Legal Committee

AGENDA LEGAL COMMITTEE MEETING Thursday, January 25, 2018 at 4:00PM City Hall Conference Room 425 N. Richardson, Roswell, NM 88201 CALL TO ORDER ROLL CALL APPROVAL OF AGENDA APPROVAL OF MINUTES Approval of the minutes from the Legal Committee meeting on December 28, 2017. p. 3 REGULAR ITEMS 1. To recommend to full Council that the following RIAC agreements to existing leases be placed on the Consent agenda for approval: p. 5 (A) Hunter - Consider approval to authorize Kerry Hunter, to renew his current lease agreement on Building No. 117. p. 8 (B) Mayes - Consider approval to authorize Don and Angel Mayes, and Richard Glenn, as individuals, to renew their current lease agreement on “T” Hangar Building No 120, Space 2. p. 10 (C) Waide - Consider approval to authorize Cliff Waide, an individual, to amend his current lease agreement on an area of land east of Hangar No. 1536. p. 12 (D) Walker Aviation Museum Fdn. - Consider approval to authorize Walker Aviation Museum Foundation to amend their current lease agreement on an office area in Building No. 1 located inside the front entrance to the Terminal. p. 13 2. Resolution 18-09 - Consider approval of Resolution 18-09 membership with National Purchasing Cooperative. p. 16 3. Ord. 18-01 - Consider recommending to full council advertisement to hold a public hearing on proposed Ordinance 18-01 addressing the penalties for failure to comply with municipal court sentencing. p. 24 Continued on next page --1-- NON ACTION ITEMS PUBLIC PARTICIPATION ADJOURN Notice of this meeting has been given to the public in compliance with Sections 10-15-1 through 10-15-4 NMSA 1978 and Resolution 17-49. NOTICE OF POTENTIAL QUORUM – A quorum of the City Council may or may not attend, but there will not be debate by the City Council. The Council, acting as attendees to an informational presentation, will not be discussing public business and no action will be taken. If you are an individual with a disability who is in need of a reader, amplifier, qualified sign language interpreter, or any other form of auxiliary aid or service to attend or participate in the hearing or meeting, please contact Human Resources at 575-624-6700 at least one week prior to the meeting or as soon as possible. Public documents including the agenda and minutes can be provided in various accessible formats. Please contact the City Clerk at 575-624-6700 if a summary or other type of accessible format is needed. Printed and posted: Monday, January 22, 2018 --2--  DRAFT Regular Meeting of the Legal Committee Held in the Conference Room at City Hall December 28, 2017 Notice of this meeting was given to the public in compliance with Section 10-15-1 through 10-51-4 NMSA and Resolution 17-49. ROLL CALL The meeting convened at 4:03 p.m. with Chairman Perry presiding; Councilor Foster being present; Councilor Best participating by telephone; Councilor Oropesa being absent. Staff present: Aaron Holloman, Stephanie Garay and Bill Morris. Guests present: Larry Connolly and Alison Penn. APPROVAL OF AGENDA Councilor Foster moved to approve the December 28, 2017 Legal Committee meeting agenda. Councilor Best was the second. A voice vote was unanimous and the motion passed with Councilor Best participating by telephone and Councilor Oropesa being absent. APPROVAL OF MINUTES Councilor Foster moved to approve the minutes from the November 27, 2017 Legal Committee meeting. Councilor Best was the second. A voice vote was unanimous and the motion passed with Councilor Best participating by telephone and Councilor Oropesa being absent. REGULAR ITEMS To recommend to full City Council that the following RIAC agreements to existing/new leases be placed on the consent agenda for approval: A. ENMU-R – Consider approval to authorize Eastern New Mexico University – Roswell, to renew their current lease agreement on use of an area of land at the old airport. Mr. Holloman discussed the lease agreement stating that ENMU-R leases part of the old runway 17/35 at the old Roswell Municipal Airport for the purpose of CDL training. New rent amount is $126 monthly; $1,512 annually. ENMU-R has been a customer since February 2012. The term is from February 1, 2018 through January 31, 2019. Councilor Foster moved to send on consent agenda approval to authorize ENMU-R to renew their current lease agreement on use of an area of land at the old airport subject to all terms and conditions of the lease. Councilor Best was the second. A voice vote was unanimous and the motion passed with Councilor Best participating by telephone and Councilor Oropesa being absent. B. Jon E. Hitchcock, et al. – Consider approval to authorize Jon E. Hitchcock, Robert B. Corn, James Patterson, Siavash Karimian, Brandon Arnold, John Berry and Larry Marker as individuals, to execute the first of two (2) one year options to renew their current lease agreement on portions of Hangar No. 91, Spaces A and B. Mr. Holloman discussed the lease agreement stating that the tenants lease Hangar No. 91, Space A and B for the purpose of aircraft storage and maintenance. New rent amount for Space A is $799 monthly; $9,588 annually and for Space B is $805 monthly; $9,660 annually respectively. They have been customers since January 2000. The term is from February 1, 2018 through January 