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2010R25-Comal County Senior Citizens' Agreement RESOLUTION NO. 10-R-25 A RESOLUTION DY THE CITY COUNCIL OF TIIE CITY OF SCHERTZ, TEXAS AUTHORIZING AN OPERATING AGREEMENT WITH THE COMAL COUNTY SENIOR CITIZENS' FOUNDATION, AND OTHER MATTERS IN CONNECTION THEREWITH WHEREAS, the City Council has determined that it is in the best interest of the City to contract with the Comal County Senior Citizens' Foundation pursuant to an Operating Agreement in the form attached hereto as Exhibit A (the "Operating Agreement"). BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS THAT: Section 1. The City Council hereby authorizes the City Manager to execute and deliver the Operating Agreement with the Comal County Senior Citizens' Foundation in substantially the form attached hereto as Exhibit A. Section 2. The recitals contained in the preamble hereof are hereby found to be true, and such recitals are hereby made a part of this Resolution for all purposes and are adopted as a part of the judgment and findings of the City Council. Section 3. All resolutions, or parts thereof, which are in conflict or inconsistent with any provision of this Resolution are hereby repealed to the extent of such conflict, and the provisions of this Resolution shall be and remain controlling as to the matters resolved herein. Section 4. This Resolution shall be construed and enforced in accordance with the laws of the State of Texas and the United States of America. Section 5. If any provision of this Resolution or the application thereof to any person or circumstance shall be held to be invalid, the remainder of this Resolution and the application of such provision to other persons and circumstances shall nevertheless be valid, and the City Council hereby declares that this Resolution would have been enacted without such invalid provision. Section 6. It is officially found, determined, and declared that the meeting at which this Resolution is adopted was open to the public and public notice of the time, place, and subject matter of the public business to be considered at such meeting, including this Resolution, was given, all as required by Chapter 551, Texas Government Code, as amended. Section 7. This Resolution shall be in force and effect from and after its final passage, and it is so resolved. Resol 10-R-25.doc PASSED AND ADOPTED, this 18th day of May, 2010. CITY OF SC ERTZ XAS Mayor ATTEST: City Secretary (CITY SEAL) Resol 10-R-25.doc EXHIBIT A OPERATING AGREEMENT Reso] 10-R-25.doc A-1 OPERATING AGREEMENT This Operating Agreement (this "Agreement") made and entered into as of this 18th day of May, 2010 (the "Effective Date") is between the City of Schertz, Texas, a municipal corporation and home-rule city of the State of Texas (the "City"), and the Comal County Senior Citizens' Foundation, a Texas non-profit corporation (the "Foundation"). The City and the Foundation may be referred to herein from time to time as a "Party" or collectively as the "Parties". RECITALS WHEREAS, there is a clear need for senior residents of the City area to have access to lunch and other nutritional services as well as additional services and activities that can enhance their quality of life (the "Program"); WHEREAS, the City has in the past funded a limited program providing some of such services but desires to enlarge the scope of services and activities and to contract with an experienced organization to manage and operate the Program at aCity-provided facility; WHEREAS, the City understands that the Foundation is an established organization providing a variety of senior services at its New Braunfels facility and in the New Braunfels area and that the Foundation is interested in operating the Program for the City; WHEREAS, the Foundation will operate the Program for the City pursuant to this 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 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 Purpose. The specific purpose of this Agreement is to cause the development and operation of the Program and improvements to the City Program Facility as described herein. 1.03 Term. (a) The initial term of this Agreement shall be from the Effective Date of this Agreement through September 30, 2012. This Agreement maybe terminated effective on September 30 of any year of the initial term by either party notifying the other in writing not later than thirty (30) days prior to September 30 of any year of the initial term of this Agreement. This Agreement shall be extended thereafter for successive one (1) year periods unless either party notifies the other in writing not later than thirty (30) days prior to the end of the then current term of this Agreement that it does not want to extend the term hereof. This Agreement, and the parties' obligations hereunder, shall terminate at the end of the then-current term if either party gives such notice. Operating Agmt.doc 1 (b) Upon termination of this Agreement, the City will have the right to purchase and retain any or all of the F&E installed by the Foundation in the City Program Facility (hereinafter defined) pursuant to Section 3.01(0) below for a purchase price of the then depreciated value thereof. In addition, upon the City's termination of this Agreement, the City will reimburse the Foundation for certain upgrades made by the Foundation to the City Program Facility as agreed to when the City approves such upgrades pursuant to Section 3.01(0). 