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13-R-32 - MOU SCUCISD Natatorium ProjectRESOLUTION NO. 13-R-32 A RESOLUTION BY THE CITY COUNCIL Off' THE CITY OF SCHERTZ, TEXAS AUTHORIZING A NIIIMORANDUl4i OF UNDERSTANDING WITH SCHERTZ_CIBOLO-UNIVERSAL CITY INDEPENDENT SCHOOL DISTRICT, AiYD OTHER MATTERS IN CONNECTION THEREWITIi 'UV~IEREAS, the Cify staff of the City of Schertz {tlie "Cit}~'} bas recommended that the City enter into a Merzrozandum of Understanding with Schertz-Cibolo-Universal City independent School District (the "District"} relating to certain legal matters involved in negotiating contracts for the proposed joint Natatorium project and; WI~REAS, the City Council. has determined that it is in the best interest of the City to conta•act with the District pursuant to the iYlemorandmn of Understanding attached hereto as Exhibit A (the "MOU"). BE 7T IZESOL'V)aD BY THE CITY COIz1NCIL OE THE CITY Ob` SCHERTZ, TEXAS THAT: Section 1. The City Council hereby authorizes the City Manager to execute and deliver the MOU with the District in substantially the form set forth ozt 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resolutions, or parts thereof, which are in conflict or inconsistent with any provision of this Resolution are hereby repealed to the extent of such conflict, and the provisions of this Resolution sha11 be and remain conholling as to the matters resolved herein. Section 4. This Resolution sha11 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 cu•cumstance shall be held to be invalid, the remainder of this Resolution and the application of such provision to other persons and circumstances shaIl nevertheless . be valid, and the City Council hereby declares that this Resolution would have been enacted without such invalid prOYISlon. 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 rr-eeting, including this Resolution, was given, all as requu•ed by Chapter SS1, Texas Government Code, as amended. Section 7. This Resolution shall be in force and effect from and aver its final passage, and rt is so resolved. PASSED A1~1D ADOPTED, this 9th day of Apiil, 2013, CIT ~ S HET ,TEXAS Michael~R. Car}~en#er, Mayor ATTEST; Brenda Dennis, City Secretary (CITY SEAL) EXI~IBYT A MEM03ZANDUM OF UNDERSTANDIlVG See attached A-1 MEMORANDUM OF` UNDERSTANDING This Memorandum of Understanding {this "Memorandum") is between the City of Schertz, Texas (the "City") and the Scheriz-Cibolo-Universal City Independent School District (the "District") and relates to the provision of certain legal services in connection with a proposed joint natatorium project involving the City and the District, as further described on Exhibit A (the "PTOjeet"). Existing Leal Relationships. The City Attorney for the City is Katherine Tapley of the law fnm of Fulbright & Jaworski L.L.P. ("Fulbright"). Other attorneys with Fulbright, including but not limited to Michael Spain and Samantha Dyal, also perform City Attorney services for the City. General Counsel for the District is George Grimes of the law fii7n of Walsh, Anderson, Gallegos, Green & Trevifzo, P.C. {"Walsh .Anderson"), Other attorneys with Walsh Anderson also perfoi~n General Counsel services for the District. Fulbright is the designated Bond Counsel for both the City and the District. Jeff Kuhn has for many years been the lead Fulbright partner acting as Band Counsel for the City (the "City's Bond Counsel"), and Bob Dransfield has for many years been the lead Fulbright partner acting as Bond Counsel for the District (the "District's Bond Counsel"). Anticipated Agreements. The relationship between the City and the Dishict with respect to designing, financing, constructing, maintaining, and operating the Project will involve allocation between the City and the District of ctu7•ent and ongoing rights, duties, obligations, and liabilities of the City and the District. The City and the District anticipate that such allocation will be set forth in detail in a definitive agreement ar agreements {whether one or more, the "Agreements"). The preparation of such Agreements will involve presentations to and input fiom the City Council of the City and the Board of Trustees of the District and will involve negotiations between (for the City) designated staff of the City and the City Attorney and (for the District) designated staff of the District and the District's General Counsel. In addition, because the financing, construction, ownership, and ongoing maintenance and operation of the Project will Iikely involve legal issues related to public finance matters, each of the City and the Dislaict expects to consult Band Counsel. City Attorney and District General Counsel. This Memorandum documents the agreement of the City and the District that Fulbright shall represent the City as City Attorney in connection with the Project and the negotiation and drafting of the Agreements, and Walsh Anderson shall represent the District as its General Counsel in connection with the Project and the negotiation and drafting of the Agreements. In such representation, the Dish'ict agrees that Fulbright, in its capacity as City Attorney, may hold in confidence its communications with the City staff and its communications with the City Council of the City during executive sessions of the City. Furthermore, the District agrees that, since there is no substantial relationship between Fulbright's representation of the City as City Attorney and Fulbright's representation of the District as the District's Bond Counsel, no conflict currently exists which would prohibit Fulbright's representation of the City in negotiations with the City. Bond Counsel. This Memorandum also documents the agreement of the City and the Dishict with respect to Bond Counsel matters relating to the Project and the Agreements ("Bond 506! 