31, 2019. Councilor Foster moved to send on consent agenda approval to authorize Jon E. Hitchcock, Robert B. Corn, James Patterson, Siavash Karimian, Brandon Arnold, John Berry and Larry Marker to execute the first --3--  DRAFT of two (2) one year options to renew their current lease agreement on portions of Hangar No. 91, Space A and B subject to all terms and conditions of the lease. Councilor Best was the second. A voice vote was unanimous and the motion passed with Councilor Best participating by telephone and Councilor Oropesa being absent. C. Karen Maynes – Consider approval to authorize Karen Maynes, an individual, to renew her current lease agreement on “T” Hangar Building No 120, Space 5. Mr. Holloman discussed the lease agreement. Karen Maynes leases the 1002 square foot “T” Hangar Building No. 120, Space 5 for the purpose of aircraft storage and maintenance. New rent amount is $178 monthly; $2,136 annually. Karen Maynes has been a customer since November 2008. The term is from February 1, 2018 through January 31, 2019. Councilor Foster moved to send on consent agenda approval to authorize Karen Maynes to renew her current lease agreement on “T” Hangar Building No. 120, Space 5 subject to all terms and conditions of the lease. Councilor Best was the second. A voice vote was unanimous and the motion passed with Councilor Best participating by telephone and Councilor Oropesa being absent. RFP 18-011 – Scope of Services for Advertising. Mr. Holloman discussed the Scope of Services. The City of Roswell is seeking proposals for the Advertising and Marketing Agency RFP as the current contract will reach the term limit for any given contract under the state statute on March 31, 2018. The RFP seeks proposals for an advertising agency to provide services in assisting the City with developing and executing marketing strategies to promote the City. Councilor Foster moved to approve RFP 18- 011 – Scope of Services for Advertising. Councilor Best was the second. A voice vote was unanimous and the motion passed with Councilor Best participating by telephone and Councilor Oropesa being absent. Resolution 18-03 – Right to Work. Mr. Holloman discussed the resolution. States that have passed “right-to-work” legislation operate to prohibit types of union security agreements so that employees may not be compelled to join a union or pay dues but may still be entitled to the same benefits provided union members. New Mexico currently does not have such a statute. Councilor Foster moved to send to full City Council Resolution 18-03 which supports right-to-work legislation in New Mexico. Councilor Best was the second. A voice vote was unanimous and the motion passed with Councilor Best participating by telephone and Councilor Oropesa being absent. NON ACTION ITEMS NONE PUBLIC PARTICIPATION Larry Connolly commented on Resolution 18-03 and stated that Chairman Perry has done a great job and wished him a happy retirement. ADJOURN The meeting adjourned at 4:19 p.m. --4--  AGENDA ITEM NO. 1– ABSTRACT LEGAL COMMITTEE MEETING Thursday, January 25, 2018 at 4:00 PM City Hall Conference Room 425 N. Richardson, Roswell, NM 88201 ACTION REQUESTED: (A) Consider approval to authorize Kerry Hunter, to renew his current lease agreement on Building No. 117. (B) Consider approval to authorize Don and Angel Mayes, and Richard Glenn, as individuals, to renew their current lease agreement on “T” Hangar Building No 120, Space 2. (C) Consider approval to authorize Cliff Waide, an individual, to amend his current lease agreement on an area of land east of Hangar No. 1536. (D) Consider approval to authorize Walker Aviation Museum Foundation to amend their current lease agreement on an office area in Building No. 1 located inside the front entrance to the Terminal. BACKGROUND: (A) Kerry Hunter leases the building for the purpose of vehicle storage and maintenance. 4,736 square feet. New rent amount is $490; $5,880 annually. Rent adjustment is 3.38%. Kerry Hunter has been a customer since March 1993. (B) Don and Angel Mayes, and Richard Glenn lease “T” Hangar Building No. 120, Space 2 for the purpose of aircraft storage and maintenance. 1002 square feet. New rent amount $182; $2,184 annually. Rent adjustment is 2.25%. Don and Angel Mayes, and Richard Glenn have been a customers since February 2010. (C) Cliff Waide request an amendment to his Lease Agreement dated October 12, 2017, to include three (3) ten (10) year options to renew. (D) Walker Aviation Museum Foundation leases the office space for the purpose of operating a museum associated with the former Walker Air Force Base. Landlord desires to repurpose 456 square feet of the leasehold. Tenant agrees to return said portion of the leasehold to landlord. Rent --5--  amount is reduced from $268 to $150 monthly; and reduced from $3,216 to $1,800 annually. Transfer of office space to the City of Roswell shall be effective no later than March 1, 2018. FINANCIAL CONSIDERATION: (A) Kerry Hunter, new rent amount is $490; $5,880 annually. Rent adjustment is 3.38%. Term: March 1, 2018 through February 28, 2019. (B) Don and Angel Mayes, and Richard Glenn, new rent amount $182; $2,184 annually. Rent adjustment is 2.25%. Term: March 1, 2018 through February 28, 2019. (C) Cliff Waide – Not Applicable. (D) Walker