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07-08-2014 Agenda with backupREGULAR SESSION CITY COUNCIL July 8, 2014, 6:00 P.M. HAL BALDWIN MUNICIPAL COMPLEX COUNCIL CHAMBERS 1400 SCHERTZ PARKWAY BUILDING #4 SCHERTZ, TEXAS 78154 City of Schertz Core Values Do the right thing Do the best you can Treat others the way you would want to be treated Work together cooperatively as a team Call to Order — City Council Regular Session Invocation and Pledges of Allegiance to the Flags of the United States and State of Texas. (Pastor Willy Stratemann, St. Paul Evangelical Church, Cibolo) City Events and Announcements • Announcements of upcoming City Events (J. Bierschwale /B. James) • Announcements and recognitions by City Manager (J. Kessel) ProcPntntinnc • Presentation to Valerie Wilenchik in gratitude for services provided by Councilmember Tony Wilenchik to the City of Schertz. (Mayor Carpenter /J. Kessel /J. Bierschwale) • Presentation to CTRC regarding proceeds from the 2014 Wilenchik Walk for Life event. (Mayor Carpenter /J. Kessel /J. Bierschwale) • Update on the Soccer Complex (J. Kessel /P. Gaudreau) Hearing of Residents This time is set aside for any person who wishes to address the City Council. Each person should fill out the speaker's register prior to the meeting. Presentations should be limited to no more than 3 minutes. All remarks shall be addressed to the Council as a body, and not to any individual member thereof. Any person making personal, impertinent, or slanderous remarks while addressing the Council may be requested to leave the meeting. 07 -8 -2014 Council Agenda Discussion by the Council of any item not on the agenda shall be limited to statements of specific factual information given in response to any inquiry, a recitation of existing policy in response to an inquiry, and /or a proposal to place the item on a future agenda. The presiding officer, during the Hearing of Residents portion of the agenda, will call on those persons who have signed up to speak in the order they have registered. Consent Agenda Items The Consent Agenda is considered self - explanatory and will be enacted by the Council with one motion. There will be no separate discussion of these items unless they are removed from the Consent Agenda upon the request of the Mayor or a Councilmember. 1. Minutes — Approve the minutes of the regular meeting of July 1, 2014. (J. KesselB. Dennis) 2. Ordinance No. 14 -D -17 — Consideration and/or action approving an Ordinance amending the Code of Ordinances of the City of Schertz, Texas to prohibit parking on Silvertree Blvd., from the intersection of Silvertree Blvd., and Dove Meadows to 110 feet Southeast of Idelwood on Silvertree Blvd. Final Reading (B. James /K.Woodlee /L. Busch) 3. Ordinance No. 14 -K -31 — Consideration and /or action on an Ordinance closing and abandoning to the abutting property owners a twenty (20) foot wide alley that runs parallel to the 800 Block of Main Street. Final Reading (B. James /M. Sanchez /B. Cox) Discussion and Action Items 4. Resolution No. 14 -R -59 — Conduct a public hearing and consider action on a PH Resolution authorizing the license and management agreements with the YMCA for operation and maintenance of the recreation center, outdoor pools, splash pad, enclosed community swimming pool of competition quality, and indoor recreation pool. (J. Kessel /B. James) 5. Resolution No. 14 -R -60 — Consideration and/or action approving a Resolution authorizing the Design Services Agreement for the New Indoor Aquatic Facility and Associated Support Systems. (J. Kessel /P. Gaudreau) Roll Call Vote Confirmation Requests and Announcements 6. Announcements by City Manager • Citizen Kudos • Recognition of City employee actions • New Departmental initiatives 07 -8 -2014 City Council Agenda Page - 2 - 7. Requests by Mayor and Councilmembers that items be placed on a future City Council agenda. 8. Announcements by Mayor and Councilmembers • City and community events attended and to be attended • City Council Committee and Liaison Assignments (see assignments below) • Continuing education events attended and to be attended • Recognition of actions by City employees • Recognition of actions by community volunteers • Upcoming City Council agenda items Adi ournment CERTIFICATION I, BRENDA DENNIS, CITY SECRETARY OF THE CITY OF SCHERTZ, TEXAS, DO HEREBY CERTIFY THAT THE ABOVE AGENDA WAS PREPARED AND POSTED ON THE OFFICIAL BULLETIN BOARDS ON THIS THE 3rd DAY OF JULY 2014 AT 2:30 P.M., WHICH IS A PLACE READILY ACCESSIBLE TO THE PUBLIC AT ALL TIMES AND THAT SAID NOTICE WAS POSTED IN ACCORDANCE WITH CHAPTER 551, TEXAS GOVERNMENT CODE. grev,cO Dev k�'s Brenda Dennis CPM, TRMC, MMC, City Secreta I CERTIFY THAT THE ATTACHED NOTICE AND AGENDA OF ITEMS TO BE CONSIDERED BY THE CITY COUNCIL WAS REMOVED BY ME FROM THE OFFICIAL BULLETIN BOARD ON DAY OF 2014. Title: This facility is accessible in accordance with the Americans with Disabilities Act. Handicapped parking spaces are available. If you require special assistance or have a request for sign interpretative services or other services please call 210 - 619 -1030. The City Council for the City of Schertz reserves the right to adjourn into executive session at any time during the course of this meeting to discuss any of the matters listed above, as authorized by the Texas Open Meetings Act. Executive Sessions Authorized: This agenda has been reviewed and approved by the City's legal counsel and the presence of any subject in any Executive Session portion of the agenda constitutes a written interpretation of Texas Government Code Chapter 551 by legal counsel for the governmental body and constitutes an opinion by the attorney that the items discussed therein may be legally discussed in the closed portion of the meeting considering available opinions of a court of record and opinions of the Texas Attorney General known to the attorney. This provision has been added to this agenda with the intent to meet all elements necessary to satisfy Texas Government Code Chapter 551.144(c) and the meeting is conducted by all participants in reliance on this opinion. 07 -8 -2014 City Council Agenda Page - 3 - COUNCIL COMMITTEE AND LIAISON ASSIGNMENTS Mayor Carpenter Mayor Pro -Tem Scagliola — Place 2 Audit Committee Animal Control Advisory Committee Hal Baldwin Scholarship Committee Cibolo Valley Local Government Corporation Interview Committee for Boards and Commissions Schertz Seguin Local Government Corporation Investment Advisory Committee Interview Committee for Boards and Commissions TIRZ II Board Sweetheart Advisory Committee Councilmember Fowler — Place 1 Councilmember John - Place 3 Interview Committee for Boards and Commissions Schertz Housing Board Liaison Randolph Joint Land Use Study (JLUS) Executive Committee Councilmember Edwards — Place 4 Councilmember — Duke — Place 5 Audit Committee Audit Committee ASA Commuter Rail District Board — Lone Star Investment Advisory Committee Hal Baldwin Scholarship Committee 07 -8 -2014 City Council Agenda Page - 4 - Agenda No. 1 CITY COUNCIL MEMORANDUM City Council Meeting: July 8, 2014 Department: Subject: BACKGROUND City Secretary Minutes The City Council held a regular meeting on July 1, 2014. FISCAL IMPACT None RECOMMENDATION Staff recommends Council approve the minutes of the regular meeting on July 1 2014. ATTACHMENT Minutes — regular meeting July 1, 2014 MINUTES REGULAR MEETING July 1, 2014 A Regular Meeting was held by the Schertz City Council of the City of Schertz, Texas, on July 1, 2014, at 6:00 p.m., in the Hal Baldwin Municipal Complex Council Chambers, 1400 Schertz Parkway, Building #4, Schertz, Texas. The following members present to -wit: Mayor Michael Carpenter Councilmember Jim Fowler Councilmember Cedric Edwards Staff Present: Deputy City Manager John Bierschwale Chief of Staff Bob Cantu City Secretary Brenda Dennis Councilmember Matthew Duke was absent. Call to (lydi r Mayor Pro -Tem David Scagliola Councilmember Daryl John City Manager John Kessel Executive Director Brian James City Attorney Charles Zech Mayor Carpenter called the Regular Meeting to order at 6:02 p.m. Invocation and Pledges of Allegiance to the Flags of the United States and the State of Texas Mayor Carpenter stated that since it is July 4th he thought he would bring forth a little history and read the invocation that was given before the United States House of Representatives on July 5, 1916, delivered by Reverend Henry Couden, followed by the Pledges of Allegiance to the Flags of the United States and the State of Texas. Mayor Carpenter recognized Joey Guarra with Troop 343 of Our Lady of Perpetual Help who was in the audience this evening as he was here earning his Citizenship in the Community merit badge. Joey Guarra stood to be recognized. City Events and Announcements 7 • Announcements and recognitions by City Manager (J. Kessel) Mayor Carpenter recognized City Manager John Kessel who stated that over the past several weeks the City has been converting to a new email server. He stated that we are going to Microsoft Office and Outlook 365 and recognized Senior Systems Engineer Kyle Gaetner who led the effort in conducting several classes, provided written training material and followed up with the departments that were converted to make certain everything was running well. • Announcements of upcoming City Events (J. Bierschwale/B. James) 07 -01 -2014 Minutes Page - 1 - Mayor Carpenter recognized Executive Director of Development Services Brian James who provided the following announcements and upcoming events: r.7 s 0 Thursday, July 3rd & 4t11 Kickoff of the 4th July Jubilee, Pickrell Park, Park opens from 6 -11 p.m. on Thursday, Friday, July 4th, 5K Run at 8:00 a.m. registration; 9:20 a.m. start (Civic Center), 4th of July Jubilee Parade, 9:30 a.m. start, BBQ Cook -Off begins at 8:00 a.m., Opening Ceremonies, 12:00 Noon Friday, July 4, 2014, City Offices closed in observance of Independence Day Saturday, July 5, 2014, Helotes Independence Day Celebration, Helotes Municipal Complex, 12951 Bandera Road, 6:30 p.m. Tuesday, July 8, 2014, Ribbon Cutting Pediatric T py ecialists, 10:00 a.m., 17331 IH 35 South #107 Presentations • "Mayor's Summer Address" (Mayor Carpenter Mayor Carpenter provided the following: Mayor's Summer Address Let me start this evening by stating one, straightforward, immutable truth: Schertz is an extraordinary place to live! There are many reasons why Schertz is extraordinary. Clearly the most important reason (and I would be guilty of a serious error if I did not say this first) is that those who have come before us knew who they were and who they wanted to be; and they worked hard, together, to reach their great goal of making Schertz an exceptional place. The first settlers who arrived in the 1800's, the intrepid team of residents that chose to incorporate this city in 1958 and the multitude of those who gave and have given their life's time to their neighbors over the last 56 years have shaped the foundation of who we are. Their selflessness, and manifest coura e, crafted what has become the enduring culture of our c' The gifts we have received from our predecessors are beyond counting, and we must never forget that fact: In the words of Bernard of Chartres, "We stand on the shoulders of giants." There are beliefs we have about our extraordinary community, too. Beliefs reflective of an image we have of ourselves - an image that has developed over time that deeply molds and colors what we do and who we are, and why we are different. We believe in our own exceptionalism, and we are comfortable with it. We have a firm grasp on who we are and from where we came, and that gives clarity as to what we aspire to become. We are not afraid to show others the path to success through our own successes. We are at home with being first — ranked first, first amongst peers, first to act in unique ways to ensure our long -term viability and relevance. 