1593.2 Counsel Matters"). With respect to Bond Counsel Matters, the City and the District desire to 6e jointly represented by Bob Dransfield of Fulbright. The City and the District do not anticipate the issuance of any joint bond obligation; they acknowledge, however, that as noted above the financing, construction, ownership, and ongoing maintenance and operation of the Project will likely involve legal issues related to public finance matters. Mr. Dransf eld may be assisted from time to time on Bond Counsel Matters by other Fulbright attorneys, but no Fulbright attorney providing City Attoz~zey services will be involved with Mr. Dransfield on Bond Counsel Matters. In the remainder of this Bond Counsel section of this Memorandum, references to Fulbright mean Mr. Dransf eld and other Fulbright attorneys working with him on Bond Counsel Matters. While the benefits of being jointly represented on Bond Counsel Matters may be obvious to the City and the District, there are also several concerns that each should consider carefully before agreeing to such joint representation. These concerns generally exist any time joint representation of two or more clients is undertaken in the same matter 6y the same lawyer or lawyers. Nevertheless, these concerns should be understood by each of the City and the District at the outset. The first concern relates to the sharing of conf dential information. All communications between or among the City and the District and Fulbright as to Bond Counsel Matters will be treated as strictly confidential under the attoz~zey-client privilege, and those communications cannot be disclosed to any third parties without the City's and the District's consent. Both the City and the District will enjoy the same privilege with respect to communications with Fulbright as to Bond Counsel Matters. Both the City and the District should be aware, however, that, if Fulbright jointly represents the City and the District as to Bond Counsel Matters, there will be no privilege of confidentiality as to those matters as between the City and the District. Thus, for example, any communications to Fulbright by either client in the joint representation would generally be deemed received by the other client. This does not mean that Fulbright will automatically repeat to each client evezything that one client confides in Fulbright as to Bond Counsel Matters. It does mean, however, that either client will generally have the right to find out what the. other client tells Fulbright concei7ring Bond Counsel Matters or what Fulbright advises the other client to the extent such information is any way relevant to Bond Counsel Matters. Ethics rules require Fulbright to adhere to this rule in order to ensw~e that Fulbright can fulfzll its obligations to both clients as to Bond Counsel Matters. This does not mean that anyone else {i. e., any other client in other matters or any non- client} can gain access to such communications through Fulbright. Indeed, the privilege protecting the confidentiality of such communications would remain fully intact as to third parties. Furthermore, neither the City nor the District would be able to waive that privilege without the other's consent. This is an important point, and each of the City and the District, by execution of this Memorandum, acknowledges and agrees that it cannot and will not attempt to waive the attorxrey-client privilege or attorney work product privilege that is common to it and the other jointly-represented client without the consent of both the City and the District. if eithex the City or the District considers imparting to Fulbright any information that the client may wish to keep secret from the other client, Fulbright will not be able to maintain such confidentiality from the other client if the infozrrzation is at all relevant to the representation of the other client as to Bond Counsel Matters. It is extremely important that, prior to the time so~~rs9~.z - 2 - either the City or the District discloses to Fulbright any information that it desires to be kept confidential from the other clienf, it should so notify Mr. Dransfield in writing of its intention but not disclose the precise information. Prior to receiving the precise information, Mr. Dransfield will determine whether it is appropriate for him to hold such type of information confidential fiom the other client and will so inform the client which requested confidentiality. In the event that it is necessary for Fulbright to withdraw as counsel for either the City or the District in connection with Bond Counsel Matters or Fulbright's representation of either the City or the District as to Bond Counsel Matters otherwise terminates, the City and the District should understand that any information either has provided to Fulbright that is relevant to the representation of the other client may be used fox the beneft of ox supplied to the other client to be used by the other client as deemed appropriate in furtherance of its interests. If Fulbright is to undertake this joint representation, the City and the District agree that as soon as either becomes aware (or suspects) that its interests may be in conflict with those of the other client with respect to Bond Counsel Matters, it will infalxn Mr. Dransfield immediately in writing and will refrain from revealing