resolution authorizing a purchase with Motorola Solutions, Inc., for new MW810 Computers and Hardware for Patrol Vehicles. (B. James/M. Clauser) Discussion and Action Items 7. Ordinance No. 14 -F -18 — Consideration and/or action approving an Ordinance amending Ordinance No. 14 -F -01, City Public Service (CPS Energy); amending the City's Franchise Fee. First Reading (J. Kessel /J. Kessel) 05 -06 -2014 City Council Agenda Page - 2 - 8. Ordinance No. 14 -D -22 — Consideration and/or action approving an Ordinance amending the City's Code of Ordinances by revising Section 86 -115 maximum speed limits generally on Pfeil Road from Ware Seguin Road to IH 10. First Reading (K. Woodlee /L. Busch) Roll Call Vote Confirmation Requests and Announcements 9. Announcements by City Manager • Citizen Kudos • Recognition of City employee actions • New Departmental initiatives 10. Requests by Mayor and Councilmembers that items be placed on a future City Council agenda. 11. Announcements by Mayor and Councilmembers • City and community events attended and to be attended • City Council Committee and Liaison Assignments (see assignments below) • Continuing education events attended and to be attended • Recognition of actions by City employees • Recognition of actions by community volunteers • Upcoming City Council agenda items 12. Information available in City Council packets — NO DISCUSSION TO OCCUR • Schertz Economic Development Corporation Reimbursement per the City's Development Agreement with Amazon.com • National Flood Insurance Program — Community Rating System Executive Session 13. City Council will meet in closed session under section 551.072 Texas Government Code - Deliberation regarding the purchase of property generally located North of IH 10 and West of Cibolo Creek. Reconvene into Regular Session 13 a. Take any necessary action based on discussions held in closed session under Agenda Item number 13. Roll Call Vote Confirmation 05 -06 -2014 City Council Agenda Page - 3 - Adjournment CERTIFICATION I, BRENDA DENNIS, CITY SECRETARY OF THE CITY OF SCHERTZ, TEXAS, DO HEREBY CERTIFY THAT THE ABOVE AGENDA WAS PREPARED AND POSTED ON THE OFFICIAL BULLETIN BOARDS ON THIS THE 2nd DAY OF MAY 2014 AT 3:00 P.M., WHICH IS A PLACE READILY ACCESSIBLE TO THE PUBLIC AT ALL TIMES AND THAT SAID NOTICE WAS POSTED IN ACCORDANCE WITH CHAPTER 551, TEXAS GOVERNMENT CODE. grevOci Dev,vu's Brenda Dennis CPM, TRMC, MMC, City Secret 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 2014. Title: This facility is accessible in accordance with the Americans with Disabilities Act. Handicapped parking spaces are available. If you require special assistance or have a request for sign interpretative services or other services please call 210 - 619 -1030. The City Council for the City of Schertz reserves the right to adjourn into executive session at any time during the course of this meeting to discuss any of the matters listed above, as authorized by the Texas Open Meetings Act. Executive Sessions Authorized: This agenda has been reviewed and approved by the City's legal counsel and the presence of any subject in any Executive Session portion of the agenda constitutes a written interpretation of Texas Government Code Chapter 551 by legal counsel for the governmental body and constitutes an opinion by the attorney that the items discussed therein may be legally discussed in the closed portion of the meeting considering available opinions of a court of record and opinions of the Texas Attorney General known to the attorney. This provision has been added to this agenda with the intent to meet all elements necessary to satisfy Texas Government Code Chapter 551.144(c) and the meeting is conducted by all participants in reliance on this opinion. 05 -06 -2014 City Council Agenda Page - 4 - COUNCIL COMMITTEE AND LIAISON ASSIGNMENTS Mayor Carpenter Mayor Pro -Tem Scn iola — Place 2 Audit Committee Animal Control Advisory Committee Hal Baldwin Scholarship Committee Cibolo Valley Local Government Corporation Interview Committee for Boards and Commissions Schertz Seguin Local Government Corporation Investment Advisory Committee Interview Committee for Boards and Commissions TIRZ II Board Sweetheart Advisory Committee Councilmember Fowler — Place 1 Councilmember John - Place 3 Interview Committee for Boards and Commissions Schertz Housing Board Liaison Randolph Joint Land Use Study QLUS) Executive Committee Councilmember Edwards — Place 4 Councilmember — Duke — Place 5 Audit Committee Audit Committee ASA Commuter Rail District Board — Lone Star Investment Advisory Committee Hal Baldwin Scholarship Committee 05 -06 -2014 City Council Agenda Page - 5 - Agenda No. 1 CITY COUNCIL MEMORANDUM City Council Meeting: May 6, 2014 Department: Subject: BACKGROUND City Secretary Minutes The City Council held a regular meeting on April 22, 2014. FISCAL IMPACT None RECOMMENDATION Staff recommends Council approve the minutes of the regular meeting on April 22, 2014. ATTACHMENT Minutes — regular meeting April 22, 2014 MINUTES REGULAR MEETING April 22, 2014 A Regular Meeting was held by the Schertz City Council of the City of Schertz, Texas, on April 22, 2014, at 6:00 p.m., in the Hal Baldwin Municipal Complex Council Chambers, 1400 Schertz Parkway, Building #4, Schertz, Texas. The following members present to -wit: Mayor Michael Carpenter Councilmember Jim Fowler Councilmember Cedric Edwards Staff Present: Deputy City Manager John Bierschwale Chief of Staff Bob Cantu City Secretary Brenda Dennis Call to Order Mayor Pro -Tern David Scagliola Councilmember Daryl John Councilmember Matthew Duke City Manager John Kessel Executive Director Brian James City Attorney Charles Zech Deputy City Secretary Donna Schmoekel Mayor Carpenter called the Regular Meeting to order at 6:00 p.m. Mayor Carpenter stated he wanted to invite anyone who was here this evening participating in the Hal Baldwin Scholarship, to please sign the sheet in the vestibule or see the City Secretary. Invocation and Pledges of Allegiance to the Flags of the United States and the State of Texas Councilmember Fowler provided the invocation followed by the Pledges of Allegiance to the Flags of the United States and the State of Texas. City Events and Announcements • Announcements of upcoming City Events (J. Bierschwale/B. James) Mayor Carpenter recognized Executive Director of Development Brian James who provided the following announcements and upcoming events: • Wednesday, April 23, National Administrative Professionals Day. • Friday, April 25, Schertz - Cibolo Lions Club (Casino Night Fundraiser) • 7 -11 p.m. at the Schertz Civic Center, Tickets $40 in advance. Call 210 - 710 -6558 or 210 - 332 -2255. • Wednesday, April 30, RACAP Ribbon Cutting/Plaque Presentation, 307 Pfeil Road, Schertz, 10:00 a.m., also the Chamber is collecting peanut butter and jelly for their pantry. • Thursday, May 1, Schertz Ground Breaking Ceremony, 1103 Self Storage, IH 35 & FM 1103 (across the street from the Shell Station) 9:30 a.m. • Thursday, May 1, Schertz Fire Rescue "New Fire Truck Housing Ceremony ", 3:00 p.m., Schertz Fire Station, Building 8 • Thursday, May 1, Schertz Sweetheart Coronation, Schertz Civic Center, Bldg. #5, 5:30 -9:00 p.m. RSVP by April 24 to 210 -619 -1630. 04 -22 -2014 Minutes Page - 1 - • Saturday, May 3, VFW Post #8315 — Army Tank Ceremony, 1000 FM 78, 10:30 a.m. Refreshments provided. • Saturday, May 10, 13th Annual Homes for Pets /Schertz Humane Society Doggie Dash - Pawsome 80's Fueled Doggie Dash 5K run & 3K Walk, Pickrell Park, 8:00 a.m. Call 210 -566 -7776 for more info or register online at www .homesforpets.org/doggiedash. • Sunday, May 18, EMS Week Golf Tournament, at the Olympia Hills Golf Club; Registration at 10:00 a.m., Shotgun start at 12 p.m.; $300 (Team), $75 (Individual) - Late registration for a team is $350. Register by May 7th with Matt Troncoso or Amy Sellers at 210 - 619 -1400. • Announcements and recognitions by City Manager (J. Kessel) Mayor Carpenter recognized City Manager John Kessel who wanted to take a moment to brag on the Police Department. He stated that Lt. John Correu headed up a team who looked at our SWAT needs, stating our SWAT department does not have a vehicle of their own that they can use. Currently they use Guadalupe County and Selma's vehicle. Mr. Kessel stated that Lt. Correu was able to work out a deal for an ex- military unit that is quite impressive. The vehicle has been completely refurbished with a new engine and transmission. Total cost on the project so far is $0. 100% has been paid for by others. Mr. Kessel congratulated Lt. Correu and his team. Hearing of Residents: Mayor Carpenter recognized the following who spoke: • Ms. Clare Layton, 12231 Lost Meadows, who spoke on Resolution No. 14 -R -37, authorizing and approving publication of Notice of Intention to issue Certificates of Obligation that was approved last week. She also spoke on her surprise to see published in the Northeast Herald on April 16, 2014, the City's Intent to consider the issuance of an additional $3,000,000 in certificates of obligation for the pool facility. She stated there is no tolerance in the Texas Open Meeting Act for the outcome of a vote, which must be taken in public view to be known before that vote is taken. She stated that this shows that either the Herald is clairvoyant or that the results of the illegally agreed upon decision was made prior to bringing it to the public before the tual vote was taken. Mayor Carpenter encouraged Ms. Layton that if she had a complaint of a criminal nature to share it with the Chief of Police this evening before leaving the building, so that he is absolutely aware of anything of that nature. Councilmember Duke arrived at 6:10 p.m. Workshop • Discussion regarding Code Enforcement Certification training for Citizens on Patrol (J. Bierschwale/M. Harris) 04 -22 -2014 Minutes Page - 2 - Mayor Carpenter recognized City Marshal Mike Harris who introduced this item stating having extra volunteer eyes and ears to assist our staff is always a welcome venture. We have researched the possibility of providing Code Enforcement certification training to volunteers such as the Citizens on Patrol. According to the Occupations Code, to be eligible to receive a certificate of registration as a code enforcement officer a person must: 1) Have at least one year of full -time experience in the field of code enforcement; and 2) Pass the examination conducted by the department or the department's designee; and 3) Pay the application, examination, and registration fees; and"' 4) Meet any other requirements prescribed by this chapter or by board rule. Based on the first requirement alone, volunteers and part-time employees are not eligible. Marshal Harris stated that what he would like to propose is that they conduct a code enforcement familiarization class. This will be taught in -house by a certified code enforcement officer. Completion of the class does not provide any certification or legal authority on the part of the students. It does however familiarize volunteers with key issues where their assistance can save on man -hours expended by full time staff. Volunteers will be able to recognize some of the most common violations such as: 1. High grass and weeds 2. Watering during prohibited hours 3. Potential illegal signs 4. Overhanging trees Marshal Harris stated the implementation of training will be provided by Jesse Hamilton, our Environmental Health /Code Enforcement officer. All active Police Academy Alumni members will receive the training, not just those that take part in Citizens on Patrol. By doing so, we are educating a larger volunteer pool that can relay code enforcement concerns to the Marshal's Office. All future Citizen Police Academy classes will receive a three hour block of instruction on code enforcement and environmental health issues. Mayor Carpenter stated that he had asked the Marshal if we could take a look at this partly based on some work that Councilmember Wilenchik did for us before he passed away. Mayor Carpenter stated that he had gone through the training and was an extra set of eyes and ears out in the community, watching for code violations. This was very helpful as he was able to recognize an issue and call the code enforcement team because we just do not have enough eyes and ears in the community to see everything. The extra set of eyes and ears in the community will be very helpful and he is excited that they have this program underway. Mayor Carpenter thanked the members of the Citizens on Patrol who were here this evening showing their interest. Mayor Carpenter recognized Councilmember Fowler who commented that this was just another quality of life service we are providing to the Community. Mayor Carpenter recognized Mayor Pro -Tem Scagliola who complimented Marshal Harris for working with the Police Department to develop this program. 04 -22 -2014 Minutes Page - 3 - • Discussion and update regarding the single family residential zoning districts (R -6 and R -7) and a possible Entertainment zoning district. (Requested by Mayor Pro -Tem Scagliola and Councilmember Edwards) (B. James /M. Sanchez /L. Wood) Mayor Carpenter recognized Executive Director of Development Brian James and Senior Planner Lesa Wood who introduced this item stating that on August 17, 2010, Council amended the UDC regarding the R -6 & R -7 districts, and with the approval of that ordinance the R -6 & R -7 zoning districts would no longer be granted, but that the Ordinance did not impact properties that were currently zoned R -6 & R -7. Ms. Wood provided the following highlights: • Total acreage zoned R6 & R7 — 1,200 acres • Only 21 acres have not been Master planned • R -6 — minimum lot size 7,200 square feet, minimum dimensions 60' x 120', 960 total acreage zoned R -6, which is 960 acres, 4,163 total lots. Total lots improved is 3,778, and total unimproved is 385. • R -7 — minimum lot size 6,600 square feet, minimum dimensions 60 , 240 total acreage zoned R -7, which is 240 acres, 1,031 total lots. Total lots i roved is 551, and total unimproved is 480. Ms. Wood stated that Entertainment Districts are allowed in General Business, General Business -2 and the Manufacturing Zoning District. These districts would allow amusement, commercial indoor facilities like theaters, concert or music halls, dance halls, night clubs, taverns, retail shops, restaurants or cafes. Ms. Wood pointed out areas of availability along IH 35, FM 78 and Main Street, and IH 10. Ms. Wood addressed questions from Council. e Rr Councilmember Edwards stated he was curious if the City or EDC had done a leaking report, to see how much we are leaking out of our community to others. Executive Director of Development Brian James stated not that he was aware of, but we could probably see we are leaking a good amount. He stated as mentioned by Ms. Wood, most of the entertainment districts tend to be market driven. Schertz is well positioned in a number of regards on IH 35 and IH 10 as we have seen a lot of commercial and industrial. The drawback to that is that we are right up the road from the Forum, massive retail, and Ratama Park, and just south of New Braunfels as well, which were more established before we got that population. Again, it becomes the issue of those entertainment or retail uses of not wanting to cannibalize existing store locations. Mr. James stated that he believes as we see over time, as our population grows, companies will see that we have enough of the population and that there is a market to capture, then we will see these built. He stated that getting these types of businesses will be development driven. Mr. James answered Councilmember Fowlers question if we have done a demography study stating we have not, but that we utilize the census information along with state and regional demographic information we obtain. City Manager John Kessel stated that we participated and partnered with Buxton Company, which is a retail strategies company and work with them. We can perform sophisticated market analysis when necessary. Mayor and Council thanked staff for the update and report. 04 -22 -2014 Minutes Page - 4 - Discussion and Action Items 1. Minutes - Approval of the minutes of the regular meeting of April 15, 2014 (J. Kessel /B. Dennis) Mayor Carpenter recognized Councilmember Fowler, who moved, seconded by Mayor Pro- Tern Scagliola to approve the minutes of the April 15, 2014 City Council meeting. The vote was unanimous with Mayor Pro -Tem Scagliola, Councilmembers Fowler, John, Edwards, and Duke voting yes and no one voting no. Motion Carried. 2. Ordinance No. 14 -S -19 — Conduct a Public Hearing and consideration and/or action approving an Ordinance amending the Unified Development Code (UDC) by granting a Specific Use Permit for 4202 Wensledale Drive. First Reading (B. James /M. Sanchez /L. Wood) The following was read into record: ORDINANCE NO. 14 -S -19 AN ORDINANCE BY THE CITY COUNCIL OF THE CITY OF SCH TZ, TEXAS ZONING 4202 WENSLEDALE DRIVE, SCHERTZ, GUADALUPE COUNTY, TEXAS TO ALLOW A SPECJJJ6,LSE PERMIT FOR OPERATION OF AN IN- HOME DAY CARE Mayor Carpenter recognized Senior Planner Lesa Wood who introduced this item stating the applicant is requesting a Specific Use Permit to allow an In -Home Day Care at 4202 Wensledale Drive which is an existing single family residential lot zoned Garden Home (GH) within the Whisper Meadows at Northcliffe II Subdivision, Unit 2. The subject property contains an approximately 2,400 square foot home that is currently owned and occupied by William and Christy Martinez. The public hearing notice was published in "The Daily Commercial Recorder" on April 4, 2014 and the "Herald" on April 9, 2014. Thirty (30) public hearing notices were mailed to surrounding property owners within two hundred (200) feet of the subject property on March 13, 2014. Staff received four (4) responses to the request which are as follows: • two (2) responses in favor of the request; and • one (1) response neutral to the request with concerns of HOA approval; and • one (1) opposed due to concerns regarding traffic and children playing in the street The Planning and Zoning Commission, in making its recommendation, and the City Council, in considering final action on a Specific Use Permit, should consider the following criteria: 1. the proposed use at the specified location is consistent with the policies embodied in the adopted Comprehensive Land Plan; 2. the proposed use is consistent with the general purpose and intent of the applicable zoning district regulations; 04 -22 -2014 Minutes Page - 5 - 3. the proposed use is compatible with and preserves the character and integrity of adjacent developments and neighborhoods, and includes improvements either on -site or within the public rights -of -way to mitigate development related adverse impacts, such as safety, traffic, noise, odors, visual nuisances, drainage or other similar adverse effects to adjacent developments and neighborhoods; 4. the proposed use does not generate pedestrian and vehicular traffic which will be hazardous or conflict with the existing and anticipated traffic in the neighborhood; 5. the proposed use incorporates roadway adjustments, 1 ,ffic control devices or mechanisms, and access restrictions to control traffic flow or divert traffic as may be needed to reduce or eliminate development generated traffic on neighborhood streets; 6. the proposed use incorporates features to minimize adverse effects, including visual impacts, of the proposed use on adjacent properties; 7. the proposed use meets the standards for the zoning district, or to the extent variations from such standards have been requested, that such variations are necessary to render the use compatible with adjoining development and the neighborhood; 8. the proposed use and associated Site Plan promote the health, safety or general welfare of the City and the safe, orderly, efficient and healthful development of the City; 9. no application made under these provisions will rece Vermal approval until all back taxes owed to the City have been paid in full; and 10. other criteria which, at the discretion of the Planning and Zoning Commission and City Council are deemed relevant and important in the consideration of the Specific Use Permit. The Planning and Zoning Commission conducted the public hearing on March 26, 2014 and offered a recommendation of approval to grant a Specific Use Permit (SUP) with the condition that the permit is valid as long as William and Christy Martinez own and occupy the property by a unanimous vote. In reviewing the draft ordinance, the City Attorney has indicated that this condition, tying the zoning to the ownership of the property is not within the City's authority. Staff recommends the Mayor open the public hearing, take comment, close the public hearing and approve Ordinance No. 14 -5 -19 on first reading. Mayor Carpenter opened the public hearing and recognized the following who spoke: Planning and Zoning Commission Chair David Richmond, who stated he understood the legal concern with this Specific Use Permit (SPU), and on behalf of the Planning and Zoning Commission, they are supportive of Mr. & Mrs. Martinez for going through the proper steps of the permitting process legitimately as defined. His only question and concern is in looking at an application like this, who is making the application and what are their credentials? In this case they are qualified. 04 -22 -2014 Minutes Page - 6 - However, with the law stating that the SUP goes along with the property, the Martinez family could leave and the new resident /owner would then be allowed to operate a day care business under its Planning and Zoning Permit, but the new owners may not be as qualified as the Martinez's. As no one else spoke, Mayor Carpenter closed the public hearing and took comments from Council. Mayor Carpenter recognized City Attorney Charles Zech who offered to provide a more detailed explanation of the legal reasoning regarding the SUP being a part of the property. He stated there are two ways that cities can issue them. One way is through the legislative process by going through the zoning process and an actual re- zoning occurs. This is how most municipalities handle these requests. The other way is that it is an actual permit issued administratively by staff. If it is a permit, and not _a legislative act, you could put on the permit that it is issued to that person and that person only. It is actually the legislative process that creates the problem of placing the expiration on it. The law says a re- zoning cannot run with the person. There is a legislation problem associated with re- zonings that states you cannot re -zone property unless you go back through the re- zoning process. By stating that the SUP, as a zoning designation, is automatically revoked simply because the owners leave the property violates the requirements that you must go back through the re- zoning process in order to re -zone the property. Additionally, to clarify a point from an administrative stand City Manager John Kessel stated that if a permit were issued by staff it would be n _ discretionary as long as the applicants met all of the required criteria. Thus, the permit would be automatically approved. On the other hand, if it is a zoning event, it then becomes a discretionary decision and if there are unique circumstances associated with a particular property, keeping it a zoning event allows the Council and Planning and Zoning Commission to adjust for that and not allow it to happen if circumstances surrounding it were inappropriate. Similar to a plat or site plan, if the applicants follow the rules, we would have to approve it by the law. City Attorney Charles Zech stated there are pros and cons to making something a zoning or legislative decision or an administrative decision. Courts give great discretion to city council legislative decisions and as such you are not entitled to a particular zoning designation. However, once you set out the parameters associated with the issuance of a permit within your ordinance, if an individual meets the criteria, they are entitled to that permit and the courts don't give as much deference to the staff's decision not to issue, which leaves you more open to litigation. Mayor Carpenter recognized Mayor Pro -Tem Scagliola who asked if there was a statute of limitations on an SUP. The answer was no. However the council has the authority to remove an SUP at a later date if it chose to do so. Also, there are state regulations that must be met to qualify someone to run a home day care. Lisa Wood confirmed that the Planning & Zoning Commission's vote was unanimous in favor of issuing a permit. Mayor Carpenter recognized Councilmember Fowler who stated he was concerned about the resident respondent who expressed concern about children playing in the street. Ms. Martinez replied that it is a very safe environment and that their property /entrance is gated. The road and intersection right by their home also has stop signs, so traffic is slowed down in that area. 04 -22 -2014 Minutes Page - 7 - Mayor Carpenter recognized Mayor Pro -Tem Scagliola, who moved, seconded by Councilmember Edwards, to approve Ordinance No. 14 -S -19 first reading. The vote was unanimous with Mayor Pro -Tem Scagliola, Councilmembers Fowler, John, Edwards and Duke voting yes and no one voting no. Motion Carried. 