07 -01 -2014 Minutes Page - 2 - We believe that good is not quite good enough and that great represents a mere stepping stone to what we can yet become. In other words, we are not afraid to pursue our potential. We set the pace and the example, we rarely follow. And we believe it is our primary responsibility to leave this place stronger, better and more full of opportunity than we found it, for the sake of our children, grandchildren, and the community in the aggregate, so that they might achieve more than we can imagine - more than we can even dream of today. Our beliefs about who we are as a community are important reasons why Schertz is extraordinary. Over time, too, certain guiding principles have emerged as a result of our experience. And if we truly wish to remain extraordinary, we also must continue to embrace those guiding principles that have kept us on the road of success for the last 56 years. Here are the ones I have observed most prominently: The City Council and City Staff rely heavily on our citizen -led Boards, Committees and Commissions to oversee or advise on many of the City's interests. Each organization plays a critical role in the overall success of the City. The City Council and City staff cannot act in an optimal state without the cooperation and leadership provided by the citizens in these organizations. )F The City Council, the various boards, committees and commissions and the City Staff must seek and diligently consider the opinions and concerns of the taxpayers, both residents and businesses in order to ensure we are continually doing the work of the entire community. If we ever fail to listen to the taxpayers, then we will simply fail. We take responsibility for our own success and longevity - we don't expect or wait for others to do it for us. We seek to be in partnership with our business community and we must look for every opportunity to enhance and accelerate their success and growth; but we must never do so to the detriment of the people - the community in the aggregate. Rather, we must seek a point of equilibrium - that point of balance where the benefits to both groups are consistently maximized. We must continuously pursue regional collaboration, knowing that as we proceed, the success or failure of those around us either tends to lift up or place weight on our pursuits. The Mayor, the City Council, the various Boards, Committees and Commissions and the City Staff must consider with great care the consequences and cascading effects of their every action. And, most importantly, the Mayor, the City Council, the various Boards, Committees and Commissions and the City Staff must treat their responsibilities with great care and discipline, including bringing both public and private- sector best practices to our public- 07 -01 -2014 Minutes Page - 3 - sector business, because we are stewards of the peoples' money and temporary stewards, at that. Adherence to our guiding principles remains a salient reason for our unprecedented success. Another reason our City is extraordinary is our ever - present diligence in planning for the future. Aand in this area, there is some immediate work in front of us: Topping the list of imperatives is the continuation and acceleration of fiscally advantageous, sustainable, community- compatible commercial growth in Schertz. In simplest terms, the long -term viability of any City is inseparably linked to a strong balance of sustainable residential and commercial tax bases. Secondly, we must complete the remaining bo rojects that the taxpayers instructed us to execute. It is relatively rare that the voters speak directly to government, and so let's be clear on this point: There is never a more prominent or more clearly imperative job of any government than to respond with skill and passion to the direct instruction of the voters. We have done very well on nearly every bond project the people have assigned to us, save one. We must design, build, open and put into operation the natatorium project immediately. Failing to do so is failing to respond to the direct will of the people. #IF W Third, we have immediate infrastructure and maintenance needs before us, coupled with a need to ensure our employees are engaged, heard and equitably compensated. We have a core business imperative at this time in our evolution to place those needs ahead of any major quality of life projects that we might consider. A beautiful new park, full of amenities, safe and secure for everyone to enjoy is a much lesser victory if the road leading to it is decrepit and dangerous, we have to have both. Again, we must achieve the balance, the point of equilibrium. Finally, we need to begin efforts to increase community involvement in the long -term planning for the future of our city. To this end, I am asking the City Council to support the formation of a "Task Force on Community Involvement and Future Planning ". Earlier I commented on the critical role the several Boards, Committees and Commissions play in leading our community. I cannot envision a more able and formidable advisory group than one made up of members from our existing organizations. In the month of July, I will be asking each of our Boards, Committees and Commissions to appoint one of their members to serve on the task force for a finite period of six months. I am also asking the City Council in this upcoming year to provide some additional funding to our Public Relations Department to facilitate the meetings and support the efforts of the task force during its six month tenure. 07 -01 -2014 Minutes Page - 4 - In part, the work of the task force will be to provide ideas on gaining wider community involvement in our City and in planning its future, render opinions as to the hierarchy of community priorities, including confirming our immediate core business needs, our next series of quality of life projects, and sharing commentary on the type of retail and larger commercial businesses we want to be recruiting. In the end, the work product from the task force will be part and parcel of what this and future city councils will rely upon to set policy priorities as we enter the next chapter in our municipal life. Another reason we are successful is that we constantly evaluate our performance. We look at ourselves with critical eyes and ask hard questions about what we have done and what we have chosen not to do. Av ,qqo& It is timely, then, as we prepare for a little slower pace of life during the hot summer months, that we take a look at what we have accomplished as a city over the last year and a half. Not surprisingly for Schertz, the list is long, and the successes, many. The look back begins on November 6, 2012, which, while Election Day, and the day I was elected mayor, was more importantly the date we finalized our agreement with Amazon.com. That day marked a significant milestone in our multifaceted effort to become a significant economic development force in the region. That partnership alone has brought hundreds of thousands of dollars into the City and put over 1000 people to work, more than 300 full -time and over 700 part-time workers. I,, law f fl And what has followed that momentous economic development win has been nothing short of simply amazing. The City's bond rating has been raised twice, from AA stable to AA positive, then raised again to AA2 and AA+ just last month, signaling a likely move in subsequent years to AAA, almost unheard of for a City of our size, (and, as an aside, it would represent a higher rating than that of the Federal Government). Our current bond ratings represent the highest rating we have ever achieved as a city. We have further extended our reputation as a fiscal discipline powerhouse. ', We have implemented five -year rolling budgets to ensure we are properly prepared for our future needs and that we are able to respond quickly and effectively to new opportunities. We have replenished our reserves to ensure the perpetuation of our strong bond rating and so that we are prepared for natural disasters, severe economic downturns or significant, one- time opportunities that require a large capital investment. We completed construction of our new Animal Adoption Facility, and our Schertz Animal Control Department has become a "no kill for lack of space" facility, one of very few Municipal Animal Control Departments to successfully implement such a lofty goal. We completed construction of three new baseball fields in the Schertz Ballpark. 07 -01 -2014 Minutes Page - 5 - We completed construction of our new skate park adjacent to the EMS building, which was no accidental event, naturally. We have nearly completed the build out of our 42 -acre soccer complex on Maske Road; it should be ready for the upcoming autumn season. We established and put to paper four core values that we identify as definitive and central to who we are as a government organization. The core values extend to all staff, appointed board, committee, and commission members and the mayor and ci council. They are: 1. Do the right thing 2. Do your level best 3. Treat others the way you want to be treated 4. Work collaboratively as a team I believe our core values are self - explanatory. General Electric Oil and Gas came to Schertz via its purchase of the Salof Companies, and has announced plans to expand production and hiring. At the time of the acquisition, GE announced that the Schertz facility will be a GE Oil and Gas "Center of Excellence ". Caterpillar purchased and expanded a manufacturing plant here in Schertz, marking yet another Fortune 100 company joining our business community. 4 The first hospital to open in Schertz in nearly 100 years was constructed at the corner of Schertz Parkway and Interstate 35. Medical professionals and practices have swarmed into Schertz, clustered on Schertz Parkway and expanding onto Highway 78 and FM 3009. Dozens of new, smaller, boutique and niche businesses have located in or relocated to Schertz in the last 18 months. With the cities of Cibolo and Seguin, we formed and have now expanded the Guadalupe County Regional Mayor's Association to establish county -wide and regional collaboration designed to protect and further the interests of our community and those around us. We have expanded the role of the Northeast Partnership for Economic Development to include petitioning support from elected officials in our counties, Austin and Washington, DC, on matters concerning us and our neighbors, the Metrocom cities. We have purchased and put into service a new, state -of -the -art fire engine to continue to ensure the safety of our residents. We have upgraded the radio systems used by all our first responders to ensure reliable, compatible communication amongst our departments and with all of the cities around us, including Bexar 911. 07 -01 -2014 Minutes Page - 6 - We signed a deal with our friends in Seguin, SAWS, and the Schertz- Seguin Local Government Corporation to pump SAWS water from the Carrizo aquifer through our excess pipeline capacity (for a fee, naturally), ensuring our ability to fund the expansion of our water rights holdings and secure new sources to provide for our water needs for the next 50 to 100 years. Sidewalks were recently completed along the Interstate 35 access road (on the HEB side) from Schertz Parkway to FM 3009, and the Alamo Area Metropolitan Planning Organization and TXDOT have agreed to fully fund the construction of sidewalks along both sides of FM 3009 from Interstate 35 to Highway 78, both addressing long -term public safety concerns. The United States Military recently donated, and that means donated in full at no cost to Schertz taxpayers a SWAT vehicle that we will put into service this summer. In cooperation with St. Mary's University and the University of Texas, for the first time ever, we are implementing an employee engagement and satisfaction survey. We recognize that our employees are most critical to our ongoing success, and we must have visibility to the feelings, needs and wants of the people that make up our organization - and we must be prepared to respond to what we learn if we truly want to pursue our potential:- And finally, and perhaps most importantly to many families in our community, we did all this while lowering the property tax rate. '"%W___� In closing, I want to say how proud I am to tell people where I live. I feel blessed that M', d I live in Schertz and that we have been able to raise our sons here. Additionally, I want to tha the many volunteers who have made and continue to make Schertz an extraordinary pl I thank the City Council for their courage, their willingness to serve and their indomitable leadership. `IV I thank especially the City Staff, without whom we could not begin to execute on our mission to serve our taxpayers. I remember those that have come before us, and I recognize that we do, indeed, stand on the shoulders of giants. I look forward to our bright future, and I anticipate the great successes yet to come. Finally, I humbly thank the people of Schertz for allowing me to serve as their mayor. May God bless the United States, the State of Texas, and the City of Schertz, Thank you! Hearing of Residents: 07 -01 -2014 Minutes Page - 7 - Mayor Carpenter recognized Chair of the Historical Preservation Committee Dean Weirtz who stated that the words of Mayor Carpenter were well spoken. Some of the words he spoke of were legacy, pride and teamwork. Mr. Weirtz stated the Comal Settlement Dedication event on Saturday celebrated the legacy of our community as well as celebrated the pride of their decedents. Mr. Weirtz thanked the members of Council for attending as well as thanked city staff who put forth valiant efforts bringing this event's success. Mr. Weirtz stated that as a result the State of Texas has recognized the event as a significant historical event by issuing a resolution. Congressman Doug Miller prompted the proclamation to be issued to the City, as well as a congratulatory letter written by Senator Donna Campbell. Mr. Weirtz presented the City with a letter of appreciation from the Historical Preservation Committee for all the support of the project. Discussion and Action Items 1. Minutes - Approve the minutes of the regular meeting of June 24, 2014. (J. Kessel /B. Dennis) lw� Mayor Carpenter recognized Councilmember Edwards who moved, seconded by Mayor Pro- Tern. Scagliola to approve the minutes of June 24, 2014. The vote was unanimous with Mayor Pro -Tem Scagliola, Councilmembers Fowler, John, and Edwards voting yes and no one voting no. Councilmember Duke was absent. Motion Carried. 2. Resolution No. 14 -R -54 - Approval a Resol on authorizing and approving a professional services agreement with bb, Fend ey & Associates, Inc. for on -call engineering services. (B. James /K. Woodlee The following was read into record: RESOLUTION NO. 14 -R -54 qw-161- _4# A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS AUTHORIZING AND APPROVING A PROFESSIONAL SERVICES AGREEMENT WITH COBB, FENDLEY, & ASSOCIATES, INC. FOR ON -CALL ENGINEERING SERVICES AND ALL MATTERS IN CONNECTION THEREWITH Mayor Carpenter recognized City Engineer Kathy Woodlee who introduced this item stating that the City of Schertz advertised for Request for Qualifications for On -Call Engineering Firms in February 20r4. Statements of Qualifications were received by the City of Schertz on March 18, 2014. Statements were received from 26 firms. A panel of five City Staff and Management representatives reviewed each of the documents submitted in detail. The panel met on several occasions to discuss the submittals and come to consensus regarding six firms to be invited for personal interviews. Interviews were held with the firms at the end of April. The panel again met to discuss results of the interviews. Ms. Woodley addressed questions from Council. 