1.04 Disclaimer. THE PARTIES ACKNOWLEDGE THAT, EXCEPT FOR THE PARTIES' REPRESENTATIONS AND AGREEMENTS CONTAINED WITHIN THIS 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 (HEREINAFTER DEFINED), THE SUBJECT MATTER OF THIS AGREEMENT, OR ANY EXHIBIT HERETO THAT IS BEING RELIED UPON, OTHER THAN THE OBLIGATIONS EXPRESSLY CONTAINED IN THIS 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 City as of the Effective Date unless another date is expressly stated to apply: (a) Existence. The Foundation is anon-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 Operating Agmt.doc 2 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. (c) No Le ag 1 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 Obli ations. Assuming due authorization, execution, and delivery of this Agreement by the City, 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 City. The City hereby makes the following representations, warranties, and covenants to the Foundation 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 maybe 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 Le al 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 Operatnig Agmt.doc 3 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. (d) Liti ag tion. 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 Obli atg ions. Assuming due authorization, execution, and delivery of this Agreement by the Foundation, 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). ARTICLE III RESPONSIBILITIES OF THE FOUNDATION 3.01 Foundation Responsibilities. The Foundation agrees to the following obligations with respect to the Program. (a) The Foundation will work with the City to identify qualifying seniors in the City who are in need of assistance of the type to be offered in the Program and to solicit their participation in the Program. (b) The Foundation will provide one lunch meal five days per week and will also provide social services and activities for qualifying senior residents of the City. (c) The Foundation will provide these services and activities as scheduled with the City and qualifying senior residents of the City, excluding Texas and federal holidays as agreed to by the Foundation and the City. (d) The Program shall be conducted by the Foundation and its employees and/or independent contractors. None of such persons shall be, or be deemed to be, employees of the City. (e) The Foundation will provide managerial oversight of the Program. (f) The Foundation will be the fiscal agent for all Program operations. (g) The Foundation will provide a written report to the City Council of the City on .the Effective Date of this Agreement and thereafter on or about January 1, April 1, July 1, and October 1 during the term of this Agreement, commencing on or about July 1, 2010. This report will detail the actions of the Foundation to date with respect to the Program. Upon the written request of the City, the Foundation will provide reports more frequently to the City, but no more than once per month. Operating Agmt.doc 4 (h) The Foundation will establish and work closely with an advisory committee composed of senior residents of the Schertz area who participate in the Program and a City representative designated by the City Manager. (i) The Foundation will work with the advisory committee to seek out volunteers to assist in Program operations. (j) The Foundation will seek funds in addition to agreed City funding to develop and operate the Program to promote and serve qualifying seniors within the Program area. (k) The Foundation will operate the City Program Facility described in Section 4.01(a) as a Senior Center. (1) The Foundation will bear all costs of operating the City Program Facility including but not limited to the cost of water, sewer, electricity, and alarms and interior maintenance and custodial services. (m) The Foundation will insure the internal equipment and furnishings in the City Program Facility. (n) The Foundation will maintain the City equipment to be provided by the City pursuant to Section 4.01(m). (o) Subject to written approval by the City, the Foundation will install appropriate furniture and equipment ("F&E") and will fund appropriate interior building modifications, e.g. walls, restrooms, etc., to maximize the benefits and usefulness of the City Program Facility. The City and the Foundation shall agree to the "buy-out" value of such improvements to the City Program Facility for purposes of Section 1.03(b) above. All F&E installed in the City Program Facility by the Foundation will belong to the Foundation; the improvements to the City Program Facility will otherwise belong to the City. (p) The Foundation will commence full operation of the Program no later than June 30, 2010. (q) With prior written notice to the City, the Foundation may contract and collaborate with other qualified entities to provide services for the Program and with the prior written approval of the City may make renovations and accommodations in the City Program Facility to assist in such services. ARTICLE IV RESPONSIBILITIES OF THE CITY 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 Operating Agmt.doc 5 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 the Foundation 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 the Foundation 