3. Ordinance No. 14 -F -20 — Conduct a Public Hearing and consideration and/or action approving an Ordinance amending the City's Drought Contingency Ordinance No. 13 -F -26 by updating Exhibit B Water Conservation Plan; providing an effective date; and declaring an emergency. First & Final Reading (J. Bierschwale /J. Hooks) The following was read into record: ORDINANCE NO. 14 -F -20 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS, AMENDING THE CITY'S DROUGHT CONTINGENCY ORDINANCE NO. 13 -F -26 BY UPDATING EXHIBIT B WATER CONSERVATION PLAN AND OTHERS MATTERS IN CONNECTION THEREWITH; PROVIDING AN EFFECTIVE DATE; AND DECLARING AN EMERGENCY ' Mayor Carpenter recognized Assistant Public Works Director my Hooks who introduced this item stating the Texas Water Development Board (TWD ) requires all cities to have a water conservation plan on file to satisfy the requirements of 30TAC Chapter 288. The City of Schertz adopted an amended Water Conservation Ordinance 09 -F -21 on June 23, 2009. The guidelines set forth by the TWDB for the conservation plan include a strategy or a combination of strategies for reducing the consumption of water, reducing the loss of waste of water, improving or maintaining the efficiency in the use of water, or increasing recycling and reuse of water. It contains Best Management Practices (BMP) measures to try to meet the targets and goals identified in the plan. In August 2013, the Public Works Department updated the Conservation Plan to meet the new Best Management Practices (BMP) requiring that new single -pass cooling system connections and new non - recirculating systems for commercial laundry systems are prohibited and provided for the enforcement of the requirement of all automated car wash facilities to implement recycle technology. The City is required to update Exhibit B Water Conservation Plan every five years. The Water Conservation Plan includes information on the City's Utility Profile, Water Conservation Plan Goals, Metering, Water Audit, Leak Detection/Repair Program, Public Education /Water Rate Structure, Plumbing Code, Water Conservation Landscaping, Retrofit /Replacement Program, Recycle and Reuse, Water Wholesale Agreements, Record Management Systems, Coordination with Regional Planning Groups, and Implementation and Enforcement. Staff has reviewed the current Exhibit B Water Conservation Plan and has identified the areas that need to be updated and has made these corrections to bring forth for approval. This Ordinance only updates Exhibit B the Water Conservation Plan. No changes will be 04 -22 -2014 Minutes Page - 8 - made to the Drought Contingency Plan. Staff recommends the Mayor open the public hearing, take comment, close the public hearing and approve Ordinance No. 14 -F -20 on first and final reading declaring an emergency. Mayor Carpenter recognized Assistant Public Works Director Jimmy Hooks who stated they are just making changes to the utility profile, such as updating the population, number of connections available and current storage capacity. Nothing in the Drought Contingency Plan is being changed at this time. Mayor Carpenter opened the public hearing and as no one spoke, Mayor Carpenter closed the public hearing and took comments from Council. Mayor Carpenter recognized Councilmember Duke who sd he saw the 5 and 10 year goals; is it statutory and could we go above that internally? Mr. Hooks answered that they try to conserve as much water as possible but also want to put attainable goals in place. Mayor Carpenter asked why we availed ourselves to declare an emerge d of have a single reading on this item. Mr. Hooks answered that we have a May 1 st deadline and since we are not meeting next week, we declared it an emergency item. Mayor Carpenter recognized Councilmember Edwards, who moved, seconded by Councilmember Duke, to approve Ordinance No. 14 -F -20 first and final reading. The vote was unanimous with Mayor Pro -Tem Scagliola, Councilmembers Fowler, John, Edwards and Duke voting yes and no one voting no. Motion Carried. 4. Ordinance No. 14 -D -21 — Approve an Ordinance amending the Code of Ordinances of the City of Schertz, Texas to prohibit parking on the south side of Arroyo Verde from the driveway of the Oaks of Green Valley Shopping Center to the bridge structure. First Reading (K. Woodlee /L. Busch) The following was read into record: ORDINANCE NO. 14 -D -21 AN ORDINANCE BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS PROVIDING THAT THE CODE OF ORDINANCES OF THE CITY OF SCHERTZ, TEXAS BE AMENDED BY REVISING ARTICLE V, SECTION 86 -149 PARKING PROHIBITED ON ROADWAYS MAINTAINED BY THE CITY OF SCHERTZ; AND PROVIDING AN EFFECTIVE DATE. Mayor Carpenter recognized Engineer -in- Training Larry Busch who stated last week they came forward to Council with an Ordinance regarding the prohibiting of parking on the north side of Arroyo Verde from the driveway of the Oaks of Green Valley Shopping Center to the bridge structure. That ordinance was approved for the second reading. Now tonight this Ordinance addresses the opposite side (south) of the same street. 04 -22 -2014 Minutes Page - 9 - Mayor Carpenter recognized Councilmember Edwards who moved, seconded by Councilmember Fowler, to approve Ordinance No. 14 -D -21 first reading. The vote was unanimous with Mayor Pro -Tem Scagliola, Councilmembers Fowler, John, Edwards and Duke voting yes and no one voting no. Motion Carried. Roll Call Vote Confirmation Mayor Carpenter recognized Deputy City Secretary Donna Schmoekel who recapped the votes of items 1 through 4. Requests and Announcements 5. Announcements by City Manager • Citizen Kudos Recognition of City employee actions New Departmental initiatives No further announcements provided. 6. Requests by Mayor and agenda. on a future City Council Mayor Carpenter recognized Councilmember Duke who requested more information regarding the City's ability to stay on the fast track by bringing more lucrative businesses to the City. Specifically, he asked how do we think our ability to keep fast tracking will be affected as we grow and move forward. Mayor Carpenter suggested this be presented to Council sometime in May. Mayor Carpenter recognized Councilmember Fowler who requested they firm up a time for doing the evaluation of the City Secretary Department. Mayor Carpenter requested a date in May be reserved for this item. Councilmember Fowler also stated he has noticed we have been experiencing difficulty getting local pastors to come provide the Invocation at our Council Meetings. He would like to set up a discussion on how we can alleviate this problem, perhaps with a rotation of Councilmembers or some other option. Mayor Carpenter suggested we do this sometime in May and address the issue as a Council policy and procedures item. 7. Announcements by Mayor and Councilmembers • City and community events attended and to be attended • City Council Committee and Liaison Assignments (see assignments below) • Continuing education events attended and to be attended • Recognition of actions by City employees • Recognition of actions by community volunteers • Upcoming City Council agenda items 04 -22 -2014 Minutes Page - 10 - Mayor Carpenter recognized Mayor Pro -Tern Scagliola who stated he attended the following events: • Thursday, April 17, SSLGC Meeting and Tour of their new office facility in Seguin • Saturday, April 19, Absolute Jazz, Pickrell Park Mayor Pro -Tern Scagliola also thanked Mary Spence and staff for the success in organizing the event. Mayor Carpenter recognized Councilmember Fowler who stated ticed the City had a lot of Easter activities going on. Mayor Carpenter stated he also attended the Absolute Jazz event at Pickrell Park. He thanked Mary Spence and her staff for their efforts in organizing it. He mentioned a musician by the stage name of Nasty Ned (a member of the Blues Hall of Fame) was here in attendance and expressed surprise that a small town in Texas had such high quality music. Adiournment As there was no further business, the meeting was adjourned at 7:10 p.m. ATTEST: City Secretary, Brenda Dennis 04 -22 -2014 Minutes Page - 11 - Michael R. Carpenter, Mayor 7 Agenda No. 2 CITY COUNCIL MEMORANDUM City Council Meeting: May 6, 2014 Department: Development Services Subject: Ordinance No. 14 -S -19 — Conduct a Public Hearing and consideration and/or action on a request by William and Christy Martinez for a Specific Use Permit to allow an In -Home Day Care at 4202 Wensledale Drive. The property is more specifically described as Lot 25, Block 4 of the Whisper Meadows at Northcliffe II Subdivision, Unit 2; City of Schertz, Guadalupe County, Texas. (Final Reading) BACKGROUND The applicant is requesting a Specific Use Permit to allow an In -Home Day Care at 4202 Wensledale Drive which is an existing single family residential lot zoned Garden Home (GH) within the Whisper Meadows at Northcliffe II Subdivision, Unit 2. The subject property contains an approximately 2,400 square foot home that is currently owned and occupied by William and Christy Martinez. An In -Home Day Care is defined in the UDC as a home occupation that provides care for less than twenty-four (24) hours a day to no more than six (6) children under the age of fourteen (14), plus no more than six (6) additional elementary school -age children (age five (5) to thirteen(13)). The total number of children, including the caretaker's own children, is no more than twelve (12) at any time. This use is subject to registration with the Texas Department of Protective and Regulatory Services. The public hearing notice was published in "The Daily Commercial Recorder" on April 4, 2014 and the "Herald" on April 9, 2014. Thirty (30) public hearing notices were mailed to surrounding property owners within two hundred (200) feet of the subject property on March 13, 2014. Staff received four (4) responses to the request which are as follows: • two (2) responses in favor of the request; and • two (2) response neutral to the request one with concerns of HOA approval; and • one (1) opposed due to concerns regarding traffic and children playing in the street City Council Memorandum Page 2 City Council approved this on first reading at their meeting ofApri122, 2014. Goal William and Christy Martinez are requesting a Specific Use Permit to allow an In -Home Day Care at the single family residence to teach preschool to children ages 3 thru 5 years. Community Benefit It is the City's desire to promote safe, orderly, efficient development and ensure compliance with the City's vision of future growth. Summary of Recommended Action CONDITIONS OF THE REQUESTED SPECIFIC USE PERMIT: 1. A building permit, if necessary for the use, has been approved within one year of the adoption of this ordinance; and 2. The use has begun operation within two years of this issuance of the necessary building permit; and 3. A home occupation permit has been approved within one year of the adoption of this ordinance; and 4. Registration with the State of Texas has been approved within one year of the adoption of this ordinance. IMPACT ON EXISTING ADJACENT DEVELOPMENT: The subject property is located in a single family residential neighborhood and the proposed use of In -Home Day Care does not appear to negatively impact the adjacent properties. STAFF ANALYSIS AND RECOMMENDATION: Ms. Martinez has indicated that she will be caring for and working with preschool children ages 3 thru 5 years in her home in the morning and the afternoon. The HOA has granted permission to run the daycare out of the residence at 4202 Wensledale. The Planning and Zoning Commission, in making its recommendation, and the City Council, in considering final action on a Specific Use Permit, should consider the following criteria: 1. the proposed use at the specified location is consistent with the policies embodied in the adopted Comprehensive Land Plan; 2. the proposed use is consistent with the general purpose and intent of the applicable zoning district regulations; 3. the proposed use is compatible with and preserves the character and integrity of adjacent developments and neighborhoods, and includes improvements either on -site or within the public rights -of -way to mitigate development related adverse impacts, such as safety, traffic, noise, odors, visual nuisances, drainage or other similar adverse effects to adjacent development and neighborhoods; City Council Memorandum Page 3 4. the proposed use does not generate pedestrian and vehicular traffic which will be hazardous or conflict with the existing and anticipated traffic in the neighborhood; 5. the proposed use incorporates roadway adjustments, traffic control devices or mechanisms, and access restrictions to control traffic flow or divert traffic as may be needed to reduce or eliminate development generated traffic on neighborhood streets; 6. the proposed use incorporates features to minimize adverse effects, including visual impacts, of the proposed use on adjacent properties; 7. the proposed use meets the standards for the zoning district, or to the extent variations from such standards have been requested, that such variations are necessary to render the use compatible with adjoining development and the neighborhood; 8. the proposed use and associated Site Plan promote the health, safety or general welfare of the City and the safe, orderly, efficient and healthful development of the City; 9. no application made under these provisions will receive final approval until all back taxes owed to the City have been paid in full; and 10. other criteria which, at the discretion of the Planning and Zoning Commission and City Council are deemed relevant and important in the consideration of the Specific Use Permit. Staff recommends approval of the Specific Use Permit at 4202 Wensledale. FISCAL IMPACT None RECOMMENDATION The Planning and Zoning Commission conducted the public hearing on March 26, 2014 and offered a recommendation of approval to grant a Specific Use Permit with the condition that the permit is valid as long as William and Christy Martinez own and occupy the property by a unanimous vote. A Specific Use Permit allows for discretionary City Council approval of uses with unique or widely varying operating characteristics or unusual site development features, subject to the terms and conditions set forth in this UDC. Approval of a specific use permit authorizes a property owner to submit subsequent development applications consistent with the approved SUP. Based on the provisions of the UDC and Staff recommendation the Commission recommended approval of the Specific Use Permit with the condition that the permit is valid as long as William and Christy Martinez own and occupy the property. After review of the request by the City Attorney it has been determined that a condition related to the duration of the permit based on ownership cannot be placed on a Specific Use Permit. City Council Memorandum Page 4 In light of the determination, Staff recommends approving Ordinance 14 -5 -19 approving the Specific Use Permit at 4202 Wensledale with no expiration. ATTACHMENT Ordinance No. 14 -S -19 ORDINANCE NO. 14 -S -19 AN ORDINANCE BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS ZONING 4202 WENSLEDALE DRIVE, SCHERTZ, GUADALUPE COUNTY, TEXAS TO ALLOW A SPECIFIC USE PERMIT FOR OPERATION OF AN IN -HOME DAY CARE WHEREAS, An application for Specific Use Permit to allow an In -Home Day Care at 4202 Wensledale Drive, more particularly described in Exhibit A attached hereto and incorporated herein by reference, as Lot 25, Block 4 of the Whisper Meadows at Northcliffe II Subdivision, Unit 2 (hereinafter, the "Property ") has been filed with the City; and WHEREAS, the City's Unified Development Code Section 21.5.11.D. provides for certain conditions to be considered by the Planning and Zoning Commission in making recommendations to City Council and by City Council in considering final action on a requested specific use permit (the "Conditions "); and WHEREAS, on March 26, 2014, the Planning and Zoning Commission conducted a public hearing and, after considering the Conditions, herby makes a recommendation of approval of a rezoning to allow a Specific Use Permit for an In -Home Day Care; and WHEREAS; on April 22, 2014 the City Council conducted a public hearing and after considering the Conditions and recommendation by the Planning and Zoning Commission, determined that the requested zoning to allow a specific use permit be approved as provided for herein. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS: THAT: Section 1. 4202 Wensledale Drive, as more particularly described in the attached Exhibit A, is hereby zoned for a Specific Use Permit to allow an In -Home Day Care conditioned upon the following occurring: a) A building permit, if necessary for the use, has been approved within one year of the adoption of this ordinance; and b) The use has begun operation within two years of the issuance of the necessary building permit. c) A home occupation permit has been approved within one year of the adoption of this ordinance; and d) Registration with the State of Texas has been approved within one year of the adoption of this ordinance. Section 2. The Official Zoning Map of the City of Schertz, described and referred to in Article 2 of the Unified Development Code, shall be revised to reflect the above amendment. Section 3. The recitals contained in the preamble hereof are hereby found to be true, and such recitals are hereby made a part of this Ordinance for all purposes and are adopted as a part of the judgment and findings of the Council. Section 4. All ordinances and codes, or parts thereof, which are in conflict or inconsistent with any provision of this Ordinance are hereby repealed to the extent of such conflict, and the provisions of this Ordinance shall be and remain controlling as to the matters resolved herein. Section 5. This Ordinance shall be construed and enforced in accordance with the laws of the State of Texas and the United States of America. Section 6. If any provision of this Ordinance or the application thereof to any person or circumstance shall be held to be invalid, the remainder of this Ordinance and the application of such provision to other persons and circumstances shall nevertheless be valid, and the City hereby declares that this Ordinance would have been enacted without such invalid provision. Section 7. It is officially found, determined, and declared that the meeting at which this Ordinance is adopted was open to the public and public notice of the time, place, and subject matter of the public business to be considered at such meeting, including this Ordinance, was given, all as required by Chapter 551, as amended, Texas Government Code. Section 8. This Ordinance shall be effective upon the date of final adoption hereof and any publication required by law. Section 9. 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. Approved on first reading the 22" `t day of April, 2014 PASSED, APPROVED AND ADOPTED on final reading the 6th day of May, 2014. Michael R. Carpenter, Mayor ATTEST: Brenda Dennis, City Secretary (SEAL OF THE CITY) Exhibit A "The Property" See Attached S.U.P. Fact Sheet Adventures in Preschool Christian Pre -k Christy Martinez 4202 Wensledale Drive Schertz, TX 78108 My goal in moving to Schertz is to open up my own Christian Preschool. The foundation of the preschool is "Just Like Home." I would like to teach Pre -K classes in my home. I believe this preschool would be nice for the community. I envision families from the subdivision and community attending the preschool. Specifics The preschool would be for 3 -5 year olds. I would like to have an AM and PM program, with each class lasting for three hours each. There would be a maximum of 6 students in each class. The preschool would be completely inside the home. I don't believe it would cause a traffic issue considering I would have a maximum of 6 students per class. The classroom would meet the physical, social, and cognitive needs of the students. We also have a safe play area in the fenced backyard for outdoor activities. We have coordinated with Whisper Meadows HOA to inform them of the proposed preschool and they have approved the preschool. - Request permission from HOA to run daycare /preschool out of home (Completed, request granted, see attached correspondence from HOA) - Turn in application and applicable fees for Specific Use Permit from the City of Schertz - Turn in application and applicable fees for In Home Occupation Permit from the City of Schertz - Turn in application and fees, receive inspection, and receive permit to become a licensed In Home Care Provider by the Texas Department of Child Protective Services Qualifications - Bachelors Degree in Early Childhood Education from New Mexico State University - Masters Degree in Education with a Specialization in Early Childhood Education - Early Childhood teaching certificate with the State of New Mexico, and working toward teaching certificate with the State of Texas - 8 years of teaching experience as the lead teacher in a NM Pre -K Initiative Program: On Track Pre -K Center Sunland Park, NM (575)882 -6740 - 2 years prior experience working in a private preschool/ daycare: Alpha Tots 1205 E. Madrid Las Cruces, NM 88001 Agenda No. 3 CITY COUNCIL MEMORANDUM City Council Meeting: May 6, 2014 Department: Subject: BACKGROUND Engineering / Public Works Ordinance No. 14 -D -21 - An Ordinance by the City Council of the City of Schertz, Texas amending the Code of Ordinances of the City of Schertz, Texas Article V, Section 86 -149 Parking Prohibited on Roadways Maintained by the City of Schertz to prohibit parking on the south side of Arroyo Verde from the driveway of the Oaks of Green Valley Shopping Center to the bridge structure. Final Reading Staff attended an HOA meeting for the Arroyo Verde Subdivision where residents discussed concerns of sight distance for the driveway from the new Oaks at Green Valley II Shopping Center. Specifically, the residents mentioned when driving towards FM 3009 on Arroyo Verde drivers cannot see a vehicle pulling out from the retail center if there are vehicles parked along the north side of Arroyo Verde towards the residential subdivision. Staff visited the site to investigate and found that the curvature of the roadway and angle of the driveway approach does raise concerns. Also, staff made frequent visits to the sight to try and determine the impact removing the parking will have on the businesses and it appears that within the times observed there will not be a significant impact. The staff recommended prohibiting parking on Arroyo Verde from the driveway of Oaks at Green Valley II to the bridge structure on the north side of the road approximately 115 ft was approved by the Traffic Safety Advisory Commission on March 6, 2014. At the April 15, 2014 Council Meeting, Council passed Ordinance 14 -D -16 on final reading to prohibit parking from the driveway of the Oaks of Green Valley II Shopping Center to the bridge structure on the north side of the road, approximately 115 feet with the understanding staff will return to Council following week with an Ordinance establishing no parking from the driveway of the Oaks at Green Valley Shopping Center to the bridge structure on the south side of the road, approximately 150 feet. The proposed ordinance is consistent with Council's direction to staff. As indicated at both the April 8 and April 15 City Council meetings, Staff will review this information with the Traffic Safety Advisory Commission at their regular meeting on May 1, 2014. Staff will also investigate additional areas that may need to be included in the Parking Prohibited Ordinance. City Council approved this on first reading at their meeting of April 22, 2014. Goal To ensure that all streets maintained by the City are currently listed and up to date in the City Code of Ordinances and to alleviate the sight and traffic issues due to parking at the Oaks of Green Valley II Shopping Center to ensure that the citizens of Schertz have safe methods to exit their subdivision. Community Benefit City Ordinances are current and up to date regarding all streets owned maintained by the City to strive to provide for the safety of the citizens of Schertz. Summary of Recommended Action Recommend approval on first reading to prohibit parking on the south side of Arroyo Verde from the driveway of the Oaks at Green Valley Shopping Center (as shown in Exhibit A) to the bridge structure on the south side of the road, approximately 150 feet. FISCAL IMPACT The fiscal impact will be $160 for no parking signs paid out of FY 2013 -14 approved budget account number 101 - 359 - 551600 Street Maintenance RECOMMENDATION Staff recommends Council approve final reading Ordinance No. 14 -D -21 to amend Article 5, Section 86 -149 Parking Prohibited of the Code of Ordinances. ATTACHMENT Ordinance No. 14-D-21 Exhibit A ORDINANCE NO. 14 -D -21 AN ORDINANCE BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS PROVIDING THAT THE CODE OF ORDINANCES OF THE CITY OF SCHERTZ, TEXAS BE AMENDED BY REVISING ARTICLE V, SECTION 86- 149 PARKING PROHIBITED ON ROADWAYS MAINTAINED BY THE CITY OF SCHERTZ; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, it has been established that from the driveway of the Oaks at Green Valley Shopping Center to the bridge structure on the south side of the road, approximately 150 - feet is not covered under Article V, Section 86 -149 Parking Prohibited of the City Code of Ordinances. WHEREAS, it is recommended to add this area to the City Code of Ordinances under Article V, Section 86 -149, Parking Prohibited. