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12-R-70 Interlocal Agreement with CCMA regarding SkateparkRESOLUTION NO. 12-R-70 A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS AUTHORIZING AN INTERLOCAL AGREEMENT TO ACCEPT $25,000 FROM CIBOLO CREEK MUNICIPAL AUTHORITY (CCMA) FOR THE CONSTRUCTION OF A SKATEPARK THE ACCESS TO AND USE OF CITY PROPERTY AS A RECREATION AREA AND RELATED FACILITIES AND OTHER MATTERS IN CONNECTION THEREWITH WHEREAS, the City staff of the City of Schertz (the "City") has recommended that the City enter into an Interlocal Agreement with Cibolo Creek Municipal Authority ("CCMA") relating to accepting $25,000 for the construction of and development of a skateboard park on City property located adjacent to Schertz Parkway and north of the existing Schertz Ballpark, and behind the existing commercial center on 1420 Schertz Parkway and fronting Dietz Creek for the construction of the Schertz Skate Park; and WHEREAS, the City Council has determined that it is in the best interest of the City to enter into this agreement with "CCMA" by the Interlocal Agreement attached hereto as E:dribit A (the "Agreement"). BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS THAT: Section 1. The City Council hereby authorizes the City Manager to execute and deliver the Agreement with "CCMA" 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resolutions, or parts thereof, which are in conflict or inconsistent with any provision of this Resolution are hereby repealed to the extent of such conflict, and the provisions of this Resolution shall be and remain controlling as to the matters resolved herein.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. PASSED AND ADOPTED, this 14'h day of August, 2012. CITY OF SCHERTZ, TEXAS Mayor Pro- em ATTEST: ~~ ~ ~~~~ City Secretary (CITY SEAL) EXHIBIT A INTERLOCAL AGREEMENT WITH CIBOLO CREEK MUNICIPAL AUTHORITY A-1 INTERLOCAL AGREEMENT BETWEEN THE CITY OF SCHERTZ, TEXAS AND THE CIBOLO CREEK MUNICIPAL AUTHORITY This Interlocal Agreement (the "Agreement") is entered into between the City of Schertz, Texas, a Texas municipal corporation (the "C~"), and the Cibolo Creek Municipal Authority, a conservation and reclamation district created and operating pursuant to Article XVI, § 59 of the Texas Constitution ("CCMA"), to be effective as of the date on which the last Party signs this Agreement (the "Effective Date"). The City and CCMA are collectively referred to herein as the "Parties" and are each a "Partv". WITNESSETH: WHEREAS, Chapter 791 of the Texas Government Code, as amended, entitled Interlocal Cooperation Contracts, authorizes contracts between political subdivisions for the performance of governmental functions and services; WHEREAS, CCMA has determined it is in its best interest to enter into an agreement with the City to provide funds to the City for the construction, development and maintenance of a skateboard park (the "Skateboard Park"); WHEREAS, the Skateboard Park will be for the use and benefit of the public, including residents of the City and customers of CCMA; WHEREAS, the City owns certain real property in Guadalupe County, Texas (the "Land") that was obtained for the purpose of potential expansion or construction of public facilities (the "Ori ig nally Designated Purpose"); and WHEREAS, the City desires to construct the Skateboard Park on the Land, until such time as the City may determine to use the Land for the Land's Originally Designated Purpose. NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained, the sufficiency of which are acknowledged, and subject to the terms and conditions hereinafter set forth, the Parties agree as follows: I. Grant to the City from COMA 1.1 CCMA agrees to pay to the City Twenty-Five Thousand and No/100 Dollars ($25,000.00) (the "Grant") in one payment on or prior to August 15, 2012 for the purpose of subsidizing the expenses to be incurred by the City in connection with the conshuction, development and maintenance of the Skateboard Park. The Grant shall only be used by the City for the funding of the construction, development and maintenance of the Skateboard Park. soszsr6z.r Page 1 of 6 2tsozss.2 II. Use by the City of the Grant Funds 2.1 The City agrees to accept the Grant and to use the Grant towards the construction costs associated with the Skateboard Park. 2.2 The Skateboard Park shall be open to the public, including to the customers of CCMA. 2.3 In the event that the City determines to use the Land for the Land's Originally Designated Purpose and the Land ceases to be a skateboard park or if the Land ceases to be a skateboard park for other reasons, the City agrees either (a) to relocate the Skateboard Park to another location within the City limits; or (b) to repay the Grant to CCMA. III. Binding Effect; Benefiting Parties 3.1 This Agreement shall bind and benefit the respective Parties and their legal successors, but shall not otherwise be assignable, in whole or in part, by either Party without first obtaining the written consent of the other Party. 3.2 This Agreement inures to the benefit of and obligates only the Parties. No term or provision of this Agreement shall benefit or obligate any person or entity not a Party to the Agreement. The Parties shall cooperate fully in opposing any attempt by any third person or entity to claim any benefit, protection, release, or other consideration under this Agreement. IV: Governmental Functions; Liability; No Waiver of Immunity or Defenses 41 Notwithstanding any provision to the contrary herein, this Agreement is a contract for and with respect to the performance of governmental functions by governmental entities. 