2011-R-16 - Operating Agreement YMCARESOLUTION NO. 11-R-16
A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF
SCHERTZ, TEXAS AUTHORIZING A FIRST AMENDMENT TO
OPERATING AGREEMENT WITH THE YMCA, AND OTHER
MATTERS IN CONNECTION THEREWITH
WHEREAS, the City Council has determined that it is in the best interest of the City to
enter into a First Amendment to Operating Agreement with the Young Men's Christian
Association of Greater San Antonio & The Hill Country relating to the City's new recreation
center attached hereto as Exhibit A (the "Amendment") amending the Operating Agreement
dated Apri128, 2010.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS
THAT:
Section 1. The City Council hereby authorizes the City Manager to execute and
deliver the Amendment in substantially the form set forth on Exhibit A.
Section 2. The recitals contained in the preamble hereof are hereby found to be true,
and such recitals are hereby made a part of this Resolution for all purposes and are adopted as a
part of the judgment and findings of the City Council.
Section 3. All resolutions, or parts thereof, which are in conflict or inconsistent with
any provision of this Resolution are hereby repealed to the extent of such conflict, and the
provisions of this Resolution shall be and remain controlling as to the matters resolved herein.
Section 4. This Resolution shall be construed and enforced in accordance with the
laws of the State of Texas and the United States of America.
Section 5. If any provision of this Resolution or the application thereof to any person
or circumstance shall be held to be invalid, the remainder of this Resolution and the application
of such provision to other persons and circumstances shall nevertheless be valid, and the City
Council hereby declares that this Resolution would have been enacted without such invalid
provision.
Section 6. It is officially found, determined, and declared that the meeting at which
this Resolution is adopted was open to the public and public notice of the time, place, and subject
matter of the public business to be considered at such meeting, including this Resolution, was
given, all as required by Chapter 551, Texas Government Code, as amended.
Section 7. This Resolution shall be in force and effect from and after its final
passage, and it is so resolved.
50409703.1
EXHIBIT A
FIRST AMENDMENT TO OPERATING AGREEMENT
See attached
50409703.1
PASSED AND ADOPTED, this 15'h day of March, 2011.
CITY OF SC ~ RTZ, XAS
Mayor
ATTEST:
rty Secretary
(CITY SEAL)
50409703.1
FIRST AMENDMENT TO
SCHERTZ RECREATION CENTER LICENSE AGREEMENT
This First Amendment to Schertz Recreation Center License Agreement (this "First
Amendment") made and entered into as of March 15, 2011 (the "Effective Date") is between the
City of Schertz, Texas, a municipal corporation and home-rule city of the State of Texas (the
"City"), and the Young Men's Christian Association of Greater San Antonio & The Hill
Country, a 501(c)(3) Texas non-profit corporation (the "YMCA"). The City and the YMCA may
be referred to herein from time to time as a "Party" or collectively as the "Parties".
RECITALS
WHEREAS, the City and the YMCA have previously entered into an Schertz Recreation
Center License Agreement dated Apr7128, 2010 (the "Agreement") which provides for the
YMCA to operate a public recreation facility at the City's Recreation Facility at 621 Westchester
Drive in the City of Schertz;
WHEREAS, the City and the YMCA have agreed to modify certain terms of the
Agreement by entering into this First Amendment to Schertz Recreation Center License
Agreement (this "First Amendment");
NOW THEREFORE, in consideration of the foregoing and the mutual ag•eements,
covenants and payments herein and other valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties agree as follows:
ARTICLE I
AMENDMENTS
1.01 Amendment of Agreement. The Agreement is hereby amended to add
Section 4A, which reads as follows:
"4A. Sublicense. (a) The YMCA shall have the authority to sublicense the City Program
Facility to the following organizations or for the following purposes for Members and/or norr-
Members:
(i) at no charge to the sublicensee:
(A) for City of Schertz meetings -meeting rooms
(B) for Healthy Kids Day (YMCA Program) -Saturdays 9 am to 1 pm
(C) for Schertz Library/YMCA collaboration -Fall Fest 1-day event
(D) for health and wellness courses or seminars -periodically, meeting
rooms
(E) for the Schertz Senior Center -meeting rooms and gymnasium
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(ii) for an agreed fee with the sublicensee:
(A) for birthday parties (YMCA Program) --periodically
(B) Family Nights (YMCA Program)- entire facility
(C) for church services -Sundays 8 am to noon, meeting rooms
(D) for religious study -meeting rooms
(E) for marital arts programs -evenings and/or weekends,
multipurpose space or gymnasium
(F) for non-profit organization meetings -meeting rooms
(G) for youth sports programs
(H) HOA meetings -meeting rooms
(1) Teen Lock-Ins -entire facility
(J) Clemens High School Project Graduation -entire facility
(K) American Cancer Society Relay for Life -parking lot and entire
facility
(L) Career days
(M) College prep seminars
(N) Meeting space for for-profit organizations
(O) Community leader luncheons
(iii) such other specific purposes as are approved in advance in writing by the
City Manager and/or his/her designee.