07 -01 -2014 Minutes Page - 8 - She stated it is recommended that the City award On Call Engineering Services Agreements to the following consulting engineering firms: • Cobb, Fendley & Associates, Inc. • Ford Engineering, Inc. • Lockwood, Andrews & Newnam, Inc. • Pape- Dawson Engineers, Inc. A The City will be able to utilize the most qualified firm for each particular project based on the firm's qualifications and experience, resulting in an effective and efficient project process to ensure that the citizens and businesses of Schertz are provided with top -notch facilities and services. Fiscal impact will vary with particular projects and the use of a specific firm and their fee schedule as outlined in the Professional Service Agreement. Staff recommends approval. Mayor Carpenter recognized Mayor Pro -Tem Scagliola who moved, seconded by Councilmember Edwards to approve Resolution No. 14 -R -54. The vote was unanimous with Mayor Pro -Tem Scagliola, Councilmembers Fowler, John, and Edwards voting yes and no one voting no. Councilmember Duke was absent. Motion Carried. 3. Resolution No. 14 -R -55 — Approval of a Resolution authorizing and approving a professional services agreement with Ford Engineering, Inc. for on -call engineering services. (B. James /K. Woodlee) r The following was read into record: 10 RESOLUTION NO. 14 -R -55 A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS AUTHORIZING AND APPROVING A PROFESSIONAL SERVICES AGREEMENT WITH FORD ENGINEERING, INC. FOR ON -CALL ENGINEERING SERVICES AND ALL MATTERS IN CONNECTION THEREWITH IdiL, Mayor Carpenter recognized Councilmember Edwards who moved, seconded by Mayor Pro- Tem. Scagliola to approve Resolution No. 14 -R -55. The vote was unanimous with Mayor Pro -Tem Scagliola, Councilmembers Fowler, John, and Edwards voting yes and no one voting no. Councilmember Duke was absent. Motion Carried. 4. Resolution No. 14 -R -56 — Approval of a Resolution authorizing and approving a professional services agreement with Lockwood, Andrews & Newman, Inc. for on -call engineering services. (B. James/K. Woodlee) The following was read into record: 07 -01 -2014 Minutes Page - 9 - RESOLUTION NO. 14 -R -56 A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS AUTHORIZING AND APPROVING A PROFESSIONAL SERVICES AGREEMENT WITH LOCKWOOD, ANDREWS, & NEWNAM, INC. FOR ON -CALL ENGINEERING SERVICES AND ALL MATTERS IN CONNECTION THEREWITH Mayor Carpenter recognized Councilmember Edwards who moved, seconded by Councilmember Fowler to approve Resolution No. 14 -R -56. The vote was unanimous with Mayor Pro -Tem Scagliola, Councilmembers Fowler, John, and Edwards voting yes and no one voting no. Councilmember Duke was absent. Motion Carried. 5. Resolution No. 14 -R -57 — Approval of a Resolution authorizing and approving a professional services agreement with Pape- Dawson Engineers, Inc. for on -call engineering services. (B. James /K. Woodlee) A The following was read into record: RESOLUTION NO. -50N A RESOLUTION BY THE CITY COUNCIL OF NFORALL OF SCHERTZ, TEXAS AUTHORIZING AND APPROVING A PROFESVICES AGREEMENT WITH PAPE - DAWSON ENGINEERS, INC. ENGINEERING SERVICES AND ALL MATTERS IN CONNECTWITH Mayor Carpenter recognized Mayor Pro -Tem Scagliola who moved, seconded by Councilmember Fowler to approve Resolution No. 14 -R -57. The vote was unanimous with Mayor Pro -Tem Scagliola, Councilmembers Fowler, John, and Edwards voting yes and no one voting no. Councilmember Duke was absent. Motion Carried. 6. Resolution No. 14 -R -58 — Approval of a Resolution authorizing a Professional Services Agreement with Ford Engineering, Inc., relating to Engineering Design Services for the Pickrell Park ADA Walkway. (B. Jades /K. Woodlee) RESOLUTION NO. 14 -R -58 A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS AUTHORIZING A PROFESSIONAL SERVICES AGREEMENT WITH FORD ENGINEERING, INC., RELATING TO ENGINEERING DESIGN SERVICES FOR THE PICKRELL PARK ADA WALKWAY, AND OTHER MATTERS IN CONNECTION THEREWITH The following information was provided in the Council packets regarding this item: The City desires to construct 1, 740 linear feet of sidewalk within Pickrell Park, for mobility - challenged visitors, including an emergency vehicle access and a passenger loading area, 80 feet long, off of Aero Avenue, and an emergency vehicle access point at the Poplar Street pavilion. Currently, no sidewalks exist in Pickrell Park. City Council approved an application for a grant from the Community Development Block Grant Program (CDBG) 07 -01 -2014 Minutes Page - 10 - with Bexar County in February 2013 by Resolution 13 -R -12. Approval of the City -match grant was received on June 24, 2014 in the amount of $39,005. Per requirements of the Grant, the City is required to match funds in the amount of $39,005 for a total budget of $78,010. Pickrell Park ADA Walkwav Budget Engineering $9,115 Construction Not yet known Legal $500 Advertising $500 Other Prof. Services $1000 Project Total $78, 010 Available Engineering services for the project will cost $9,115. Construction costs for the project are not yet known. The project will be funded 50% by the CDBG Grant and 50% from the Parkland Dedication Fund. Staff recommends Council approve hiring Ford Engineering, Inc., to analyze and design the Pickrell Park ADA Walkw in the amount of $9,115. Staff recommended approval. Mayor Carpenter stated that if the Council moves to approve this item that the motion will need to state approved at the new hourly rate. Mayor Carpenter recognized Councilmember Fowler who asked if this was part of the on- going contract with Ford Engineering. City Engineer Kathy Woodlee came forward stating that they planned to award this design contract several weeks ago but the City had not received the approval of the grant funds from Bexar County. She stated that occurred last week. She stated they prepared all the documentation and received a cost estimate proposal from Ford Engineering using their old rates from their old contract. I Mayor Carpenter recognized Executive Director of Development Services Brian James who stated that this is a good example of how this would work normally. Council just approved the On -Call Engineering Services Agreements with the four (4) firms, and what you will see is project by project, staff will come forward to Council for the actual contract design work for each project. Staff will come to Council for approval with each contract and it will be with the four (4) firms listed above normally. Tonight on this item when staff entered the document staff used their old rate and not the new one. If Council is comfortable approving this contract with the new hourly rate, just add to the motion the new rates. Mayor Carpenter moved to approve Resolution No. 14 -R -58 with the new hourly rate, seconded by Councilmember Edwards. The vote was unanimous with Mayor Pro -Tem Scagliola, Councilmembers Fowler, John, and Edwards voting yes and no one voting no. Councilmember Duke was absent. Motion Carried. 7. Ordinance No. 14 -D -17 — Consideration and/or action approving an Ordinance amending the Code of Ordinances of the City of Schertz, Texas to prohibit parking on Silvertree Blvd., from the intersection of Silvertree Blvd., and Dove Meadows to 110 feet Southeast of Idelwood on Silvertree Blvd. First Reading (B. James /K.Woodlee /L. Busch) 07 -01 -2014 Minutes Page - 11 - ORDINANCE NO. 14 -D -17 AN ORDINANCE BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS PROVIDING THAT THE CODE OF ORDINANCES OF THE CITY OF SCHERTZ, TEXAS BE AMENDED BY REVISING ARTICLE V, SECTION 86 -149 PARKING PROHIBITED ON ROADWAYS MAINTAINED BY THE CITY OF SCHERTZ; AND PROVIDING AN EFFECTIVE DATE Mayor Carpenter recognized Executive Director of Development Services Brian James who stated that on April 8, 2013 staff took the ordinance relating to the parking prohibited zone to Council. Council's direction to staff was to go back and try to work with the business to find potential areas for parking or possible schedule changes to alleviate the parking on Silvertree Blvd. Silver Tree Nursing and Rehab Management agreed to speak with their staff and ask them not to park on the road if spots were available in their lot. City staff also concluded that the parking lot provided more than enough spaces according to the parking requirements at the time the business was platted, as well as more than enough required by our current city codes. Staff monitored the area for a month and found that typically only two cars were parking on the roadway on a daily basis. Only on one day were more than two cars observed and that was determined to be a pay day for the business. TSAC discussed the initial decision and the additional research accumulated by staff at their regular June 5, 2014 meeting and the consensus was to forward the recommendation to Council for reconsideration of the original no parking areas. The fiscal impact will be $320.00 for no parking signs paid out of FY 2013 -14 approved budget account number 101- 359- 551600 Street Maintenance. Staff recommends approval. r Mayor Carpenter recognized Mayor ro -Tem Scagliola who moved, seconded by Councilmember Edwards to approve Ordinance No.14 -D -17 on first reading. The vote was unanimous with Mayor Pro -Tem Scagliola, Councilmembers Fowler, John, and Edwards voting yes and no one voting no. Councilmember Duke was absent. Motion Carried. 8. Ordinance No. 14 -K -31 — Conduct a public hearing and consider action on an Ordinance closing and abandoning to the abutting property owners a twenty (20) foot wide alley that runs parallel to the 800 Block of Main Street. First Reading (B. James /M. Sanchez /B. Cox) Mayor Carpenter recognized Executive Director of Development Services Brian James who addressed questions from Council. Mr. James stated this item stating that the City wishes to abandon a portion of the twenty foot (20') alley south of the 800 Block of Main Street adjacent to the Union Pacific Railroad (referred to as the "Alley Segment ") for a distance of approximately 305 linear feet. The alley was grass covered versus gravel or asphalt and portions of it has been used by adjoining property owners. Improvements have been made to certain lots which resulted in an encroachment into the alley. The City issued building permits for certain improvements at 806 Main Street (Lot 9) in 2003; and at 810 Main Street (Lot 11) in 1998 and 2007 which resulted in encroachments into the twenty foot (20') alley. 07 -01 -2014 Minutes Page -12 - The alley should have been abandoned for each of those lots where the encroachments were created at that time. The owners of Block 1, Lots 9, 10 and 11 have recently listed their property for sale and have an interested buyer, and it was at the title company where the closing of the contract stalled because the title company discovered the encroachments into the alley of Lots 9 and 11. It was at that time that the property owner contacted staff to request the City's assistance to abandon the subject alley so they could get clear title of their property. As staff researched the properties, it was discovered that a portion of the subject alley was abandoned by a previous replat of Redroc Subdivision in 2007 for Block 1, Lots 3, 4, 5, and 6; leaving the subject lots 7, 8, 9, 10 and 11 with the alley still in place. The City desires to abandon the portion of the "Alley Segment" south of Block 1, Lots 7, 8, 9, 10 and 11 of the Ebert Subdivision and to transfer ownership to the adjoining property owners as specified in the associated Ordinance. There is no fiscal impact. Mr. James thanked everyone involved in gathering the information to prepare this item. Mayor Carpenter opened the public hearing and recognized' -Mr. Guadalupe Del Toro, 619 Main Street, who spoke on this item. As no one else spoke, Mayor Carpenter closed the public hearing. Mayor Carpenter recognized Councilmember Edwards who moved, seconded by Councilmember Fowler to approve Ordinance No. 14-K-31 on first reading. The vote was unanimous with Mayor Pro -Tem Scagliola, Councilmembers Fowler, John, and Edwards voting yes and no one voting no. Councilmember Duke was absent. Motion Carried. Roll Call Vote Confirmation Mayor Carpenter recognized City Secretary Brenda Dennis who recapped the votes of items 1 through 8. Requests and Announcements 9. Announcements by City Manager • Citizen Kudos • Recognition of City employee actions • New Departmental initiatives No further announcements were provided. 10. Requests by Mayor and Councilmembers that items be placed on a future City Council agenda. No items requested. 