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS: Section 1. Article V, Section 86 -149 of the Code of Ordinances, Parking Prohibited on Roadways Maintained by the City of Schertz, Texas is amended to add the following: Street Extent Arroyo Verde From the driveway of the Oaks at Green Valley Shopping Center to the bridge structure on the south side of the road, approximately 150 feet. Section 2. The recitals contained in the preamble hereof are hereby found to be true, and such recitals are hereby made a part of this Ordinance for all purposes and are adopted as a part of the judgment and findings of the Council. Section 3. All ordinances and codes, or parts thereof, which are in conflict or inconsistent with any provision of this Ordinance authorized herein are hereby repealed to the extent of such conflict, and the provisions of this Ordinance shall be and remain controlling as to the matters resolved herein. Section 4. This Ordinance shall be construed and enforced in accordance with the laws of the State of Texas and the United States of America. Section 5. If any provision of this Ordinance or the application thereof to any person or circumstance shall be held to be invalid, the remainder of this Ordinance and the application of such provision to other persons and circumstances shall nevertheless be valid, and the City hereby declares that this Ordinance would have been enacted without such invalid provision. Section 6. It is officially found, determined, and declared that the meeting at which this Ordinance is adopted was open to the public and public notice of the time, place, and subject matter of the public business to be considered at such meeting, including this Ordinance, was given, all as required by Chapter 551, as amended, Texas Government Code. Section 7. This Ordinance shall be effective upon the date of final adoption hereof and any publication requited by law. PASSED ON FIRST READING, the 22nd of April, 2014. PASSED, APPROVED and ADOPTED ON SECOND READING, the day of .2014. CITY OF SCHERTZ, TEXAS Michael R. Carpenter, Mayor ATTEST: Brenda Dennis, City Secretary (CITY SEAL) Exhibit "A" — Arroyo Verde No Parking 150 It Parking Agenda No. 4 CITY COUNCIL MEMORANDUM City Council Meeting: May 6, 2014 Department: Parks, Recreation, and Community Services Subject: Resolution No. 14 -R -39 Approval of a Resolution authorizing a Master Lease Agreement for the Parks, Recreation, and Community Services Department. BACKGROUND For the past four (4) years The Parks, Recreation and Community Services Department has been leasing mowers from C &M Golf and Grounds Equipment. The contract for the mowers is nearing expiration, prompting the need to explore options to provide this equipment. The current agreement includes a provision to purchase the equipment at "market value ". In light of the wear and tear on this equipment, expected life, and cost to purchase ($36,500 per mower) this was not deemed to be a good option. For the same reasons, purchasing new mowers was also not considered a good option. Thus staff began exploring a new lease agreement. C &M Golf and Grounds Equipment is listed on the State of Texas' Buy Board. We enjoy purchasing from the Buy Board because the State has selected and contracted with them for their products or services. This means that the City does not have to go out with a proposal for bids and can go straight to purchasing from them. This process is intended to save the City time and money As such, Parks wants to lease (through a new Master Lease Agreement with Wells Fargo Finance /C &M Golf and Grounds Equipment) two (2) new Jacobson 9016 Kubota diesel, 4 -wheel drive, 16 ft. swath mowers that are capable of cutting 16.5 acres /hour (unobstructed). As indicated above, Parks began utilizing these same types of mowers four (4) years ago, through this same type of lease arrangement, with a great deal of success. These mowers provide an efficiency increase of approximately three to one; in other words, each unit has the same potential work output of three of our smaller zero -turn- radius mowers. In addition, the service records for these units over the past four (4) years have been equally impressive. Fleet records indicate a very low cost for routine maintenance as well, between $400 and $500 per year /unit. Continued use of these mowing units, coupled with the judicious use of various herbicides and soil sterilants, will allow this Department to maintain timely mowing /trimming schedules, meet our Interlocal Agreement commitments with Bexar County at Crescent Bend Nature Park, and retain our current level of service elsewhere City wide. 50307140.1 City Council Memorandum Page 2 FISCAL IMPACT This is a new lease for the same type of equipment currently operated by the Department. The cost is $3019.16 /month for 48 months for a total of $144,919.68 (plus the lessor's personal property taxes on the equipment which is estimated to be $3,356 per year), with a right to purchase the units at remaining fair market value at the end of the lease term. It is important to note that the new lease rate is over $100 /month less that what we currently pay. RECOMMENDATION Approval of Resolution No. 14 -R -39 ATTACHMENT Resolution No. 14 -R -39 Resolution Schedule A — Equipment Resolution Schedule B - Master Lease Agreement RESOLUTION BY THE CITY COUNCIL OF OF AUTHORIZING SCHERTZ, TEXAS FOR 1 COMMUNITY D OTHER MATTERS IN CONNECTION THEREWITH WHEREAS, the City Council (the "City Council ") of the City of Schertz, Texas (the "City ") has determined that it is in the best interest of the City to enter into a master lease agreement and related documentation for certain Parks, Recreation, and Community Services Department equipment; WHEREAS, the City may acquire such equipment and enter into such master lease agreement by utilizing the State - approved Buy Board Purchase Program; now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS THAT: Section 1. The City Council hereby authorizes the City Manger to execute and deliver a master lease agreement and related documentation for the Parks, Recreation, and Community Services Department to acquire the equipment set forth on Schedule A hereto (the "Equipment "). Such master lease agreement shall have terms consistent with the terns set forth on Schedule B hereto. 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 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 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, as amended, Texas Government Code. Section 7. This Resolution shall be in force and effect from and after its final passage, and it is so resolved. 50307164.1 PASSED AND ADOPTED, this 6th day of May, 2014. CITY OF SCHERTZ, TEXAS Michael R. Carpenter, Mayor ATTEST: Brenda Dennis, City Secretary (CITY SEAL) 50307164.1 of DESCRIPTION QTY. Jacobsen HR 9016, 98 hp Kubota Dsl, 4 wd, 16 ft cutting swath 2 50307164.1 A -1 City State County Zip Code City Stale County Zip Code z ISchert ITX 178154 In this Master Lease Agreement (this "Master Agreement "), the words "You" and "Your" refer to the Lessee (or if a co- Lessee is indicated above, the Lessee and Co- Lessee, jointly and severally) indicated above. The words "We," "Us" and "Our" refer to Wells Fargo Financial Leasing Inc 1. LEASE OF EQUIPMENT. We agree to lease to You, and You agree to lease from Us, the a Termination Buyout, which will be an amount determined by Us in Our sole discretion based upon the equipment listed on each Equipment Lease Schedule (together with all accessories, attachments following factors: (i) Lease Payments then due. (it the present value of all remaining future Lease replacements, substitutions, replacement parts, additions and repairs now or hereafter incorporated Payments, (iii) the present value of the Locked residual of the applicable Equipment, and (iv) other therein, arrived therein or used in connection therewith, the "Equipment ") now or hereafter executed by You and Us (each, a "Schedule"), upon the terms and conditions set fodh in the Schedule and as amounts due or to became due under the Lease; and (2) an Option Expiration Date. In order for You to exercise the Termination Option, We must receive Your payment of the Torrington Buyout on or before incorporated therein, this Master Agreement, Each Schedule shall be in form and substance acceptable to Us, shall incorporate all of the terms and conditions of this Master Agreement, and shall constitute a the Option Expiration Date, in which case You shall purchase the applicable Equipment for the amount of the Termination Option "AS IS, WHERE IS" from Us. You will be solely responsible for any and separate lease between You and Us. As used herein, the term "Lease" shall refer to each Schedule all taxes and other charges associated with Your purchase of Equipment, If We do not receive Your entered into in accordance with this Section 1. In the event of any conflict between the provisions of this payment of the Termination Buyout on or before the Option Expiration Date, the Termination Option will Master Agreement and the occasions of any Schetlule, the provisions of this Master Agreement shall automatically expire. arrion Central may become due tunder to Us the Lease Payment indicated in each Lease, plus all other amounts 6. AUTOMATIC RENEWAL; PURCHASE OPTION, With respect to each Lease: 2. MISCELLANEOUS. In addition, You authorize Us to insert or .meal missing or incorrect information on this Master Agreement or any Lease at any time You agree to all the terms and A. Control Term Provision The following terms apply during the Original Term of the Lease unless the Original Term Purchase Option Price set fodh in the Lease is $1.00 (in which case Conditions set forth on this page and those set forth on the next pagelreversa side of this Master Subsection C., below, is applicable): Agreement, that those terms and conditions are a complete and exclusive statement of Our agreement, (1) Automatic Renewal; Exercise of Other Options, Unless You notify Us in writing at that they supersede all prior oral or written negotiators, understandings and commitments, and that least 60 days before the end of the Original Term that You intend to either exercise the they may be modified only by written agreement between You and Us. Oral or whiten promises or Purchase Option (if any) described in Subsection (2), below, or return the Equipment at agreements that are not written in this Master Agreement ( including, without limitation, those contained the end of the Original Term, then: in any purchase agreement or order entered into or issued in connection with the Equipment antlier this Master Agreement or any Lease) shall not be binding upon Us. Any delay or failure in Our enforcing (a) If a Renewal Term is set forth in the Lease. (i) the Lease will automatically renew for that Renewal Term, (it) the Renewal Term will commence immediately upon the any right or seeking any remedy conferred herein or otherwise shall not constitute a waiver of any such right or remedy. You represent, warrant and agree that the Equipment will be used for commercial expiration of the Original Term on the same terms and Conditions except the amount of purposes only and not for personal, family or household purposes. Headings and tiles of sections are each Lease Payment shall be equal to the Renewal Lease Payment indicated in the Lease, and (iii) ire first Renewal Lease Payment will be due on the first day of the metal for convenience only, and are not substantive provisions of this Master Lease. This Master Renewal Term; or Lease and each Lease may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall Constitute the same instrument. You acknowledge that @) If no Renewal Term is set forth in the Lease, You will return the Equipment You have received of a copy of this Master Agreement and agree that a facsimile or other copy of this Immediately upon the expiration of the Original Term in accordance with Section 15 of this Master Agreement and each Lease shall be as enforceable as the original executed Master Agreement Master Lease. This Master Agreement is not binding upon on Us unless and unlil We accept it by signing below. If You If You do notify Us in writing within the time pared set fodh above that You Intend to return are a partnership or a corporation, LLC or other legal entity, You represent and warrant [hat that the the Equipment at the end of such Term, You shall return the Equipment pursuant to Sedion execution and Calvary of this Master Agreement and Your performance of Your obligations hereunder 15 of this Lease. If you do notify Us in writing within the time period set forth above that You have been duly authorized by all necessary company action, and that the person signing this Master intend to exerese the Purchase Option (if any) described in Subsection (2), below, You shall Agreement on Your behalf has been duly authorized to do so. You represent and warrant that all of the purchase the Equipment from Us immediately upon the expiration of the Original Term under Information submitted to Us in Connection with this Master Agreement and each Lease (including, the terms and Conditions set forth in Subsection (2), below, without limitation, information contained in the credit application and any financial statements) and the Lessee information set forth above are due and correct, Time is of the essence of this Master (2) purchase Option. Subject to Subsection (1), above, so long as You are not in default Agreement and each Lease. This Master Agreement nor any Lease is binding upon on Us unlit We under this Master Lease, if a there is an amount set fodh in the Lease as a Original Term Purchase Option Price, You shall have the option to purchase the Equipment al the end of the accept by signing the same. You may not terminate any Lease except in accordance with Section 5 of this Master Agreement, Original Term of the Lease "AS IS, WHERE IS" for that price. You will be solely responsible 3. ORIGINAL TERM OF LEASE. The Original Term of each Lease will begin on a data designated for any and all lazes and other charges associated with Your purchase of Equipment. We shall not have any delivery obligations with respect to any Equipment. by Us after We have executed the Lease and received all required documentation (the "Commencement Date ") and will continue for the number of months designated as the Original Term e. Renewal Tenn Provisos (Automatic Removan . The following terms apply duMg each on the Lease. As used herein, "Tenn" shall mean, with respect to each Lease, the Original Term Renewal Term (if any) of the Lease: (including any extension Ihereoo and each Renewal Term entered into pursuant to Section 6 of this Unless You notify Us in writing at [east 60 days before the end of the then - current Master Agreement. Renewal Term that You intend to return the Equipment at the end of that Renewal Term, 4. LEASE PAYMENTS. agree to pay s the amount specified In each Lease as IM1e Lease then: (i) the Lease will automatically renew for an additional Renewal Term, (ii) the additional and x (plus any antl all applicable Taxes) when each such payment is due (each, a "Lease Payment ") Renewal Term will commence immediately upon the expiration of the then Curren( Renewal Term on the same terms and conditions, and (iii) the first Renewal Lease Payment for the Unless Payment") Unless We notify You in writing otherwise, all Lease Payments are payable i advance periodically as in each Lease. If you choose to make payments e will additional Renewal Term will be tlue on the first day of the sections] Renewal Term . You with an Authorization Agreement for Authorization endorsements on e endorsementsed checks You oUs Payments. Checks You If You do notify Us in Codling within the time p set forth above that etur intend to return to Us will not reduce Your obligations to ons t All payments received will be tl to past due payments received the Equipment at the end of the themcunent Renewal Term, You shall return the Equipment ere balances, balances, Taxes, fees, late charges and the current amount then duo, or in such order as We may, from current order as pursuant to Section 15 of this Lease . time -lo -time, determine. To the extent permitted by applicable law: (a) each time a Lease Payment C. at 00 Purchase Option Provisions. Notwithstanding the provisions in Subsections A. and B. or other amount is not received by Us within ten (10) data of its due date, You agree to pay Us a above, if the Original Term Purchase Option Price in the Lease is $1.00, You shall have the late charge equal to 5% of the amount that is late (or the maximum amount permitted by option to purchase the Equipment or the end of the Original Tenn of the Lease "AS IS WHERE, applicable law if less) and (b) if any check You send to Us is returned for insufficient funds or IS" for $100 so long as fid You have fully exhorted with the terms and conditians of the Lease, any other reason, You agree to pay Us, within 30 days, a fee equal to $20.00. (ii) the Lease has not been terminated and ( iii) all of Your obligations under the Lease have been 5. EARLY TERMINATION. So long as You do not default under any Lease or other agreement satisfied. You will be solely responsible for any and all taxes and other charges associated with between You and Us, You may terminate any Lease (in whole or with respect to any specific items of Your purchase of the Equipment. We shall not have any delivery obligations with respect to any Equipment) before the expiration of any Term as follows: (a) You may submit to Us a written request for Equipment . early termination that identifies the applicable Lease and the Equipment You wish to purchase; and (b) After We receive Your request, We will provide You with a written Termination Option that includes'. (1) Lessee: City of Schertz, Texas By \� Co- Lessee: Dale'^' By: Namemte: John Kessel, City Manager Noundi: Lessor: WELLS FARGO FINANCIAL LEASING, INC. By: Date: Des Moines, Iowa Terms and conditions of this Master Agreement are continued on the reverse side/Page 2 hereof. Dale: #2494176 v1 (10/28/13) Page 1 of 2 7. DELIVERY, LOCATION AND OWNERSHIP OF EQUIPMENT. You will keep and use the Equipment only at the Equipment Location Address identified in the applicable Lease. The Equipment shall not be removed from that address unless You firs! gel Our written permission to move it. You shall give Us and any designee of Ours access tome premises where the Equipment is located so that We (or Our designee) may inspect the Equipment's existence, location, installation, condition and /or proper maintenance. We are the owner of the Equipment and have title to the Equipment. All replacement parts, accessories and repairs will become Our property. You shall keep the Equipment free and clear of all mortgages, pledges, security interests, Ilene, levies, encumbrances, claims and any other charges (other than those sperfectly created or permitted in voting by Us), and shall not cause or permit any Equipment to become attached or affixed to real property. You agree the Equipment Is and shall remain personal property. 8. NO WARRANTIES. WE ARE LEASING THE EQUIPMENT TO YOU "AS IS" WE HAVE NOT MADE AND HEREBY DISCLAIM ANY AND ALL WARRANTIES EXPRESS OR IMPLIED ARISING BY APPLICABLE LAW OR OTHERWISE INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. You are entitled under AUlcle 2A of the Uniform Commercial Cade (as existed and as hereafter amended from lines, - to - true , the "UCC") to the promises and warranties (Inducting (hose of any third party) provided to Us by the above - referenced supplier of the Equipment (the "Supplier") in connection with or as part of the contract (if any) by which We acquire the Equipment, and You may communicate with the Supplier and receive an accurate and complete statement of those promises and warranties (including any disclaimers and limitations of them or of remetlies). We transfer to You for the Term of the applicable Lease all automatically transferable warranties, if any, made by the manufacturer or Supplier to Us relative to the Equipment. We are not liable to You for any moditcalion(s) or rescission(.) of any Supplier or manufacturer warranties, nor for the failure to comply therewith. 9. USE AND MAINTENANCE. You shall use and care for the Equipment in a careful and prudent manner. You shall operate and maintain the Equipment in accordance with the manWaeturefs continues manuals, maintenance manuals, technical manuals, all other instructions concerning operation and maintenance and in accordance with all laws and regulations and policies of insurance . You shall, at Your own cost, perform all maintenance and make any and all repairs which may be necessary to keep the Equipment in as good condition as it was when delivered to You (except for ordinary wear and tear) and You shall keep it eligible for any and all suppliers and manufacturers certifications and standard full serves maintenance contracts. You shall not make any permanent alterations to the Equipment. The Equipment shall not be operated for more than the Maximum Number of Hours shown on the applicable Lease and You agree to pay the excess use charge shown on such Lease for each hour the Equipment is used in excess of such lime. If a meter is provided, You agree to keep it connected to the Equipment and operational at all limes. 10. LOSS; DAMAGE; INSURANCE. You that bear the risk of lass or damage to the Equipment (including, without limitation, loss or damage occurring during shipment and/or delivery of me Equipment to You and Equipment installation) and are responsible for protecting the Equipment from damage (except for ordinary wear and tear) and losses until the Equipment is received by Us or Our tlesignee pursuant to Section 15 of this Master Agreement, or until the expiration of the Term, whichever occurs later If the Equipment is damaged or lost. You agree to continue to make all Lease Payments when and as they became due and to otherwise continue to fully perform in accordance with the terms antl conditions of his Master Agreement and each Lease. Until the Equipment is received by Us or Our designee pursuant to Section 15 of this Master Agreement, or until the expiration of the Term of the applicable Lease, whichever occurs later, You shall, at Your own expense: (a) keep the Equipment insured against all risks of loss in an amount at least equal to its and replacement cast (without deductible and without co- insurance) and name Us as the sole loss payee on such property insurance, and (b) carry public liability insurance covering contractual liability on the Equipment, personal injury and property damage of at least 51,000,000 per occurrence for bodily injury, including death and $250,000 for pmpedy damage and name Us as an additional Insured on such liability insurance. The terns of each insurance policy required herein shall expressly require at least 30 clays poor written notice to Us before it may be cancelled, terminated or modified by You or the insurer. WE MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE ADEQUACY OF THE MINIMUM INSURANCE REQUIREMENTS SET FORTH ABOVE. You hereby irrevocably appoint Us Your attorney -in -fact to sign Your name to any documents) for the purpose of making claims for, receiving payment(.) of and/or to execute and endorse all checks, tlmbe or other documents for any liabirity, loss or damage under any insurance policy. Poor to the Commencement Dale, You shall provide Us with written proof that You have obtained the insurance dowerbed above in form and substance acceptable to Us and shall provide Us notice of any changes in such insurance and continue to maintain insurance in such amounts throughout the term of the Lease. 11. ASSIGNMENT. YOU HAVE NO RIGHT TO AND SHALL NOT SELL, TRANSFER, ASSIGN PLEDGE, GRANT A SECURITY INTEREST IN OR SUBLEASE ANY EQUIPMENT COVERED BY THIS MASTER AGREEMENT OR ANY LEASE IN WHOLE OR IN PART. We may without notice to You, sell, assign pledge, grant a security interest or paricipalion in, or transfer this Master Agreement any or all Leases and /or, subject to Your rights under this Master Agreement and each Lease, any Equipment, in which case the new owner, assignee or secured party will, to me extent of such sale, assignment pledge, secunly interest or padicipalion, have all of Our rights and barrette untler this Master Agreement and each Lease, but will not have to perform any of Our obligations (if any). You agree not to coved against the new owner, assignee or secured party any claim or defense that You may have against Us or any other predecessor in interest. We may, without notice to You, release any Information that We may have or obtain about Yen [his Master Agreement, each Lease and /or the Equipment to the Equipment manufacturer, the Supplier anchor any actual or prospective assignee, panic pant or investor of Ours. 12. TAXES AND OTHER FEES. You shall be solely liable for all sales and use taxes, personal property taxes, withholtlings, levies, impositions, duties, assessments and all star taxes and charges, license and registration fees, relating to the ownership, leasing, rental, sale, purchase, possession or use of the Equipment as pan of each Lease (collectively, "Taxes "). You aulhonze Us to pay any Taxes when and as they may become due, and You agree to reimburse Us for all such Taxes. You agree to pay Us a fee for Our administration of Taxes related to the Equipment leased under each Lease. In connection with each Schedule, You agree to pay a documentation /processing fee in the amount set forth in the Schedule. ANY CHARGES AND FEES SET FORTH IN THIS SECTION 12 AND ANY OTHER SECTION OF THI5 LEASE MAY INCLUDE A PROFIT COMPONENT, 13. LIABILITY: We are not responsible for any claims, demands, actions, damages (whether direct, indirect, incidental or consequential), liabilities, lasses, injuries or costs incurred as a result of or relating, directly or indirectly, to the Equipment and/or its delivery, Installation, possession, use, return, loss of use, defect or malfunction. You shall save, indemnify and held Us harmless for, from and against any and all claims, demands, actions, damages, losses, liabilities, costs and expenses (Including, without limitation, reasonable attorneys' fees) made against or incurred by Us that, directly or intlirectly, arise from or relate to the Equipment, Its delivery, Installation, possession, use, return, loss of use, defect and /or malfunction. 