All net revenues received by the YMCA from sublicensing the City Program Facility as
permitted above (gross revenue, less direct City Program Facility expenses related to the event)
shall be separately identified in the YMCA's books and records for Nre Program in the City
Program Facility and shall be used in full by the YMCA in operating the Program in the City
Program Facility and for no other purpose. The City urges the YMCA to dedicate a portion of
such net revenues for scholarships for families residing in the City who cannot afford standard
YMCA membership rates.
(b) Facility sublicensee that involve exclusive reservation for a group of the entire
Facility must be scheduled for times other than during the YMCA's publicized hours of
operation. Facility sublicensee that involve exclusive reservation of a room or rooms during the
YMCA's publicized hours of operation must be scheduled in a room or rooms that are generally
not available to YMCA members at that time and must not adversely affect members' usage of
50408064) 2.
the Facility. Facility sublicenses that do not provide a group exclusive use of the entire Facility
or a room or rooms may not adversely affect members' usage of the Facility during the YMCA's
publicized hours of operation.
(c) Any sublicense granted by the YMCA under this Section shall be evidenced in
writing using the Form of Sublicense Agreement attached hereto as Exhibit A. Such sublicense
agreement shall be signed by both the YMCA and the sublicensee. A copy of the executed
sublicense agreement shall be delivered to the City Manager orhis/her designee no later than two
(2) business days after its execution.
(d) If the YMCA is unable to accommodate a sublicensee applicant, it will refer the
applicant to the City's Civic Center Department for possible assistance in another City facility.
Similarly, if the City is unable to accommodate a group or organization in a City facility and the
group or organization or purpose qualifies under subsection (a) above, the City will refer the
applicant to the YMCA, in all events subject to subsection (b) above."
ARTICLE II
GENERAL AND MISCELLANEOUS PROVISIONS
2.01 Legal Authority. The Parties represent, warrant, assure, and guarantee that they
have full legal authority to execute this First Amendment on behalf of the City or the YMCA,
respectively, and to bind the City or the YMCA to all of the terms, conditions, provisions and
obligations herein contained.
2.02 Severability. The provisions of this First Amendment are severable, and if any
word, please, clause, sentence, paragraph, section or other part of this First Amendment or the
application thereof to any person or circumstance shall ever be held by any court of competent
jurisdiction to be invalid or unconstitutional for any reason, the remainder of this First
Amendment and the application of such word, phrase, clause, sentence, paragraph, section or
other part of this First Amendment to the other persons or circumstances shall not be affected
thereby.
2.03 Sole Agreements. The Agreement, as amended by this First Amendment,
constitute the entire agreement between the Parties relative to the subject matter hereof. There
have been and are no agreements, covenants, representations, or warranties between the Parties
as to the subject matter hereof other than those expressly stated or provided for herein.
2.04 Ratification of Agreement. Except as amended by this First Amendment, the
Parties hereby ratify and confirm the terms of the Agreement.
2.05 Counterparts. This First Amendment may be executed in several counterparts,
each of which shall be deemed an original, and all such counterparts together shall constitute one
and the same instrument.
[The remainder of this page intentionally left blanlcJ
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IN WITNESS WHEREOF, the Parties have executed this First Amendment in multiple
copies, each of which shall be deemed an original as of the date and year first written above.