11. Announcements by Mayor and Councilmembers 07 -01 -2014 Minutes Page - 13 - • City and community events attended and to be attended • City Council Committee and Liaison Assignments (see assignments below) • Continuing education events attended and to be attended • Recognition of actions by City employees • Recognition of actions by community volunteers • Upcoming City Council agenda items Mayor Carpenter recognized Mayor Pro -Tern Scagliola who stated he attended the following: o Saturday, June 28, 2014, Dedication of the Comal Settlement Historic Landmark Community event. Mayor Carpenter recognized Councilmember Fow the following: o Saturday, June 28, 2014, De - ation of the Comal ement Historic Landmark Community event Councilmember Fowler stated he understands we ave pretty uch used up our bond money for road repairs but he is aware that we still have some other roads that will be needing repair in the near future. He asked if we could have some discussions in the near future (by the end of the month) to determine how and when we can address doing those repairs. Mayor Carpenter stated in closing that he would like to keep' "working together to continue the legacy and makin chertz the finest city in Texas. �► Adjournment As there was no further business, the meeting was adjourned at 6:59 p.m. M Brenda Dennis; 1 7' 07 -01 -2014 Minutes Page - 14 - Michael R. Carpenter, Mayor Agenda No. 2 CITY COUNCIL MEMORANDUM City Council Meeting: July 8, 2014 Department: Engineering / Public Works Subject: Ordinance No. 14 -D -17 - An Ordinance by the City Council of the City of Schertz, Texas providing that the Code of Ordinances of the City of Schertz, Texas be amended by revising Article V, Section 86 -149 Parking Prohibited on Roadways Maintained by the City of Schertz. (Final Reading) BACKGROUND At the regular TSAC meeting on January 9th a resident spoke about traffic concerns on Silvertree Blvd. Staff visited the site and took traffic counts in the area to try to alleviate their safety concerns. Silvertree Blvd begins as a 42 -foot pavement width cross section connecting into FM 3009. Within the area of concern the roadway necks down to a 30 -foot pavement width roadway with nearly a 90- degree curve. Also, in the transition section there is a commercial driveway apron and after the curve there are single residential lots fronting the roadway and an intersecting roadway. Staff recommends prohibiting parking from the pavement width transition around the curve to the intersecting roadway. This would result in approximately 210 -feet of no parking on the northeast side of Silvertree and 240 -feet of no parking on the southwest side of the road. On April 8, 2013 staff took the ordinance relating to the parking prohibited zone to council. Council's direction to staff was to go back and try to work with the business to find potential areas for parking or possible schedule changes to alleviate the parking on Silvertree Blvd. Silver Tree Nursing and Rehab Management agreed to speak with their staff and ask them not to park on the road if spots were available in their lot. City staff also concluded that the parking lot provided more than enough spaces according to the parking requirements at the time the business at platting, as well as more than enough required by our current. Staff monitored the area for a month and found that typically only two cars were parking on the roadway on a daily basis. Only on one were more than the two cars observed and that was determined to be a pay day for the business. TSAC discussed the initial decision and the additional research accumulated by staff at their regular June 5, 2014 meeting and the consensus was to forward the recommendation to Council for reconsideration of the original no parking areas. City Council approved this on first reading at their meeting of July 1, 2014. Goal To ensure that all streets maintained by the City are currently listed and up to date in the City Code Ordinance and to alleviate the sight issues due to parking along Silvertree Blvd. to ensure that the citizens of Schertz have safe methods to exit their subdivision. Community Benefit City Ordinances are current and up to date regarding all streets owned maintained by the City to strive to provide for the safety of the citizens of Schertz. Summary of Recommended Action Recommend approval on final reading to prohibit parking on Silvertree Blvd. as shown in Exhibit A. FISCAL IMPACT The fiscal impact will be $320.00 for no parking signs paid out of FY 2013 -14 approved budget account number 101 - 359 - 551600 Street Maintenance RECOMMENDATION Staff recommends Council approve on final reading Ordinance No. 14 -D -17 to amend Article 5, Section 86 -149 Parking Prohibited of the Code of Ordinances to include specific areas on Silvertree Blvd. as shown in Exhibit A. ATTACHMENT Ordinance No. 14 -D -17 Exhibit A ORDINANCE NO. 14 -D -17 AN ORDINANCE BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS PROVIDING THAT THE CODE OF ORDINANCES OF THE CITY OF SCHERTZ, TEXAS BE AMENDED BY REVISING ARTICLE V, SECTION 86- 149 PARKING PROHIBITED ON ROADWAYS MAINTAINED BY THE CITY OF SCHERTZ; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, it has been established that Silvertree Blvd. from the intersection of Silvertree Blvd. and Dove Meadows to 110 -feet southeast of Idlewood on Silvertree Blvd. is not covered under Article V, Section 86 -149 Parking Prohibited of the City Code of Ordinances. WHEREAS, it is recommended to add this area to the City Code of Ordinances under Article V, Section 86 -149, Parking Prohibited. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS: Section 1. Article V, Section 86 -149 of the Code of Ordinances, Parking Prohibited on Roadways Maintained by the City of Schertz, Texas is amended to add the following: Street Extent Silvertree Blvd. No Parking on Silvertree Blvd. from the intersection of Silvertree Blvd. and Dove Meadows to 110 -feet southeast of Idlewood on Silvertree Blvd. 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 Ordinance for all purposes and are adopted as a part of the judgment and findings of the Council. Section 3. All ordinances and codes, or parts thereof, which are in conflict or inconsistent with any provision of this Ordinance authorized herein are hereby repealed to the extent of such conflict, and the provisions of this Ordinance shall be and remain controlling as to the matters resolved herein. Section 4. This Ordinance 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 Ordinance or the application thereof to any person or circumstance shall be held to be invalid, the remainder of this Ordinance and the application of such provision to other persons and circumstances shall nevertheless be valid, and the City hereby declares that this Ordinance would have been enacted without such invalid provision. Section 6. It is officially found, determined, and declared that the meeting at which this Ordinance 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 Ordinance, was given, all as required by Chapter 551, as amended, Texas Government Code. Section 7. This Ordinance shall be effective upon the date of final adoption hereof and any publication requited by law. PASSED ON FIRST READING, the 1" of July, 2014. PASSED, APPROVED and ADOPTED ON SECOND READING, the day of , 2014. CITY OF SCHERTZ, TEXAS Michael R. Carpenter, Mayor ATTEST: Brenda Dennis, City Secretary (CITY SEAL) •• a hoop-, 19L - P- 0 r� GA*AW i1qL4 L. Agenda No.3 CITY COUNCIL MEMORANDUM City Council Meeting: July 8, 2014 Department: Development Services Subject: Ordinance No. 14 —K -31 Consider action on an Ordinance closing and abandoning to the abutting property owners a twenty (20) foot wide alley that runs parallel to the 800 Block of Main Street. (Final Reading) BACKGROUND Goal The City wishes to abandon a portion of the twenty foot (20') alley south of the 800 Block of Main Street adjacent to the Union Pacific Railroad (referred to as the "Alley Segment ") for a distance of approximately 305 linear feet. The alley was grass covered versus gravel or asphalt and portions of it has been used by adjoining property owners. Improvements have been made to certain lots which resulted in an encroachment into the alley. The City issued building permits for certain improvements at 806 Main Street (Lot 9) in 2003; and at 810 Main Street (Lot 11) in 1998 and 2007 which resulted in encroachments into the twenty foot (20') alley. The alley should have been abandoned for each of those lots where the encroachments were created at that time. The owners of Block 1, Lots 9, 10 and 11 have recently listed their property for sale and have an interested buyer, and it was at the title company where the closing of the contract stalled because the title company discovered the encroachments into the alley of Lots 9 and 11. It was at that time that the property owner contacted staff to request the City's assistance to abandon the subject alley so they could get clear title of their property. As staff researched the properties, it was discovered that a portion of the subject alley was abandoned by a previous replat of Redroc Subdivision in 2007 for Block 1, Lots 3, 4, 5, and 6; leaving the subject lots 7, 8, 9, 10 and 11 with the alley still in place. The City desires to abandon the portion of the "Alley Segment" south of Block 1, Lots 7, 8, 9, 10 and 11 of the Ebert Subdivision and to transfer ownership to the adjoining property owners as specified in the associated Ordinance. City Council Memorandum Page 2 City Council approved this on first reading at their meeting of July 1, 2014. Community Benefit The conveyance of the Alley Segment to each of the property owners will enable those who have made improvements to their respective lots and that have entered into a contract of sale to obtain a clear title. Others will have the ability to make future improvements without the concern of an encroachment. The City will have relinquished the Alley Segment as was originally intended. Summary of Recommended Action City staff recommends abandoning the Alley Segment by quitclaim deed and conveying the twenty foot (20') alley to adjacent property owners as described in Ordinance 14 -x- 31. FISCAL IMPACT None RECOMMENDATION Staff recommends approval of final reading of Ordinance No. 14 -K -31. ATTACHMENT Ordinance No. 14 -K -31 ORDINANCE NO. 14 -K -31 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS, CLOSING AND ABANDONING TO THE ABUTTING PROPERTY OWNERS A TWENTY FOOT (20) WIDE ALLEY IDENTIFIED AS THAT SEGMENT OF AN ALLEY THAT RUNS PARALLEL TO THE 800 BLOCK OF MAIN STREET; AND ESTABLISHING AN EFFECTIVE DATE HEREOF WHEREAS, the City of Schertz, Texas, a home rule municipality, has established a public alley immediately to the south of Main Street, as more further described on Exhibit "A ", attached hereto, (hereinafter the "Alley "); and WHEREAS, the Alley located entirely within the Ebert Tract Subdivision and is abutted to the north by Lots 7 through 11, of Block 1 of the Ebert Tract subdivision (hereinafter the "Lots "); and WHEREAS, as a result of the Redroc replat, the Alley no longer connects to a public street; and WHEREAS, the Alley is abutted to the south by a Union Pacific right -of -way easement; and WHEREAS, pursuant to Section 311.007 of the Texas Transportation Code, a home - rule municipality may vacate, abandon, or close a street or alley. WHEREAS, the said City of Schertz has caused studies and inquiries to be made of the public in general and utility entities who might be directly affected; and WHEREAS, no detriment or hazard to the City of Schertz or its citizens has been found; and; WHEREAS, on the l st day of July, 2014, a Public Hearing was held to allow members of the public to give testimony, and comment, on the merits of the Alley closure. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS: Section 1. That the recitals contain in the preamble hereto are hereby found to be true and such recitals are hereby made a part of this Ordinance for all purposes and are adopted as a part of the judgment and findings of the Council. Section 2. That the City Council finds that such closure and abandonment as requested will cause no harm or injury to the City of Schertz or its citizens. Section 3. That the Alley as depicted on Exhibit "A ", is hereby closed and abandoned to the abutting owners, and as authorized by Section 311.007 of the Texas Transportation Code and Section 272.001(b)(2) of the Texas Local Government Code. Section 4. That the City Manager is hereby authorized to execute Quit Claim Deeds in substantially the same form as set out in Exhibit "B ", and such other instruments and documents that are reasonably necessary to effectuate the purpose of this Ordinance. Section 5. That should any section, clause, or provision of this ordinance be declared by a court of competent jurisdiction to be invalid, the same shall not affect the validity of this ordinance or any other ordinance of the city as a whole or any part thereof, other than the part so declared to be invalid. Section 6. That it is officially found, determined and declared that the meeting at which this Ordinance 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 ordinance, was given, all as required by Chapter 551, as amended, Texas Government Code. Section 7. This Ordinance shall be effective upon the date of final adoption hereof and any publication required by law. Section 8. This Ordinance shall be cumulative of all other ordinances of the City of Schertz, and this Ordinance shall not operate to repeal or affect any other ordinances of the City of Schertz except insofar as the provisions thereof might be inconsistent or in conflict with the provisions of this Ordinance, in which event such conflicting provisions, if any, are hereby repealed. Approved on first reading the 1St day of July, 2014 PASSED, APPROVED and ADOPTED on final reading the 8th day of July, 2014. CITY OF SCHERTZ Michael R. Carpenter, Mayor ATTEST: Brenda Dennis, City Secretary (CITY SEAL) EXHIBIT A Alley Segment South of Block 1, Lots 7, 8, 9, 10 and 11 Ebert Tract Bloch: 1 Lot: t, 2 AN 0.E t3 0 i Hiock: t Lot: 20 CP VOOPPl� r $3 "ate 0. ,� • City of Schertz + " rf 0 ,D 150 2DO EXHIBIT B Form of Quitclaim Deed After recording, return to: Denton, Navarro, Rocha, Bernal, Hyde & Zech ATTN: Charles Zech 2517 N. Main Avenue San Antonio, TX 78212 QUITCLAIM DEED NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER. STATE OF TEXAS § § KNOW ALL PERSONS BY THESE PRESENTS: COUNTY OF GUADALUPE § THAT CITY OF SCHERTZ, TEXAS a Texas municipal