any further conf dential information to Fulbright until the possible conflict is resolved. Zf the City and the District disagree as to Bond Counsel Matters, they will so infolln Mr. Dransfield in writing, and Mr. Dransfield will ask them to resolve their differences between themselves, without his assistance. If the ulzresolved differences are serious enough, Mr. Dransfield may be required by applicable ethics rules to withdraw from the joint representation completely. Other Public Finance Matters. Both the City and the District axe cuz~•entiy involved in public finance matters totally unrelated to the Project and the Agreements, and the above- described joint representation arrangements do not apply to such other matters. As to such matters, the City may continue to work with the City's Bond Counsel as it always has, and the District may continue to work with the District's Bond Counsel as it always has. Le al Fees. The City and the District will each continue its existing fee arrangement with the City Attorney and the District's General Counsel, respectively. The City and the District each agree that it will be responsible for the payment of one-half of the legal fees and expenses and other charges .for Fulbright's joint representation on Bond Counsel Matters; provided, if services provided by Fulbright in its joint representation clearly benefit only the City ox the District, the fees and expenses and other charges for such services will be paid by the benefitted party. City and District Ag~•eement. The City Council of the City and appropriate staff of the City have conferred with the City Attorliey and the City's Bond Counsel, and the Board of Trustees of the District and appropriate District staff have confeerred with the Dishict's General Counsel and the District's Bond Counsel, concerning this Memorandum and the above-described roles applicable to Fulbright with respect to the Project and the Agreements. Following such discussions, the City Council and the Board of Trustees has each by official action (i) agreed that such arrangement is acceptable, (ii} authorized the City Manager and Superintendent, respectively, to execute and deliver this Memorandum to the other parties hereto, and (iii) directed its staff and legal counsel to proceed with the planning of the Project and the negotiation and drafting of the Agreements as described herein for presentation to the City Council and the Board of Trustees, respectively, for consideration and action. SOGll593.2 - 3 - Effective Date; Termination. This Memorandum is effective as of the date it has been fully executed on behalf of the City and the District and shall continue in effect until either the City or the District notifies the other in writing that it desires to tel7rlinate this Memorandur, Such notice shall be delivered by mail or in person to the principal business address of the City (attention City Manager) or the District (attention Superintendent of Schools), as the case zxlay 6e. AGREED AND CONSENTED: CITY OF SCHERTZ, TEXAS SCHERTZ-CIBOLO-UNI`1ERSAL CITY INDEPENDENT SCHOOL DISTRICT By; John . Kesse ,City Manager Date of execution: April °f , 2413 By: Greg Gipson, Superintendent of Schools Date of execution: Aprilz3, 2013 By their acknowledgment below, .the City Attorney and Mr. Dransfleld as Bond Counsel have agreed to the above-described roles of Fulbright with respect to the Project and the Agreements. FULBRIGHT & JAWORSKI L.L.P. Katheri A. Taple , as City Attorney Robert D.-Dransfield,. as Bond Counsel SQ611593.2 - 4 - ~~fectiye Date; Termination, This Memoi~ndum is effective as of the date it has been pally executed on behalf o~the City and the Dish'iat and shall continue in effect until either the City or the District notifies ~o other in writing that it desires to te~~ninate this Memorandum, Such notice shall ba delivered by mail or in person to the principal business address of the City (attention City Manager) or the Dish~ict (attention Superintendent of Schools}, as the case may be. AGREED AND CONSENTED: CIT'E' OF SCHERTZ, TEXAS By; John C, lCessel, City Manager Date o£ execution; April, 2013 SCHLRTZ-CIBOLO-CJNiVERSAL CITY INDEPENDENT SCHOOL DISTRICT By: Greg Gibson, Superintendent o£ Sclraols Date of execution; April ~, 2013 By their aclcnowledgrnent below, t1~e City Attorney and Mr. Dransfield as Bond Counsel have agreed to the above-described roles of rulbright with respect to the Project and the Agreements, FULBRXCiHT & JAWORSZ~ L,L,P. ZCatherine A. Tapley, as Cit}r Attorney ~~ _ Robert D. Drausfield, as Bo Counsel sos~i$~3.z . d - EXHIBIT A THE NATATORIUM PROJECT The natatorium facility is currently in the master planning phase. Tt is anticipated that the main pool will be designed for competition quality and will be 25 meters x 25 yards and not less than 6 feet deep, with currently undefined bleacher seating. The facility may also contain a second body of water currently referred to as a "zero entry" pool. In addition to the aquatic aspect, there will also be associated suppoz~t spaces -that would include toilet/locker rooms, meeting facilities, offices, a small lobby space, and other mechanical electrical, and plumbing space. It is anticipa#ed that the footprint of the facility will be in the 25,000-30,000 square foot range. The existing City recreation center parking will be expanded as part of the overall project design. The new facility may or may not be connected to the existing City recreation center {operated by the YMCA by contract with the City) depending on the final budget constraints. so6i ts93.a A-1