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2010R58-Amended Agreement with Comal County Senior Citizens' RESOLUTION NO. 10-R-58 A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS AUTHORIZING A FIRST AMENDMENT TO OPERATING AGREEMENT WITH COMAL COUNTY SENIOR CITIZENS' FOUNDATION, AND OTHER MATTERS IN CONNECTION THEREWITH WHEREAS, the City Council has determined that it is in the best interest of the City to enter into a First Amendment to Operating Agreement with the Comal County Senior Citizens' Foundation relating to the Schertz Senior Citizens' Center attached hereto as Exhibit A (the "Amendment") amending the Operating Agreement dated May 18, 2010. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS THAT: Section 1. The City Council hereby authorizes the City Manager to execute and deliver the Amendment in substantially the form set forth on Exhibit A. Section 2. The recitals contained in the preamble hereof are hereby found to be 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resolutions, or parts thereof, which are in conflict or inconsistent with any provision of this Resolution are hereby repealed to the extent of such conflict, and the provisions of this Resolution shall be and remain controlling as to the matters resolved herein.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. Resolution 10-R-58.doc PASSED AND ADOPTED, this 28th day of September, 2010. CITY OF SCH TZ, T S ayor ATTEST: City Secretary (CITY SEAL) Resolution 10-R-58.doc EXHIBIT A FIRST AMENDMENT TO OPERATING AGREEMENT See attached Resolution 10-R-58.doc A-1 FIRST AMENDMENT TO OPERATING AGREEMENT This First Amendment to Operating Agreement (this "Amendment") made and entered into as of this 12~' day of October, 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 "Parry" or collectively as the "Parties". RECITALS WHEREAS, the City and the Foundation have previously entered into an Operating Agreement dated May 18, 2010 (the "Agreement") which provides for the Foundation to operate a senior citizens' center including meals and other nutritional services as well as additional services and activities that can enhance seniors' quality of life (the "Program") at a City- provided facility (the "City Program Facility"); WHEREAS, the City, with 'the recommendation of the Foundation, has agreed to enter into an Operating Agreement with WellMed Medical Management, Inc. (the "WellMed Medical Services Operating Agreement") to provide health and wellness services and certain clinical medical services in the City Program Facility to augment the Program; and WHEREAS, the City and the Foundation desire to amend the Agreement to modify the term of the Agreement, Section 1~.03(a); 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 AMENDMENTS 1.01 Amendment of Section 1.03(a). Section 1.03(a) of the Agreement is hereby amended to read as follows: "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 Party 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) three (3) year terms. This Agreement, and the Parties' obligations hereunder, shall terminate at the end of the then-current term if all Parties to not give such notice. With the written agreement of both Parties, this Agreement may be terminated at any time." 1.02 Amendment of Section 3.01(1). Section 3.01(1) of the Agreement is hereby amended to read as follows: 50345040.3 1 "(1) Subject to the obligation of WellMed Medical Management, Inc. (`WellMed') to (x) provide the WellMed Services as set forth in the Operating Agreement dated October 12, 2010 (the "WellMed Operating Agreement") among the City, WellMed, and the Foundation, (y) provide the WellMed Clinical Services in the WellMed Area of the City Program Facility as set forth in the WellMed Operating Agreement, and (z) pay water, sewer, and electricity utility charges for a portion of the City Program Facility, the Foundation will bear all costs of operating the City Program Facility including but not limited to water, sewer, electricity, and alarms and interior maintenance and custodial services." ARTICLE II GENERAL AND MISCELLANEOUS PROVISIONS 2.01 Leal Authority The Parties represent, warrant, assure, and guarantee that they have full legal authority to execute this Amendment on behalf of the City or the Foundation, respectively, and to bind the City or the Foundation to all of the terms, conditions, provisions and obligations herein contained. 2.02 Severabilitv. The provisions of this Amendment are severable, and if any word, phrase, clause, sentence, paragraph, section or other part of this Amendment 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 Amendment and the application of such word, phrase, clause, sentence, paragraph, section or other part of this Amendment to the other persons or circumstances shall not be affected thereby. 2.03 Sole Agreements. The Agreement, as amended by this Amendment and the WellMed Operating Agreement, constitute the entire agreement between the Parties relative to the subject matter hereof. There have been and are no agreements, covenants, representations, or warranties between the Parties as to the subject matter hereof other than those expressly stated or provided for herein. 2.04 Ratification of Agreement. Except as amended by this Agreement, the Parties hereby ratify and confirm the terms of the Agreement. 2.05 Counterparts. This Amendment 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. [The remainder of this page intentionally left blank) 50345040.3 2 IN WITNESS WHEREOF, the Parties have executed this Amendment in multiple copies, =,h of which shall be deemed an original as of the date and year first written above. CITY OF SCHERTZ By: - Don Taylor, City Ma r COMAL COUNTY SENIOR CITIZENS' FOUNDATION r By: ert Lo ez, xecutive Director 50345040.3 S- I