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 the Foundation $3,500 per month (the "Funds") for the initial approximately twenty-nine month term of this Agreement which the Foundation shall utilize 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) The City will request that the Schertz Hot Meals Program transfer to the Foundation the funds currently held by the Schertz Hot Meals Program in the amount of approximately $4,000. The City will agree to refund such amount to the Schertz Hot Meals Program in the event this Agreement is terminated prior to September 30, 2012. (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 the Foundation'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. (j) 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. Operating Agmt.doc 6 (1) The City authorizes the Foundation to use all remaining books in the City Program Facility however the Foundation desires. (m) The City will permit the Foundation to use two freezers, one large refrigerator, and a commercial oven to be identified by the City for use in the Program. Such equipment shall be returned to the City upon termination of this Agreement. 4.02 License. (a) The Foundation 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. The non-exclusive license (the "License") for the Foundation shall be for the term of this Agreement. (b) THE FOUNDATION (i) ACKNOWLEDGES THAT THE LICENSED PREMISES HAVE BEEN VACANT FOR AN EXTENDED PERIOD OF TIME AND (ii) AGREES THAT, SUBJECT TO SECTION 3.01(0), THE LICENSED PREMISES ARE SATISFACTORY FOR THE FOUNDATION'S PURPOSES IN ITS PRESENT CONDITION, "AS IS", "WHERE IS", AND "WITH ALL FAULTS". THE LICENSE GRANTED HEREUNDER IS A CONTRACTUAL AGREEMENT BETWEEN THE CITY AND THE FOUNDATION AND IS NOT ENTITLED TO BURDEN, BENEFIT, OR OTHERWISE RUN WITH THE CITY PROGRAM FACILITY PROPERTY AND SUCH PROPERTY IS NOT THE FOUNDATION' S PROPERTY. ARTICLE V DEFAULT 5.01 Foundation Default. The occurrence of any of the following shall be an "Event of Default" by the Foundation or a "Foundation Default": (a) 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 of such failure; (b) the breach by the Foundation of any of its representations hereunder; and (c) if the Foundation 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 Foundation 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 Operating Agmt.doc 7 otherwise remedied within ninety (90) days after the occurrence thereof; or if this Agreement shall be assigned by the Foundation in a manner prohibited by this Agreement. Upon the occurrence of a Foundation Default hereunder, and after the expiration of any applicable cure period, the City may terminate this Agreement and seek such remedies as maybe 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 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 may terminate this Agreement and seek such remedies as maybe available at law or in equity. 5.03 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. The Foundation shall allow the City reasonable access to the City Program Facility for inspections upon 24 hour notice, and to documents and records necessary for the Foundation to assess the Foundation'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 the Foundation by the City, of the books and records related to the Program and the Foundation's utilization of the Funds described herein (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 the Foundation's services relating to the Program. These examinations shall be conducted at the offices maintained by the City or the Foundation. 6.02 Preservation of Records. All applicable records and accounts of the Foundation, together with all supporting documentation, relating to the Program, shall be preserved by the Foundation 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 the Foundation fails to furnish the City any documentation required hereunder within thirty (30) Operating Agmt.doc g days following the written request for same, then the Foundation shall be in default of this Agreement. ARTICLE VII ASSIGNMENT AND CONTRACTING 7.01 Assi zii n~ent. The Foundation may sell, transfer, or assign its rights and obligations under this Agreement only with written consent of the City (with such consent not being unreasonably withheld, conditioned, or delayed). 7.02 Transfers; Assignments. Each transfer or assignment to which there has been consent, pursuant to Section 7.01 above, shall be by instrument in writing, in form reasonably satisfactory to the City, and shall be executed by the transferee or assignee who shall agree in writing for the benefit of the City to be bound by and to perform the terms, covenants and conditions of this Agreement. Failure to first obtain in writing the City 's consent, or failure to comply with the provisions herein contained shall operate to prevent any such transfer or assignment from becoming effective. 7.03 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. 7.04 Limitations on Cites ag tion. The City shall in no event be obligated to any third party, including any subcontractor or consultant of the Foundation, for performance of work or services under this Agreement. 