CITY OI' SCHERTZ
By:
Don Taylor, City Mana
YOUNG MEN'S CHRISTIAN ASSOCIATION
OT SAN ANTONIO & THE HILL COUNT
By:
Morander, President and CEO
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EXHIBIT A
TORM OF SUBLICENSE AGREEMENT
AND RELATED DOCUMENTATION
50408064.1
CITY OT SCHERTZ/YMCA RECREATION CENTER
RESERVATION APPLICATION
Preferred room(s):
Organization:
Proposed use of the reserved space:
Date(s) of proposed use:
Estimated attendance:
Contact Person
Name:
Address:
City, State, Zip Code:
Email:
Telephone:
Alternate Telephone:
Time of use (set-up and clean-up time must be included in the time of use): From To
Event official starting and ending times: From
Attachment 1 - City of Schertz/YMCA Facility Sublicense Agreement
Attachment 2 -Decoration Restrictions and Clean-up Requirements
To
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Attachment 1
CITY OF SCHERTZ/YMCA FACILITY SUBLICENSE AGREEMENT
This City of Schertz/YMCA Facility Sublicense Agreement (this "Agreement") is between the
Young Men's Christian Association of Greater San Antonio & The Hill Country (the "YMCA"), acting
with authority of the City of Schertz, Texas, a municipal corporation of the State of Texas (the "City"),
and (the "User").
FACILITY AND EVENT:
The YMCA agrees to furnish the User with the following described space located in the City of
Schertz YMCA Recreation Center:
to be used for the purpose of
and for no other purpose without the written consent of the YMCA for a term commencing:
(Time)
And terminating:
(Month)
(Day) (Year)
(Time)
(Month)
(Day) (Year)
The User agrees to pay $ to the YMCA for use of said space and premises, which
includes a $ security deposit. The User further agrees to pay the YMCA on demand any and
all Burns which may be due to the YMCA for additional services, accommodations, materials, or
damages.
2. GENERAL TERMS AND CONDITIONS:
This Agreement is made and entered into upon the following express covenants and conditions,
all and every one of which the User hereby covenants and agrees to keep and perform. This Agreement
is a sublicense agreement, not a lease. The User acknowledges that this Agreement creates no real
property interest in favor of the User. The City shall be a third-party beneficiary of this Agreement.
3. DAMAGE TO FACILITY:
In case the facility, or any part thereof, shall be destroyed or damaged by fire or by any other
cause, or if any other casualty or unforeseen occurrence shall render the fulfillment of this Agreement by
the YMCA impossible, neither the YMCA nor the City shall be liable or responsible to the User for any
damage or consequential damage caused thereby, provided that the User shall be refunded the unused
portion of payments made.
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4. CONTROL OF FACILITY
In allowing the User to use the facility, the YMCA does not relinquish the right to control the
management thereof and to enforce all necessary and proper rules for the management and operation of
the same; and the employees of the YMCA and the City may enter the same, and all the premises, at any
time and on any occasion.
5. REMOVAL OF MATERIALS:
All materials and installations placed in the facility by the User shall be removed fiom the
facility by the end of the contracted time. In the event that this is not done, tune will be marked as if the
facility continues in use by the User until the facility is vacated, and the User will be responsible for
continued rental charges.
In the event that the facility is not vacated by the User on the above stated date at the end of the
term for which the facility is reserved, the YMCA is hereby authorized to remove from the facility and
to store at the expense of the User, all goods, wares, merchandise, and property of any and all kinds and
description which maybe then occupying the portion of the facility on which the term of this Agreement
has expired; and neither the YMCA nor the City shall be liable for any damage or loss to such goods,
wares, merchandise, or other property which may be sustained, either by reason of such removal or the
place to which it may be removed, and THE USER AND ANY OTHER PERSON HAVING AN INTEREST IN
SUCH PROPERTY HEREBY EXPRESSLY RELEASE THE YMCA AND THE CITY FROM ANY AND ALL CLAIMS
FOR DAMAGES OF WHATEVER HIND OR NATURE.
6. EXTRA HELP:
In case it is necessary to ernploy outside assistance in the handling of the property of the User,
such employment shall be at the expense of the User.