14. DEFAULT. You will be in takeoff: (a) You fail to make any Lease Payment when and as due, You otherwise fail to fully perform in accordance with this Master Agreement, any Lease or any other agreement between You and Us, or any of Your representations or warranties for that of any guarantor) are untrue, (b) any guarantor fails to perform in accordance with any agreement between the guarantor and Us, (c) You (or any guarantor) became insolvent, make an assignment for the benefit of creditors or file a petition In bankruptcy, (d) a petition in bankruptcy is filed against You or any guarantor, (e) You, any partner or guarantor dies, ceases to marked business as a going concern, is sold to, merged with or omermace acquired by another entity, or suffers a substantial deteriorated in financial condition. If You tlefault, We may, in Our sole discretion, exercise any one or more of the following remedies: (i) cancel any and/or all Leases) as to any or all of the Equipment, (it) require You to assemble and return any or all of (he Equipment pursuant to Section 15 of this Master Agreement, (iii) lake possession of antllor render unusable by You any or all of the Equipment, wherever it may be located and You hereby aulhonze Us and any designee of Ours to enter Your premises where any or all of the Equipment is located with or without notice, court order or other process of law and without liability for any damages occasioned by such taking of possession, (iv) require You to pay to Us, as damages and net as a penally, but herein liquidated for all purposes, an amount equal to the sum of: (1) all Lease Payments than due or delinquent, (2) all Lease Payments for the then- remaining Terms) of each Lease, (3) Our residual interest in the Equipment as indicated by Our records. and (4) all Taxes, fees, charges and other amounts which are then, orwhich may thereafter, become due Us under each Lease (You and We agree that the foregoing formula is reasonable in light of the harm now anticipated to be caused by Your default), antllor hg exercise any additional and /or other right or remedy available to Us at law (inclutling, without limitation, under the UCC) and/or in equity. You also agree to reimburse Us an demand for all costs and expenses incurred by Us as a result of or otherwise relating to Your default (including, will Notation, reasonable attorneys' fees, accountants' fees, expect witness fees, filing fees, travel costs, and repossession and other recovery costs), You agree that any delay or failure to enforce Our nghls under this Master Agreement or any Lease does not prevent Us from enforcing any rights at a later time 15. RETURN OF EQUIPMENT. With respect to each Lease: (a) if You elect or are required to return the Equipment under Sections 6 or 14 of this Master Agreement or any Lease, You shall, at Your expense, send the Equipment to any localion(s) within 50 Miles of the Equipment Location Address indicated on the applicable Lease, (b) if You elect or are required to return the Equipment under Section 6, You shall do so immediately upon the expiration of the (hen current Tenn, (c) if You are requiretl to return the Equipment under Section 14, You shall do so immediately upon notice from Us, (d) the Equipment must be returned having been maintained in accordance with Section 9 of this Master Agreement, and (e) You will continue to make all Lease Payments and pay all other amounts due under the applicable Lease until the Equipment is received and accepted by Us or Our designee. 16. FINANCE LEASE. You agree that each Lease Is a Finance Lease under Article 2A of the UCC. To the extent Permitted by applicable law, You hereby waive any and all rights and remedies contacted upon You under UCC Sections 2A -303 and 2A -508 through 522. If it is determined that any Lease constitutes a secured transaction, You hereby grant to Us a security interest in the Equipment related to such Lease and all proceeds thereof. You aNhorize Us to record a UCC-1 financing statement or similar instrument in order to protect Our interest in the Equipment. 17. COMPLIANCE WITH LAWS; APPLICABLE LAW. You understand that the Equipment may be purchased for cash or it may be leased. By signing each Lease, You acknowledge that You have chosen to lease the Equipment from Us for the Tenn of the Lease, and that You have agreed to pay the specified Lease Payment Amount and all other fees and amounts described herein and in the Lease. You shall comply with applicable laws in the performance of the Lease. If it is determined that any amount due under any Lease results a payment greater than would be allowed by applicable law, then any excess amounts collected by Us will be applied to any outstanding balance due and owing under such Lease adjusted to conform with such applicable law, or, if there is no such outstanding balance, will be madded to You upon request. This Master Agreement and each Lease shall be governed by, construed and enforced in accordance with the laws of the State of Iowa without regard to fts choice of law considerations. The parties agree that this Master Agreement and each Lease shall he treated as though executed and performed in Polk County, Iowa, and that all legal actions relating to this Lease shall be vended exclusively in a state or federal court located in Polk County, Iowa. You hereby agree to not object to venue as set forth above and consent to the personal jurisdiction of such courts. YOU AND WE HEREBY WAIVE YOUR AND OUR RESPECTIVE RIGHTS TO A TRIAL BY JURY IN ANY LEGAL ACTION BETWEEN YOU AND US. Each provision of this Master Agreement and each Lease shall be interpreted in such a manner as to be effective, valid and enforceable under applicable law. If any provision of this Master Agreement or any Lease is construed to be prohibited or unenforceable, such provision shall be ineffective only to the extent of such prohibition or undommeabiley and without invalidatng or otherwise affecting the remainder of such provision, me remaining provisions of [his Master Agreement or any Lease, or the validity or enforceability of such provision in any other jurisdiction. 18. UNCONDITIONAL OBLIGATION. YOU ACKNOWLEDGE AND AGREE THAT: (A) YOU, NOT US, SELECTED THE EQUIPMENT AND THE SUPPLIER AND DIRECTED THAT WE ACQUIRE THE EQUIPMENT FROM THE ABOVE- REFERENCED SUPPLIER, (B) WE ARE NOT THE SELLER, SUPPLIER, MANUFACTURER OR DEALER OF THE EQUIPMENT (EACH, A "VENDOR "), (C) WE ARE A SEPARATE AND INDEPENDENT COMPANY FROM EACH OF THE VENDORS, (D) NO VENDOR IS OUR AGENT, (E) NO STATEMENT, PROMISE, REPRESENTATION, GUARANTY OR WARRANTY BYANY VENDOR OR OTHER THIRD PERSON OR ENTITY IS BINDING ON US, (F) NO BREACH BY ANY VENDOR OR OTHER THIRD PERSON OR ENTITY WILL EXCUSE YOU FROM FULLY PERFORMING YOUR OBLIGATIONS TO US, (G) YOUR DUTY TO MAKE ALL LEASE PAYMENTS (AND OTHERWISE FULLY PERFORM IN ACCORDANCE WITH EACH LEASE) IS UNCONDITIONAL DESPITE ANY EQUIPMENT FAILURE, DAMAGE OR LOSS, THE EXISTENCE OF ANY LAW RESTRICTING OR PROHIBITING THE POSSESSION ANDIOR ANY USE OF THE EQUPMENT, OR ANY OTHER MATTER OR CONDITION WHATSOEVER, (H) IF THE EQUIPMENT DOES NOT WORK AS REPRESENTED BY ANY VENDOR OR OTHER THIRD PERSON OR ENTITY, OR IF ANY VENDOR OR OTHER THIRD PERSON OR ENTITY FAILS TO PROVIDE ANY SERVICE OR MAINTENANCE OR FULFILL ANY OTHER OBLIGATION TO YOU, OR IF THE EQUIPMENT IS UNSATISFACTORY FOR ANY OTHER REASON WHATSOEVER, YOU SHALL MAKE ANY CLAIM ASSOCIATED THEREWITH AGAINST THE APPLICABLE VENDOR OR OTHER THIRD PERSON OR ENTITY ONLY, SHALL NOT HAVE OR MAKE ANY CLAIM AGAINST US, AND SHALL CONTINUE TO MAKE ALL LEASE PAYMENTS AND OTHERWISE FULLY PERFORM UNDER THIS LEASE. YOU HEREBY WAIVE ANY RIGHTS WHICH WOULD ALLOW YOU TO: (I) CANCEL OR REPUDIATE ANY LEASE, (11) REJECT OR REVOKE ACCEPTANCE OF THE EQUIPMENT, (III) GRANT A SECURITY INTEREST IN THE EQUIPMENT (OTHER THAN TO US), (IV) ACCEPT PARTIAL DELIVERY OF THE EQUIPMENT, (V) "COVER" BY MAKING ANY PURCHASE OR LEASE OF SUBSTITUTE EQUIPMENT, (VI) SEEK SPECIFIC PERFORMANCE AGAINST US, ANDIOR (VII) WITHHOLD ANY PAYMENT OR OTHER AMOUNT FROM US. 19. THIRD PARTY MAINTENANCE AGREEMENT. If You have entered into a written or and maintenance, service or similar agreement (a "Maintenance Agreement ") with any Vendor or any other party relative to the Equipment ( the "Maintenance Provider'), You acknowledge and agree that (a) We are not a party to the Maintenance Agreement, (b) if the cost to You of such maintenance and services is Induced in each Lease Payment Amount andor any of Our invoices to You, We are collecting such costs as an administrative convenience to You and the Maintenance Provider, and (c) You will look only to the Maintenance Provider for me provsien of any maintenance, repairs and other services and supplies required or permitted under the Maintenance Agreement, and We have no maintenance, repair, service, supply or other obligations or liabilities whatsoever under the Maintenance Agreement or otherwise. 20. POWER GOLF CARS. If the Equipment Includes any power golf cars ( "Carts "), notwithstanding anything to the contrary set forth herein, You may temporarily sub -rent such Carts on a daily or per -round basis to your patron(s) on Your premises only, but You shall remain solely liable for all of Your duties and obligations hereunder and You shall collect from such patronis) and remit to the proper taxing jurisdiction all sales and use taxes that may be due under applicable law In relation to any such Cart rainfalls). Lessee: Initial Here CaLessee: Initial Here #2494176 vi (10128113) Page 2 of 2 Master Lease SchedWe Master Lease Agreement # / Dated City of Schertz, Texas - -- - -- .,ms Ilease Hgreementno: Lessee's Address: Co- Lessee's Atltlress: Application T 1400 Schertz Pkwy, Schertz TX 78154 794567 Schertz Wells Fargo Financial Leasing, Inc. I Renewal T.r. I Renewal pate: ❑ Payments other than monthly (if checked, payments are: ❑ Quarterly; or ❑ Payment Schedule Attached) Renewal Term Purchase Option Pdc.: Advance Lease ra ment: $3,045.16 includes the first 1 payment(s) and the last 0 payment(s), In connection with this Schedule, Lessee agrees to pay a documentation /processing fee of $0.00. Total Finance Charges due during the Original Term of this Schedule: $ 9.16 Renewal Lease Payment (plus applicable Taxes): This Equipment Lease Schedule (this "Schedule ") is made and entered into as of the Effective Date identified above and is entered into in connection with the above - identified Master Lease Agreement (the "Master Agreement "). All of the terms and conditions set forth in the Master Agreement are hereby reaffirmed and incorporated in and made part of this Schedule, as if fully set forth herein. This Schedule, inclusive of the terms and conditions set forth in the Master Agreement as aforesaid, constitutes a separate lease between Wells Fargo and Lessee that may be referred herein to as this "Lease ". This Lease is not binding upon Wells Fargo until Wells Fargo accepts this Lease by signing below. A facsimile copy of this Lease shall have the same force and effect as the original. This Lease may not be modified except in writing, signed by Wells Fargo and Lessee. This Lease may be terminated early only in accordance with Section 5 of the Master Agreement. Lessee: City of Schertz, Texas GO - Lessee By: By: NamefTitle: John Kassel, City Manager Name/Title: Date: Dale: Lessor: Wells Fargo Financial Leasing, Inc. By; Date: Nameffitle: V2494202 v2 (10128113) Addendum A to Master Lease Schedule Master Lease Agreement # / Dated This Addendum A is entered into in connection with Master Lease Schedule No. (the "Schedule "). Wells Fargo hereby agrees to lease to Lessee, and Lessee hereby agrees to lease from Wells Fargo, the following- described Equipment upon the terms and conditions set forth in the Schedule: Uescnption of Equipment: Serial Number (2) 2014 Jacobsen HR9016T 4WD Mowers Maximum # Excess Use Bei of Hours Charge Per Hr. Per Year: Hour: # <600 $15 /hr Lessee agrees that Wells Fargo may insert the Serial Numbers for the Equipment after Lessee's execution hereof. A facsimile copy of this Addendum shall have the same force and effect as the original. This Addendum may not be modified except in writing, signed by Wells Fargo and Lessee. Lessee: City of Schantz, Texas Co- Lessee: By: Name/Title: John Kassel, City Manager Date: Lessor: WELLS FARGO FINANCIAL LEASING, INC. By: Namerfitle By: Name/Title: Date: To: Wells Fargo Financial Leasing, Inc., MAC F4031 -050, 800 Walnut Street, Des Moines, IA 50309 ( "Wells Fargo ") ssee (and Co- Lessee, if applicable) hereby unconditionally certifies that (1) all of the Equipment (a) has been properly delivered to it at the uipment location described in the Lease, (b) has been installed and is in good working order, and (c) meets all of its requirements and is suitable for purposes, (2) it has had a reasonable opportunity to inspect the Equipment and unconditionally and irrevocably accepts all of the Equipment for all -poses, (3) it has duly executed the Lease and no side agreements or cancellation rights have been granted to it with respect to the Lease or any uipment, (4) all of its representations and warranties set forth in the Lease are true and correct, and (5) it has not been induced to sign this rtifcate by any assurances of Wells Fargo or anyone else. Lessee (and Co- Lessee, if applicable) authorizes Wells Fargo to, at any time, insert the nber of the Lease in this Certificate. and 71025,4 Page 1 of 1 CITY COUNCIL MEMORANDUM City Council Meeting: May 6, 2014 Department: Agenda No. 5 Parks, Recreation and Community Services Subject: Resolution No. 14 -R -41 — Approval of a Resolution Authorizing an Agreement with Wellmed Medical Management, Inc. 4J X" lei 11E On January 18, 2014 City Council approved resolution 14 -R -11 authorizing a termination agreement with the Comal County Senior Citizens Foundation. The City of Schertz entered into an operating agreement with the Comal County Senior Citizens Foundation ( "Foundation ") in May of 2010 which was amended in October 2010 and March 2011. The operating agreement provided for the Foundation to operate the Schertz Area Senior Citizens Center ( "Center ") located at 608 Schertz Parkway. The October 2010 Operating Agreement was between the City of Schertz, the Foundation, and Wellmed and outlined responsibilities of all parties. In light of the Foundation no longer being involved with the Schertz Area Senior Center, this agreement outlines the responsibilities of both the City and Wellmed for Wellmed to continue to operate out of the Senior Center building. Goal To continue to work with Wellmed to develop and grow a sustainable senior program at the "Center" that meets the needs of the Schertz Area Senior population. Community Benefit Provide much needed care and services to area senior citizens. Summary of Recommended Action Staff recommends Council approve the resolution authorizing the agreement between the City and Wellmed. FISCAL IMPACT The agreement stipulates that Wellmed will pay the City $1,250 per month during the initial term (September 30, 2015) and $1,512 per month if the agreement is extended. The City in turn will spend at least $3,500 per month towards the operation of the Senior Center. I�KI�17r Y [I]�I Approval of resolution 1 4-R-41 authorizing the agreement with Wellmed. ATTACHMENTS Resolution 14 -R -41 Interim Amendment to the Wellmed Operating Agreement October 2010 agreement RESOLUTION NO. 14 -R -41 A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS AUTHORIZING AN INTERIM AMENDMENT TO THE WELLMED OPERATING AGREEMENT. WHEREAS, the October 2010 Operating Agreement outlines the responsibilities of The City of Schertz, the Comal County Senior Citizens' Foundation, and Wellmed Medical Management Inc. WHEREAS, the City of Schertz terminated the operating agreement between the City of Schertz, Texas and the Comal County Senior Citizens' Foundation for the management of the Schertz Area Senior Center. WHEREAS, the City Council of the City of Schertz in- light -of the termination of the agreement with the Comal County Senior Citizens' Foundation and the continuing relationship with Wellmed, has determined a need to enter into an agreement outlining the responsibilities of the City and Wellmed. 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 enter into the Interim Amendment to Wellmed Operating Agreement between the City of Schertz and Wellmed Medical Management, Inc. Section 2. The recitals contained in the preamble hereof are hereby found to be true, and such recitals are hereby made a part of this Resolution for all purposes and are adopted as a part of the judgment and findings of the City Council. Section 3. All resolutions or parts thereof, which are in conflict or inconsistent with any provision of this Resolution are hereby repealed to the extent of such conflict, and the provisions of this Resolution shall be and remain controlling as to the matters resolved herein. Section 4. This Resolution shall be construed and enforced in accordance with the laws of the State of Texas and the United States of America. Section 5. If any provision of this Resolution or the application thereof to any person or circumstance shall be held to be invalid, the remainder of this Resolution and the application of such provision to other persons and circumstances shall nevertheless be valid, and the City Council hereby declares that this Resolution would have been enacted without such invalid provision. Section 6. It is officially found, determined, and declared that the meeting at which this Resolution is adopted was open to the public and public notice of the time, place, and subject matter of the public business to be considered at such meeting, including this Resolution, was given, all as required by Chapter 551, Texas Government Code, as amended. Section 7. This Resolution shall be in force and effect from and after its final passage, and it is so resolved. PASSED AND ADOPTED, this 6th day of May 2014. ATTEST: City Secretary, Brenda Dennis (CITY SEAL) CITY OF SCHERTZ, TEXAS Mayor, Michael R. Carpenter -2- INTERIM AMENDMENT TO WELLMED OPERATING AGREEMENT This Interim Amendment to WeIIMed Operating Agreement (this "Interim Amendment ") is made and entered effective as of the 2nd day of February, 2014 (the "Effective Date ") and is between the City of Schertz, Texas, a municipal corporation and home -rule city of the State of Texas (the "City "), and WeIIMed Medical Management, Inc., a Texas corporation ( "WeIIMed "). Each of the City and WeIIMed may be referred to herein from time to time as a "Party" or collectively, as the "Parties." N 791 I Ife\ E.y WHEREAS, the City and the Comal County Senior Citizens' Foundation, a Texas non- profit corporation (the "Foundation "), entered into an Operating Agreement dated May 18, 2010 to operate a senior citizens' program (the "Program ") for the City and which was amended by the First Amendment to Operating Agreement dated October 12, 2010 and the Second Amendment to Operating Agreement dated March 15, 2011 (collectively, "Foundation Operating Agreement "); WHEREAS, as of October 12, 2012, the City, Foundation and WeIIMed entered into an Operating Agreement ( "WeIIMed Operating Agreement ") which, in part, provided that the Foundation was to perform the obligations as set forth in the Foundation Operating Agreement; WHEREAS, the City and the Foundation terminated the Foundation Operating Agreement as of February 2, 2014 pursuant to that certain Agreement Terminating Operating Agreement; WHEREAS, there is a continuing need for senior residents in the area of the City to have access to a variety of services and activities that can enhance their quality of life; WHEREAS, in order to enable WeIIMed to continue to perform the WeIIMed Services as described in the WeIIMed Operating Agreement, the City has elected to: (i) assume the obligations of the Foundation set forth in Article III of the Foundation Operating Agreement until such time as a suitable replacement for the Foundation assumes such obligations, and (ii) incorporate the provisions of Article IV of the Foundation Operating Agreement into the WeIIMed Operating Agreement; NOW THEREFORE, in consideration of the foregoing and the mutual agreements, covenants and payments herein and other valuable consideration, the receipt and sufficiency of which are hereby conclusively stipulated and admitted for all purposes, agree as follows: 1. This Interim Amendment is made pursuant to Section 9.08 of the WeIIMed Operating Agreement. Defined terms in the WeIIMed Operating Agreement and the Foundation Operating Agreement shall have the same meanings attributed to such terms when used in this Interim Amendment unless otherwise provided herein and references to section numbers are to sections of the WeIIMed Operating Agreement unless otherwise provided herein. 2. The City hereby assumes the responsibilities of the Foundation set forth in ARTICLE III RESPONSIBILITIES OF THE FOUNDATION of the Foundation Operating Agreement and such provisions are hereby incorporated by reference as if fully set forth herein with the exception that all references therein to the "Foundation" shall be deemed to be the "City." 122588v.146707-1 3. ARTICLE IV RESPONSIBILITIES OF THE CITY of the Foundation Operating Agreement is hereby amended and restated and incorporated herein as follows: 4.01 City Responsibilities. The City agrees to the following obligations with respect to the Program: (a) The City will provide the facility located at 608 Schertz Parkway as the "City Program Facility" pursuant to the license described in Section 4.02. The City will be responsible for maintaining the landscaping on the exterior of the City Program Facility. (b) The City will provide all exterior signage on the City Program Facility, and all signage in the City Program Facility shall be subject to written approval by the City. (c) The City will work with WeIIMed to identify qualifying seniors in the City who are in need of assistance of the type to be offered in the Program. (d) The City will use reasonable efforts to refer other entities to collaborate with WeIIMed to provide additional Program opportunities to qualifying senior residents of the City. (e) The City will make or request the following payments: (i) The City will pay expend $3,500 per month (the "Funds ") for the initial approximately twenty -nine month term of this Agreement which shall be utilized to assist in modification of the City Program Facility and to operate the Program during such period. Funding by the City shall be made from legally available City funds. Funding, if any, after the initial term shall be subject to subsequent agreement. (ii) Reserved. (f) The City will provide City -line digital telephone service to the City Program Facility at the City's cost. (g) The City will provide appropriate insurance coverage for the City Program Facility, including the Closet described in Section 4.02(a), and the Program through the Texas Intergovernmental Risk Program at the City's cost. (h) The City will waive all City- required permit fees relating to WellMed's activities relating to the City Program Facility or the Program. (i) The City may, at its expense, modify the exterior of the City Program Facility. Such modification, if it occurs, shall not adversely impact the Program. 0) The City will maintain the parking lot for the City Program Facility and the lighting for such parking lot. (k) The City will assist in advertising the Program with information on the City's website and in Schertz Tales. (1) Reserved. (m) The City will use two freezers, one large refrigerator, and a commercial oven to be identified by the City for use in the Program. 4.02 License. 2 122588v.146707-1 (a) The City shall have non - exclusive access to the City Program Facility, excluding a locked approximately 3' x 6' closet (the "Closet ") in what is to be the "Activity Room" of the City Program Facility which contains City IT equipment (the "Licensed Premises ") for the purpose of conducting the Program. The City will retain keys to the City Program Facility and the Closet and shall have the right to enter the City Program Facility and to access the Closet at any time. (b) Reserved. 4. Section 3.01(b)(ix) of the WeIIMed Operating Agreement is hereby deleted and the following is inserted in lieu thereof: (ix) as consideration for its use of the WeIIMed Area, WeIIMed will pay directly to the City $1,250 per month during the initial term. During the first, if any, extended term of this Agreement as permitted by Section 1.03, the monthly payment shall be $1,375 per month, and during the second, if any, extended term of this Agreement as permitted by Section 1.03, the monthly payment shall be $1,512 per month and the City shall use the foregoing payments exclusively to operate and enhance the City Program Facility and the obligations of the Foundation hereby assumed by the City; in addition, WeIIMed shall pay directly to the City a monthly utility charge if the WeIIMed Area is not separately metered for utilities as described in paragraph (iii) above, in an amount equal to (x) the ratio of the square footage of the WeIIMed area to the square footage of the City Program Facility, times (y) the amount of the monthly utility charges for electricity, water and sewer for the City Program Facility, plus (z) ten percent (10 %) of such amount: 5. Section 3.02 of the WeIIMed Operating Agreement is hereby deleted. 6. The obligations of the City set forth herein shall continue until such time as a suitable replacement for the Foundation assumes and performs such obligations or the WeIIMed Operating Agreement is terminated in accordance with its provisions. 7. Except as specifically provided herein, the terms and conditions of the Agreement remain in full force and effect. The Agreement and this Interim Amendment contain the complete and exclusive statement of the terms and conditions among the parties regarding the subject matter hereof and cannot be altered, amended or modified except in writing as executed by each party in accordance with Section 9.08 of the Agreement. * ** *Signature Page Follows * * ** 122588v.146707-1 EXECUTED as of the date first above written. WELLMED MEDICAL MANAGEMENT, INC., a Texas Corporation By: Bryan D. Grundhoefer, President CITY OF SCHERTZ, TEXAS, a Texas municipal corporation and home -rule municipality By: John Kessel, City Manager 4 122588v.146707-1 This Operating Agreement (this "Agreement") made and entered effective as of this 12th day of October, 2010 (the "Effective Date ') is among the City of Schertz, Texas, a municipal corporation and home -rule city of the State of Texas (the "City"), the Comal County Senior Citizens' Foundation, a Texas non -profit corporation (the "Foundation"), and WellMed Medical Management Inc., a Texas corporation ( "Wellmed "). Each of the City, the Foundation, and WellMed may be referred to herein from time to time as a "Party" or collectively as the "Parties ". RECITALS WHEREAS, there is a continuing need for senior residents in the area of the City to have access to a variety of services and activities that can enhance their quality of life; WHEREAS, the City has previously entered into an Operating Agreement dated May 18, 2010 with the Foundation (the "Foundation Operating Agreement ") to operate a senior citizens' program (the "Program ") for the City; WHEREAS, the City and the Foundation understand that WellMed is an established organization providing a variety of medical services to seniors and that We111vled is interested in and capable of providing certain medical services to augment the Program for the City and the Foundation; NOW THEREFORE, in consideration of the foregoing and the mutual 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 GENERAL PROVISIONS 1.01 Recitals. The recitals to this Agreement are incorporated herein for all purposes. 