7.05 No Waiver. The receipt by the City of services from an assignee of the Foundation shall not be deemed a waiver of the covenant in this Agreement against assignment or an acceptance of the assignee as the Foundation or a release of the Foundation from further observance or performance by the Foundation 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 Foundation. THE FOUNDATION COVENANTS AND AGREES TO FULLY INDEMNIFY AND HOLD HARMLESS, ,THE CITY, AND THE ELECTED OFFICIALS, EMPLOYEES, OFFICERS, DIRECTORS, AND REPRESENTATIVES THEREOF (COLLECTIVELY, THE "CITY INDEMNIFIED 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 AND PROPERTY DAMAGE, DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING FROM OR RELATED TO THE FOUNDATION'S ACTIVITIES UNDER THIS AGREEMENT, INCLUDING ANY SUCH ACTS OR OMISSIONS OF THE FOUNDATION, ANY AGENT, OFFICER, DIRECTOR, REPRESENTATIVE, EMPLOYEE, CONSULTANT OR SUBCONSULTANTS, OR CONTRACTORS OR SUBCONTRACTORS OF THE FOUNDATION, AND THEIR RESPECTIVE OFFICERS, AGENTS, EMPLOYEES, DIRECTORS AND REPRESENTATIVES WHILE IN THE EXERCISE OR PERFORMANCE OF THE RIGHTS OR DUTIES Operating Agmt.doc 9 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 UNDER TEXAS LAW. THE PROVISIONS OF THIS INDEMNIFICATION ARE SOLELY FOR THE BENEFIT OF THE CITY INDEMNIFIED PARTIES AND ARE NOT INTENDED TO CREATE OR GRANT ANY RIGHTS, CONTRACTUAL OR OTHERWISE, TO ANY OTHER PERSON OR ENTITY. THE FOUNDATION SHALL PROMPTLY ADVISE THE CITY IN WRITING OF ANY CLAIM OR DEMAND AGAINST THE CITY OR ANY CITY INDEMNIFIED PARTY KNOWN TO THE FOUNDATION ' RELATED TO OR ARISING OUT OF THE FOUNDATION'S ACTIVITIES UNDER THIS AGREEMENT AND SHALL SEE TO THE INVESTIGATION AND DEFENSE OF SUCH CLAIM OR DEMAND AT THE FOUNDATION'S COST TO THE EXTENT REQUIRED UNDER THE INDEMNITY IN THIS SECTION. THE CITY INDEMNIFIED PARTIES SHALL HAVE THE RIGHT, AT THEIR OPTION AND AT THEIR OWN EXPENSE, TO PARTICIPATE IN SUCH DEFENSE WITHOUT RELIEVING THE FOUNDATION OF ANY OF ITS OBLIGATIONS UNDER THIS PARAGRAPH. THE FOUNDATION FURTHER AGREES TO DEFEND, AT ITS OWN EXPENSE, AND ON BEHALF OF THE CITY INDEMNIFIED PARTIES AND IN THE NAME OF THE CITY INDEMNIFIED PARTIES, ANY CLAIM OR LITIGATION BROUGHT AGAINST THE CITY INDEMNIFIED PARTIES FOR WHICH THIS INDEMNITY SHALL APPLY, AS SET FORTH ABOVE. THE FOUNDATION'S OBLIGATIONS UNDER THIS SUBSECTION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT. 8.02 Contractors. The Foundation shall also require each of its contractors and subcontractors working on the Program to indemnify the City and its 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, the Foundation shall assume and take exclusive control of the defense, negotiation, and/or settlement of such claim; however, if the representation of all parties by the Foundation would be inappropriate due to actual or potential conflicts of interest between them, then the Foundation 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 the Foundation. 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, the Foundation at all times shall be acting as independent contractor contracted by the City and all consultants or subcontractors engaged by the Foundation respectively shall be independent contractors of the Foundation. The parties hereto understand and agree that the City and the Foundation shall not be liable for any claims which maybe asserted by any third party occurring in connection with services performed by the Foundation, under this Agreement unless any such claims are due to the fault of the City. 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. Operating Agmt.doc 10 9.02 Legal Authoritx The signers of this Agreement, the City and the Foundation, represent, warrant, assure and guarantee that they have full legal authority to execute this Agreement on behalf of the City and/or the Foundation, respectively, and to bind the City and/or the Foundation to all of the terms, conditions, provisions and obligations herein contained. 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 either 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 the other party hereto, but the obligation of such other party with respect to such future performance shall continue in full force and effect. Any provision of this Agreement maybe amended or waived if done in writing and signed by the City. 9.05 Approvals or Consents. Whenever this Agreement requires or permits approvals or consents to be hereafter given by any party hereto, such 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 either party to the other 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 Operating Agmt.doc 11 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 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 the City and the Foundation. 9.09 Sole Agreements. This Agreement constitutes the entire agreement between the parties relative to the subject matter hereof. There have been and are no agreements, covenants, representations, or warranties between the parties as to the subject matter hereof other than those expressly stated or provided for herein. 9.10 Survival. Each and every indemnification obligation, warranty, representation, covenant and agreement of the Foundation and City 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 Foundation and City respectively. 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 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.) Operating Agmt.doc 12 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 By: _ Don Taylor, ~ anager COMAL COUNTY SENIOR CITIZENS' FOUNDATION By: obe Lo ez, Executive irector Operating Agmt.doc S- I