7. OBSERVANCE OF LAW:
The User agrees that every contractor, employee, or agent connected with the purpose for- which
the facility is made available to the User shall abide by, conform to, and comply with all of the
applicable laws of the United States and the State of Texas, and all the applicable ordinances of the City,
together with all rules and requirements of the Police and Fire Departments of the City, and will not do,
nor permit to be done, anything on such premises, during the term of this Agreement, in violation of any
such rules, laws, or ordinances, and if the attention of the User is called to such violation, the User will
immediately desist fi-om and correct such violations.
8. SEATING CAPACITY:
In no event shall tickets be sold or- dispensed in excess of the seating capacity of the facility, as
determined by the City's Fire Chief.
9. NO DEFACEMENT OF FACILITY OR BUILDING:
The User- shall not injure or mar- or in any manner deface the facility or the building in which it is
located, and shall not cause nor permit anything to be done whereby such premises shall be in any
manner injured, marred, or defaced, nor shall the User drive, or permit to driven, any nails, hooks, tacks,
or screws in auy part of said building, nor shall the User make, or allow to be made, any alterations of
any kind therein. Also, the User shall be responsible to insure no objects shall be placed in the drains,
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restroom facilities, or any other part of the water or• sewer system so that rnaintenance or• repair to the
plumbing is required.
10. RESPONSIBILITY FOR INJURY:
If the facility, or any portion of the building in which it is located, during the term of this
Agreement, shall be damaged by the act, default, or negligence of the User, or of the User's agents,
employees, patrons, guests, or any persons admitted to such premises by the User, the User will pay to
the City, upon demand, such sum as shall be necessary to restore such premises to their present
condition. The User hereby assumes full responsibility for the character, acts, and conduct of all persons
admitted to the premises, or to any portion of the facility or building with the consent of or invitation by
the User, or by or with the consent of the User or the User•'s employees or- any person acting for or on
behalf of the User, and the YMCA reserves the right to require the User to have on hand at all times
sufficient security to maintain order and protect persons and property. In such case, the City's policies
regarding security in City facilities shall apply.
11. AISLES CLEAR:
The User will permit no chairs, movable seats, or other obstructions to be or remain in the
enhances, exits, or passageways of the facility or building and will keep same clear at all times.
12. NO OBSTRUCTIONS TO SIDEWALKS, ETC:
No portion of the sidewalks, entries, passages, vestibules, halls, or ways of access to public
utilities of the facility or the building in which it is located shall be obstructed by the User or used for
any purpose other than for ingress and egress, to and from the premises. The doors, windows, skylights,
or other openings that reflect or admit light into any place in the building, including hallways, corridors,
and passageways, shall not be obstructed by the User.
13. TAXES:
The User shall pay all taxes, if any, on tickets or admissions to the premises during the term
hereof and any license fees and taxes lawfully levied against it during the term hereof.
14. INDEMNITY:
THE USER WILL PROVIDE THE DEFENSE FOR, INDEMNIFY AND HOLD THE CITY AND THE YMCA
HARMLESS FROM ALL COSTS FROM ANY AND ALL CLAIMS, SUITS, CAUSES OF ACTION, AND LIABILITY
FOR DAMAGES OR INJURIES TO ANY PERSON(S~ OR DAMAGE TO PROPERTY OCCASIONED BY OR IN
CONNECTION WITH THE USER'S USE OF THE PREMISES AND/OR RESULTING FROM THE PRESENTATION
OF ANY COPYRIGHTED WORK OR MATERIAL OR VIOLATION OF ANY OTHER PROPRIETARY RIGHTS.
15. NO ALCOHOL:
Alcoholic beverages are not permitted in the facility at any time.
16. ATTORNEY'S FEES:
If the YMCA or the City is required to file suit to collect any amount owed it under this
Agreement for the User's use of the premises, the YMCA and the City shall be entitled to collect
reasonable attorney's fees.
50408064.1 1-3
17. NO DISCRIMINATION:
It is understood that the premises are owned by the City and that any discrimination by the User,
its agents, or employees, on account of race, sex, color, religion, or national origin in the use of or
admission to the premises is prohibited.
