Loading...
HomeMy WebLinkAboutR-3358-2-16RESOLUTION NO. 3358-2-16(R) ' A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ALLEN, COLLIN COUNTY, TEXAS, AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT WITH THE SAMARITAN INN, INC., A NOT FOR PROFIT ORGANIZATION, AUTHORIZING THE DONATION OF ITEMS OF ABANDONED AND UNCLAIMED PERSONAL PROPERTY WITH A VALUE OF LESS THAN $500.00 TO THE SAMARITAN INN, INC. FOR THE PURPOSE OF DISTRIBUTING THE PROPERTY FOR THE BENEFIT OF THE PUBLIC OR RESELLING THE PROPERTY IN ORDER TO FUND COMMUNITY -ORIENTED PROGRAMS; PROVIDING A REPEALING CLAUSE; PROVIDING A SEVERABILITY CLAUSE; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the Allen Police Department ("Department") periodically comes into possession of abandoned and/or unclaimed property that is unfit for use by the Department and for which the costs associated with the storage and/or disposition of the property generally exceed the value of the property; and, WHEREAS, The Samaritan Inn, Inc. is a not-for-profit organization that collects useable items of personal property from organizations such as police departments and either distributes or resells the ' items to fund community based projects; and, WHEREAS, the City Council of the City of Allen, Texas (the "City Council"), has determined that qualifying items of abandoned and unclaimed personal property that are seized and stored by the Police Department should, on an as -needed basis, be disposed of in accordance with Article 18.17, Texas Code of Criminal Procedure; and, WHEREAS, the City Council has determined that only items of personal property with a value of less than five -hundred dollars ($500.00) shall qualify for donation and that the cost of storing qualifying property generally exceeds the fair value of the property; and, WHEREAS, the City Council has determined that donating the property to The Samaritan Inn, Inc. serves a legitimate public purpose, that sufficient controls are in place to ensure that the public purpose will be carried out and that is in the best interests of the City of Allen and its citizens to enter into the agreement with The Samaritan Inn, Inc.. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ALLEN, COLLIN COUNTY, TEXAS, THAT: SECTION 1. The findings set forth above are incorporated into the body of this Resolution as if fully set forth herein. ' SECTION 2. The City Council hereby authorizes the City Manager to execute and administer the agreement attached hereto as Exhibit "A" between the City and The Samaritan Inn, Inc. providing for the donation of abandoned and unclaimed property lawfully held by the City of Allen Police Department to The Samaritan Inn, Inc., on an as -needed basis, for the purpose of donating the property for the benefit of the general public and/or reselling the property for the public purpose of funding community -oriented projects. ' SECTION 3. All provisions of the Resolutions of the City of Allen, Texas, in conflict with the provisions of this Resolution be, and the same are hereby, repealed, and all other provisions not in conflict with the provisions of this Resolution shall remain in full force and effect. SECTION 4. Should any word, sentence, paragraph, subdivision, clause, phrase or section of this Resolution, be adjudged or held to be void or unconstitutional, the same shall not affect the validity of the remaining portions of said Resolution which shall remain in full force and effect. SECTION 5. This Resolution shall become effective immediately from and after its passage. DULY PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF ALLEN, COLLIN COUNTY, TEXAS, ON THIS THE 23" DAY OF FEBRUARY 2016. APPROVED: Stephen 'errell, MAYOR ' ATTEST: Shelley B. Geo , CITY SEC \RY (PGS: W W:I-12-16:75013) Resolution No._ 3358-2-16(R), Page 2 STATE OF TEXAS AGREEMENT FOR DONATION OF CERTAIN ABANDONED AND UNCLAIMED PROPERTY COUNTY OF COLLIN This Agreement