corporation (the "Quitclaimor "), for good and valuable consideration from , (the "Quitclaimee "), the receipt and sufficiency of which are hereby acknowledged, has QUITCLAIMED, and by these presents does QUITCLAIM unto the Quitclaimee, all of its right, title, and interest in and to certain real property, together with all improvements thereon and all rights and appurtenances thereto, situated in Guadalupe County, Texas, as more particularly depicted on Exhibit A attached hereto and made a part hereof for all purposes (collectively, the "Property "). The Quitclaimor makes no warranties or representations concerning the extent of its right, title, or interest in or to the Property, and the Quitclaimee understands and agrees, by acceptance of this Quitclaim Deed, that the Quitclaimor shall be under no obligation to defend title to the Property against any third party claims to the Property or any portion thereof. TO HAVE AND TO HOLD all of the Quitclaimor's right, title, and interest in and to the Property unto the Quiclaimee, its heirs, successors, and assigns, forever, so that neither the Quitclaimor nor its successors or assigns shall at any time hereafter have, claim, or demand any right or title to the Property or any part thereof. [Signature and acknowledgment on the following page] Latm EXECUTED this day of , 2014. QUITCLAIMOR: CITY OF SCHERTZ, TEXAS, a Texas municipal corporation LI-A THE STATE OF TEXAS § COUNTY OF GUADALUPE § John C. Kessel City Manager This instrument was acknowledged before me on the day of , 2014, by John C. Kessel, the City Manager of the City of Schertz, Texas, a Texas municipal corporation, on behalf of said City. [NOTARY SEAL] III Notary Public in and for the State of Texas Exhibit A to Quitclaim Deed 0 VS-140 VO - o� LOT: 8 `La � vc� C� 'PO a City of Schertz Exhibit A Jesus J. & Frances K. Misel Gomez y (Block 1, Lot 8, Ebert Traci) 0 10 20 40 80 Agenda No. 4 t1Y 11•(Vlil►[y I ICU I D10 to] 11T.101 Illlu l City Council Meeting: July 8, 2014 Department: Parks and Recreation Subject: Resolution 14 -R -59 — Conduct a Public hearing and consider a Resolution Authorizing the License and Management Agreements with the YMCA for Operation and Maintenance of the Recreation Center, Outdoor Pools, Splash Pad, Enclosed Community Swimming Pool of Competition Quality, and Indoor Recreation Pool. BACKGROUND In 2010 voters approved $6,625,000 to construct an enclosed community swimming pool and aquatic facility of competition quality, relocating, constructing and improving the playscape. As has been discussed at recent City Council meetings of April 15, 2014, and May 27, 2014, staff has been directed to finalize discussions with the YMCA to continue to manage the City's two outdoor pools, extend the license agreement for the operation of the Recreation Center, and license the proposed enclosed community swimming pool of competition quality and indoor recreation pool to the YMCA for operations and management. The two agreements provide for this partnership with the YMCA. Constructing the indoor recreation pool necessitates the City, in partnership with the YMCA who will pay the debt service on the recreational pool, to issue $2 to $3 million in taxable obligation bonds. The final amount will be determined as part of the finalization of design and awarding the construction contracts. Additionally, the City has worked with SCUCISD on an agreement for the high school swim teams to utilize the facility for practices and potentially meets. The agreement provides for SCUCISD to pay the City $1,625,000 for their use of the facility with the caveat that it be constructed to meet their needs. The two agreements are for 20 years, but allow the City to close either or both of the two outdoor pools. While there is no plan to close either outdoor pool, this provision provides flexibility to the City. The agreements continue the membership plan for use of the recreation center and adds access to the competition pool and recreation pools. The agreement also provides for a day membership to the competition pool. The agreements are in final review by attorneys for both the City and YMCA, but in order to provide time for interested members of the community to review the agreements and ask comments, staff is providing the draft agreements to Council, but requesting the agreements not be acted on until July 15 in order to allow staff to understand any community concerns and suggestions. Staff will also work to finalize all of the various Exhibits. Goal To maximize the benefit to the citizens by extending the license agreement for the Recreation Center and management agreement for the two Outdoor Pools, and entering into a license agreement for the community swimming pool of competition quality and indoor recreation pool. Community Benefit The community will benefit from this new indoor Aquatic Facility containing a community pool of competition quality and a second pool that will be suitable for a variety of uses as well as experienced proven management of all of the facilities. Summary of Recommended Action Staff recommends Resolution No 14 -R -59 be tabled to the June 15 City Council meeting. FISCAL IMPACT The City will issue taxable General Obligations bonds of between $2 and $3 million to construct the indoor recreation pool. The City will pay the YMCA approximately $180,000 to operate both outdoor pools for 90 days each summer. The City will pay the YMCA a grant of $380,000 annually to operate the other facilities along with an additional grant of $100,000 annually to reduce the cost of memberships to Schertz residents. The YMCA will pay the City of Schertz $100,000 annually for 20 years ($2 million) which Schertz will use to pay the debt services of the taxable General Obligation Bond of the indoor recreation pool. If additional funds up to $1 million are needed (which would allow for a maximum of $3 million for the recreation pool), the City and the YMCA have agreed to explore additional funding opportunities and bring a proposal before the City Council for final consideration and possible action. RECOMMENDATION Continue the public hearing and table Resolution 14 -R -59 ATTACHMENT(S) Resolution No. 14 -R -59 Amended and Restated Schertz Recreation Center Agreement and Outdoor Pools Management Agreement Schertz Enclosed Community Swimming Pool, Splash Pad, and Aquatic Facility of Competition Quality and Indoor Recreation Pool License Agreement RESOLUTION NO. 14 -R -59 A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS AUTHORIZING LICENSE AND MANAGEMETN AGREEMENTS WITH THE YMCA FOR THE MANAGEMENT AND OPERATIONS OF THE RECERATION CENTER, OUTDOOR POOLS, SPLASH PAD, ENCLOSED COMMUNTY SWIMMING POOL OF COMPETITION QUALITY AND INDOOR RECREATION POOL AND OTHER MATTERS IN CONNECTION THEREWITH WHEREAS, the City staff of the City of Schertz (the "City ") has recommended that the City enter into Agreements with the YMCA for operations and management of the recreation facility, outdoor pools, splash pad, enclosed community swimming pool of competition quality and indoor recreation pool; and WHEREAS, the City Council has determined that it is in the best interest of the City to enter into Agreements with YMCA the Agreements attached hereto as Exhibit A (the "Recreation Center License Agreement and Outdoor Pools Management Agreement ") and Exhibit B (the "Enclosed Community Swimming Pool and Aquatic Facility of Competition Quality, Splash Pad, and Indoor Recreation Pool ") . 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 Agreements with the YMCA in substantially the form set forth on Exhibit A and FYhihit R Section 2. The recitals contained in the preamble hereof are hereby found to be true, and such recitals are hereby made a part of this Resolution for all purposes and are adopted as a part of the judgment and findings of the City Council. Section 3. All resolutions, or parts thereof, which are in conflict or inconsistent with any provision of this Resolution are hereby repealed to the extent of such conflict, and the provisions of this Resolution shall be and remain controlling as to the matters resolved herein. Section 4. This Resolution shall be construed and enforced in accordance with the laws of the State of Texas and the United States of America. Section 5. If any provision of this Resolution or the application thereof to any person or circumstance shall be held to be invalid, the remainder of this Resolution and the application of such provision to other persons and circumstances shall nevertheless be valid, and the City Council hereby declares that this Resolution would have been enacted without such invalid provision. Section 6. It is officially found, determined, and declared that the meeting at which this Resolution is adopted was open to the public and public notice of the time, place, and subject matter of the public business to be considered at such meeting, including this Resolution, was given, all as required by Chapter 551, Texas Government Code, as amended. Section 7. This Resolution shall be in force and effect from and after its final passage, and it is so resolved. PASSED AND ADOPTED, this day of , 2014. CITY OF SCHERTZ, TEXAS Michael R Carpenter, Mayor ATTEST: Brenda Dennis, City Secretary (CITY SEAL) 50234811.1 EXHIBIT A Recreation Center License Agreement and Outdoor Pools Management Agreement Exhibit B Enclosed Community Swimming Pool and Aquatic Facility of Competition Quality, Splash Pad, and Indoor Recreation Pool AMENDED AND RESTATED SCHERTZ RECREATION CENTER LICENSE AGREEMENT AND OUTDOOR POOLS MANAGEMENT AGREEMENT THIS AMENDED AND RESTATED SCHERTZ RECREATION CENTER LICENSE AGREEMENT AND OUTDOOR POOLS MANAGEMENT AGREEMENT (this "Agreement ") dated to be effective as of the day of , 2014 (the "Effective Date ") is between the City of Schertz, Texas, a Texas home rule city ( "Schertz "), and the Young Men's Christian Association of Greater San Antonio, a Texas non -profit corporation (the "YMCA "). WITNESSETH: WHEREAS, Schertz is the owner of a Schertz public recreation facility on the real property described on the attached Exhibit A ( "Real Property "), with a street address of 621 Westchester Drive, Schertz, Texas, upon which has been constructed a recreation center currently operated by the YMCA known as the Schertz Recreation Center (the "Recreation Center "). WHEREAS, Schertz and the YMCA previously entered into that certain Schertz Recreation Center License Agreement dated as of April 28, 2009 (the "Original Facility License Agreement "), pursuant to which Schertz and the YMCA set forth certain terms by which the YMCA manages the Recreation Center for Schertz, which Original Facility License Agreement was amended pursuant to that certain First Amendment to Schertz Recreation Center License Agreement dated as of March 15, 2011 (the "Facility License Agreement Amendment ", and collectively with the Original Facility License Agreement, the "Facility License Agreement "). WHEREAS, this Agreement amends and replaces in its entirety the Facility License Agreement, and Schertz and the YMCA acknowledge and agree that the Facility License Agreement governed the terms of the license for the Recreation Center from the effective date of the Facility License Agreement up to the Effective Date of this Agreement. WHEREAS, Schertz will construct, or cause to be constructed an Enclosed Community Swimming Pool and Aquatic Facility of Competition Quality and indoor recreation pool (the "Aquatic Facility "). WHEREAS, the Recreation Center and the Outdoor Pools (defined below) are collectively referred to herein as the "Facility ". WHEREAS, Schertz and the YMCA have also previously entered into that certain Pool Management Agreement dated as of April 28, 2009 (the "Outdoor Pools Agreement ") governing the terms of the YMCA's management of Schertz's two outdoor pools located at 200 Aero Avenue, Schertz, Texas and 601 Cherry Tree Drive, Schertz, Texas, known respectively as the Pickrell Park Pool and the Northcliffe Pool (collectively, the "Outdoor Pools ", and each an "Outdoor Pool "). WHEREAS, this Agreement amends and replaces in its entirety the Outdoor Pools Agreement, and Schertz and the YMCA acknowledge and agree that the Outdoor Pools Agreement governed Formatte 5202643.2 1 5235310.1523c i i the terms of the YMCA's management of the Outdoor Pools from the effective date of the Outdoor Pools Agreement up to the Effective Date of this Agreement. WHEREAS, this Agreement relates to the Facility and the Outdoor Pools. WHEREAS, the Swimming Pool and Aquatic Center and Recreation Pool are governed by a separate Schertz Enclosed Community Swimming Pool and Aquatic Facility of Competition Quality and Indoor Recreation Pool License Agreement between Schertz and the YMCA (the "Aquatic Facility Agreement "). WHEREAS, this Agreement and the Aquatic Facility Agreement collectively set forth all of the agreements between Schertz and the YMCA with respect to the Facility and the Aquatic Facility. WHEREAS, Schertz desires that the YMCA manage the Facility for Schertz, and the YMCA has agreed to do so pursuant to the terms and conditions of this Agreement. NOW THEREFORE, for good and valuable consideration, the sufficiency of which is acknowledged by both parties, Schertz and the YMCA accept this Agreement for the purposes, and upon the terms and conditions, set forth herein ° 4�� ,,, Q....... I�� 1. Exclusive License. Schertz hereby grants to the YMCA an exclusive right and license to manage and operate the Facility for the purposes, in the manner, and for the period of time described in this Agreement (the "Rights "). This Agreement is not a lease of the Facility and does not confer any ownership, leasehold, or other interest in the Facility or the land on which it is located except as set forth herein. 