Aviation Museum Foundation, rent amount is reduced from $268 to $150 monthly; and reduced from $3,216 to $1,800 annually. LEGAL REVIEW: The City Attorney has reviewed the leases and addendums BOARD and/or The Legal Committee is scheduled to meet on Thursday, COMMITTEE ACTION: January 25, 2018. STAFF (A) Consider approval of a one year lease with Kerry Hunter of RECOMMENDATION: Building No. 117 consisting of 4,736 square feet at the RIAC, for $5,880.00 payable in 12 monthly installments of $490.00, to be placed on the consent agenda subject to all other terms and conditions of the lease. (B) Consider approval of a one year lease with Don and Angel Mayes and Richard Glenn of “T” Hangar 120, Space 2 consisting of 1,002 square feet at the RIAC, for $2,184.00 payable in 12 monthly installments of $182.00, to be placed on the consent agenda subject to all other terms and conditions of the lease. (C) Consider approval of an addendum to the lease agreement with Cliff Waide to amend their current lease agreement by adding three ten-year renewal options subject to all other terms and conditions of the lease. --6-- (D) Consider approval of an addendum to the lease agreement with Walker Aviation Museum Foundation to amend their current lease agreement as described subject to all other terms and conditions of the lease. --7-- THIS LEASE executed in Roswell, New Mexico on this 8th day of February, 2018 by and between the CITY OF ROSWELL, NEW MEXICO, a municipal corporation, hereinafter designated “Landlord”, and KERRY HUNTER, an individual, hereinafter designated as “Tenant”. WHEREAS Landlord has agreed to lease to Tenant the real property described below, together with the improvements thereon, in Chaves County New Mexico, and Tenant has agreed to lease said real property and improvements from Landlord; NOW THEREFORE, in consideration of the mutual covenants and agreements contained herein, the parties agree as follows: 1. GRANTING CLAUSE AND PREMISES. For the term, at the rent and otherwise upon the terms, provisions and conditions contained herein, Landlord hereby lets and leases unto Tenant the surface only to the following real property, together with all improvements located thereon: Building No. 117 consisting of 4,736 square feet, more or less, located at the Roswell International Air Center, identified on a plat attached hereto and made a part hereof, identified and listed as Exhibit "A" (Premises). 2. TERM. The Lease term is for one (1) year, commencing on March 1, 2018 and ending February 28, 2019 unless sooner terminated by provision hereof. 3. RENT. Tenant agrees to pay to Landlord as rent the sum of Five Thousand, Eight Hundred, Eighty Dollars and No Cents ($5,880.00), payable in 12 monthly installments of $490.00. Rent and other fees are due on the first day of each month. If Tenant fails to pay all rent and other fees due for any month by the tenth calendar day of the month that said rent and fees are due, Tenant shall pay to Landlord an additional 2% finance charge, as a penalty, each month until the full amount of that month’s rent is paid. This penalty shall be immediately payable without limiting Landlord in the exercise of any other right or remedy to which it may be entitled by reason of Tenant’s failure to pay rent when due. All rent shall be paid to Landlord without abatement, reduction or set off of any kind except as herein specifically provided. 4. SECURITY DEPOSIT. Tenant has paid $366.00 in advance as security for Tenant’s full and faithful performance of all terms of this lease. This amount shall be used by Landlord at the termination of this Lease Agreement toward a. payment for rent or penalties due Landlord, b. reimbursement of the costs of cleaning and repairing damages (beyond normal wear and tear) to the Premises and c. the cost of removal of any hazardous material not properly disposed of by Tenant. Landlord shall be the sole and reasonable judge of all cleaning and repairs required for the Premises and the amounts needed for these purposes. Upon termination or expiration of this Lease the security deposit shall first be applied to necessary cleaning and removal, repairs and the remaining balance, if any, may then be applied to rentals and penalties then owing to Landlord. Any refund of the security deposit due Tenant will be delivered or mailed in accordance with Paragraph 26 of this Agreement within 60 days after the termination of this Lease Agreement. 5. CONDITION OF PREMISES. Tenant has inspected Premises and accepts the Premises in its present condition “as is”. Tenant acknowledges that any requirements for accessibility and/or public accommodation(s) --8-- --9-- THIS LEASE executed in Roswell, New Mexico on this 8th day of February, 2018 by and between the CITY OF ROSWELL, NEW MEXICO, a municipal corporation, hereinafter “Landlord”, and DON & ANGEL MAYES and RICHARD GLENN, as individuals, hereinafter “Tenant”. WHEREAS Landlord has agreed to lease to Tenant the real property described below, together with the improvements thereon, in Chaves County New Mexico, and Tenant has agreed to lease said real property and improvements from Landlord; NOW THEREFORE, in consideration of the mutual covenants and agreements contained herein, the parties agree as follows: 1. GRANTING CLAUSE AND PREMISES. For the term, at the rent and otherwise upon the terms, provisions and conditions contained herein, Landlord hereby lets and leases unto Tenant the surface only to the following real property, together with all improvements located thereon: “T” Hangar 120, Space 2 consisting of 1,002 square feet, more or less, located at the Roswell International Air Center, identified on a plat attached hereto and made a part hereof, identified and listed as Exhibit “A” (Premises). 