for Donation of Certain Abandoned and Unclaimed Property ("Agreement') is made by and between the City of Allen, Texas ("City"), and The Samaritan Inn, Inc., a Texas non-profit corporation ("Recipient'), (each a "Party" and collectively the "Parties"), acting by and through their authorized representatives. Recitals: WHEREAS, the City of Allen Police Department ("Department") periodically comes into possession of items of personal property that are abandoned and/or unclaimed in accordance with the provisions of Article 18.17, Texas Code of Criminal Procedure ("Seizure Property"); and WHEREAS, the City has determined that it is in the best interests of the City that certain Seizure Property should be disposed of by donation in accordance with the law ("Donation Property"); and WHEREAS, the City has determined that qualifying items of Donation Property we unfit for use by the City and the costs associated with storing the items generally exceed the fair value of the items; and WHEREAS, Recipient is a not-for-profit organization that collects items of personal property such as qualifying Donation Property and either distributes the property to general public or sells the property for the public purpose of funding community based projects; and WHEREAS, the City Council has determined that it is in the best interests of the City to enter into this Agreement with Recipient to permit the City to transfer possession of qualifying Donation Property for the benefit of the general public pursuant to the terms and conditions of this Agreement. NOW THEREFORE, in exchange for the mutual covenants set forth herein and other valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the Parties agree as follows: Article I Term 1.1 Initial Term. The Initial Term of this Agreement shall begin on the last date of execution hereof (the "Effective Date") and continue for a period of one (1) year, unless =her temilnated as provided herein. City of Allen/The Samaritan Inn, Inc. Agreement for Donation of Abandoned and Unclaimed Property (TM 75007) 1.2 Renewal Terms. The term of this Agreement shall automatically extend for two (2) additional one (1) yew terms (each a "Renewal Term"), unless either Party delivers to the other Party, written notice of that Party's intent not to extend the tern of this Agreement thirty (30) days prior to the end of the then current term of the Agreement. Article II Donation Purpose and Conditions 2.1 Public Purpose. The Parties acknowledge that the purpose of this Agreement is to permit Recipient to use, sell or distribute the Donation Property for a public purpose. 2.2 Donation Return Period. To ensure compliance with applicable law, the Parties expressly agree that Recipient shall not use, sell or dispose of any Donation Property for a period of thirty-five (35) days following the date each item of Donation Property is received by Recipient ("Donation Return Period'). Recipient shall return to the City, at the City's sole discretion, any item of Donation Property upon the City's written request during the Donation Return Period. In no event shall the City be required to compensate Recipient in any manner for the costs of storage or returning any item of Donation Property in accordance with this Section 2.2. 2.3 Disposition of Donation Property by Recipient. Immediately following the Donation Return Period, Recipient may sell the property and use the sale proceeds for any lawful purpose benefiting the general public. Recipient may also offer to give away the Donation Property directly to the general public in a manner that ensures the public at large has equal access and opportunity to receive the Donation Property on a first come, first served or similar non -preferential basis. 