1.02 Phu ose. The specific purpose of this Agreement is to authorize WellMed to augment the Program in the City Program Facility (hereinafter defined) as described herein. The Foundation Operating Agreement continues in full force except to the extent provisions of this Agreement specifically amend the Foundation Operation Agreement. 1.03 Term. (a) The initial term of this Agreement shall be from the Effective Date of this Agreement through September 30, 2015. With the written consent of each Party delivered to the other Parties at least ninety (90) days before the end of the initial term and, if any, the first extended term hereof, this Agreement shall be extended after the initial term for up to two (2) successive three (3) year terms. This Agreement, and the Parties' obligations hereunder, shall terminate at the end of the then- current term if all Parties do not give such notice. The terms of this Section shall be subject to the terms of Sections 5.01 -5.04. With the written consent of all Parties, this Agreement may be terminated at any time. 50324281.6 (b) Upon termination of this Agreement pursuant to Sections 5.01, 5.02, 5.03, or 5.04 by the City and/or the Foundation effective prior to September 30, 2015, the Party or Parties so terminating this Agreement will reimburse WellMed for certain upgrades made by WellMed to the City Program Facility as agreed to when the City approves such upgrades pursuant to Section 3.01(d). 1.04 Disclaimer. THE PARTIES ACKNOWLEDGE THAT, EXCEPT FOR THE PARTIES' REPRESENTATIONS AND AGREEMENTS CONTAINED WITHIN THIS AGREEMENT AS SET FORTH IN THE FOUNDATION OPERATING AGREEMENT, NEITHER THE PARTIES NOR ANY AFFILIATE OF THE PARTIES NOR ANY RELATED PARTY OF THE PARTIES HAS MADE ANY REPRESENTATION, AGREEMENT, OR WARRANTY WHATSOEVER (WHETHER EXPRESS OR IMPLIED) REGARDING THE PROGRAM, THE CITY PROGRAM FACILITY, THE SUBJECT MATTER OF THIS AGREEMENT, OR ANY EXHIBIT HERETO THAT IS BEING RELIED UPON, OTHER THAN THE OBLIGATIONS EXPRESSLY CONTAINED IN THIS AGREEMENT OR THE FOUNDATION OPERATING AGREEMENT. 1.05 Definitions: Construction (a) "Governmental Authority" means any Federal, state, or local governmental entity, authority or agency, court, tribunal, regulatory commission or other body, whether legislative, judicial or executive (or a combination thereof), and any arbitrator to whom a dispute has been presented under Governmental Rule or by agreement of the parties with an interest in such dispute. (b) "Governmental Rules" means any statute, law, treaty, rule, code, ordinance, regulation, permit, interpretation, certificate or order of any Governmental Authority, or any judgment, decision, decree, injunction, writ, order or like action of any court, arbitrator or other Governmental Authority. (c) Singular and Plural: Words used herein in the singular, where the context so permits, also includes the plural and vice versa, unless otherwise specified. ARTICLE II REPRESENTATIONS AND WARRANTIES 2.01 Representations of the Foundation. The Foundation hereby makes the following representations, warranties, and covenants to the other Parties as of the Effective Date unless another date is expressly stated to apply: (a) Existence. The Foundation is a non - profit corporation duly organized and existing under the laws of the State of Texas. (b) Authorization. The execution, delivery, and performance by the Foundation of this Agreement have been duly authorized by all necessary action and will not violate the organizational documents of the Foundation or result in the breach of or constitute a default under any loan or credit agreement, or other material agreement to which the Foundation is a party or by which the Foundation or its material assets may be bound or affected. The execution of this Agreement by the Foundation does not require any consent or approval that has not been obtained, including without limitation the consent or approval of any Governmental Authority. 50324281.6 2 (c) No Legal Bar. To the best of its knowledge, the execution and delivery of this Agreement and the performance of its obligations hereunder by the Foundation will not conflict with any provision of any law, regulation, or Governmental Rules to which the Foundation is subject or conflict with, or result in a breach of, or constitute a default under any of the terms, conditions, or provisions of any agreement or instrument to which the Foundation is a party or by which it is bound or any order or decree applicable to the Foundation. (d) Litigation. There are no legal actions or proceedings pending or, to the knowledge of the Foundation, threatened against the Foundation which, if adversely determined, would materially and adversely affect the ability of the Foundation to fulfill its obligations under this Agreement or the financial condition, business, or prospects of the Foundation. (e) Enforceable Obligations. Assuming due authorization, execution, and delivery of this Agreement by the other Parties, this Agreement, each document executed by the Foundation pursuant hereto, and all obligations of the Foundation hereunder and thereunder are enforceable against the Foundation in accordance with their terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, or other similar laws affecting the enforcement of creditor's rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law). 2.02 Representations of the Citv. The City hereby makes the following representations, warranties, and covenants to the other Parties as of the Effective Date unless another date is expressly stated to apply: (a) Existence. The City is a home rule municipality of the State of Texas located in the counties of Guadalupe, Bexar, and Comal, Texas and has all requisite power and authority to enter into this Agreement. (b) Authorization. The execution, delivery, and performance by City of this Agreement have been duly authorized by all necessary action and will not violate the organizational documents of the City or result in the breach of or constitute a default under any loan or credit agreement, or other material agreement to which the City is a party or by which the City or its material assets may be bound or affected. The execution of this Agreement by the City does not require any consent or approval that has not been obtained, including without limitation the consent or approval of any Governmental Authority. (c) No Legal Bar. To the best of its knowledge, the execution and delivery of this Agreement and the performance of its obligations hereunder by the City will not conflict with any provision of any law, regulation, or Governmental Rules to which the City is subject or conflict with, or result in a breach of, or constitute a default under any of the terms, conditions, or provisions of any agreement or instrument to which the City is a party or by which it is bound or any order or decree applicable to the City. 50324281.6 (d) Litigation. There are no legal actions or proceedings pending or, to the knowledge of the City, threatened against the City which, if adversely determined, would materially and adversely affect the ability of the City to fulfill its obligations under this Agreement or the financial condition, business, or prospects of the City. (e) Enforceable Obligations. Assuming due authorization, execution, and delivery of this Agreement by the other Parties, this Agreement, all documents executed by City pursuant hereto, and all obligations of City hereunder and thereunder are enforceable against City in accordance with their terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, or other similar laws affecting the enforcement of creditor's rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law). (0 Senior Center Program. The City currently expects to provide for the Program to be operated in the City Program Facility for at least the initial term of this Agreement. 2.03 Representations of WellMed. WellMed hereby makes the following representations, warranties, and covenants to the other Parties as of the Effective Date unless another date is expressly stated to apply: (a) Existence. WellMed is a corporation duly organized and existing under the laws of the State of Texas. (b) Authorization. The execution, delivery, and performance by WellMed of this Agreement have been duly authorized by all necessary action and will not violate the organizational documents of WellMed or result in the breach of or constitute a default under any loan or credit agreement, or other material agreement to which WellMed is a party or by which We11Med or its material assets may be bound or affected. The execution of this Agreement by WellMed does not require any consent or approval that has not been obtained, including without limitation the consent or approval of any Governmental Authority. (c) No Legal Bar. To the best of its knowledge, the execution and delivery of this Agreement and the performance of its obligations hereunder by WellMed will not conflict with any provision of any law, regulation, or Governmental Rules to which WellMed is subject or conflict with, or result in a breach of or constitute a default under any of the terms, conditions, or provisions of any agreement or instrument to which WellMed is a party or by which it is bound or any order or decree applicable to WellMed. (d) Litigation. There are no legal actions or proceedings pending or, to the knowledge of WellMed, threatened against WellMed which, if adversely detenmined, would materially and adversely affect the ability of WellMed to fulfill its obligations under this Agreement or the financial condition, business, or prospects of WellMed. (e) Enforceable Obligations. Assuming due authorization, execution, and delivery of this Agreement by the other Parties, this Agreement, each document executed by WellMed pursuant hereto, and all obligations of WellMed hereunder and thereunder are enforceable against WellMed in accordance with their terms, except as such 50324281.6 4 enforcement may be limited by bankruptcy, insolvency, reorganization, or other similar laws affecting the enforcement of creditor's rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law). ARTICLE III RESPONSIBILITIES OF WELLMED AND THE FOUNDATION 3.01 WellMed Responsibilities. WellMed agrees to the following obligations with respect to the Program. (a) WellMed. will provide the services set forth on Exhibit A to this Agreement (the "WellMed Services ") in the City Program Facility to qualifying senior residents of the City and the surrounding area. In connection with the provision of the WellMed Services in the City Program Facility, (i) WellMed will provide the WellMed Services Monday through Friday of each week, excluding Texas and federal holidays as agreed to by the Foundation and the City; (ii) WellMed will provide the WellMed Services with its employees and/or independent contractors; none of such persons shall be, or be deemed to be, employees of the City or the Foundation; (iii) WellMed will provide managerial oversight of the WellMed Services, but acknowledges that the Foundation will schedule and coordinate all Program operations involving the WellMed Services; (iv) WellMed will 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; (v) WellMed will bear all costs of providing the WellMed Services; and (vi) WellMed will commence providing the WellMed Services no later than November 1, 2010. (b) In addition to providing the WellMed Services, WellMed shall establish a seniors - oriented primary medical practice providing the clinical medical services described on Exhibit B to this Agreement (the "WellMed Clinical Services ") in the approximately 2,500 square foot portion of the City Program Facility described on Exhibit C (the "WellMed Area"), as licensed by the City to WellMed pursuant to Section 4.02(b) of this Agreement. In connection with the provision of the WellMed Clinical Services in the WellMed Area, (i) WellMed will manage the WellMed Area and the WellMed Clinical Services, but the WellMed Clinical Services will be provided by an established professional association of physicians affiliated with WellMed, the 50324281.6 5 current members and employees of which and their practice and professional specialties are identified on Exhibit B to this Agreement; none of such persons shall be, or be deemed to be employees of the City or the Foundation; (ii) WellMed may attach one (1) sign on the exterior of the City Program Facility in a location in reasonable proximity to the entrance to the building and one (1) sign on or beside the interior door to the WellMed Area, both of which may contain the WellMed name and logo in standard WellMed colors; the precise size and location of the signs must be approved by the City; the City will consider placing a reference to the WellMed Clinical Services location on a City monument sign on the City Program Facility property; (iii) If the WellMed Area is properly metered, WellMed will be responsible for the cost of all electricity, water, and sewer utilities in the WellMed Area; WellMed will be responsible for all costs for telephones and internet service for the WellMed Area; (iv) WellMed will be responsible for all custodial services within the WellMed Area; (v) WellMed will be responsible for all maintenance and repairs within the WellMed Area; (vi) WellMed may establish secure, locked areas or cabinets within the WellMed Area for the storage of patient records and drugs and medical instruments; subject to Texas and Federal laws and regulations relating to patient privacy, WellMed shall permit a representative of the City, accompanied by a WellMed representative, with of least twenty four (24) hours' prior notice to inspect such secure areas; (vii) Subject to paragraph (vi) above, the provisions of Section 6.01 shall apply to the WellMed Area and the WellMed Clinical Services; (viii) WellMed will insure the internal equipment and furnishings in the WellMed Area; (ix) As consideration for its use of the WellMed Area, WellMed will pay directly to the Foundation $1,250 per month during the initial term. During the first, if any, extended tern of this Agreement as permitted by Section 1.03, the monthly payment shall be $1,375, and during the second, if any, extended term of Us Agreement as permitted by Section 1.03, the monthly payment shall be $1,512; in addition, WellMed shall pay directly to the City a monthly utility charge if the WellMed Area is not separately metered for utilities as described in paragraph (iii) above, in an amount equal to ((x) the ratio of the square footage of the WellMed Area to the square footage of the City Program Facility, times (y) the amount of the monthly utility charges for electricity, water, and sewer for the City Program Facility), plus (z) ten percent (10 %) of such amount; 50324281.6 6 (x) WellMed will bear all costs of providing the WellMed Clinical Services and the activities described in this Section 3.01(b), subject to its right to bill patients and third -party payers for medical services; (xi) Neither WellMed nor the Foundation shall state or imply that seniors participating in the Program must or should utilize the WellMed Clinical Services in the WellMed Area but may state that such WellMed Clinical Services are an option that seniors may consider; neither WellMed nor the Foundation shall interfere with any doctor - patient relationship of any person utilizing the Program; (xii) Neither WellMed nor any organization or person providing the WellMed Clinical Services shall state, imply, or otherwise indicate that the City provides, recommends, or promotes the medical or other services provided in the WellMed Area; and (xiii) WellMed will schedule Schertz area seniors to receive WellMed Clinical Services as soon as reasonably possible; and (xiv) WellMed will commence providing the WellMed Clinical Services no later than ninety (90) days after the formal opening of the City Program Facility for services under the Foundation Operating Agreement. (e) WellMed shall continually maintain (i) general liability and crime insurance coverage in at least the amounts described on Exhibit D to this Agreement, naming the City as additional insured and (ii) professional liability insurance coverage in at least the amounts set forth on Exhibit D to this Agreement. WellMed shall not cancel or reduce any such coverage without at least sixty (60) days' prior written notice to the City and receipt of the City's written consent to such cancellation or reduction. (d) Subject to written approval by the City, WellMed will install appropriate furniture and equipment ( "WellMed F &E ") and will fund appropriate interior building modifications, e.g. walls, restrooms, office and examination areas etc., to maximize the benefits of the WellMed Services, the WellMed Area, and the usefulness of the City Program Facility. At the time of such approval by the City, the City, the Foundation, and WellMed shall agree to the "buy -out" value of such interior building modifications to the City Program Facility for purposes of Section 1.03(b) above. All WellMed F &E installed in the City Program Facility by WellMed will belong to WellMed; the improvements to the City Program Facility will otherwise belong to the City. WellMed also agrees to make interior building modifications and improvements to the City Program Facility kitchen, as approved by the City, with a value of at least $25,000, which improvements shall belong to the City. (e) WellMed will provide a written report to the City Council of the City on or about January 1, April 1, July 1, and October 1 during the term of this Agreement, commencing on or about January 1, 2011. This report will detail the actions of WellMed to date with respect to the Program. Upon the written request of the City, WellMed will provide reports more frequently to the City, but no more than once per month. 50324281.6 7 3.02 Foundation Responsibilities. The Foundation agrees to the following obligations with respect to the Program: (a) The Foundation confirms all of its obligations under the Foundation Operating Agreement, except as specifically modified by this Agreement. (b) The Foundation will utilize all amounts received from WellMed pursuant to Section 3.01(b)(ix) to enhance the Program in the City Program Facility. ARTICLE IV RESPONSIBILITIES OF THE CITY; LICENSE 4.01 City Responsibilities. In addition to its obligations under the Foundation Operating Agreement, the City agrees to the following obligations with respect to the Program: (a) All exterior signage on the City Program Facility relating to WellMed, and all signage in the City Program Facility relating to WellMed shall be subject to written approval by the City. (b) The City will waive all City - required permit fees relating to We11Med's activities relating to the City Program Facility or the Program. (c) The City will provide at least ten (10) handicapped parking spaces in the parking lot adjacent to the City Program Facility. 4.02 City Program Facility License; WellMed Area License. (a) The Foundation has non - exclusive access to the entire City Program Facility, exclusive a locked approximately 3' x 6' closet (the "Closet ") in what is to be the "Activity Room" of the City Program Facility which contains City IT equipment (the "Foundation Licensed Premises ") for the purpose of conducting the Program. The City will retain keys to the City Program Facility and the Closet and, except as set forth in Section 3.01(b)(vi) and (vii), shall have the right to enter all parts of the City Program Facility and to access the Closet at any time. The non - exclusive license (the "License ") for the Foundation shall be for the term of this Agreement. (b) Except as set forth in, and subject to, Section 3.01 (b)(vi) and (vii) and Section 6.01, WellMed is hereby granted an exclusive license to the WellMed Area (the "WellMed Licensed Premises ") for purposes of providing the WellMed Clinical Services. (c) WELLMED (I) ACKNOWLEDGES THAT THE CITY PROGRAM FACILITY HAS BEEN VACANT FOR AN EXTENDED PERIOD OF TIME AND (II) AGREES THAT, SUBJECT TO SECTION 3.01(d), THE CITY PROGRAM FACILITY AND THE WELLMED LICENSED PREMISES ARE SATISFACTORY FOR WELLMED'S PURPOSES IN ITS PRESENT CONDITION, "AS IS ", "WHERE IS ", AND "WITH ALL FAULTS ".. THE LICENSE GRANTED HEREUNDER TO WELLMED IS A CONTRACTUAL AGREEMENT BETWEEN THE CITY AND WELLMED AND IS NOT ENTITLED TO BURDEN, BENEFIT, OR OTHERWISE RUN WITH THE CITY PROGRAM FACILITY PROPERTY, AND SUCH PROPERTY IS NOT WELLMED'S PROPERTY. 50324281.6 ARTICLE V DEFAULT 5.01 WellMed Default. The occurrence of any of the following shall be an "Event of Default" by WellMed or a "WellMed Default": (a) the failure of WellMed to substantially perform or substantially observe any of the obligations, covenants, or agreements to be performed or observed by WellMed wider this Agreement and the continuation of such failure for a period of thirty (30) days after written notice from the City or the Foundation of such failure; (b) the breach by WellMed of any of its representations hereunder; and (c) if WellMed files a voluntary petition in bankruptcy or insolvency or for reorganization or arrangement under the Bankruptcy Code of the United States ( "Bankruptcy Code ") or under any insolvency act of any state, or voluntarily takes advantage of any such law or act by answer or otherwise or is dissolved or admits its bankruptcy or insolvency or an inability to satisfy its creditors or makes a general assignment for the benefit of creditors; or if all or substantially all of the assets of WellMed are attached, seized, subjected to a writ or distress warrant or are levied upon, or come in to the possession of any receiver, trustee, custodian, or assignee for the benefit of creditors, and such proceeding or action is not vacated, stayed, dismissed, set aside or otherwise remedied within ninety (90) days after the occurrence thereof; or if this Agreement shall be assigned by WellMed in a manner prohibited by this Agreement. Upon the occurrence of a WellMed Default hereunder, and after the expiration of any applicable cure period, the City or the Foundation may terminate this Agreement and seek such remedies as may be available at law or in equity. 5.02 City Default. The failure of the City to substantially perform or substantially observe any of the obligations, covenants, or agreements to be performed or observed by the City under this Agreement and the continuation of such failure for a period of thirty (30) days after written notice from the Foundation or WellMed of such failure shall be an "Event of Default" by the City or a "City Default ". Upon the occurrence of a City Default hereunder, and after the expiration of any applicable cure period, the Foundation or WellMed may terminate this Agreement and seek such remedies as may be available at law or in equity. 5.03 Foundation Default. The failure of the Foundation to substantially perform or substantially observe any of the obligations, covenants, or agreements to be performed or observed by the Foundation under this Agreement and the continuation of such failure for a period of thirty (30) days after written notice from the City or WellMed of such failure shall be an "Event of Default" by the Foundation or a "Foundation Default ". Upon the occurrence of a Foundation Default hereunder, and after the expiration of any applicable cure period, the City or WellMed may terminate this Agreement and seek such remedies as may be available at law or in equity. 5.04 Foundation Termination. If at any time the Foundation's authority to operate the Program is terminated pursuant to the provisions of the Foundation Operating Agreement and the City chooses not to operate the Program itself and is unable to contract with a substitute 50324281.6 organization acceptable to the City to provide services under terms substantially similar to the terms of the Foundation Operating Agreement, the City may terminate the Program, and, if so, this Agreement shall also terminate. WellMed shall have at least 180 days to vacate the WellMed Area. 5.05 Remedies. Each Party shall be entitled to seek injunctive relief prohibiting or mandating action by the other, including specific performance, in accordance with this Agreement, or declaratory relief with respect to any matter under this Agreement. The Parties hereby agree and irrevocably stipulate that (a) the rights of the Parties to injunctive relief pursuant to this Agreement shall not constitute a "claim" pursuant to section 101(5) of the Bankruptcy Code and shall not be subject to discharge or restraint of any nature in any bankruptcy proceeding, and (b) this Agreement is not an "executory contract" as contemplated by section 365 of the Bankruptcy Code. ARTICLE VI EXAMINATION OF RECORDS 6.01 Inspection. WellMed shall allow the City reasonable access to the City Program Facility for inspections upon twenty four (24) hours' notice, and to documents and records necessary for the City to assess WellMed's compliance with this Agreement. The City reserves the right to conduct examinations, during regular business hours and with two (2) business days' notice to WellMed by the City, of the books and records related to the Program (including such items as contracts, paper, correspondence, copy, books, accounts, billings and other information related to the performance of the Foundation's services hereunder) no matter where books and records are located. The City also reserves the right to perform any and all additional audit tests relating to WellMed's services relating to the Program. These examinations shall be conducted at the offices maintained by the City or by WellMed, at the City's option. 