2. TERM. The Lease term is for one (1) year, commencing on March 1, 2018 and ending February 28, 2019 unless sooner terminated by provision hereof. 3. RENT. Tenant agrees to pay to Landlord as rent the sum of Two Thousand, One Hundred Eighty Four Dollars and No Cents ($2,184.00), payable in 12 monthly installments of $182.00. Rent and other fees are due on the first day of each month. If Tenant fails to pay all rent and other fees due for any month by the tenth calendar day of the month that said rent and fees are due, Tenant shall pay to Landlord an additional 2% finance charge, as a penalty, each month until the full amount of that month’s rent is paid. This penalty shall be immediately payable without limiting Landlord in the exercise of any other right or remedy to which it may be entitled by reason of Tenant’s failure to pay rent when due. All rent shall be paid to Landlord without abatement, reduction or set off of any kind except as herein specifically provided. 4. SECURITY DEPOSIT. Tenant has paid $145.00 in advance as security for Tenant’s full and faithful performance of all terms of this lease. This amount shall be used by Landlord at the termination of this Lease Agreement toward a. payment for rent or penalties due Landlord, b. reimbursement of the costs of cleaning and repairing damages (beyond normal wear and tear) to the Premises and c. the cost of removal of any hazardous material not properly disposed of by Tenant. Landlord shall be the sole and reasonable judge of all cleaning and repairs required for the Premises and the amounts needed for these purposes. Upon termination or expiration of this Lease the security deposit shall first be applied to necessary cleaning and removal, repairs and the remaining balance, if any, may then be applied to rentals and penalties then owing to Landlord. Any refund of the security deposit due Tenant will be delivered or mailed in accordance with Paragraph 26 of this Agreement within 60 days after the termination of this Lease Agreement. 5. CONDITION OF PREMISES. Tenant has inspected Premises and accepts the Premises in its present condition “as is”. Tenant acknowledges that any requirements for accessibility and/or public accommodation(s) are Tenant’s responsibility. Tenant agrees that the Premises is in good repair and condition except as noted herein. Tenant agrees that, at the expiration of the term hereof, it shall yield up and deliver the Premises to --10-- --11--  FIRST ADDENDUM TO LEASE AGREEMENT THE CITY OF ROSWELL, NEW MEXICO, a municipal corporation, hereinafter "Landlord" and CLIFF WAIDE, an individual, hereinafter "Tenant" hereby agree to the following amendment to that certain Lease Agreement dated October 12, 2017. Effective with Council approval: February 8, 2018 Paragraph 2. TERM of the sited lease is deleted and replaced with the following: 2. TERM. The Lease term is for twenty (20) years with three (3) ten (10) year options to renew, commencing on October 1, 2017 and ending September 30, 2037 unless sooner terminated by provision hereof. Except as amended herein, the original Lease shall continue without change, and in full force and effect as originally executed. IN WITNESS WHEREOF, this FIRST Addendum to Lease Agreement is done and executed in Roswell, New Mexico this day of February, 2018. CITY SEAL LANDLORD: CITY OF ROSWELL, NEW MEXICO ______________________ Dennis J. Kintigh, Mayor ______________________ TENANT: Sharon Coll CLIFF WAIDE City Clerk ________________________ Cliff Waide --12--  THE CITY OF ROSWELL, NEW MEXICO, a municipal corporation, hereinafter "Landlord" and WALKER AVIATION MUSEUM FOUNDATION, hereinafter "Tenant" hereby agree to the following amendment to that certain Lease Agreement dated June 8, 2017. WHEREAS, Landlord desires to repurpose 456 square feet, more or less, of the Leasehold and; WHEREAS, Tenant agrees to return said portion of the leasehold to Landlord NOW THEREFORE, Landlord and Tenant (each “Party” and both collectively the “Parties”) agree as follows: 1. Paragraph 1. GRANTING CLAUSE AND PREMISES., text box describing the Premises; text is deleted and replaced with the following: “Office area in Building No. 1 consisting of 930 square feet, more or less, located inside the front entrance to the Terminal, west of the elevator, located at the Roswell International Air Center, identified on a plat attached hereto and made a part hereof, identified and listed as Exhibit "A" (Premises).” 2. Exhibit “A” (Premises) of the Lease is deleted and replaced with Exhibit “A” (Premises) attached hereto and made a part hereof. 