2.4 Non-Exclusiviri. The Parties acknowledge that the City is not promising that it will have or make any specific item of Donation Property available to Recipient. The Parties agree that the City shall have the right to retain title and possession of any item of personal property that may qualify as Donation Property under this Agreement. The City may further donate or sell items qualifying as Donation Property to other individuals and/or organizations for any lawful purpose. The City shall have the sole authority to determine whether to make a particular donation to Recipient pursuant to this Agreement. 2.5 Contact Persons. Recipient and City shall each designate one or more person(s) to be the designated points of contact for the respective Parties. Each Party shall notify the other in writing as soon as practicable upon a change in either Party's contact person(s). 2.6 Inspection of Records. Recipient agrees to keep and maintain written records identifying all Donation Property received from the City and detailing the public purpose for which the property and/or the proceeds from the sale of the property, were used. Recipient agrees that City may, during normal business hours and as often as deemed necessary, inspect, audit, examine and reproduce any and all of the Recipient's records relating to the Donation Property received by Recipient pursuant to this Agreement during the term of this Agreement and for a period of one (1) year following the date of termination hereof. Page 2 1 City of Allen/The Samaritan Inn, Inc. Agreement for Donation of Abandoned and Unclaimed Property (TM 75007) Article III Method of Donation 3.1 Transfer of Rights, Title and Interest in the Donation Proyerty. Notwithstanding Section 2.2 of this Agreement, the Parties agree that Recipient shall take and assume all rights, title and interest to each and every item of Donation Property received immediately upon taking possession of the property. 3.2 Donation Location. The Parties shall make reasonable effort to mutually agree upon the date, time and location for each delivery of Donation Property to Recipient pursuant to this Agreement; provided that the City shall have the right to require Recipient to pick up any item(s) of Donation Property wherever such items are stored by the City. In no event shall the City be responsible for any cost or expense associated with the delivery of the Donation Property to Recipient. Article IV Warranty 4.1 "AS IS" Transfer. RECIPIENT ACKNOWLEDGES THAT CITY DONATING THE DONATION PROPERTY AND WARRANTIES, IF ANY, ON AN "AS IS WITH ALL FAULTS" BASIS AND THAT RECIPIENT IS NOT RELYING ON ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, FROM CITY AS TO ANY MATTERS CONCERNING THE DONATION PROPERTY AND WARRANTIES, IF ANY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 4.2 Assignment of Existing Warranties. Immediately upon Recipient taking possession of any item of Donation Property, the City shall be deemed to have assigned, set over and transferred to Recipient, all rights, title and interest in and to any warranties and guarantees issued in connection with the manufacture, construction, purchase, and/or operation, of the Donation Property (the "Warranties'), to the extent said Warranties are assignable and have not expired as of the date of the donation. In consideration of the foregoing assignment, Recipient hereby assumes and agrees to perforin all of the obligations of City with respect to the Warranties arising or accruing on and after the date hereof The Parties understand and agree that no warranty shall be created by this Agreement and that in the absence of an existing warranty affecting the Donation Property at the time of purchase; City does not create assign or transfer any warranty to Recipient. Article V Termination This Agreement may be terminated: (a) by mutual written agreement of the Parries; City of Allen/The Samaritan Inn, Inc. Agreement for Donation of Abandoned and Unclaimed Property (TM 75007) (b) immediately upon written notice by City, if Recipient defaults or breaches any of the terms or