6.02 Preservation of Records. All applicable records and accounts of WellMed, together with all supporting documentation, relating to the Program, shall be preserved by WellMed throughout the term of this Agreement and for twelve (12) months after the termination of this Agreement, then transferred to the City, at no cost to the City for retention. During this time, the City may require that any or all of such records and accounts be submitted for audit to the City or to a certified public accountant selected by the City. In the event Wellmed fails to famish the City any documentation required hereunder within thirty (30) days following the written request for same, then WellMed, as the case may be, shall be in default of this Agreement. 6.03 Patient Privacy. Notwithstanding any provision of this Agreement to the contrary, WellMed shall abide with all Federal and Texas laws, regulations, and rulings regarding patient privacy and shall assure that all of its personnel and independent contractors also fully comply with all such patient privacy requirements. ARTICLE VII ASSIGNMENT AND CONTRACTING 7.01 Sale, Transfers, and Assiamnent. WellMed may sell, transfer, or assign its rights and obligations under this Agreement only with prior written consent of the City and the 50324281.6 10 Foundation (with such consent not being unreasonably withheld, conditioned, or delayed). Each sale, transfer, or assigmnent to which there has been consent pursuant to the foregoing sentence shall be by instrument in writing, in form reasonably satisfactory to the City and the Foundation, and shall be executed by the transferee or assignee who shall agree in writing for the benefit of the City and the Foundation to be bound by and to perform the terms, covenants, and conditions of this Agreement. Failure to first obtain in writing the City's and the Foundation's consent, or failure to comply with the provisions herein contained shall operate to prevent any such sale, transfer, or assignment from becoming effective. 7.02 Covenants Binding. All covenants and agreements contained herein shall bind the Parties, and their permitted successors and assigns and shall inure to the benefit of the successors and assigns. 7.03 Limitations on City and Foundation Obligations. Neither the City nor the Foundation shall in any event be obligated to any third party, including any subcontractor or consultant of the Foundation or WellMed for performance of work or services under this Agreement. 7.04 No Waiver. The receipt by the City or the Foundation of services from a transferee or assignee of WellMed shall not be deemed a waiver of the requirements of Section 7.01 or a release of WellMed from further observance or performance by WellMed of the covenants contained in this Agreement. No provision of this Agreement shall be deemed to have been waived by the City unless such waiver is in writing, and approved by City Council in the form of a duly passed ordinance or resolution. ARTICLE VIII INDEMNIFICATION 8.01 Indemnification by WellMed. WELLMED. COVENANTS AND AGREES TO FULLY INDEMNIFY AND HOLD HARMLESS THE CITY AND THE FOUNDATION, AND THE ELECTED OFFICIALS, EMPLOYEES, OFFICERS, DIRECTORS, AND REPRESENTATIVES THEREOF (COLLECTIVELY, THE 60INDEMNIFIED PARTIES "), INDIVIDUALLY OR COLLECTIVELY, 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 KIND AND NATURE, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY OR DEATH, MEDICAL MALPRACTICE, AND PROPERTY DAMAGE, DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING FROM OR RELATED TO THE ACTIVITIES OF WELLMED UNDER THIS AGREEMENT, INCLUDING ANY SUCH ACTS OR OMISSIONS OF WELLMED, ANY AGENT, OFFICER, DIRECTOR, REPRESENTATIVE, EMPLOYEE, CONSULTANT OR SUBCONSULTANTS,.OR CONTRACTORS OR SUBCONTRACTORS OF WELLMED, AND ITS OFFICERS, AGENTS, EMPLOYEES, DIRECTORS, AND REPRESENTATIVES WHILE IN THE EXERCISE OR PERFORMANCE OF THE RIGHTS OR DUTIES UNDER THIS AGREEMENT, ALL WITHOUT, HOWEVER, WAIVING- ANY GOVERNMENTAL IMMUNITY AVAILABLE TO THE CITY, UNDER TEXAS LAW AND WITHOUT WAIVING ANY DEFENSES OF THE CITY OR THE FOUNDATION UNDER TEXAS LAW. THE PROVISIONS OF THIS INDEMNIFICATION ARE SOLELY FOR THE BENEFIT OF THE INDEMNIFIED PARTIES AND ARE NOT INTENDED TO CREATE OR GRANT ANY RIGHTS, CONTRACTUAL OR OTHERWISE, TO ANY OTHER PERSON OR ENTITY. WELLMED SHALL PROMPTLY ADVISE THE CITY AND /OR THE FOUNDATION IN WRITING OF ANY CLAIM OR DEMAND AGAINST THE CITY AND /OR THE 50324281.6 11 FOUNDATION OR ANY INDEMNIFIED PARTY KNOWN TO WELLMED RELATED TO OR ARISING OUT OF THE ACTIVITIES OF WELLMED UNDER THIS AGREEMENT AND SHALL SEE TO THE INVESTIGATION AND DEFENSE OF SUCH CLAIM OR DEMAND AT THE COST OF WELLMED TO THE EXTENT REQUIRED UNDER THE INDEMNITY IN THIS SECTION. THE INDEMNIFIED PARTIES SHALL HAVE THE RIGHT, AT THEIR OPTION AND AT THEIR OWN EXPENSE, TO PARTICIPATE IN SUCH DEFENSE WITHOUT RELIEVING WELLMED OF ANY OF ITS OBLIGATIONS UNDER THIS SECTION. WELLMED FURTHER AGREES TO DEFEND, AT ITS OWN EXPENSE, AND ON BEHALF OF THE INDEMNIFIED PARTIES AND IN THE NAME OF THE INDEMNIFIED PARTIES, ANY CLAIM OR LITIGATION BROUGHT AGAINST THE INDEMNIFIED PARTIES FOR WHICH THIS INDEMNITY SHALL APPLY, AS SET FORTH ABOVE. THE OBLIGATIONS OF WELLMED UNDER THIS SUBSECTION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT. 8.02 Contractors. WellMed shall also require each of its contractors and subcontractors working on the Program to indemnify the City and the Foundation and their respective officials and employees from and against any and all claims, losses, damages, causes of actions, suits, and liabilities arising out of their actions related to the performance of this Agreement, utilizing the same indemnification language contained herein, in its entirety. 8.03 Conflicts of Interest. Upon the assertion of any claim or litigation requiring indemnification pursuant to this Article, WellMed shall assume and take exclusive control of the defense, negotiation, and/or settlement of such claim; however, if the representation of all Parties by WellMed would be inappropriate due to actual or potential conflicts of interest between them, then neither WellMed shall not assume such defense. In the event of a conflict of interest or dispute, the City and its respective officials and employees shall have the right to select counsel, with the reasonable cost of such counsel paid by WellMed. The Parties acknowledge that, with respect to claims for which insurance is available, the rights of the Parties to select counsel for the defense of such claims shall be subject to such approval rights as the insurance company providing coverage may have. ARTICLE IX GENERAL AND MISCELLANEOUS PROVISIONS 9.01 Independent Contractors. It is expressly understood and agreed by all Parties hereto that in performing their services hereunder, WellMed at all times shall be acting as independent contractors contracted by the City and the Foundation, and all consultants or subcontractors engaged by WellMed shall be independent contractors of WellMed. The Parties hereto understand and agree that the City and the Foundation shall not be liable for any claims which may be asserted by any third party occurring in connection with services performed by WellMed under this Agreement unless any such claims are due to the fault of the City or the Foundation, respectively. The Parties hereto further understand and agree that no Party has authority to bind the others or to hold out to third parties that it has the authority to bind the others. 9.02 Legal Authority. The signers of this Agreement on behalf of the City, the Foundation, and WellMed represent, warrant, assure, and guarantee that they have full legal authority to execute this Agreement on behalf of the City, the Foundation, and WellMed, respectively, and to bind the City, the Foundation, and WellMed, respectively, to all of the terms, conditions, provisions, and obligations herein contained. 50324281.6 12 9.03 Venue and Governing Law. THIS AGREEMENT SHALL BE CONSTRUED UNDER AND IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. ANY LEGAL ACTION OR PROCEEDING BROUGHT OR MAINTAINED, DIRECTLY OR INDIRECTLY, AS A RESULT OF THIS AGREEMENT SHALL BE HEARD AND DETERMINED IN GUADALUPE COUNTY, TEXAS. 9.04 Implied Waiver. The failure of any Party hereto to insist, in any one or more instances, upon performance of any the terms, covenants, or conditions of this Agreement shall not be construed as a waiver or relinquishment of the future performance of any such term, covenant or condition by any other Party hereto, but the obligation of such other Party with respect to such future performance shall continue in full force and effect. 9.05 Approvals or Consents. Whenever this Agreement requires or permits approvals or consents to be hereafter given by any Party hereto, the Parties agree that such approval or consent shall not be unreasonably withheld. Such approval or consent shall be given in writing and shall be effective without regard to whether given before the time required herein. 9.06 Addresses and Notices. Unless otherwise provided in this Agreement, any notice, communication, request, replay or advice (herein severally and collectively for convenience called "notice ') herein provided or permitted to be given, made or accepted by any Party to the others must be in writing and may be given or be served by depositing the same in the United States Mail, postpaid and registered or certified and addressed to the Party to be notified, with return receipt requested, or by delivering the same to an officer of such part, or by prepaid telegram or facsimile, when appropriate, addressed to the part), to be notified. Notice deposited in the mail in the manner herein above described shall conclusively deemed to be effective, unless otherwise stated in this Agreement, from and after the expiration of three (3) days after it is so deposited. Notice given in any other manner shall be effective only if and when received by the Party to be notified. For the purposes of notice, the addresses of the Parties shall, until change as hereinafter provided, be as shown below. The Parties shall have their right to specify as its address any other address in the State of Texas by at least fifteen (15) days written notice to the other Party. If to the City to: City of Schertz, Texas 1400 Schertz Parkway Schertz, Texas 78154 Attention: City Manager If to the Foundation to: Comal County Senior Citizens' Foundation 655 Landa Street New Braunfels, Texas 78130 Attention: Executive Director If to WeI1Med to: WellMed Medical Management, Inc. 8637 Fredericksburg Road, Suite 360 San Antonio, Texas 78240 Attention: Chairman and Chief Executive Officer 9.07 Severability. The provisions of this Agreement are severable, and if any word, phrase, clause, sentence, paragraph, section or other part of this Agreement or the application 50324281.6 13 thereof to any person or circumstance shall ever be held by any court of competent jurisdiction to be invalid or unconstitutional for any reason, the remainder of this Agreement and the application of such word, phrase, clause, sentence, paragraph, section or other part of this Agreement to the other persons or circumstances shall not be affected thereby. 9.08 Changes and Amendments. 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 all Parties hereto. 9.09 Sole Agreements. Other than the Foundation Operating Agreement, this Agreement constitutes the entire agreement among any of the Parties relative to the subject matter hereof. Other than the Foundation Operating Agreement, there have been and are no agreements, covenants, representations, or warranties among any of the Parties as to the subject matter hereof other than those expressly stated or provided for herein. Except as specifically set forth in Section 3.01(c), Exhibit A, and Exhibit D, in the event of any conflict with or inconsistency between the terms of this Agreement and the terms of WellMed's proposal to the City to provide the WellMed Services, the terms of this Agreement shall prevail. 9.10 Survival. Each and every indemnification obligation, warranty, representation, covenant and agreement of the Parties contained herein shall survive the execution, delivery, and termination of this Agreement for a period of two (2) years from and after the date of termination of this Agreement, and shall not be merged into any document executed and delivered, but shall expressly survive and be binding thereafter on the City, the Foundation, and WellMed, as the case may be. No inspections or examinations of the City Program Facility or the Program or the books, records, or information relative thereto by the City shall diminish or otherwise affect the Foundation's, or WellMed's indemnification obligations, representations, warranties, covenants and agreements relative thereto, and the City may continue to rely thereon. 9.11 Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed an original, and all such counterparts together shall constitute one and the same instrument. 9.12 Cooperation. Each Party hereby agrees that it will take all actions and execute all documents necessary to fully carry out the purposes and intent of this Agreement. [The remainder of this page intentionally left blank.] 50324281.6 14 IN WITNESS WHEREOF, the Parties have executed the Agreement in multiple copies, each of which shall be deemed an original as of the date and year first written above. CITY OF SCHERTZ Don Taylor, Cit anager COMAL COUNTY SENIOR CITIZENS' FOUNDATION Ia WELLMED MEDICAL MANAGEMENT. INC. I George M. Rapier, M.D., Chairman and Chief Executive Officer 50324281.6 S -I IN WITNESS WHEREOF, the Parties have executed the Agreement in multiple copies, each of which shall be deemed an original as of the date and year first written above. CITY OF SCHERTZ M Don Taylor, City Manager COMAL COUNTY SENIOR CITIZENS' FOUNDATION C Robert Lopez, Executive Director WELLMED MEDICAL MANAGEMENT, INC. By: George . Rapier, M. ., Chairman and Chief E ecutive Officer 50324281.5 S -I Agenda No.6 CITY COUNCIL MEMORANDUM City Council Meeting: May 6, 2014 Department: Information Technologies Subject: Resolution No. 14 -R -42 Approving a Purchase with Motorola Solutions, Inc. authorizing the purchase of MW810 hardware to become CJIS compliant. BACKGROUND: The Criminal Justice Information System (CJIS) is a collection of criminal justice records and information shared electronically between state, local and federal law enforcement agencies. In order to access this system, each agency has to be compliant with security regulations set by the CJIS Patrol car computers that run on Windows XP need to be replaced to be compliant. The City will also install software to monitor each vehicle's computer remotely from the office. On April 8th of this year, Council approved a mid -year budget adjustment that included funds for this project. Motorola Solutions, Inc. is a sole source provider of the MW810 computers. GOAL: It is the goal of both the Police Dept. and the I.T. Dept. to become compliant with the CJIS mandate by installing Windows 7 computers into the City's patrol cars. COMMUNITY BENEFIT: The installation of new MW810 computers in our patrol cars will ensure proper compliance with the State and avoid disruption in our Police Dept. services to the residents of Schertz. SUMMARY OF RECOMMENDED ACTION: Approval of Resolution No. 14 -R -42, authorizing the City Manager to approve a purchase with Motorola Solutions, Inc. for new computers in City's patrol vehicles. FISCAL IMPACT: On April 8h of this year, Council approved the mid -year budget adjustment ordinance 14 -T -14 which included funds of $166,000 for the purchase of new computers and monitoring software. The computer purchase cost approximately $61,000.00. STAFF RECOMMENDATION: Approval of Resolution No. 14 -R -42 ATTACHMENT(S) Pricing Quote Sole Source Letter RESOLUTION NO. 14 -R -42 A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS AUTHORIZING A PURCHASE WITH MOTOROLA SOLUTIONS, INC. FOR NEW MW 810 COMPUTERS AND HARDWARE FOR PATROL VEHICLES TO BECOME COMPLIANT WITH THE CRIMINAL JUSTICE INFORMATION SECURITY MANDATE, AND OTHER MATTERS IN CONNECTION THEREWITH WHEREAS, the City staff of the City of Schertz (the "City ") has recommended that the City execute a purchase order with Motorola Solutions, Inc., relating to the purchase of new Motorola MW810 computers and hardware; and WHEREAS, the City Council has determined that it is in the best interest of the City to purchase computer hardware with Motorola Solutions, Inc. as they are a Sole Source vendor and pursuant to the Pricing Quote attached hereto as Exhibit A (the "Pricing Quote "). 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 a purchase order to Motorola Solutions, Inc. based on the Pricing Quote in substantially the form set forth on Exhibit A. Section 2. The recitals contained in the preamble hereof are hereby found to be true, and such recitals are hereby made a part of this Resolution for all purposes and are adopted as a part of the judgment and findings of the City Council. Section 3. All resolutions or parts thereof, which are in conflict or inconsistent with any provision of this Resolution are hereby repealed to the extent of such conflict, and the provisions of this Resolution shall be and remain controlling as to the matters resolved herein. Section 4. This Resolution shall be construed and enforced in accordance with the laws of the State of Texas and the United States of America. Section 5. If any provision of this Resolution or the application thereof to any person or circumstance shall be held to be invalid, the remainder of this Resolution and the application of such provision to other persons and circumstances shall nevertheless be valid, and the City Council hereby declares that this Resolution would have been enacted without such invalid provision. Section 6. It is officially found, determined, and declared that the meeting at which this Resolution is adopted was open to the public and public notice of the time, place, and subject matter of the public business to be considered at such meeting, including this Resolution, was given, all as required by Chapter 551, Texas Government Code, as amended. Error! Unknown document property name. Section 7. This Resolution shall be in force and effect from and after its final passage, and it is so resolved. PASSED AND ADOPTED, this 6th of May, 2014. CITY OF SCHERTZ, TEXAS Michael R. Carpenter, Mayor ATTEST: Brenda Dennis, City Secretary (CITY SEAL) Error! Unknown document property name. EXHIBIT A PRICING QUOTE Error! Unknown document property name. A -1 4D MC�T�7ROLA 5/2/2014 Page 1 Prepared By: Clay Cassard, Account Manager TOTAL April 10, 2014 hone Number: (512) 924 -3891 Quote Date: Description Email : ClaV .Cassard(DMotorolasolutions.com HGAC PRICE Extended Agency: City of Schertz Customer Number: 4 WIN 7 PRO 64BIT OS Contact Info: $250.00 17 MW810 MOBILE WORKSTATION CPU,R2.X TOTAL GRAND TOTAL 2,574.75 16,344.00 60,114.75 Motorola Confidential 5/2/2014 Page 1 QUOTE VALID 30 DAYS TOTAL 43,770.75 Spare Items Item Qty Description Model List Price HGAC PRICE Extended $2,595.00 In -Use Replacement Items 7,785.00 4 WIN 7 PRO 64BIT OS VA00821AA $250.00 17 MW810 MOBILE WORKSTATION CPU,R2.X F5218A $2,595.00 1,946.25 33,086.25 17 WIN 7 PRO 64BIT OS VA00821AA $250.00 187.50 3,187.50 17 NO 1/0 EXPANSION BOARD,R2.X VA00013AA $0.00 0.00 0.00 17 INTEL i5- 3610ME, IVY BRIDGE DUAL CORE 15 VA00739AA 0.00 0.00 0.00 17 HARD DISK,500GB VA00842AA 0.00 0.00 0.00 17 8GB,DDR3, 1600MHZ DUAL SLOT VA00763AA 295.00 221.25 3,761.25 285.00 ENH: (5 Year Total ) 2 YEAR EXTENDED SFS Lite, V701 BA $198.00 0.00 17 MW810 R2.0 CPU 355.00 266.25 148.50 2,524.50 17 0.2M (0.66FT) ADAPTOR CBL CPU R2.0 -DISP. R1.X,60/36 V648AF 95.00 71.25 1,211.25 TOTAL GRAND TOTAL 2,574.75 16,344.00 60,114.75 Motorola Confidential 5/2/2014 Page 1 TOTAL 43,770.75 Spare Items 4 MW810 MOBILE WORKSTATION CPU,R2.X F5218A $2,595.00 1,946.25 7,785.00 4 WIN 7 PRO 64BIT OS VA00821AA $250.00 187.50 750.00 4 NO 1/0 EXPANSION BOARD,R2.X VA00013AA $0.00 0.00 0.00 4 INTEL i5- 3610ME, IVY BRIDGE DUAL CORE 15 VA00739AA 0.00 0.00 0.00 4 HARD DISK,500GB VA00842AA 0.00 0.00 0.00 4 8GB,DDR3, 1600MHZ DUAL SLOT VA00763AA 295.00 221.25 885.00 ENH: (5 Year Total ) 2 YEAR EXTENDED SFS Lite, V701 BA $198.00 4 MW810 R2.0 CPU 148.50 594.00 4 0.2M (0.66FT) ADAPTOR CBL CPU R2.0 -DISP. R1.X,60/36 V648AF 95.00 71.25 285.00 0.00 5 KEYBOARD VA00840AA 355.00 266.25 1,331.25 3 12.1 "XGA 1500NIT DISPLAY,60 PIN,R2.X VA00796AA 2,095.00 1,571.25 4,713.75 TOTAL GRAND TOTAL 2,574.75 16,344.00 60,114.75 Motorola Confidential 5/2/2014 Page 1 P RTUN SCCHE RTZ I O Y MEMORANDUM MEMO TO: Rita Duprat- Waldo, Director, Purchasing & Asset Management DATE: April 24, 2014 FROM: Myles Clauser, I.T. Dept. Director SUBJECT: Sole/Single Source Justification for MW810 pcs/nronitorslkeyboards purchase for CJIS Compliance In accordance with the City of Schertz Purchasing Procedures, unless justified and documented for business reasons, all City of Schertz procurements exceeding $3,000 should be competed between two or more eligible suppliers. Separate, sequential or component purchase request to avoid this threshold is prohibited. Consequently, every contracting action for which competition does not occur must have a sole /single - source justification document in the contract file. This applies to all requests/requirements, not just "new" requirements. The fundamental issue is whether the procurement is competitive or not. If not, a written document must be developed and filed in the contract file, which justifies or explains why it was not competitively acquired. This procurement cannot reasonably be competed because: Check all applicable blocks and completely explain. 1. Only one supplier (include the supplier name) produces or can produce this product or service. 2. Urgency of need limits the capability to compete the requirement. Please explain the urgency and negative impact if timeline is extended to complete this requirement. X_ 3. Standardization with existing products or services must be maintained. Use of any other type, brand, or service process would be incompatible or too costly to modify. Explanation required. X 4. Continuity with current or existing processes or services is necessary. Change to another supplier is not possible for the following reasons:(sc� 5. Statutory or regulatory requirements limit competition for the following reasons: 6. Other reasons why competition for this requirement must be limited: NOTES: The Motorola MW810's are being used for the City's Police Department vehicles. It is imperative that the City continue to use the hardware that is compatible with our existing hardware. Signed: Position/Title: I . _Dvec:IY„ 1400 Schertz Parkway k Schertz, Texas 78154 z 210.619.1000 schedz.com Agenda No. 7 CITY COUNCIL MEMORANDUM City Council Meeting: May 6, 2014 Department: City Managers Office Subject: Ordinance No. 14 -F -18 Discussion and action regarding - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS AMENDING ORDINANCE NO. 14 -F -01, CPS ENERGY; PROVIDING FOR ADOPTION; THERETO; PROVIDING THAT THIS ORDINANCE IS CUMULATIVE OF ALL OTHER ORDINANCES OF THE CITY NOT IN CONFLICT WITH THE PROVISIONS OF THIS ORDINANCE; AND PROVIDING FOR AN EFFECTIVE DATE. (First Reading) BACKGROUND In January 2014, City Public Service (d/b /a CPS Energy) amended their 20 -year Franchise Agreement with the City of Schertz. Among the changes, CPS Energy increased the additional Franchise Fee percentage to 4% from all the member cities, including Schertz. Since that time, CPS Energy has proposed an additional amendment to distribute up to 4.5 %, rather than 4.0% Fees back to the member cities, including Schertz. As such, CPS Energy proposes to collect the additional 1/2 percent but requires each member city to amend their agreement to have those fees reimbursed back to the City for local use. The additional 1/2 percent increase replaces the old CPS Energy CIED fund program that was terminated in January 2012. In other words, the CPS Energy customers will not see an increase in rates but the increase in Franchise Fees will either be kept with CPS Energy or returned to the local cities for local use. Goal Provide for management of the City's Rights -of -Way by utility companies. Community Benefit CPS Energy is one of three electric utilities in the City of Schertz. Franchise agreements are one method in which the City can effectively manage the use of the City's Rights -of Ways by these firms. The City has Franchise agreements directly with CPS Energy, New ORDINANCE NO. 14 -F -18 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS AMENDING ORDINANCE NO. 14 -F -18, CITY PUBLIC SERVICE (CPS ENERGY); PROVIDING FOR ADOPTION; PROVIDING THAT THIS ORDINANCE IS CUMULATIVE OF ALL OTHER ORDINANCES OF THE CITY NOT IN CONFLICT WITH THE PROVISIONS OF THIS ORDINANCE; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, Ordinance 04 -F -09 and Ordinance 14 -F -01, grants an electric and gas franchise for twenty years to City Public Service (CPS Energy); and WHEREAS, CPS Energy has requested an amendment to the existing franchise; and WHEREAS, the City of Schertz (City) finds that amending the franchise agreement and entering into the Addendum to Ordinance No. 14 -F -01 is in the best interests of the citizens of the City. NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS: I. AMENDMENTS Ordinance No. 14 -F -01 is hereby amended to incorporate an Addendum to Ordinance No. 14 -F -01 that reflects the following changes and is attached in Exhibit 1: SECTION 1. No revision is made to this Section. SECTION 2. Payment for Street Rental, CPS Energy shall make a payment for street rental to the City in the amount of four and one -half percent (4.5 %) of CPS Energy's gross receipts from the sale of electricity and gas within the City. "Gross receipts" excludes uncollectibles. The payment for street rental shall be treated by CPS Energy as a system -wide cost of service, and shall not be identified separately on the customer bill. 2.1. The payment for street rental will reflect CPS Energy's gross receipts for such sales, on a quarterly basis and will be due to the City within thirty (30) days after the close of each quarter in CPS Energy's fiscal year. 2.2 If at any time within