3. Paragraph 3. RENT. is deleted and replaced with the following: “Tenant agrees to pay to Landlord as rent the sum of One Thousand, Eight Hundred Dollars and No Cents ($1,800.00), payable in 12 monthly installments of $150.00. Rent and other fees are due on the first day of each month. If Tenant fails to pay all rent and other fees due for any month by the tenth calendar day of the month that said rent and fees are due, Tenant shall pay to Landlord an additional 2% finance charge, as a penalty, each month until the full amount of that month’s rent is paid. This penalty shall be immediately payable without limiting Landlord in the exercise of any other right or remedy to which it may be entitled by reason of Tenant’s failure to pay rent when due. All rent shall be paid to Landlord without abatement, reduction or set off of any kind except as herein specifically provided.” 4. Transfer of space being returned to Landlord shall be effective no later than March 1, 2018. Rent shall be prorated as necessary. 5. Except as amended herein, the original Lease shall continue without change, and in full force and effect as originally executed. [Remainder of Page Intentionally Left Blank; Signature Page Follows] --13--  IN WITNESS WHEREOF, this First Addendum to Lease Agreement is done and executed in Roswell, New Mexico this _____ day of February 2018. CITY SEAL LANDLORD: CITY OF ROSWELL, NEW MEXICO ______________________ Dennis J. Kintigh, Mayor ______________________ Sharon Coll, City Clerk TENANT: WALKER AVIATION MUSEUM FOUNDATION ______________________ Don Armstrong, President --14--  EXHIBIT “A” PREMISES: Office Space in the Terminal, Building No. 1, consisting of 930 square feet±. 1 Jerry Smith Circle EXHIBIT “A” --15--  AGENDA ITEM NO. 2– ABSTRACT LEGAL COMMITTEE MEETING Thursday, January 25, 2018 at 4:00 PM City Hall Conference Room 425 N. Richardson, Roswell, NM 88201 ACTION REQUESTED: Consider approval of Resolution 18-09 membership with National Purchasing Cooperative BACKGROUND: The National Purchasing Cooperative is an outgrowth of the National School Board Association and several state school board associations to create a purchasing collective to ease some of the burdens of individual procurement procedures but still comply with the laws. Membership is open to municipalities, and several municipalities in New Mexico are already members. There is no cost to join. FINANCIAL CONSIDERATION: There is no cost to join the NPC. LEGAL REVIEW: The City Attorney has reviewed the proposed resolution. BOARD and/or COMMITTEE ACTION: The Legal Committee is scheduled to meet on Thursday, January 25, 2018. STAFF RECOMMENDATION: Consider approval of Resolution 18-09 membership with National Purchasing Cooperative ATT 1 – Proposed Resolution ATT 2 – Sample NPC Interlocal Participation Agreement --16--  RESOLUTION 18-09 A RESOLUTION OF THE CITY OF ROSWELL SUPPORTING BECOMING A MEMBER OF THE NATIONAL PURCHASING COOPERATIVE WHEREAS, the City of Roswell, looks for viable ways to procure goods and services for the City and obtain the best possible value, and WHEREAS, to this date the City has purchased goods and services using formal bids and proposals, state contracts, and other interlocal participation agreements; and WHEREAS, becoming a member of the National Purchasing Cooperative would give the City of Roswell additional legal avenues to obtain goods and services at prices competitively bid on a regional basis. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL AS THE GOVERNING BODY OF THE CITY OF ROSWELL, NEW MEXICO, that: The City of Roswell City Council supports joining the National Purchasing Cooperative by means of an interlocal participation agreement with the NPC allowing the city to procure goods and services through contract pricing negotiated by the NPC. PASSED, ADOPTED, SIGNED and APPROVED the ___ day of February, 2018. CITY SEAL _____________________________ Dennis Kintigh, Mayor ATTEST _____________________ Sharon Coll, City Clerk --17--  NATIONAL PURCHASING COOPERATIVE INTERLOCAL PARTICIPATION AGREEMENT This Interlocal Participation Agreement ("Agreement") is made and entered into on the date indicated below by and between The National Purchasing Cooperative ("Cooperative"), an administrative agency of cooperating local governments, acting on its own behalf and the behalf of all participating local governments, and the undersigned local government ("Cooperative Member"). I. RECITALS WHEREAS, the National Purchasing Cooperative was formed on May 26, 2010, pursuant to MD. CODE ANN., STATE FIN. & PROC. § 13-110 (West 2009), and R.I.GEN.LAWS § 16-2-9.2 (2009); and WHEREAS, the purpose of this Agreement is to facilitate compliance with state procurement requirements, to identify qualified vendors of commodities, goods and services, to relieve the burdens of the governmental purchasing function, and to realize the various potential economies, including administrative cost savings, for Cooperative Members; NOW THEREFORE, in consideration of the mutual covenants, promises and obligations contained herein, the undersigned Cooperative Member and the Cooperative agree as follows. II. TERMS AND CONDITIONS 1. Adopt Organizational Interlocal Cooperation Agreement. The Cooperative Member by the execution or acceptance of this Agreement hereby adopts and approves the Organizational Interlocal Agreement dated May 26, 2010, which agreement is incorporated herein by reference (and is available from the Cooperative upon request). The Organizational Interlocal Agreement established the Cooperative as an administrative agency of its collective participants, and Cooperative Member agrees to become a participant or additional party to that Organizational Interlocal Agreement. 