conditions of this Agreement; (c) upon thirty (30) days prior written notice by either Party; or (d) upon written notice by City if Recipient suffers an event of Bankruptcy or Insolvency. For purposes of this Agreement, "event of Bankruptcy" shall mean the dissolution or termination (other than a dissolution or termination by reason of Recipient merging with an affiliate of Recipient) of Recipient's existence as a going business, insolvency, appointment of receiver for any part of Recipient's property and such appointment is not terminated within ninety (90) business days after such appointment is initially made, any general assignment for the benefit of creditors, or the commencement of any proceeding under any bankruptcy or insolvency laws by or against Recipient and in the event such proceeding is not voluntarily commenced by the Recipient, such proceeding is not dismissed within ninety (90) business days after the filing thereof. Article VI Miscellaneous 6.1 Entire Agreement. This Agreement constitutes the sole and only agreement between the Parties and supersedes any prior understandings written or oral agreements between the Parties with respect to this subject matter. 6.2 Assi ri ttent. Recipient may not assign this Agreement in whole or in part without the prior written consent of City. In the event of an assignment by Recipient to which City has consented, the assignee shall agree in writing with City to personally assume, perform, and be bound by all the covenants, and obligations contained in this Agreement. 6.3 Successors and Assigns. Subject to the provisions regarding assignment, this Agreement shall be binding on and inure to the benefit of the Parties to it and their respective heirs, executors, administrators, legal representatives, successors and assigns. 6.4 Governing Law. The laws of the State of Texas shall govern this Agreement; and venue for any action concerning this Agreement shall be in the state district court of Collin County, Texas. The Parties agree to submit to the personal and subject matter jurisdiction of said Court. 6.5 Amendments. This Agreement may be amended by the mutual written agreement of the Parties. 6.6 Severability. In the event any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions, and the Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained in it. Page 4 City of Alleml'M1e Samaritan Inn, Inc. Agreement for Donation of Abandoned and Unclaimed Property (TM 75007) 6.7 Independent Contractor. It is understood and agreed by and between the Parties that Recipient, in satisfying the conditions of this Agreement, is acting independently, and that City assumes no responsibility or liabilities to any third party in connection with these actions. All services to be performed by Recipient pursuant to this Agreement shall be in the capacity of an independent Recipient, and not as an agent or employee of City. Recipient shall supervise the performance of its services and shall be entitled to control the manner and means by which its services are to be performed, subject to the terms of this Agreement. 6.8 Notice. Any notice required or permitted to be delivered hereunder may be sent by first class mail, overnight courier or by confirmed telefax or facsimile to the address specified below, or to such other Party or address as either Party may designate in writing, and shall be deemed received three (3) days after delivery set forth herein: If intended for City, to: City of Allen, Texas Atm: Peter H. Vargas, City Manager Allen Civic Plaza 305 Century Parkway Allen, Texas 75013 Facsimile: 214-509-4118 If intended for Recipient, to: The Samaritan Inn, Inc. Attn: Cara Mendelsohn & Wes Akin 1710 North McDonald Street McKinney, Texas 75071 With a copy to: Peter G. Smith Nichols, Jackson, Dillard, Hager & Smith, L.L.P. 1800 Ross Tower 500 N. Akard Street Dallas, Texas 75201 Facsimile: 214-965-0010 6.9 Counterparts. This Agreement may be executed by the Parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute one and the same instrument. Each counterpart may consist of any number of copies hereof each signed by less than all, but together signed by all of the Parties hereto. 