2. Term. The initial term of this Agreement begins on the Effective Date and ends on the date which is twenty (20) years after the Recreation Pool Completion Date (as such term is defined in the Recreation Pool Agreement). Upon termination of this Agreement, the Rights licensed to the YMCA herein will automatically revert back to Schertz. If this Agreement is terminated, and if requested by Schertz, the YMCA and Schertz will acknowledge such termination and reversion in a signed written document. 3. General Terms of Operation, Use and Maintenance. The YMCA, at its cost and expense, will (i) perform the work and services for the operation and management of the Facility as required herein; (ii) maintain the furniture, equipment and supplies as shown in Section I on the attached Exhibit A -1, and install and maintain any other furniture, equipment and supplies as otherwise required by the YMCA for its operation of the Facility within the interior of the Facility (collectively, the "YMCA Installed Items "); and (iii) conduct maintenance and repairs required in the interior of the Facility as further described in Section II of Exhibit A -1 attached hereto. Schertz, at its cost and expense, (i) will provide the YMCA with the Facility in its current condition; and (ii) will conduct maintenance and repairs required for the exterior and other components of the Facility as further described in Section III of Exhibit A -1 attached hereto. Formatte 5202643.2 2 5235310.1523- i i 4. Facility Operations; Employees. (a) The YMCA will have exclusive control of the day -to -day operations of the Facility, subject to the right of Schertz, described in Section 13, to inspect the Facility for maintenance purposes or to ensure that the YMCA is properly carrying out its obligations under this Agreement. (b) The YMCA will provide all necessary employees for the Facility, including employees who will meet or exceed the requirements described on Exhibit B. The YMCA agrees that all of its employees will be fully qualified and competent to do the work required of the YMCA under the terms of this Agreement. The YMCA shall be fully responsible for the hiring and dismissal of all employees. uquy hh Sublicense. (a) The YMCA shall have the authority to sublicense the Facility (or any parts thereof) to the following organizations or for the following purposes for members and/or non - members: (i) at no charge to the sublicensee: (1) for City of Schertz meetings — meeting rooms; (2) for Healthy Kids Day (YMCA Program) — Saturdays 9 am to 1 pm; (3) for Schertz Library /YMCA collaboration — Fall Fest 1 -day event; M for the Schertz Area Senior Center — meeting rooms, gymnasium. (ii) for an agreed fee with the sublicensee: (1) for birthday parties (YMCA Program) — periodically; (2) for health and wellness courses or seminars; W3 Family Nights (YMCA Program); W for martial arts programs — evenings and/or weekends, multipurpose space or gymnasium; 5 for non - profit organization meetings — meeting rooms; 6 for youth sports programs; 7 HOA meetings — meeting rooms; U8 Teen Lock -Ins; Formatte 5202643.2 3 5235310.1523c i i (9 ) Clemens High School and Steele High School Project Graduation; 1UO American Cancer Society Relay for Life; 11 Career days; 12 College prep seminars; 1U3 Meeting space for for - profit organizations; 1"4 Community leader luncheons; 15 Swim clubs and swim teams; and (iii) such other specific purposes as are approved in advance in writing by the Schertz City Manager and/or his /her designee. All net revenues received by the YMCA from sublicensing the Facility as permitted above (gross revenue, less direct Facility expenses related to the event) shall be separately identified in the YMCA's books and records for the YMCA's activities at the Facility and shall be used in full by the YMCA in operating the YMCA's activities at the 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. 8888888886a. (b) Facility sublicenses that involve exclusive reservation for a group of the Facility must be scheduled for times other than during the YMCA's publicized hours of operation. Facility sublicenses 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 the Facility. Facility sublicenses that do not provide a group exclusive use of the 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 5 shall be evidenced in writing using the Form of Sublicense Agreement attached hereto as Exhibit F. 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 or his /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 4 5202643.2 5235310.1523c i i Formatte organization or purpose qualifies under Section 5(a), the City will refer the applicant to the YMCA, in all events subject to Section 5(b). 6. Facility Revenues and Allocation of Expenses. (a) The YMCA will receive and retain all membership fees, vending machine profits, revenues from YMCA programs, receipts from Facility sublicenses, and all other revenues generated from any event or operations at the Facility. (b) There shall be no payments of money from the YMCA to Schertz in connection with Schertz granting the license to the YMCA to utilize the Facility under this Agreement. (c) Except as otherwise allocated to Schertz as provided herein, the YMCA will be responsible for all expenses related to the operation and management of the Facility, including, but not limited to, employee salaries and the maintenance and repair of those items allocated to the YMCA in Section I on Exhibit A -1. At the time the YMCA occupies and begins operation of the Facility, the YMCA shall be responsible for paying the monthly usage charges for the following utility services (prorated for any partial month): cable or satellite television service, telephone service, internet service, water and sewer service separately metered for the interior of the Facility, electric service separately metered for the interior of the Facility, and gas service (if any).._ (d) Schertz will be responsible for all expenses related to the maintenance and repair of those items allocated to Schertz in Section III on Exhibit A-1. Schertz will be responsible for paying all monthly usage charges for the following utility services: electric service for the lighting of the parking lot of the Facility (which will be separately metered), and water service for all landscape irrigation for the Facility (which will be separately metered). 7. Grants of Funds to the YMCA. (a) Schertz will not charge to the YMCA, and the YMCA will not pay to Schertz, a license fee or any other fee during the term of this Agreement. (b) Commencing on , Schertz will provide a grant of money to the YMCA in the amount of Three hundred eighty thousand and No /100 Dollars ($380,000) annually (the "Operations Grant "), payable in equal monthly installments by the tenth (10th) day of each month of the term of this Agreement, which Operations Grant shall be used to pay for the Facility operation and maintenance expenses allocated to the YMCA herein. (c) Further, commencing on , Schertz will provide a grant of money to the YMCA in the amount of one hundred thousand Formatte 5202643.2 5 5235310.1523- i i and No /100 Dollars ($100,000) annually (the "Membership Fee Reduction Grant ", and collectively with the Operations Grant, the "Grants "), payable in equal monthly installments by the tenth (10th) day of each month, which Membership Fee Reduction Grant shall be used by the YMCA to lower the cost of membership fees for residents of the City of Schertz to the current rates for the term of this Agreement. (d) If the YMCA's operations at the Facility generate a surplus of funds (calculated as gross revenues for the Facility minus total expenses for the Facility including the amount of the Grants as revenue when performing the calculation to determine if a surplus exists) during a period from October 1 through September 30 of a year (each a "Fiscal Year ") (each such Fiscal Year surplus is referred to as a "Surplus"), then the amount of the Operations Grant shall be reduced by twenty percent (20 %) of the Surplus for the following Fiscal Year. 8. Membership Rates and Service Charges. (a) The current rates charged at the Facility are set forth on Exhibit C. Rates charged at the Facility for non - residents of Schertz will be determined by the YMCA, and will initially be set by the YMCA as set forth on Exhibit C. The rates for Schertz residents shall not be increased/not be increased by more than two percent (2 %) annually above the rates set on Exhibit C throughout the term of the Agreement. Daily passes to the Enclosed Community Swimming Pool of Competition Quality shall be available to Schertz residents at a rate not to exceed 20% of the monthly Schertz Resident membership rate. Rates for non - residents are subject to change by the YMCA and are typically reviewed and increased no more than once each year. Any non - resident rate increase in excess of the greater of (i) five percent (5 %) or (ii) the Consumer Price Index, expressed as a percentage, over the rate charged on the same date the previous year must be reported to the Schertz City Council in advance of being implemented. The YMCA will notify non - resident members and patrons at least thirty (30) days before any such rate increase goes into effect. (b) Schertz residents and employees will receive a YMCA "City Wide" membership at branch - specific rates. Each Schertz resident and employee will receive a one -time only waiver of the YMCA membership initiation fee for the Facility. Any Schertz resident or employee who, after becoming a member and later canceling the membership, then reapplies for membership at the Facility will be required to pay the YMCA's initiation fee at the YMCA's then - current rate. (c) During the term hereof, the YMCA will provide Y Partners scholarships to be used to provide discounted or free -of- charge memberships to families meeting standard YMCA criteria, which shall be provided on request to Schertz. Formatte 5202643.2 6 5235310.1523c i i 9. Marketing and Signage. (a) Using its normal and customary marketing programs as generally applied in the Bexar County, Texas area, the YMCA will be responsible for all marketing related to the Facility and the YMCA's programs conducted therein, and will so market the Facility, at a minimum, within the entire area in the Schertz city limits. (b) Unless the need for maintenance or repair, or damage, is the result of the actions of Schertz, or those acting under its control, the YMCA will be responsible for maintaining all existing interior signage at the Facility, and as determined by it in its sole and reasonable discretion from time to time, for providing all additional necessary or desirable interior signage within the Facility, as well as any exterior Facility signage that includes the YMCA name. In the event any new or replacement signage contains both the name of the Facility as designated by Schertz, and the YMCA names or logos, the parties will agree as to the allocation of the costs of such signage prior to the manufacture of such signage. Exterior and interior signage desired by the YMCA will be subject to reasonable advance written approval by Schertz. All currently existing signage as of the Effective Date is deemed to have been approved by Schertz. Schertz may provide Schertz - related signage for the exterior and interior of the Facility, in addition to that displayed by the YMCA, and the YMCA will permit such signage to be placed in the interior of the Facility in reasonable locations if requested by Schertz. Samples of the signage currently located at the Facility are shown on the attached Exhibit D. Schertz and the YMCA agree to use their best efforts to finalize initial signage needed for the Facility by _, 201_ 10. Advisory Board. An advisory board (the "Advisory Board ") has been established by the YMCA to informally assist the YMCA in its operation of the Recreation Center, all in accordance with the procedures and requirements and Schertz representation set forth on the attached Exhibit E. The Advisory Board is and will continue to be to advise only, and will have no power to dictate policy or procedures to the YMCA. Commencing on the Effective Date of this Agreement and continuing throughout the term of this Agreement, the Advisory Board shall also informally assist the YMCA in its operation of the Swimming Pool and Aquatic Center. 