2. Term. The initial term of this Agreement shall commence on the date it is executed by both parties and shall automatically renew for successive one-year terms unless sooner terminated in accordance with the provisions of this Agreement. 3. Termination. (a) By the Cooperative Member. This Agreement may be terminated by the Cooperative Member at any time by thirty (30) days prior written notice to the Cooperative, provided any amounts owed to any vendor have been fully paid. --18--  (b) By the Cooperative. The Cooperative may terminate this Agreement by: (1) Giving ten (10) days notice by certified mail to the Cooperative Member if the Cooperative Member breaches this Agreement; or (2) Giving thirty (30) days notice by certified mail to the Cooperative Member with or without cause. (c) Termination Procedure. If the Cooperative Member terminates its participation under this Agreement or breaches this Agreement, or if the Cooperative terminates participation of the Cooperative Member, the Cooperative Member shall bear the full financial responsibility for all of its purchases made from vendors under or through this Agreement. The Cooperative may seek the whole amount due, if any, from the terminated Cooperative Member. In addition, the Cooperative Member agrees it will not be entitled to a distribution which may occur after the Cooperative Member terminates from the Cooperative. 4. Payments by Cooperative Member. The Cooperative Member will make timely payments to the vendor for the goods, materials and services received in accordance with the terms and conditions of the bid invitation, instructions, and all other applicable procurement documents. Payment for goods, materials and services and inspections and acceptance of goods, materials and services ordered by the procuring Cooperative Member shall be the exclusive obligation of the procuring Cooperative Member, and not the Cooperative. Furthermore, the Cooperative Member is solely responsible for negotiating and securing ancillary agreements from the vendor on such other terms and conditions, including provisions relating to insurance or bonding, that the Cooperative Member deems necessary or desirable under federal, state or local law, local policy or rule, or within its business judgment. 5. Payments by Vendors. The parties agree that the Cooperative will require payment from vendors which are selected to provide goods, materials or services to Cooperative Members. Such payment (hereafter “Vendor Fees”) may be up to two percent (2%) of the purchase price paid by Cooperative Members or a flat fee amount that may be set from time to time by the Cooperative Board of Directors. Cooperative Member agrees that these Vendor Fees fairly compensate the Cooperative for the services and functions performed under this Agreement and that these Vendor Fees enable the Cooperative to pay the administrative, endorsement, licensing, marketing, and other expenses involved in successfully operating a program of electronic commerce for the Cooperative Members. Further, Cooperative Member affirmatively disclaims any rights to such Vendor Fees, acknowledging all such fees are the property of the Cooperative. Similarly, in no event shall a Cooperative Member be responsible for payment of Vendor Fees. 6. Distribution. From time to time, and at the sole discretion of the Cooperative Board of Directors, the Cooperative may issue a distribution to Cooperative Members under a plan developed by the Cooperative Board of Directors. The Cooperative Member acknowledges that a distribution is never guaranteed and will depend on the overall financial condition of the Cooperative at the time of the distribution and the purchases made by the Cooperative Member. 7. Administration. The Cooperative may enter into contracts with others, including non-profit associations, for the administration, operation and sponsorship of the purchasing program provided by this Agreement. The Cooperative will provide reports, at least annually, to the Cooperative Member electronically or by --19--  mail. Cooperative Member will report purchase orders generated under this Agreement to the Cooperative or its designee, in accordance with instructions of the Cooperative. 8. BuyBoard®. Cooperative Member will have a non-exclusive license to use the BuyBoard electronic purchasing application (BuyBoard) during the term of this Agreement. Cooperative Member acknowledges and agrees that the BuyBoard electronic application and trade name are owned by the Texas Association of School Boards, Inc., and that neither the Cooperative nor the Cooperative Member has any proprietary rights in the BuyBoard electronic application or trade name. The Cooperative Member will not attempt to resell, rent, or otherwise distribute any part of BuyBoard to any other party; nor will it attempt to modify the BuyBoard programs on the server or acquire the programming code. The Cooperative Member may not attempt to modify, adapt, translate, distribute, reverse engineer, decompile, or disassemble any component of the application. The Cooperative Member will