6.10 Recitals. The Recitals to this Agreement are incorporated herein and made a part hereof for all purposes. 6.11 Hold Harmless and Indemnification. RECIPIENT, INCLUDING ITS OFFICERS, AGENTS, EMPLOYEES, INDEPENDENT CONTRACTORS, OTHER REPRESENTATIVES, INVITEES, LICENSEES, OR GUESTS DOES HEREBY AGREE TO COMPLETELY AND WHOLLY RELEASE AND HOLD HARMLESS THE CITY, ITS OFFICERS, AGENTS AND EMPLOYEES (COLLECTIVELY REFERRED TO IN THIS SECTION 6.11 AS "CITY") FROM ANY City of Allen/The Samaritan Inn, Inc. Agreement for Donation of Abandoned and Unclaimed Property (TM 75007) AND ALL CLAIMS, DAMAGES, CAUSES OF ACTION OF ANY HIND WHATSOEVER, STATUTORY OR OTHERWISE, PERSONAL INJURY (INCLUDING DEATH), PROPERTY DAMAGE, LAWSUITS AND JUDGMENTS, COURT COSTS, EXPENSES AND REASONABLE ATTORNEY'S FEES, AND ALL OTHER EXPENSES RESULTING DIRECTLY OR INDIRECTLY FROM THE ACTIONS, OMISSIONS AND ACTIVITIES OF RECIPIENT RELATING TO RECIPIENT'S POSSESSION, USE OR SALE OF THE DONATION PROPERTY, OR WHICH MAY BE SUSTAINED BY REASON OF ANY ACT OR OMISSION ON THE PART OF THE RECIPIENT, ITS EMPLOYEES, AGENTS AND/OR CONTRACTORS, OR BY ANYONE ACTING DIRECTLY OR INDIRECTLY EMPLOYED BY ANY OF THEM, OR BY ANYONE FOR WHOSE ACTS OR OMISSIONS ANY OF THEM MAY BE LIABLE. IT IS THE UNDERSTANDING OF ALL PARTIES THAT THIS RELEASE AND HOLD HARMLESS AGREEMENT SHALL APPLY WHETHER OR NOT THE CLAIMS, DAMAGES, CAUSES OF ACTION OF ANY KIND WHATSOEVER, STATUTORY OR OTHERWISE, PERSONAL INJURY, INCLUDING DEATHS, PROPERTY DAMAGE, LAWSUITS, JUDGMENTS, COURT COSTS, ATTORNEY'S FEES OR ANY OTHER EXPENSE ARISING DIRECTLY OR INDIRECTLY FROM THE NEGLIGENCE OF WHATEVER NATURE, OMISSIONS, WILLFUL OR INTENTIONAL ACTS OF RECIPIENT OR RECIPIENT'S OFFICERS, AGENTS, EMPLOYEES, INDEPENDENT CONTRACTORS, OTHER REPRESENTATIVES, INVITEES, LICENSEES, OR GUESTS. CITY SHALL FURTHER NOT BE LIABLE FOR ANY LOSS, DAMAGE, OR INJURY OF ANY KIND OR CHARACTER TO ANY PERSON OR PROPERTY ARISING FROM THE DONATION OF PERSONAL PROPERTY TO THE RECIPIENT PURSUANT TO THIS AGREEMENT. RECIPIENT HEREBY WAIVES ALL CLAIMS AGAINST CITY FOR DAMAGE TO ANY PROPERTY OR INJURY TO, OR DEATH OF, ANY PERSON ARISING AT ANY TIME AND FROM ANY CAUSE OTHER THAN THE NEGLIGENCE OR WILLFUL MISCONDUCT OF CITY OR BREACH OF CITY'S OBLIGATIONS HEREUNDER. RECIPIENT AGREES TO INDEMNIFY AND SAVE HARMLESS CITY FROM AND AGAINST ANY AND ALL LIABILITIES, DAMAGES, CLAIMS, SUITS, COSTS (INCLUDING COURT COSTS, ATTORNEYS' FEES AND COSTS OF INVESTIGATION) AND ACTIONS OF ANY HIND BY REASON OF INJURY TO OR DEATH OF ANY PERSON OR DAMAGE TO OR LOSS OF PROPERTY TO THE EXTENT CAUSED BY THE RECIPIENT'S NEGLIGENT PERFORMANCE OF SERVICES UNDER THIS AGREEMENT OR BY REASON OF ANY NEGLIGENT ACT OR OMISSION ON THE PART OF RECIPIENT, ITS OFFICERS, DIRECTORS, SERVANTS, EMPLOYEES, REPRESENTATIVES, CONSULTANTS, LICENSEES, SUCCESSORS OR PERMITTED ASSIGNS (EXCEPT WHEN SUCH LIABILITY, CLAIMS, SUITS, COSTS, INJURIES, DEATHS OR DAMAGES ARISE FROM OR ARE ATTRIBUTED TO NEGLIGENCE OF THE CITY. THE RECIPIENT'S OBLIGATIONS UNDER THIS SECTION SHALL NOT BE LIMITED TO THE LIMITS OF COVERAGE OF INSURANCE MAINTAINED OR REQUIRED TO BE MAINTAINED BY RECIPIENT UNDER THIS AGREEMENT. THIS PROVISION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT. Page 6 City of Allen/The Samaritan Inn, Inc. Agreement for Donation of Abandoned and Unclaimed Property (TM 75007) EXECUTED this —3-4 day of . �fb/ 2016. CITY OF ALLEN By: Peter H. Varg , ity Manager ATTEST: By:� Shelley George, City Secretary EXECUTED this day of 2016. THE SAMARITAN INN, INC. By:_ Name: Title: Page 7 1 City of Allenrrhe Samaritan Inn, Inc. Agreement for Donation of Abandoned and Unclaimed Property (TM 75007)