11. Outdoor Pools Management. Schertz and the YMCA agree to the following with respect to the Outdoor Pools: Formatte 5202643.2 % 5235310.1523- i i (a) Cost: The total maximum cost payable to the YMCA for the YMCA's management of the Outdoor Pools for each year of this Agreement shall be One Hundred Seventy -Nine Thousand Eight Hundred Seventy -Eight and No /100 Dollars ($179,878.00), which shall be paid in two (2) payments of Fifty -Nine Thousand Nine Hundred Fifty -Nine and No /100 Dollars ($59,959.00) by Schertz to the YMCA on or before June 1 of each year and July 1 of each year of this Agreement, with a final payment of Fifty - Nine Thousand Nine Hundred Sixty and No /100 Dollars ($59,960.00) paid on or before August 1 of each year of this Agreement. The payment attributable to each Outdoor Pool is one half (1/2) of the total amount set forth above. If the provisions of this Agreement set forth in this Section 11 with respect to one but not both of the Outdoor Pools are terminated in accordance with the provisions of Section 11(1), the cost associated with the remaining Outdoor Pool shall be one half (1/2) of the total amount set forth above. a9$$6688SSSS° (b) Revenues from the Outdoor Pools: Schertz shall receive and retain all revenues from gate receipts, season pass receipts, and concession receipts. The YMCA shall receive and retain all revenues from YMCA programs, including swimming lessons and aquatic programs, and all receipts for the Outdoor Pools rentals and pool parties. YMCA will not charge swimming teams for reserved lanes for swim practice. (c) Scope of Work: The YMCA shall perform all work for the operational management of the Outdoor Pools as shown in Exhibit I, attached hereto and incorporated herein for all purposes. (d) Active Terms: The provisions of this Agreement with respect to the management of the Outdoor Pools shall be applicable for a three -month period of approximately May 24 through August 24 during each calendar year of this Agreement (each an "Active Term "). The precise Active Term for each calendar year will be provided by Schertz to the YMCA at least sixty (60) days prior to the beginning of each year's three -month Active Term. (e) YMCA Obligations and Rights: YMCA shall, at its expense, for each Active Term of this Agreement, obtain all permits, certifications, and licenses, and pay all related fees and taxes, necessary for the performance of its work and services under this Agreement, and will comply with all laws, ordinances, rules and regulations governing YMCA's performance of this Agreement, including all environmental laws and regulations, whether state or federal. Schertz will waive all fees for city- required permits, licenses, and inspections related to the Outdoor Pools. All work shall be done in strict conformity with this Agreement. YMCA shall have exclusive control of the day -to -day operations of the Outdoor Pools, subject to the right of Schertz to inspect the Outdoor Pools to ensure that YMCA is properly carrying out the terms of this Agreement. YMCA Formatte 5202643.2 8 5235310.1523c i i agrees that all of its employees shall be fully qualified and competent to do the work required under the terms of this Agreement. All minor detail of the work not specifically mentioned in this Agreement but obviously necessary for the proper completion of the work shall be considered as incident to and a part of the work for which payment is made to the YMCA under this Agreement. YMCA will not be entitled to any additional compensation therefor unless specifically stated otherwise in this Agreement. (f) Termination: Schertz may terminate the management of one or both of the Outdoor Pools at will for no or any reason upon giving at least ninety (90) days advance written notice to YMCA. The parties to this Agreement understand and agree that it is in Schertz's reasonable discretion to terminate the provisions of this Agreement with respect to one or both of the Outdoor Pools without penalty to Schertz or the YMCA. YMCA has no expectation and has received no guarantees that the provisions of this Agreement set forth in this Section 11 with respect to one or both of the Outdoor Pools will not be terminated before the end of the Agreement term. The parties have bargained for the flexibility of this termination option upon tender of the requisite notice at any time during the term of this Agreement. Upon termination, all equipment, furniture, fixtures, and supplies purchased, provided, owned, or brought into the Outdoor Pools by YMCA will remain the property of the YMCA and will be removed from the applicable Outdoor Pool(s) at the end of the ninety (90) day notice period. Upon termination, all equipment, furniture, fixtures, and supplies purchased, provided, owned, or brought into the applicable Outdoor Pool by Schertz will remain the property of Schertz. All work and services under this Agreement and all payments hereunder for work and services after the date of termination shall be terminated in accordance with Section 11(2) upon termination of the provisions of this Agreement set forth in this Section 11 with respect to one or both of the Outdoor Pools becoming effective. (g) Pam: As full consideration for the services which the YMCA shall provide to Schertz with respect to the Outdoor Pools, the YMCA shall receive the total sum described in Section 11(a). Any sums due and payable hereunder which are not paid within ten (10) days of the due date shall bear interest at the rate as set by the State of Texas, from the date due until the date of payment. In the event the provisions of this Agreement set forth in this Section 11 with respect to one or both of the Outdoor Pools are terminated pursuant to Section 11(f), the payments due to YMCA hereunder shall be prorated on a daily basis of One Thousand Nine Hundred Ninety -Eight and 64/100 Dollars ($1,998.64) per day for both Outdoor Pools or Nine Hundred Ninety -Nine and 32/100 Dollars ($999.32) for one Outdoor Pool, as applicable, and YMCA shall rebate to Schertz or Schertz shall pay the YMCA, as applicable, such amount as shall be necessary to reflect the pro rata portion of the total amount Formatte 5202643.2 9 5235310.1523c i i payable to YMCA under Section 11(a) through the effective date of such termination. Insurance. YMCA Insurance. The YMCA will at all times during the term of this Agreement maintain and keep in full force and effect insurance in the following types and minimum amounts with companies authorized to do business in the State of Texas: (a) Commercial General Liability (including contractual liability): Bodily Injury & Property Damage: $1,000,000 per occurrence $2,000,000 General Aggregate (b) Worker's Compensation: Statutory limits (c) Employers' Liability Bodily Injury by Accident - $500,000 each accident Bodily Injury by Disease - $500,000 each employee Bodily Injury by Disease - $500,000 policy limit Schertz Insurance. Schertz will at all times during the term of this Agreement maintain and keep in full force and effect insurance in the following types and minimum amounts with companies authorized to do business in the State of Texas: (d) Commercial General Liability (including contractual liability): Bodily Injury & Property Damage: $1,000,000 per occurrence $g $2,000,000 General Aggregate (a) Schertz Property Insurance Coverage: Throughout the term of this Agreement, Schertz shall maintain in full force a policy or policies of property insurance, issued by one or more insurance carriers licensed to do business in Texas, covering all buildings and improvements comprising the Facility and the Outdoor Pools to the extent of their full replacement value (exclusive of subsurface foundation and excavation cost). Waiver of Subrogation. Schertz and the YMCA agree (and this Agreement shall bind Schertz and the YMCA, as well as their respective property insurers) that (i) if the Facility and/or the Outdoor Pools (and/or in the case of Schertz, the other portions of the Real Property) or its contents are damaged or destroyed by fire or other casualty for which insurance is maintained, or an employee sustains an injury covered by Worker's Compensation insurance (or such damage or injury is of a type for which insurance was required to be maintained under the terms of this Agreement), the rights, if any, of either party against the other with respect to Formatte 5202643.2 10 5235310.1523- i i such damage, destruction or injury are waived with respect to both losses to the extent covered by insurance that is obtained as required under this Agreement and losses not covered due to deductibles, coinsurance penalties, insurance carrier insolvency, disputes with the insurance carrier regarding coverage or under - insurance; and (ii) that all property coverage policies, other insurance covering such property or its contents and Worker's Compensation insurance shall contain a clause or endorsement providing in substance that the insurance shall not be prejudiced if the insured have waived right of recovery from any person or persons prior to the date and time of loss or damage, if any. The failure of the parties to obtain such endorsements, however, shall not negate or otherwise adversely affect the waiver of subrogation herein set forth, which waiver in all instances shall be binding upon the parties and their respective insurers. Workers' Compensation. The Workers' Compensation coverage provided by the YMCA will inure to the benefit of employees injured during the course and scope of their employment by the YMCA at the Facility and/or the Outdoor Pools pursuant to this Agreement. All insurance required to be maintained by the YMCA pursuant to this Agreement, except for Worker's Compensation Insurance, will name Schertz as an additional insured. All insurance required to be maintained by Schertz pursuant to this Agreement, will name the YMCA as an additional insured. All such insurance coverage and each party's status as an additional insured, as appropriate, will be evidenced by one or more certificate(s) of insurance provided to the other party upon signing of this Agreement. Each party will be provided the notice by the other party's insurance provider not later than thirty (30) days prior to any reduction or termination of such coverage. Inspections. The Schertz City Manager and /or his /her designee and the Schertz Director of Parks, Recreation and Community Services and/or his /her designee (each a "Schertz Representative ") may make periodic visits to the Facility and the Outdoor Pools to assess any maintenance needs and/or to observe the progress and quality of the YMCA's executed work and services and to determine, in general, if the work and services are proceeding in accordance with this Agreement. The Schertz Representative will not be required to make exhaustive or continuous on -site inspections to check the quality or quantity of the work, nor will the Schertz Representative be responsible for the means, methods, techniques, sequences or procedures, or the safety precautions incident thereto. The Schertz Representative will not be responsible for the YMCA's failure to perform the work in accordance with this Agreement. Notice for Repairs by YMCA. The YMCA will provide Schertz prompt written notice of any capital or other repairs and /or replacements to the Facility and/or the Outdoor Pools for which Schertz is responsible under the terms of this Agreement, whereupon Schertz will use reasonable efforts (subject to public bidding requirements) to promptly initiate necessary repairs /replacement, and thereafter diligently and continuously pursue the completion thereof; provided, however, that notice of emergency repairs (those where there is imminent danger to life or property) shall require Schertz to respond immediately to either written Formatte 5202643.2 11 / 5235310.1523c i i or telephonic notice, and diligently undertake efforts to alleviate the immediate danger to life or property, and thereafter initiate necessary repairs /replacement as required above to diligently and continuously pursue the repair /replacement process to completion. Emergency repairs shall include, but shall not be limited to (i) water intrusion causing damage to the interior of the Facility and/or the property of the YMCA, (ii) the failure of the HVAC system, (iii) the failure of any essential utility component of the Facility and/or the Outdoor Pools (including, but not limited to water, electrical or sewage service), and/or (iv) the presence of, or introduction of, hazardous substance(s) in the Facility and/or the Outdoor Pools. Schertz's obligation to undertake emergency repairs pursuant to this Section 14 may not relieve the YMCA of the obligation to pay for such repairs, depending on whether such emergency repairs were necessitated by actions of the YMCA, its employees, or its patrons. Complaint Resolution. The YMCA will be responsible for resolving all complaints by members and patrons regarding the Facility and YMCA operations. As part of the quarterly reports required by Section 17, the YMCA will provide Schertz with a summary of all material complaints received by the YMCA and the corresponding resolution to each. 16 Licenses, Certification, and Permits. The YMCA will, at its expense, obtain all permits, certifications, and licenses, and pay all related fees and taxes, necessary for the performance of its work and services under this Agreement, and will comply with all laws, ordinances, rules and regulations governing the YMCA's performance of this Agreement, including all environmental laws and regulations applicable to the YMCA's operation of the Facility, whether state or federal. Schertz hereby waives all fees for City- required permits, licenses, and inspections relating to the Facility. Schertz will comply with all laws, ordinances, rules and regulations governing its ownership of the Facility and the Real Property, and its performance of this Agreement, including all environmental laws and regulations applicable to its ownership of the Facility and the Real Property, whether state or federal. LZ Quarterly Reports - Facility. The YMCA will provide a report to Schertz covering the initial operating period of the Facility from the Effective Date of this Agreement through _, 201_ and thereafter will provide quarterly reports to Schertz covering January through March, April through June, July through September, and October through December of each year. Quarterly reports will be delivered to Schertz no later than the 45th calendar day after the end of each reporting period, and will provide generally the details regarding the budget, donations, membership roll, revenues, sponsorships, member and material patron written complaints, and other relevant operating details related to the Facility. The YMCA will make the Facility's Executive Director available on reasonable request by the Schertz City Manager to make quarterly reports to the Schertz City Council. Formatte 5202643.2 12 / 5235310.1523c i i 18.. Annual Audit. Schertz will