the term of this franchise the City passes an ordinance increasing the franchise fee from 4.5% to 5.5 %, CPS Energy agrees to execute documents necessary to accept this increased fee. Payment of the additional 1% shall be treated by CPS Energy as a City - specific fee and will be identified separately as a surcharge on bills of customers residing within the City limits. Payment to the City of this additional street rental fee will be made consistent with the procedure described in Section 2.1, beginning no sooner than the following quarter, as soon as the implemented surcharge is reflected on customer bills. SECTION 3. Limitation on Assessments. No revision is made to this Section. SECTION 4. Audits. No revision is made to this Section. SECTION 5. Construction. Operation and Maintenance of Facilities. No revision is made to this Section. SECTION 6. Civic Improvements. No revision is made to this Section. SECTION 7. Use of Pole Space. No revision is made to this Section. SECTION 8. Rate Schedules. No revision is made to this Section. SECTION 9. Furnishing of Information. No revision is made to this Section. SECTION 10. Uniform Franchise Benefits. No revision is made to this Section. SECTION 11. Limited indemnity. No revision is made to this Section. SECTION 12. Effective Date. This Franchise Agreement shall become effective upon its adoption by the City in the form authorized by the board of CPS Energy. It shall supersede and take precedence over inconsistent ordinances, resolutions, or regulations hereafter or heretofore passed by the City. The payments provided for in SECTION 2 shall be effective for CPS Energy's gross receipts from electric and gas sales within the City commencing the first day of the month of the beginning of the following business quarter upon adoption by the City and receipt of documentation by CPS Energy. SECTION 13. Headings. No revision is made to this Section. SECTION 14. Continuation of Agreement. No revision is made to this Section. SECTION 15. Assignment. No revision is made to this Section. Exhibit A: Confidentiality Agreement for an Inter - governmental Transfer of Information. No revision is made to this Exhibit. II. The City Manager is authorized to enter into and execute the Addendum with CPS Energy to Ordinance 14 -F -01. III. This Ordinance shall be cumulative of all provisions of ordinances of the City of Schertz, Texas, except where the provisions of the Ordinance are in direct conflict with the provisions such ordinances, in which event the conflicting provisions of such ordinances are hereby repealed. IV. It is hereby declared to be the intention of the City Council that the phrases, clauses, sentences, paragraphs, and sections of this Ordinance are severable, and if any phrase, clause sentence, paragraph or section of this Ordinance shall be declared unconstitutional by the valid judgment or decree of any court of competent jurisdiction, such unconstitutionality shall not affect any of the remaining phrases, clauses, sentences, paragraphs and sections of this Ordinance, since the same would have been enacted by the City Council without the incorporation in this Ordinance of any such unconstitutional phrase, clause, sentence, paragraph or section. PASSED ON FIRST READING, the 6th day of May, 2014. PASSED, APPROVED and ADOPTED ON SECOND READING, the day of Month, 2014. ATTEST: Brenda Dennis, City Secretary SIGNED: Michael Carpenter, Mayor ORDINANCE NO. 14 -F -01 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS AMENDING ORDINANCE NO. 04 -F -09, CITY PUBLIC SERVICE (CPS ENERGY); PROVIDING FOR ADOPTION; THERETO; PROVIDING THAT THIS ORDINANCE IS CUMULATIVE OF ALL OTHER ORDINANCES OF THE CITY NOT IN CONFLICT WITH THE PROVISIONS OF THIS ORDINANCE; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, Ordinance 04 -F -09, grants an electric and gas franchise for twenty years to City Public Service (CPS Energy); and WHEREAS, CPS Energy has requested an amendment to the existing fi•anchise; and WHEREAS, the City of Schertz (City) finds that amending the franchise agreement and entering into the Addendum to Ordinance No. 04 -F -09 is in the best interests of the citizens of the City. NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ,TEXAS: I. AMENDMENTS Ordinance No. 04 -F -09 is hereby amended to incorporate an Addendum to Ordinance No. 04 -F -09 that reflects the following changes and is attached in Exhibit 1: SECTION I DESCRIPTION. This agreement hereby grants the City of San Antonio, acting by and through the City Public Service Board, (CPS Energy), a twenty (20) year franchise commencing on March 13, 2014 for transmission, distribution and sale of electricity and gas within CPS Energy's certificated service area and within the City Schertz, Texas (Franchise Agreement). CPS Energy may construct, operate and maintain in, upon, over, under, and across the present and future streets, alleys, public ways and places within the City of Schertz, Texas (City) all the facilities CPS Energy deems reasonably necessary for the rendition of safe, reliable and economical electric and gas service (CPS Energy Facilities). SECTION 2. Payment for Street Rental. CPS Energy shall make a payment for street rental to the City in the amount of four percent (4 %) of CPS Energy's gross receipts from the sale of electricity and gas within the City. "Gross receipts" excludes uncollectibles. The payment for street rental shall be treated by CPS Energy as a system -wide cost of service, and shall not be identified separately on the customer bill. 2.1. The payment for street rental will reflect CPS Energy's gross receipts for such sales, on a quarterly basis and will be due to the City within thirty (30) days after the close of each quarter in CPS Energy's fiscal year. SECTION 3. Limitation on Assessments. No revision is made to this Section. SECTION 4. Audits. No revision is made to this Section. SECTION 5. Construction. Operation and Maintenance of Facilities. No revision is made to this Section. 5.1 No revision is made to this Subsection. 5.2 No revision is made to this Subsection. SECTION 6. Civic Improvements. No revision is made to this Section. SECTION 7. Use of Pole Space. No revision is made to this Section. SECTION 8. Rate Schedules. No revision is made to this Section. SECTION 9. Furnishing of Information. No revision is made to this Section. SECTION 10. Uniform Franchise Benefits. No revision is made to this Section. SECTION 11. Limited indemnity. No revision is made to this Section. SECTION 12. Effective Date. This Franchise Agreement shall become effective upon its adoption by the City in the form authorized by the board of CPS Energy. It shall supersede and take precedence over inconsistent ordinances, resolutions, or regulations hereafter or heretofore passed by the City. The payments provided for in SECTION 2 shall be effective for CPS Energy's gross receipts from electric and gas sales within the City commencing March 13, 2014, if this Franchise Agreement is adopted by the City on or before February 28, 2014, or otherwise shall be effective for CPS Energy's gross receipts from electric and gas sales within the City commencing the first day of the month following adoption by the City. SECTION 13. Headings. No revision is made to this Section. SECTION 14. Continuation of Agreement. No revision is made to this Section. SECTION 15. Assigimrent. No revision is made to this Section. Exhibit A: Confidentiality Agreement for an Inter - governmental Transfer of Information. No revision is made to this Exhibit. II. The City Manager is authorized to enter into and execute the Addendum with CPS Energy to Ordinance 04 -F -09. M. This Ordinance shall be cumulative of all provisions of ordinances of the City of Schertz, Texas, except where the provisions of the Ordinance are in direct conflict with the provisions such ordinances, in which event the conflicting provisions of such ordinances are hereby repealed. IV. It is hereby declared to be the intention of the City Council that the phrases, clauses, sentences, paragraphs, and sections of this Ordinance are severable, and if any phrase, clause sentence, paragraph or section of this Ordinance shall be declared unconstitutional by the valid judgment or decree of any court of competent jurisdiction, such unconstitutionality shall not affect any of the remaining phrases, clauses, sentences, paragraphs and sections of this Ordinance, since the same would have been enacted by the City Council without the incorporation in this Ordinance of any such unconstitutional phrase, clause, sentence, paragraph or section. PASSED ON FIRST READING, the 7th day of January, 2014. PASSED, APPROVED and ADOPTED ON SECOND READING, the 11Ta day of FEBRUARY, 2014. ATTEST: YLl%J Brenda Dennis, City Secretary SIGNED: ORDINANCE NO. ,� 51- 9 AN ORDINANCE GRANTING AN ELECTRIC AND GAS FRANCHISE TO CITY PUBLIC SERVICE WHEREAS, the City of Schertz has reviewed and is satisfied with the qualifications of the Franchisee named below: NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS: Section 1. DESCRIPTION. The City of San Antonio, acting by and through the City Public Service Board, (CPS), or the Franchisee, is granted a twenty -year franchise, commencing March 1, 2004, for transmission, distribution and sale of electricity and gas within the City of Schertz (City). CPS may construct, operate and maintain in, upon, over, under, and across the present and future streets, alleys, public ways and places within the City all the facilities CPS deems reasonably necessary for the rendition of safe, reliable and economical electric and gas service (CPS Facilities). Section 2. PAYMENT FOR STREET RENTAL. CPS shall make a payment for street rental to the City in the amount of three percent (3 %) of CPS's gross receipts from the sale of electricity and gas within the City. "Gross receipts" excludes uncollectibles. The payment for street rental shall be treated by CPS as a system -wide cost of service, and shall not be identified separately on the customer bill. The payment for street rental will reflect CPS's gross receipts for such sales, on a quarterly basis and will be due to the City within sixty (60) days after the close of each quarter in CPS's fiscal year. Section 3. LIMITATION ON ASSESSMENTS. The street rental charge is in lieu of all other fees or charges and the City shall not impose or collect, nor attempt to impose or collect, any charge or fee in connection with the construction, operation and maintenance of CPS Facilities within the City other than the payment for street rental provided for under Section 2 above. Section 4. AUDITS. Upon written notice to CPS, the City shall be entitled, during normal working hours and at reasonable intervals during the term of this agreement, to audit records of CPS supporting the payment for street rental, including customer lists, to the extent such information is public information. Section 5. CONSTRUCTION, OPERATION AND MAINTENANCE OF FACILITIES. CPS may open cut streets, curbs and sidewalks, bore, or utilize any other methods it deems reasonably necessary to construct, operate and maintain CPS Facilities within the City. The design and construction of CPS Facilities and CPS's access to and restoration of paved surfaces shall be in accordance with CPS's design and construction standards. Information concerning and copies of CPS's design and construction standards shall be made available to the City upon request by the City. Street cuts and restoration of paved surfaces shall be subject to ordinances that may be adopted by the City to the extent that such requirements are not in conflict with the following provisions. a. Prior to starting any work, CPS shall give ten (10) days written notice of the scope and duration of the work to the official designated by the City. Prior notice may be reduced or waived by the City in order to allow the work to proceed. In the event CPS determines there is an emergency, CPS may act without any prior notice, but shall provide notice to the City as soon as practicable. b. The surface of any street, alley, or public way or place, landscaping, and any other improvement disturbed by CPS shall be restored by CPS within a reasonable time after the completion of the work. Damages to landscaping and improvements caused by CPS or its contractors shall be repaired to the original condition, reasonable wear and tear excepted. No street, alley, or public way or place shall be encumbered by CPS for a longer period than shall be reasonably necessary to execute the work. CPS shall continue to maintain the integrity of the portion of any paved surface over CPS Facilities, as restored by CPS during the work, as long as CPS Facilities remain in use by CPS at that location. Section 6. CIVIC IMPROVEMENTS. The City shall give reasonable prior written notice of street repaving, widening or straightening projects to CPS. CPS shall, at its expense, relocate CPS Facilities in connection with activities reasonably related to the City's widening or straightening of streets. 2 Section 7. USE OF POLE SPACE. CPS shall permit the City to use existing CPS poles for the City's communications conductors used for the City's governmental purposes, to the extent CPS determines space is available. Such use shall be subject to the City's execution of CPS's form of contract for pole attachment and payment of the CPS fees applicable to such service. Section 8. RATE SCHEDULES. CPS shall offer to serve the City's accounts under the rate schedules most favorable to the City, in accordance with CPS's Rules and Regulations applying to Electric and Gas Service. Section 9. FURNISHING OF INFORMATION. Upon the City's request, CPS will make available to the City meeting agendas for City Public Service Board meetings, information packets, and rate filings, and will arrange periodic sessions for presentations by and discussions with knowledgeable CPS employees. Section 10. UNIFORM FRANCHISE BENEFITS. If at any time during the term of this agreement, CPS enters into a franchise agreement for the provision of electric or gas service which provides increased financial benefits to any incorporated community in excess of the percentages stated in Section 2, CPS shall provide written notice of such event to the City. At the option of the City, which must be exercised in writing within sixty (60) days after the City's receipt of notice from CPS, this agreement shall be amended to incorporate such increased financial benefit. The amendment to the agreement shall be effective from the same date shown in the franchise with such other incorporated community. Section 11. LIMITED INDEMNITY. It is expressly understood and agreed by and between the City and CPS that CPS shall indemnify and hold the City harmless from any and all loss sustained by the City on account of any suit, judgment, claim or demand whatsoever to the extent that such loss is attributed to the negligence of CPS, its agents or employees in the performance of services under this franchise agreement. Section 12. EFFECTIVE DATE. This franchise agreement shall become effective upon its acceptance by the City Public Service Board. It shall supersede and take precedence over inconsistent ordinances, resolutions, or regulations hereafter or heretofore passed by the City. The payments provided for in Section 2 shall be effective for CPS's gross receipts from electric and gas sales within the City commencing March 1, 2004, if this franchise agreement is adopted by the City on or before April 15, 2004, and otherwise shall be effective for CPS's gross receipts from electric and gas sales within the City commencing the first day of the month following adoption by the City. Section 13. HEADINGS. The headings of the sections in this agreement are for organizational purposes only. They have no separate meaning and shall not be read as affecting the language of the sections. Section 14. CONTINUATION OF AGREEMENT. This agreement shall remain in effect beyond the expiration of its term until a new agreement becomes effective between the parties or until this agreement is terminated by either party upon 180 days prior written notice, which notice may precede the expiration date by not more than 180 days. Section 15. ASSIGNMENT. This agreement may be assigned by CPS upon mutual written agreement of the City and CPS. Il City of Schertz Ordinance No. 83 -F -16 and any other ordinances and parts of ordinances in conflict with this ordinance are hereby repealed. Approved on first reading the aJAJof March, PASSED, APPROVED AND ADOPTED the 4 '%^^ A Mayor, City of Schertz, Texas ATTEST City Secretary, City of Schertz, Texas (Seal of City) ACCEPTED: City Public Service Board of the City of San Antonio, Texas Title: Date: PUBLISHER'S AFFIDAVIT THE STATE OF TEXAS, County of Guadalupe 1� Before me, the undersigned authority, on this date personally appeared Tommy crow , known to me, who, being by me duly sworn, on his oath deposes and says that he is the Publisher of The Seguin Gazette - Enterprise, a newspaper published in said county; that a copy of the within and foregoing notice was published in said newspaper % time(s) before the return day named therein, such publications being on the following dates: M all AN O1lAN f{ W' y� �;_ fO�r' s and a newspaper copy of which is hereto attached. 171 �� . Sw o and subscribed before me this day of j /12�f-w , A.D., 2004. CAR ANN AVERY P:<i41 "; pic Sian of texas y �* 0� � My OF Cemmissla� E.DirBS U�-31 -�u F v rr�rG'�4,�14:rL`LtG'`� t'�ti f �G t• .. . Notary Public, Guadalupe County, Texas PUBLISHER'S AFFIDAVIT THE STATE OF TEXAS, County of Guadalupe Before me, the undersigned authority, on this date personally appeared Tommy Crow , known to me, who, being by me duly sworn, on his oath deposes and says that he is the Publisher of The Seguin Gazette - Enterprise, a newspaper published in said county; that a copy of the within and foregoing notice was Published in said newspaper / time(s) before the return day named therein, such Publications being on the following dates: rol and a newspaper copy of which is hereto attached. Sworn n subscribed before me this ?dav of A.D., 2004. jv CAROL ANN AVERY AN - ORDINANCE GRANtM AN ELEC- TRIC AND GAS FRAN- CHS' SAV TO r Cffy "U& APPROVED AND AbOPM the ft day of Apd'2004 CRY SOC11010g14 - - - AC 4tal a .W; . .. . Notary Public, Guadalupe County, Texas Agenda No. 8 CITY COUNCIL MEMORANDUM City Council Meeting: May 6, 2014 Department: Public Works / Engineering Subject: Ordinance No. 14 -D -22- Providing that the Code of Ordinances for the City of Schertz be amended by revising section 86 -115 maximum speed limits generally on Pfeil Road from Ware Seguin Road to I1-110. First Reading BACKGROUND The speed limit on Pfeil Road has been 20 mph since the area was annexed into the City. In the past years, development and traffic has increased in the area. Public Works and Engineering completed a traffic study in the area to determine the appropriate speed for the roadway. The 85- percentile results were a higher speed than 30 mph; however, staff recommends that a safe traveling speed for Pfeil Road is 30 mph. The Traffic Safety Advisory Commission recommended approval at their regular meeting on April 3, 2014. Goal To ensure that all streets maintained by the City are up to date in the City Code of Ordinances and reflect the appropriate speed limit for the roadway. Community Benefit City Ordinances are current and up to date regarding all streets owned and maintained by the City. Summary of Recommended Action Recommend approval of first reading of increasing the speed limit from 20 mph to 30 mph on Pfeil Road from Ware Seguin Road to I1-110. FISCAL IMPACT $200 for signs paid for from 101 - 359 - 551600 Street Maintenance. RECOMMENDATION Staff recommends approval of first reading of Ordinance 14 -D -22. ATTACHMENT(S) City Council Memorandum Page 2 Ordinance 14 -D -22 Pfeil Road Exhibit ORDINANCE NO. 14 -D -22 AN ORDINANCE BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS PROVIDING THAT THE CODE OF ORDINANCES OF THE CITY OF SCHERTZ, TEXAS BE AMENDED BY REVISING SECTION 86 -115, MAXIMUM LIMITS GENERALLY ON SPECIFIC STREETS; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, it has been established that Pfeil Road from Ware Seguin Road to IH 10 is currently set as a 20 mile per hour roadway under Section 86 -115 Maximum limits generally on specific streets of the City Code of Ordinance. WHEREAS, it is recommended to change Pfeil Road from 20 mph to 30 mph in the City Code of Ordinances under Section 86 -115 Maximum limits generally on specific streets. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS: Section 1. THAT, Section 86 -115 Maximum Limits Generally of the Code of Ordinances, on roadways maintained by the City of Schertz, Texas be amended as follows: Street Extent Speed Limit Pfeil Road From Ware Seguin Road to IH 10 30 MPH Section 2 The recitals contained in the preamble hereof are hereby found to be true, and such recitals are hereby made a part of this Ordinance for all purposes and are adopted as a part of the judgment and findings of the Council. Section 3 All ordinances and codes, or parts thereof, which are in conflict or inconsistent with any provision of this Ordinance are hereby repealed to the extent of such conflict, and the provisions of this Ordinance shall be and remain controlling as to the matters resolved herein. Section 4 This Ordinance shall be construed and enforced in accordance with the laws of the State of Texas and the United States of America. Section 5 If any provision of this Ordinance or the application thereof to any person or circumstance shall be held to be invalid, the remainder of this Ordinance and the application of such provision to other persons and circumstances shall nevertheless be valid, and the City hereby declares that this Ordinance would have been enacted without such invalid provision. Section 6 It is officially found, determined, and declared that the meeting at which this Ordinance is adopted was open to the public and public notice of the time, place, and subject matter of the public business to be considered at such meeting, including this Ordinance, was given, all as required by Chapter 551, as amended, Texas Government Code. Section 7 This Ordinance shall be effective upon the date of final adoption hereof and any publication required by law. City Council Memorandum Page 2 PASSED ON FIRST READING, the 6th day of May 2014. PASSED, APPROVED AND ADOPTED the day of May 2014 Michael R. Carpenter, Mayor ATTEST: Brenda Dennis, City Secretary (CITY SEAL) _ 1 s\ • \ P�� / oe /N \® Joy r f \ f \\ i'�/ v '♦ ' �WAY � �\f "mot \ • \ *` I de ® `♦ les: r:- \ \ `r' Proposed Improvements: vow w W W W W W N W E S S lE S ti An w 2M I_MI_ =1M Eel R-A k I III I M DATE: May 6, 2014 TO: John Kessel, City Manager FROM: David Gwin, Executive Director, Schertz Economic Development Corporation RE: Reimbursement per the City's Development Agreement with Amazon.com In November 2012, Amazon.com entered a four party agreement with the City of Schertz, the Schertz Economic Development Corporation, and Guadalupe County. As part of the agreement, Amazon.com is eligible to receive a City Fees Incentive as defined in Section 4.1(e) of the Economic Development Incentive which states: Within thirty (30) calendar days following the issuance by the City of a permanent Certificate of Occupancy for the Building, the SEDC shall make a grant (the "City Fee Incentive ") to the Developer equal to the lesser of (i) all development permitting and other fees related to the Project that have been paid by the Developer, the Lessor, or any person involved in the construction of the Project to the City, including but not limited to building permit fees, plan review fees, irrigation and sign permit fees, fire permit fees, and public works impact fees; or (ii) Five Hundred Thousand and No /100 Dollars ($500,000.00) The Certificate of Occupancy was issued on April 4, 2014 for the Amazon Fulfillment Center (See Attachment A). The City collected $874,010.84 in development and permitting fees for the development of the Amazon Fulfillment Center (see Attachment B). The City Fees Incentive will be paid from SEDC Development Incentive Fund 620 - 966 - 537600 in the amount of $500,000. Attachment (s): Attachment A — Certificate of Occupancy Attachment B — Development Permitting and Other Fees a d b � O n w [yy CD CA CA \ N C o cn x H H z H •C b d n 0 d d 0 z N O 0 z � O O � z °z M O � ~ d u H a °z d b o r z o y o O ° z ycn o N CD r� � � b � � u W � °oy O � 7� CA In�nb rn G � H O H �o CA cn o d N N �G O cn W •C r� n tTj n � n � n �D as D C7 � � D Planning Fees Site Plan Fee (9 -18 -2012) Platting Fee (2 -29 -2012) Site Plan Fee (9 -26 -2012) Site Plan Fee (11 -14 -2013) Planning Fees Development Fees Attachment B Development Permitting and Other Fees $1,500 $5,000 $1,500 $500 $8,500 Control Tenant Conveyor Kiva Conveyor Racking Fire Burn Foundation Shell Improvement Development Irrigation System System System System Signs Sprinkler Permit # Permit Permit Permit Permit Permit Permit Permit Permit Permit Permit Permit 122324 #122553 #122592 #130395 #122355 #132323 #132654 #140440 #133292 #140445 #132298 #130922 Open or Controlled Burn $ 150 Fire Plan Review $ 50 $ 100 Building Permit -Comm. $ 11,519 $ 297,305 $ 25,451 $ 940 $ 4,151 $ 11,501 $ 109,304 $ 6,641 $ 288 Plan Check $ 5,760 $ 148,653 $ 12,726 $ 2,076 $ 144 Electrical $ 100 $ 100 $ 100 $ 100 $ 100 $ 100 $ 100 Plumbing $ 100 $ 100 $ 100 Lead Solder Permit $ 15 $ 15 $ 15 Mechanical $ 100 Sprinkler System $ 100 $ 100 Fire Plan Review-Sprinkler $ 50 $ 50 $ 50 $ 50 $ 50 Sprinkler Heads $ 14,041 $ 6,135 Water Meter Sets $ 180 $ 1,688 $ 1,587 Water Install Sets $ 62 $ 120 $ 1,997 Capital Recove -CCMA $ 1,800 $ 51,426 Capital Recovery -Sch WW $ 1,668 $ 41,557 Capital Recovery-Sch Water $ 2,934 $ 46,944 $ 23,472 Capital Recove -SSLGC $ 1,262 $ 20,192 $ 10,096 Development N/C TOTAL $ 150 $ 17,494 $468,3201 $ 200,518 N/C $ 38,092 $ 6,327 $ 11,651 $ 109,4541 $ 6,791 $ 432 $ 6,285 GRAND TOTAL I 1 1 $865,511 Total Development Permitting and Other Fees - Summary Planning Fees $8,500.00 Development Fees $865,510.84 Total $874,010.84 Planning fees and information was