use BuyBoard in accordance with instructions from the Cooperative (or its designee) and will discontinue use upon termination of participation in the Cooperative. The Cooperative Member will maintain equipment, software and conduct testing to operate the BuyBoard system at its own expense. III. GENERAL PROVISIONS 1. Amendment by Notice. The Board may amend this Agreement, provided that prior written notice is sent to the Cooperative Member at least 60 days prior to the effective date of any change described in such amendment and provided that the Cooperative Member does not terminate its participation in the Cooperative before the expiration of said 60 days. 2. Authorization to Participate and Compliance with Local Policies. Each Cooperative Member represents that its governing body has duly authorized its participation in the Cooperative and that the Cooperative Member will comply with all state and local laws and policies pertaining to purchasing of goods and services through its membership in the Cooperative. 3. Bylaws. The Cooperative Member agrees to abide by the Bylaws of the Cooperative, as they may be amended, and any and all written policies and procedures established by the Cooperative. Notwithstanding the foregoing, the Cooperative shall provide written notice to the Cooperative Member of any amendment to the Bylaws of the Cooperative and any written policy or procedure of the Cooperative that is intended to be binding on the Cooperative Member. The Cooperative shall promptly notify all Cooperative Members in writing of any Bylaw amendment, policy or procedure change. 4. Cooperation and Access. The Cooperative Member agrees that it will cooperate in compliance with any reasonable requests for information and/or records made by the Cooperative. The Cooperative reserves the right to audit the relevant records of any Cooperative Member. Any breach of this provision shall be considered material and shall make the Agreement subject to termination on ten (10) days written notice to the Cooperative Member. 5. Coordinator. The Cooperative Member agrees to appoint a program coordinator who shall have express authority to represent and bind the Cooperative Member, and the Cooperative will not be required to contact any other individual regarding program matters. Any notice to or any agreements with the coordinator shall be binding upon the Cooperative Member. The Cooperative Member reserves the right to change the coordinator as needed by giving written notice to the Cooperative. Such notice is not effective until actually received by the Cooperative. --20-- 6. Current Revenue. The Cooperative Member hereby represents that all payments, fees, and disbursements required of it hereunder shall be made from current revenues budgeted and available to the Cooperative Member. 7. Defense and Prosecution of Claims. The Cooperative Member authorizes the Cooperative to regulate the commencement, defense, intervention, or participation in a judicial, administrative, or other governmental proceeding or in an arbitration, mediation, or any other form of alternative dispute resolution, or other appearances of the Cooperative in any litigation, claim or dispute which arises from the services provided by the Cooperative on behalf of its members, collectively or individually. Neither this provision nor any other provision in this Agreement will create a legal duty for the Cooperative to provide a defense or prosecute a claim; rather, the Cooperative may exercise this right in its sole discretion and to the extent permitted or authorized by law. The Cooperative Member shall reasonably cooperate and supply any information necessary or helpful in such prosecution or defense. Subject to specific revocation, the Cooperative Member hereby designates the Cooperative to act as a class representative on its behalf in matters arising out of this Agreement. 8. Governance. The Board of Directors (Board) will govern the Cooperative in accordance with the Bylaws. 9. Legal Authority. The Cooperative Member represents to the Cooperative the following: a) The Cooperative Member has conferred with legal counsel and determined it is duly authorized by the laws of the jurisdiction in which the Cooperative Member lies to participate in cooperative purchasing, and specifically, the National Purchasing Cooperative. b) The Cooperative Member possesses the legal authority to enter into this Agreement and can allow this Agreement to automatically renew without subsequent action of its governing body. c) Purchases made under this Agreement will satisfy all procedural procurement requirements that the Cooperative Member must meet under all applicable local policy, regulation, or state law. d) All requirements––local or state–for a third party to approve, record or authorize the Agreement have been met. 10. Disclaimer. THE COOPERATIVE, ITS ENDORSERS, SPONSORS AND SERVICING CONTRACTORS, INCLUDING THE NATIONAL SCHOOL BOARDS ASSOCIATION (NSBA) AND THE TEXAS ASSOCIATION OF SCHOOL BOARDS, INC. (TASB), DO NOT WARRANT THAT THE OPERATION OR USE OF COOPERATIVE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. THE COOPERATIVE, ITS ENDORSERS, SPONSORS AND SERVICING CONTRACTORS, HEREBY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, IN REGARD TO ANY INFORMATION, PRODUCT