4.1.1 The services provided for herein are governmental functions, and the City and CCMA shall be engaged in the conduct of a governmental function while providing and/or performing any service pursuant to this Agreement. 4.1.2 The relationship of CCMA and the City shall, with respect to that part of any service or function undertaken as a result of or pursuant to this Agreement, be that of independent contractors. 4.1.3 Nothing contained herein shall be deemed or construed by the Parties, or by any third party, as creating the relationship of principal and agent, partners, joint venturers, or any other similar such relationship between the Parties. 4.2 CCMA shall have no liability whatsoever for the actions of, or failure to act by, any employees, contractors, subconhactors, agents, representatives, or assigns of the City in connection with the construction and operation of the Skateboard Park, and the City covenants and agrees that the City shall be solely responsible, as between CCMA and the City, for and with respect to any claim or• cause of action arising out of or with respect to any act, omission, or failure to act by the City or its respective employees, contractors, subcontractors, agents, soszs~6z.i Page 2 of 6 zrsozss.z representatives, or assigns, in connection with the construction and operation of the Skateboard Park. 4.3 INDEMNIFICATION BY CITY. IN ADDITION TO THE OTHER REMEDIES AFFORDED TO THE AUTHORITY IN THIS AGREEMENT, AND ONLY TO THE EXTENT PERMITTED BY LAW, CITY SHALL RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS THE AUTHORITY, ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS AND AGENTS (THE "LVDEILNIFIED PARTIES") FOR, FROM AND AGANST ANY AND ALL LOSS, COST, EXPENSE, CLAIM, ACTION, PROCEEDING BEFORE ANY GOVERNMENTAL AUTHORITY OR ARBITRAL TRIBUNAL, DEMAND, DAMAGE, FINE, LIABILITY, OBLIGATION OR PENALTY, LIEN, CAUSE OF ACTION, SUIT AND EXPENSE (INCLUDING, WITHOUT LIMITATION, COURT COSTS, REASONABLE ATTORNEYS' FEES AND COSTS OF INVESTIGATION, REMOVAL ArND REMEDIATION, AND GOVERNMENTAL OVERSIGHT COSTS), ENVIRONMENTAL OR OTHERWISE OF ANY NATURE, KIND OR DESCRIPTION OF ANY PERSON OR ENTITY DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING FROM, OR RELATED TO (IN WHOLE OR IN PART) I) THE CITY'S PERFORMANCE OR OMISSION OF ITS OBLIGATIONS PURSUANT TO THIS AGREEMENT, AND 2) THE AUTHORITY'S PERFORMANCE OF ITS OBLIGATIONS PURSUANT TO THIS AGREEMENT. 4.4 Each Party reserves and does not waive any defense available to it at law or in equity as to any claim or cause of action whatsoever that may arise or result from or in connection with this Agreement. This Agreement shall not be interpreted nor construed to give to any third party the right to any claim or cause of action, and neither the City nor CCMA shall be held legally liable for any claim or cause of action arising pursuant to or in connection with this Agreement except as specifically provided herein or by law. 4.5 Neither Party waives or relinquishes any immunity or defense on behalf of itself, its trustees, councilmembers, officers, employees, and agents as a result of the execution of this Agreement and the performance of the covenants and agreements contained herein. V. Notices 5.1 All con•espondence and communications concerning this Agreement shall be directed to: SCHERTZ: City of Schertz 1400 Schertz Parkway Schertz, Texas 78154 Attention: City Manager With a copy to: Fulbright & Jaworski L.L.P. 300 Convent Street, Suite 2100 San :Antonio, Texas 78205 Attention: Katherine A. Tapley soszsr6z.~ Page 3 of 6 ztsozss.z CCMA (By Mail): Cibolo Creek Municipal Authority P.O. Box 930 Schertz, Texas 78154 Attention: General Manager (By Delivery): Cibolo Creek Municipal Authority 100 Dietz Road Schertz, Texas 78154 Attention: General Manager Notices required hereunder shall be hand-delivered or sent by prepaid certified mail, return receipt requested. VI. Severability 6.1 If any provision of this Agreement shall be deemed void or invalid, such provision shall be severed from the remainder of this Agreement, which shall remain hi force and effect to the extent that it does not destroy the benefit of the bargain. VII. Entire Agreement 7.1 This Agreement is the entire agreement between the City and CCMA as to the subject matter hereof and supersedes any prior understanding or written or oral agreement relative to the subject matter hereof. This Agreement may be amended only by written instrument duly approved and executed by both Parties in accordance with the formalities of this Agreement. VIII. Governing Law; Venue 8.1 All Parties agree that this Agreement shall be construed under the laws of the State oI Texas, and obligations under the Agreement shall be performed in Guadalupe County, Texas. In the event that any legal proceeding is brought to enforce this Agreement or any provision hereof, the same shall be brought in the State District Court of Guadalupe County, Texas.. The Parties agree to submit to the jurisdiction of said court. [Signatures and acknowledgements on the following pages J 50525162.1 Page 4 of 6 2180255.2 SIGNATURE PAGE TO INTERLOCAL AGREEMENT BETWEEN THE CITY OF SCHERTZ, TEXAS AND THE CH30L0 CREEK MUNICIPAL AUTHORITY CIBOLO CREEK MUNICIPAL AUTHORITY By~ ~~ Clint Ellis General Manager THE STATE OF TEXAS COUNTY O § This instrument was acknowledged before me on the ~ day of u_r~'~' , 2012, by Clint Ellis, the General Manager of the Cibolo Creek Municipal Authority, on behalf of said Authority. [ Seal ] ~jaaaaawaaawwaawawaaaaaawaa CYNTHIA ANNE RALEIGH *®* Notary PubAo Stets of Teucae ~e«'e'~ Comm. Exp. 02.11.2016 ~G~eN~GG6'c ~tlV:~~~~ ti~G'G~t ~L¢~G~G~ck~G 50525162.1 2180255.2 r Not ublic in an a State of Texas Page 6 of 6