provided by the Planning Deparment on 4/25/2014 Development fees and information was provied by the Development Services Deparment on 4/9/2014 Agenda No. 12C CITY COUNCIL MEMORANDUM City Council Meeting: May 6, 2014 Department: Public Works Subject: National Flood Insurance Community Rating System (CRS) In advance of the upcoming discussion at a Council work session of the future impact on federally required flood insurance, staff is providing some background information on the Federal Emergency Management Agency's (FEMA) National Flood Insurance Program (NFIP). In particular, NFIP's Community Rating System (CRS). The CRS program recognizes community efforts beyond those minimum standards by reducing flood insurance premiums for the community's property owners. Staff has been researching this program for some time and will be discussing the cost and benefits of the program at the upcoming Council work session discussion. P do r 40 , • AN �'. Ak f : )K15�: National Flood Insurance Program Community Ratin g System A Local Official's Guide to Saving Lives Preventing Property Damage Reducing the Cost of Flood Insurance FEMA 573 h' T How the Community Rating System Works Every year, flooding causes hundreds of millions of dollars' worth of dam- age to homes and businesses around the country. Standard homeowners and commercial property policies do not cover flood losses. So, to meet the need for this vital coverage, the Federal Emergency Management Agency (FEMA) administers the National Flood Insurance Program (NFIP) . The NFIP offers reasonably priced flood insurance in communities that comply with minimum standards for floodplain management. The NFIP's Community Rating System (CRS) recognizes community efforts beyond those minimum stan- dards by reducing flood insurance premiums for the community's property owners. The CRS is similar to — but separate from — the pri- vate insurance industry's programs that grade communities on the effec- tiveness of their fire suppression and building code enforcement. CRS discounts on flood insurance premiums range from 5% up to 45 %. Those discounts provide an incentive for new flood protection activities that can help save lives and property in the event of a flood. To participate in the CRS, your com- munity can choose to undertake some or all of the 18 public infor- mation and floodplain management activities described in the CRS Coordinator's Manual. You're probably already doing many of these activities. To get credit, community officials will need to prepare an application documenting the efforts. The CRS assigns credit points for each activity. Table 2 lists the activi- ties and the possible number of credit points for each one. The table also shows the average number of credit points communities earn for each activity. These averages may give a better indication than the maxi- mums of what your community can expect. To be eligible for a CRS discount, your community must do Activity 310, Elevation Certificates. If you're a designated repetitive loss commu- nity, you must also do Activity 510, Ll Floodplain Management Planning. All other activities are optional. Based on the total number of points your community earns, the CRS assigns you to one of ten classes. Your discount on flood insurance premiums is based on your class. For example, if your community earns 4,500 points or more, it quali- fies for Class 1, and property owners Table 1: #t in the floodplain get a 45% discount. If your community earns as little as 500 points, it's in Class 9, and prop- erty owners in the floodplain get a 5% discount. If a community does not apply or fails to receive at least 500 points, it's in Class 10, and property owners get no discount. Table 1, below, shows the number of points required for each class and the corresponding discount. How much discount property owners in your community can get Discount Rate Class SFHA* Non -SFHA* * Credit Points Required 1 45% 10% 4,500 + 2 40% 10% 4,000 - 4,499 3 35% 10% 3,500 - 3,999 4 30% 10% 3,000 - 3,499 5 25% 10% 2,500 - 2,999 6 20% 10% 2,000 - 2,499 7 15% 5% 1,500 - 1,999 8 10% 5% 1,000 - 1,499 9 5% 5% 500 - 999 10 0% 0% 0 - 499 *Special Flood Hazard Area ** Preferred Risk Policies are available only in B,C, and X Zones for properties that are shown to have a minimal risk of flood damage. The Preferred Risk Policy does not receive premium rate credits under the CRS because it already has a lower premium than other policies. Although they are in SFHAs, Zones AR and A99 are limited to a 5% discount. Premium reductions are subject to change. Table 2: What You Can Do to Get Credit The CRS grants credit for 18 different activities that fall into four series: Series Public Information Maximum 300 Points* This series credits programs that advise people about the flood hazard, flood insurance, and ways to reduce flood damage. The activities also provide data that insurance agents need for accurate flood insurance rating. 310 Elevation Certificates 162 • Maintain FEMA elevation certificates for new construction in the floodplain. (At a minimum, a community must maintain certificates for buildings built after the date of its CRS application.) 320 Map Information Service 140 • Provide Flood Insurance Rate Map (FIRM) informa- tion to people who inquire, and publicize this service. 330 Outreach Projects 380 • Send information about the flood hazard, flood insurance, flood protection measures, and /or the natural and beneficial functions of floodplains to flood -prone residents or all residents of a community. Average Points* 69 138 90 340 Hazard Disclosure 81 19 • Real estate agents advise potential purchasers of flood -prone property about the flood hazard. • Regulations require notice of the hazard. 350 Flood Protection Information 102 24 • The public library and /or community's website maintains references on flood insurance and flood protection. 360 Flood Protection Assistance 71 53 • Give inquiring property owners technical advice on how to protect their buildings from flooding, and publicize this service. Series 300 Total 936 393 *Maximum and average points are subject to change. See the current CRS Coordinators Manual for the latest information. Series Mapping and Regulations Maximum Average 400 Points* Points* This series credits programs that provide increased protection to new development. 410 Additional Flood Data 1,346 86 • Develop new flood elevations, floodway delinea- tions, wave heights, or other regulatory flood hazard data for an area not mapped in detail by the flood insurance study. • Have a more restrictive mapping standard. 420 Open Space Preservation 900 191 • Guarantee that currently vacant floodplain parcels will be kept free from development. 430 Higher Regulatory Standards 2,740 166 • Require freeboard. • Require soil tests or engineered foundations. • Require compensatory storage. • Zone the floodplain for minimum lot sizes of 1 acre or larger. • Require coastal construction standards in AE Zones. • Have regulations tailored to protect critical facilities or areas subject to special flood hazards (for example, alluvial fans, ice jams, subsidence, or coastal erosion). 440 Flood Data Maintenance 239 79 • Keep flood and property data on computer records. • Use better base maps. • Maintain elevation reference marks. 450 Stormwater Management 670 98 • Regulate new development throughout the water- shed to ensure that post- development runoff is no worse than pre - development runoff. • Regulate new construction to minimize soil erosion and protect or improve water quality. Series 400 Total 5,895 620 Series Flood Damage Reduction Maximum Average 500 Points* Points* This series credits programs that reduce the flood risk to existing development. 510 Floodplain Management Planning 359 115 • Prepare, adopt, implement, and update a com- prehensive flood hazard mitigation plan using a standard planning process. (This is a minimum requirement for all repetitive loss communities.) 520 Acquisition and Relocation 3,200 213 • Acquire and /or relocate flood -prone buildings so that they are out of the floodplain. 530 Flood Protection 2,800 93 (Protection of existing floodplain development by floodproofing, elevation, or minor structural projects.) 540 Drainage System Maintenance 330 232 • Conduct periodic inspections of all channels and retention basins, and remove debris as needed. Series 500 Total 6,689 653 Series Flood Preparedness Maximum Average 600 Points* Points* This series credits flood warning, levee safety, and dam safety projects. 610 Flood Warning Program 255 93 • Provide early flood warnings to the public, and have a detailed flood response plan keyed to flood crest predictions. 620 Levee Safety 900 198 • Maintain existing levees not otherwise credited in the flood insurance rating system that provide some flood protection. 630 Dam Safety 175 66 (All communities in a state with an approved dam safety program receive some credit.) Series 600 Total 1,330 357 All Series Total 14,850 2,023 Extra Credit Your community can get extra credit points — in addition to the points listed in the table if you coordi- nate your activities through a com- prehensive floodplain management plan. Also, if your community faces growth pressures, the mapping and regulation activities in Series 400 receive extra credit. See the CRS Coordinator's Manual for full details. Many communities can qualify for what the CRS calls "uniform mini- mum credit," based on the activities a state or regional agency imple- ments on behalf of its communities. For example, some states have dis- closure laws eligible for credit under activity 340, Flood Hazard Disclosure. Any community in those states can receive the uniform minimum credit. Your community may want to con- sider floodplain management activi- ties not listed in the CRS Coordinator's Manual. You should evaluate these activities for their ability to increase public safety, reduce property dam- age, avoid economic disruption and loss, and protect the environment. In addition, you can request a review of these activities to determine whether they should be eligible for CRS credit. FEMA welcomes innovative ways to prevent or reduce flood damage. How to Apply �I. Participation in the CRS is voluntary. If your community is in full compli- ance with the rules and regulations of the NFIP, you may apply. There's no application fee, and all CRS publi- cations are free. Your community's chief executive officer (that is, your mayor, city manager, or other top official) must appoint a CRS coordinator to handle the application work and serve as the liaison between the community and FEMA. The coordinator should know the operations of all departments that deal with floodplain manage- ment and public information. And the coordinator should be able to speak for the community's chief executive officer. The first step in the application process is to get a copy of the CRS Application, which contains all the instructions and procedures you need for preparing and submitting your community's initial application for a CRS classification. The CRS Application includes easy -to- follow worksheets that provide credits for applicable activities. The CRS Application also identifies the docu- mentation you must submit to sup- port the credits you are requesting. You may also want to order a copy of the CRS Coordinator's Manual, which describes the program in full and provides specific information, includ- ing eligible activities, required docu- mentation, and resources for assistance. Your designated CRS coordinator should fill out and submit your application. Help is also available through the contact information below. The CRS will verify the infor- mation and arrange for flood insur- ance premium discounts. To order CRS publications at no charge, fax the order form on the following page to 317 -848 -3578, or mail to the address below You can also e -mail your request to nfipers@iso.com. Both the CRS Application and the CRS Coordinator's Manual are also available at FEMA's CRS Resource Center website — www training.fema.gov /emiweb /crs. For more info, write, phone, or fax: NFIP/ CRS P.O. Box 501016 Indianapolis, IN 46250 -1016 Telephone: 317-848-2898 Fax: 317 - 848 -3578 E -mail: nfipers @iso.com rl O a H N �n a� a z H � z 2 O o4- d d u C) a ° U d CIS v0. c) U O AU rd U pp a ti V) M U vn U a U O o LL w4 L o z o Ln V CA s.. O x Li a rl O a H N �n a� a z H � z v CIS v0. Community Rating System March 2014 The National Flood Insurance Program (NFIP) Community Rating System (CRS) was implemented in 1990 as a voluntary program for recognizing and encouraging community floodplain management activities exceeding the minimum NFIP standards. Any community in full compliance with the minimum NFIP floodplain management requirements may apply to join the CRS. 1,296 Communities Participate in the CRS Nearly 3.8 million policyholders in 1,296 communities participate in the CRS by implementing local mitiga- tion, floodplain management, and outreach activities that exceed the minimum NFIP requirements. Under the CRS, flood insurance premium rates are discounted to reward community actions that meet the three goals of the CRS, which are: (1) reduce flood damage to insurable property; (2) strengthen and support the insurance aspects of the NFIP; and (3) encourage a comprehensive approach to floodplain management. Although CRS communities represent only 5 percent of the over 22,000 communities participating in the NFIP, more than 67 percent of all flood insurance policies are written in CRS communities. CRS Classes The CRS uses a Class rating system that is similar to fire insurance rating to determine flood insurance premium reductions for residents. CRS Classes* are rated from 9 to 1. Today, most communities enter the program at a CRS Class 9 or Class 8 rating, which entitles residents in Special Flood Hazard Areas (SFHAs) to a 5 percent discount on their flood insurance premiums for a Class 9 or a 10 percent discount for Class 8. As a community * CRS Class changes occur on May 1 and October 1 of each year. The data contained in this fact sheet Nvere current through May 2014. engages in additional mitigation activities, its residents become eligible for increased NFIP policy premium discounts. Each CRS Class improvement produces a 5 percent greater discount on flood insurance premiums for properties in the SFHA. "FEMA's mission is to support our citizens and first responders to ensure that as a nation we work together to build, sustain, and improve our capability to prepare for, protect against, respond to, recover from, and mitigate all hazards." CRS Credit A community accrues points to improve its CRS Class rating and receive increasingly higher discounts. Points are awarded for engaging in any of 19 creditable activities, organized under four categories: • Public information • Mapping and regulations • Flood damage reduction • Warning and response. Formulas and adjustment factors are used to calculate credit points for each activity. The communities listed below are among those that have qualified for the greatest premium discounts: Class 1: Roseville, California Class 2: Tulsa, Oklahoma King County, Washington Pierce County, Washington Class 3: Sacramento County, California Class 4: Fort Collins, Colorado Skagit County, Washington Snohomish County, Washington Charleston County, South Carolina Maricopa County, Arizona Louisville- Jefferson County, Kentucky Thurston County, Washington Benefits of the CRS Lower cost flood insurance rates are only one of the rewards a community receives from participating in the CRS. Other benefits include: • Citizens and property owners in CRS communities have increased opportunities to learn about risk, evaluate their individual vulnerabilities, and take action to protect themselves, as well as their homes and businesses. • CRS floodplain management activities provide enhanced public safety, reduced damage to property and public infrastructure, and avoidance of economic disruption and loss. • Communities can evaluate the effectiveness of their flood programs against a nationally recognized benchmark. • Technical assistance in designing and implementing some activities is available to community officials at no charge. • CRS communities have incentives to maintain and improve their flood programs over time. How to Apply To apply for CRS participation, a community must initially inform the Federal Emergency Management Agency (FEMA) Regional Office of its interest in applying to the CRS and will eventually submit a CRS application, along with documentation that shows it is implementing the activities for which credit is requested. The application is submitted to the Insurance Services Office, Inc. (ISO) /CRS Specialist. ISO works on behalf of FEMA and insurance companies to review CRS applications, verify communities' credit points, and perform program improvement tasks. A community's activities and performance are reviewed during a verification visit. FEMA establishes the credit to be granted and notifies the community, the State, insurance companies, and other appropriate parties. Each year, the community must verify that it is continu- ing to perform the activities that are being credited by the CRS by submitting an annual recertification. In addition, a community can continue to improve its Class rating by undertaking new mitigation and floodplain management activities that earn even more points. CRS Training CRS Specialists are available to assist community officials in applying to the program and in designing, implementing, and documenting the activities that earn even greater premium discounts. A week -long CRS course for local officials is offered free at FEMA's Emergency Management Institute (EMI) on the National Emergency Training Center campus in Emmitsburg, Maryland, and can be field deployed in interested states. A series of webinars is offered throughout the year. "FEMA's mission is to support our citizens and first responders to ensure that as a nation we work together to build, sustain, and improve our capability to prepare for, protect against, respond to, recover from, and mitigate all hazards." National Flood Insurance Program Community Rating System I FEMA.gov Page 1 of 5 National Flood Insurance Program Community Rating System The National Flood Insurance Program's (NFIP) Community Rating System (CRS) is a voluntary incentive program that recognizes and encourages community floodplain management activities that exceed the minimum NFIP requirements. As a result, flood insurance premium rates are discounted to reflect the reduced flood risk resulting from the community actions meeting the three goals of the CRS: 1. Reduce flood damage to insurable property; 2. Strengthen and support the insurance aspects of the NFIP, and 3. Encourage a comprehensive approach to floodplain management. CRS Brochure This brochure, NFIP CRS: The Local Official's Guide to Saving Lives, Preventing Property Damage, amage and Reducing the Cost of Flood Insurance introduces the National Flood Insurance Program (NFIP) Community Rating System (CRS) as a way of promoting the awareness of flood insurance. CRS Fact Sheets Community Rating System Fact Sheet Changes to the Community Rating System in 2013 CRS Credit for High Water Mark Initiative CRS Award for Excellence The CRS Award for Excellence recognizes an individual who has provided leadership in the area of alerting residents to the dangers of flooding and promoting the purchase of flood insurance through the NFIP. Click here to learn about the CRS Award for Excellence. http: / /www.fema.gov /national- flood - insurance - program- community - rating- system 51112014 National Flood Insurance Program Conu-nunity Rating System I FEMA.gov Page 2 of 5 Hr- - -ge Flood Insurance Premium Discounts C tEd -- -- For CRS participating communities, flood insurance premium rates are discounted in increments of 5% (i.e., a Class 1 community would receive a 45% premium discount, while a Class 9 community would receive a 5% discount (a Class 10 is not participating in the CRS and receives no discount)). The CRS classes for local communities are based on 18 creditable activities, organized under four categories: 1. Public Information, 2. Mapping and Regulations, 3. Flood Damage Reduction, and 4. Flood Preparedness. The table below shows the credit points earned, classification awarded, and premium reductions given for communities in the NFIP CRS. CREDIT PREMIUM PREMIUM CLASS REDUCTION REDUCTION POINTS SFHA* NON- SFHA ** i 4,500+ 1 45% 10% 4,000 — 4,499 2 40% 10% 3,500 — 3,999 3 35% 10% 3,000 — 3,499 4 30% 10% 2,500 — 2,999 5 25% 10% 2,000 — 2,499 6 20% 10% 1,500 — 1,999 7 15% 5% 1,000 — 1,499 8 10% 5% 500-999 9 5% 5% http: / /www.fema.gov /national- flood - insurance - program - community- rating- system 51112014 National Flood Insurance Program Community Rating System I FEMA.gov Page 3 of 5 499 10 0 0 "Spy:. "f=lood Hazard Area "Preferred Risk Policies are available only in B, C, and X Zones for properties that are shown to have a minimal risk of flood damage. The Preferred Risk Policy does not receive premium rate credits under the CRS because it already has a lower premium than other policies. The CRS credit for AR and A99 Zones are based on non - Special Flood Hazard Areas (non- SFHAs) (B, C, and X Zones). Credits are: classes 1 -6, 10% and classes 7 -9, 5 %. Premium reductions are subject to change. Additional Resources CRS Coordinator's Manual The Coordinator's Manual for the CRS includes the CRS Schedule, which sets the criteria for CRS classification, and CRS Commentary on the Schedule. Section 100 gives general background information on the CRS. Section 200 explains the application and verification procedures. Sections 300 through 700 explain the credit points and calculations that will be used to verify CRS credit. The procedures in these sections are used by a community to submit a modification for a better CRS classification. CRS Communities and Their Classes These pages are from the most recent Flood Insurance Agent's Manual containing current and historical listings of all CRS communities, their class, and insurance discount. Numbers of CRS Communities by State This link shows how many communities participate in the CRS in each state and the distribution of communities by CRS Class in each CRS Class. Community Rating System Participation National Map The CRS Participation map of the nation shows the wide range of communities that participate in CRS. CRS participation attracts all kinds of communities including small, large, inland, coastal, arid, etc. The map also includes the approximate territories served by the ISO Field Specialists who work with individual communities. Community Rating System Participation by FEMA Region Maps The CRS FEMA Regional map indicates communities that participate in CRS and from which states. Community Rating System Participation State Maps The CRS State maps depict communities that participate in the CRS and communities with the greatest risk to flooding, as measured by the number of flood insurance policies in effect. http: / /www.fema.gov/ national- flood - insurance - program- conununity- rating- system 5/1/2014 National Flood Insurance Program Community Rating System I FEMA.gov Page 4 of 5 Corr,- -`nity Rating System Series and Activity Posters Tf tei s p s� ;dF s�� ,iplified descriptions of the CRS. 2013 CRS C- __. `or'sMd�iUall�ar�ges are highlighted. The posters could be useful to explain and promote the CRS. The files are formatted to print large posters suitable for wall display. Community Rating System (CRS) Overview, Prerecorded Presentation This 9 minute narrated Power Point presentation is about the CRS. It is an introduction to the Community Rating System suitable for viewers with little or no familiarity with the CRS. Webinars on the Community Rating System FEMA is introducing the CRS Webinar Series targeted to new communities that are not yet participating in the Community Rating System of the National Flood Insurance Program as well as to local government staff with some experience in the CRS. The Series will include basic introductory sessions and more advanced topics, most averaging about an hour in length. Scheduled so are the following: • Introduction to the Community Rating System • February 18, 2014 - 1:00 pm Eastern /10:00 am Pacific • March 18, 2014 - 1:00 pm Eastern /10:00 am Pacific • May 20, 2014 - 1:00 pm Eastern /10:00 am Pacific • July 15, 2014 - 1:00 pm Eastern /10:00 am Pacific • Developing Outreach Projects (Activity 330) • February 19, 2014 - 1:00 pm Eastern /10:00 am Pacific • April 16, 2014 - 1:00 pm Eastern /10:00 am Pacific • Higher Regulatory Standards (Activity 430) • March 19, 2014 - 1:00 pm Eastern /10:00 am Pacific Coming soon: • Preparing for the CRS Verification Visit • Drainage System Maintenance (Activity 540) • Natural Floodplain Functions http: / /www.fema. gov/ national - flood - insurance - program- conununity- rating- system 51112014 National Flood Insurance Program Community Rating System I FEMA.gov Page 5 of 5 Rera,°,aation G?: ` //a IKii �g -)b,, ilrj,_1.webex.com /tc and type "CRS" in the search field to vi(--, :y :nays that'ar6 now open for registration. If you have questions about the CRS Webinar Series, please contact Becca.Croft(o-)atkinsglobal.com. NFIP /CRS Update Newsletter The CRS Update Newsletter is a publication to provide local officials and others interested in the Community Rating System with news they can use. To sign up for CRS e -mail updates click on the link below, • February 2014 Newsletter • December 2013 Newsletter • October 2013 Newsletter • July 2013 Newsletter • May 2013 Newsletter • March 2013 Newsletter • January 2013 Newsletter • August 2012 Newsletter • June 2012 Newsletter • March 2012 Newsletter • February 2012 - Special Edition • October 2011 Newsletter - Special Edition • January -April 2011 Newsletter • October - December 2010 Newsletter • April-May 2010 Newsletter • February 2010 Newsletter • December 2009 Newsletter • October 2009 Newsletter • August 2009 Newsletter 1P Sign up for CRS email updates Last Updated: 05/01/2014 - 09:53 http: / /www.fema.gov/ national - flood - insurance - program - community - rating- system 51112014