18. ABANDONED ITEMS:
The YMCA shall have the sole right to collect and have custody of articles left in the facility or
building by persons attending any performance, exhibition, or entertainment given or held on the
premises.
19. CANCELLATION BY CITY:
Violation by the User of any covenant, agreement, or condition contained herein shall be cause
for termination hereof by the YMCA, in which case the User shall be entitled only to refund of the
unused portion of any payment made by it. In addition, the YMCA may likewise cancel this Agreement
if the User should, prior to the date of occupancy hereunder, violate any covenant, agreement, or
condition in any other agreement which the User might have for lease of any other the City facilities.
The YMCA and/or the City reserve the right to cancel this Agreement at any time, e.g. before, during, or
after any emergency situation deemed by the YMCA or the City to exist. At such time, notification will
be made by telephone or most expedient method reasonably available. Neither the YMCA nor the City
shall be liable or responsible to the User for any damages or inconvenience caused thereby, provided
that the User shall be refunded the unused portion of payments made by it.
20. CANCELLATION BY USER:
All cancellations of contracted events must be submitted to the YMCA in writing. Deposits paid
upon rental reservation will be forfeited if an event is cancelled or if there is a change in the rental
date(s) less than (__) days prior to an event.
21. HEADINGS:
The paragraph headings contained herein are for convenience in reference and are not intended
to define, extend, or limit any provision in this Agreement.
22. ASSIGNMENTS:
The User shall not assign this Agreement, nor permit any use of the premises other than herein
specified, without the prior written consent of the City Manager.
23. NO RESPONSIBILITY FOR PROPERTY IN BUILDING:
Neither the YMCA nor the City assumes any responsibility whatever for any property placed in
the facility or building, and both the YMCA and the City is hereby expressly released from
responsibility for any loss of or damage to the User's or any guest's personal property that may be
sustained by reason of the occupancy under this Agreement.
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24. FACILITY ACCESS/SETUP/CLEANUP TIME:
YMCA staff is scheduled based on the time needed to setup/cleanup for the User's event. If the
User's representative is not present at the contracted time to enter the facility, the person on duty will
wait thirty (30) minutes after which time he or she will leave. The User will need to call the employee
on duty to reschedule a time to enter the facility.
If cleanup extends beyond 1:00 a.m., a $75.00 per hour fee will be deducted from the
security/cancellation deposit.
IN WITNESS WHEREOF, we have affixed our signatures, this day of , 20_.
USER:
Signature:
THE YOUNG MEN'S CHRISTIAN
ASSOCIATION OF GREATER SAN ANTONIO
& THE HILL COUNTRY:
President and CEO
Printed Name:
Name and address fm' security/cancellaliort rzeposi~t refinad (if applicaLle):
Name:
Address:
City, State, Zip Code:
50408064.1 1-5
Attachment 2
Decoration Restrictions and Clean-up Requirements
***The Damage Deposit Will Not be Refunded if the Decoration Restrictions
and Clean-up Requirements are Violated***
Decoration restrictions
Nails, thumb tacks, and push pins will not be permitted to be driven into or applied to the walls,
floors, partitions, or any other portion of the facility.
Tape (masking, scotch, painters, or duct) will not be permitted to be used or applied to walls,
floors, partitions, ceiling, or any other portion of the building unless approved in advance by the
YMCA.
Glitter, rice, birdseed, confetti, grains, etc. inside the facility is strictlyprohibited.
Clean-uu requirements
The User will be responsible for the following:
1. Litter: All paper, cups, plates, foil, and decorations, etc. must be picked up and placed in
a trash receptacle.
Tables and Chairs: Must be cleaned of litter and wiped off to rid them of spilled drinks
and foodstuff. The User will not be required to dismantle or fold tables and chairs.
3. Restrooms: All personal items, paper products, etc. must be picked up and placed in a
trash receptacle.
The User will be required to remove all personal effects and decorations from the facility.
The person named below will be responsible on behalf of the User to see that the facility
is clean and to check for damages. The security/cancellation/damage deposit refund will be
mailed to the person who signed the City of Schertz/I'MCA Facility Sublicense Agreement.
Printed Name:
Address:
City, State:
Phone Number:
Signature of the User's Representative:
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