OR SERVICE FURNISHED UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 11. Limitation of Liability. Without waiver of the disclaimer or other limitation of liability in this Agreement, the parties agree that: (a) Neither party waives any immunity from liability afforded under law; --21--  (b) In regard to any lawsuit or formal adjudication arising out of or relating to this Agreement, neither party shall be liable to the other under any circumstance for special, incidental, consequential, or exemplary damages; (c) The maximum amount of damages recoverable will be limited to the amount of fees which the Cooperative received as a direct result of the Cooperative Member’s purchase activity, within 12 months of when the lawsuit or action was filed; and (d) In the event of a lawsuit or formal adjudication the prevailing party will be entitled to recover reasonable attorney’s fees. Without waiver of the disclaimer or other limitation of liability in this Agreement, the parties further agree to limit the liability of the Cooperative’s Endorsers, Sponsors and Servicing Contractors (defined in Paragraph 11, above) up to the maximum amount each received from or through the Cooperative, as a direct result of the undersigned Cooperative Member’s purchase activity, within 12 months of the filing of any lawsuit or action. 12. Limitation of Rights. Except as otherwise expressly provided in this Agreement, nothing in this Agreement is intended to confer upon any person, other than the parties hereto, any benefits, rights, or remedies under or by reason of this Agreement. 13. Merger/Entirety. This Agreement, together with the Cooperative’s Bylaws and Organizational Interlocal Agreement, represents the complete understanding of the Cooperative and Cooperative Member. To the extent there exists any conflict between the terms of this Agreement and that of prior agreements, the terms of this Agreement shall control and take precedence over all prior participation agreements. 14. Notice. Any written notice to the Cooperative may be given by e-mail to NSBA at BuyBoard@nsba.org; by U.S. mail, postage prepaid, and delivered to the National Purchasing Cooperative, 1680 Duke Street FL2, Alexandria, VA, 22314; or other mode of delivery typically used in commerce and accessible to the intended recipient. Notices to Cooperative Member may be given by e-mail to the Cooperative Member’s Coordinator or other e-mail address of record provided by the Cooperative Member; by U.S. mail, postage prepaid, and delivered to the Cooperative Member’s Coordinator or chief executive officer (e.g., superintendent, city manager, county judge or mayor); or other mode of delivery typically used in commerce and accessible to the intended recipient. 15. Severability. If any portion of this Agreement shall be declared illegal or held unenforceable for any reason, the remaining portions shall continue in full force and effect. 16. Signatures/Counterparts. The failure of a party to provide an original, manually executed signature to the other party will not affect the validity, enforceability or binding effect of this Agreement because either party may rely upon an electronic or facsimile signature as if it were an original. Furthermore, this Agreement may be executed in several separate counterparts, each of which shall be an original and all of which shall constitute one and the same instrument. 17. Authority. By the execution and delivery of this Agreement, each undersigned individual represents that he or she is authorized to bind the entity that is a party to this Agreement. --22-- IN WITNESS WHEREOF, the parties, acting through their duly authorized representatives, accept this Agreement. TO BE COMPLETED BY THE NATIONAL PURCHASING COOPERATIVE: By: Date: Deputy Associate Executive Director, Member & Leadership Services National School Boards Association On behalf of the National Purchasing Cooperative TO BE COMPLETED BY COOPERATIVE MEMBER: ONLINE AT BUYBOARD.COM VIA ELECTRONIC SIGNATURE --23--  AGENDA ITEM NO. 3– ABSTRACT LEGAL COMMITTEE MEETING Thursday, January 25, 2018 at 4:00PM City Hall Conference Room 425 N. Richardson, Roswell, NM 88201 ACTION REQUESTED: Consider recommending to full council advertisement to hold a public hearing on proposed Ordinance 18-01 addressing the penalties for failure to comply with municipal court sentencing. BACKGROUND: Recent developments in New Mexico law have limited the municipal court’s power to impose sanctions for failing to comply with sentencing in municipal court without specific provisions in the City Code. The proposed ordinance would enumerate the penalties and procedure for failing to pay fines imposed, or failing to comply with community service, house arrest, or probation. Court staff believe this necessary to be able to enforce sentences. Draft text of proposed Ordinance 18-01 is forthcoming. FINANCIAL CONSIDERATION: n/a LEGAL REVIEW: The City Attorney has reviewed proposed Ordinance 18-01. BOARD and/or COMMITTEE ACTION: The Legal Committee is scheduled to meet on Thursday, January 25, 2018. STAFF RECOMMENDATION: Consider recommending to full council advertisement to hold a public hearing on proposed Ordinance 18-01 addressing the penalties for failure to comply with municipal court sentencing. --24--