conduct an audit each year, at the sole expense of Schertz, of the operations at the Facility. The audit will be conducted by an internal and/or external audit team selected by Schertz. The YMCA will allow the persons conducting the audit to have full access to the Facility, including the Facility and all records related to the Facility, including the Facility, including, but not limited to budgets, financial statements, and other financial and operational records, in order to complete the audit and will fully cooperate throughout the audit process. Schertz will provide the YMCA with a copy of each final audit report. Semi- Annual " Schertz Night ". The Facility will be made available exclusively to the City of Schertz residents two times each year, at dates and times to be mutually agreed upon by the YMCA and Schertz. During these occasions, the YMCA will provide adequate staff and will open the Facility for full use by Schertz residents. These times are intended to acquaint Schertz residents with the Facility and to encourage membership. Independent Contractor. It is expressly understood and agreed that the YMCA will perform all work and services described herein as an independent contractor and not as an officer, agent, servant, or employee of Schertz; that the YMCA will have exclusive control of and the exclusive right to control the details of the services and work performed hereunder, and all persons performing the same; that the YMCA will be solely responsible for the acts and omissions of its officers, agents, servants, employees, contractors, and subcontractors; that the doctrine of respondent superior will not apply as between Schertz and the YMCA, its officers, agents, servants, employees, contractors, and subcontractors; and that nothing herein will be construed as creating a partnership or joint enterprise between Schertz and the YMCA. No person performing any of the work or services described hereunder by the YMCA will be considered an officer, agent, servant, or employee of Schertz. Further, it is specifically understood and agreed that nothing in this Agreement is intended or will be construed as creating a "Community of Pecuniary Interest" or "An Equal Right of Control" which would give rise to vicarious liability. The YMCA will be an independent contractor under this Agreement and will assume all of the rights, obligations, and liabilities applicable to it as such independent contractor hereunder. Schertz does not have the power to direct the order in which the work is done or the services are provided. Schertz will not have the right to control the means, methods, or details of the YMCA's work or services. The YMCA will assume exclusive responsibility for the work or services, and the YMCA will be entirely free to do the work and provide the services as determined by it. 2-L INDEMNITY. THE YMCA WILL INDEMNIFY AND HOLD HARMLESS AND DEFEND SCHERTZ AND ALL OF SCHERTZ'S COUNCILMEMBERS, OFFICERS, AGENTS, AND EMPLOYEES FROM ALL SUITS, ACTIONS, CLAIMS, DAMAGES, PERSONAL INJURIES, LOSSES, PROPERTY DAMAGE, AND EXPENSES OF ANY CHARACTER WHATSOEVER, INCLUDING REASONABLE Formatte 5202643.2 13 / 5235310.1523c i i ATTORNEYS' FEES, BROUGHT FOR OR ON ACCOUNT OF ANY INJURIES OR DAMAGES RECEIVED OR SUSTAINED BY ANY PERSON OR PERSONS OR PROPERTY, AS A RESULT OF ANY NEGLIGENT ACT OF THE YMCA, ITS AGENTS OR EMPLOYEES, OR ANY SUBCONTRACTOR OF THE YMCA, ARISING OUT OF, OR RESULTING FROM THE YMCA'S ACTIVITIES IN CONNECTION WITH THIS AGREEMENT. IN THE EVENT OF INJURIES OR DAMAGES RESULTING FROM THE NEGLIGENCE OF BOTH SCHERTZ AND THE YMCA (INCLUDING THEIR RESPECTIVE OFFICERS, AGENTS, EMPLOYEES, OR SUBCONTRACTORS), THE YMCA'S INDEMNITY HEREUNDER WILL BE LIMITED SOLELY TO THE EXTENT OF THE YMCA'S (INCLUDING ITS AGENT'S, EMPLOYEE'S, OR SUBCONTRACTOR'S) COMPARATIVE PORTION OF SUCH NEGLIGENCE. THIS INDEMNITY PROVISION DOES NOT APPLY TO FACILITY DEFECTS, WHICH ARE THE RESPONSIBILITY OF SCHERTZ. a #aaaaa° 22. RELEASE. NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, THE YMCA HEREBY RELEASES, ACQUITS, RELINQUISHES, AND FOREVER DISCHARGES SCHERTZ, SCHERTZ'S EMPLOYEES, OFFICERS, COUNCILMEMBERS, AND AGENTS, FROM ANY AND ALL DEMANDS, CLAIMS, DAMAGES, OR CAUSES OF ACTION REGARDING ANY AND ALL OPERATIONS IN CONNECTION WITH THE FACILITY LICENSE AGREEMENT, THE OUTDOOR POOLS AGREEMENT, AND THIS AGREEMENT WHICH THE YMCA HAS OR MIGHT HAVE IN THE FUTURE, INCLUDING BUT NOT LIMITED TO QUANTUM MERUIT, CLAIMS UNDER THE DUE PROCESS AND TAKINGS CLAUSES OF THE TEXAS AND UNITED STATES CONSTITUTIONS, TORT CLAIMS, OR SCHERTZ'S NEGLIGENCE. THIS PROVISION DOES NOT INCLUDE CLAIMS FOR BREACH OF CONTRACT RELATED TO THIS AGREEMENT. 23. Assignment. Except for the sublicenses permitted by Section 5, neither parry may, either directly or indirectly, assign all or any part of this Agreement or any interest, right or privilege herein, without the prior written consent of the other party. The issue of whether or not to grant consent to an assignment is in the sole discretion of the party from whom consent has been requested. 24 Infringement. (a) If any of the Rights appear to be infringed by a third party, then the party becoming aware of such infringement will promptly notify the other party. Schertz will have the right, but not the obligation, to take action against the infringer, including the filing of lawsuits, without the prior consent of the YMCA. Schertz will notify the YMCA promptly of its election to do so. The YMCA may elect to join in any such legal proceedings initiated by Schertz against the alleged infringer. If Schertz elects not to take any Formatte 5202643.2 14 / 5235310.1523- i i action hereunder, then the YMCA may initiate legal proceedings on its own behalf, and Schertz may elect to join in those proceedings. (b) If either party hereto elects to join in legal proceedings commenced by the other party, then the control of such proceedings will remain in the hands of the initiating party, and all fees, costs, and expenses incurred by the initiating party, along with all damages and awards recovered thereby, shall be shared equally between the parties. If one parry elects not to join in legal proceedings initiated by the other party, then such other party shall be responsible for all fees, costs, and expenses incurred therein, and shall receive all damages and awards recovered thereby. (c) Each party hereto will cooperate fully with the other in all aspects of any such litigation whether or not joining in the proceedings. Schertz Warranties. Schertz hereby represents and warrants to the YMCA as follows: (a) To Schertz's actual knowledge without any investigation, (i) Schertz is the owner of the Rights; (ii) Schertz has the power and authority to enter into this Agreement and to grant to the YMCA the licenses set forth herein; and (iii) Schertz has good title and ownership in and to all Rights and the Real Property. (b) Except for the rights granted pursuant to the Aquatic Facility Interlocal Agreement, Schertz has not granted or purported to grant any third party any rights inconsistent with this Agreement or with the Rights and license granted the YMCA hereunder. (c) Schertz has not entered in any agreement with any third party that would conflict with this Agreement or prevent Schertz's performance of this Agreement in accordance with its terms. (d) Schertz has the authority to enter into this Agreement, and Schertz has taken all necessary action lawfully to delegate that authority to Schertz's signatory hereto. (e) Except for the representations and warranties specifically provided above, Schertz makes no other representations or warranties regarding the Rights, its rights to the Rights, or its use of the Rights, and Schertz expressly disclaims and negates any and all warranties (express or implied) as to the Rights or its rights to the Rights. Except as specifically provided herein, THE RIGHTS ARE LICENSED TO THE YMCA ON AN AS -IS, WHERE -IS, AND WITHOUT FAULTS BASIS. 26� YMCA Warranties. YMCA hereby represents and warrants to Schertz as follows: Formatte 5202643.2 15 / 5235310.1523c i i (a) To YMCA's actual knowledge without any investigation, YMCA has the power and authority to enter into this Agreement and to accept the grants to the YMCA set forth herein. (b) YMCA has not granted or purported to grant any third party any rights inconsistent with this Agreement or with the Rights and license granted to the YMCA hereunder. (c) YMCA has not entered in any agreement with any third party that would conflict with this Agreement or prevent YMCA's performance of this Agreement in accordance with its terms. (d) YMCA has the authority to enter into this Agreement, and YMCA has taken all necessary action lawfully to delegate that authority to YMCA's signatory hereto. Z Waiver of Attorneys' Fees. BY EXECUTING THIS AGREEMENT, THE YMCA AGREES TO WAIVE AND HEREBY WAIVES ANY CLAIM IT HAS OR MAY HAVE AGAINST SCHERTZ REGARDING THE AWARD OF ATTORNEYS' FEES WHICH ARE IN ANY WAY RELATED TO THE YMCA'S BREACH OF THIS AGREEMENT. 2$,. No Waiver of Sovereign Immunity. By executing this Agreement, Schertz is not waiving its right of sovereign immunity except with respect to actions by the YMCA to enforce its rights under this Agreement. 29. Third -Party Beneficiary. Except as described in Sections 21 and 22, this Agreement does not create a third -party beneficiary. Except as described in Sections 21 and 22, there is no third -party beneficiary to this Agreement. Except as described in Sections 21 and 22, no person or entity who is not a party to this Agreement will have any third party beneficiary or other rights hereunder. 30. Termination. In the event either party defaults under this Agreement (and such default remains uncured as set forth below), the non - defaulting party may terminate this Agreement; provided that the non - defaulting party must first give the other party notice of any alleged event of default, and the opportunity for thirty (30) days after such notice (or such longer period the parties agree is reasonably necessary, but in no case longer than ninety (90) days) to cure such default. If the default is not cured in such thirty (30) day period (or agreed longer period), the non - defaulting party may thereafter declare this Agreement terminated and of no further force or effect. The parties to this Agreement understand and agree that it is in each party's sole discretion whether or not to terminate this Agreement without penalty to the terminating party. Upon any termination, all equipment, furniture, fixtures, and supplies purchased, provided, owned, or brought into the Facility and the Outdoor Pools by the YMCA will remain the property of the YMCA, and will be removed from the Facility and the Outdoor Pools within thirty (30) days after the termination hereof. Upon Formatte 5202643.2 16 / 5235310.1523c i i termination, all equipment, furniture, fixtures, and supplies purchased, provided, owned, or brought into the Facility and the Outdoor Pools by Schertz will remain the property of Schertz. The provisions of Sections 23 and 24 shall survive termination of this Agreement. Notice of Alleged Breach; Statutory Prerequisites. Before the YMCA may file suit for alleged damages incurred by an alleged breach of an express or implied provision of this Agreement, the YMCA or its legal representative, will give the Schertz City Manager notice in writing of such damages, duly verified, within ninety (90) days after the same has been sustained. The notice will include when, where, and how the damages occurred, the apparent extent thereof, the amount of damages sustained, the amount for which the YMCA will settle, the physical and mailing addresses of the YMCA at the time and date the claim was presented, the physical and mailing addresses of the YMCA for the six (6) months immediately preceding the occurrence of such damages, and the names and addresses of the witnesses upon whom the YMCA relies to establish its claim. Failure by the YMCA to so notify the Schertz City Manager within the time, in the manner, and to the extent herein provided will exonerate, excuse, and except Schertz from any liability whatsoever. Schertz reserves the right to request additional information regarding the claim. Said additional information will be supplied to Schertz within thirty (30) days after the YMCA's receipt of such request. The statutory prerequisites outlined herein constitute jurisdictional requirements pursuant to Section 271.154 of the Texas Local Government Code and Section 311.034 of the Texas Government Code. Notwithstanding any other provision, the YMCA's failure to comply with the requirements herein will perpetually bar the YMCA's claim for damages under Chapter 271 of the Texas Local Government Code, and Section 311.034 of the Texas Government Code, regardless of whether Schertz has actual or constructive notice or knowledge of said claim or alleged damages. 32. Notice. Any notice or demand made regarding this Agreement will be made in writing and delivered either in person or by certified or registered mail. Except as otherwise specifically provided herein, notice by mail will be complete upon deposit of the paper, postage prepaid, in a post office or official depository under the care and custody of the United States Postal Service addressed as follows: If to Schertz: City of Schertz 1400 Schertz Parkway Schertz, Texas 78154 Attention: City Manager with copies to: City of Schertz 1400 Schertz Parkway Schertz, Texas 78154 Attention: Director of Parks, Recreation and Community Services Formatte 5202643.2 17 / 5235310.1523- i i City Attorney Norton Rose Fulbright 300 Convent Street, Suite 2100 San Antonio, Texas 78205 Attention: Katherine A. Tapley If to the YMCA: YMCA of Greater San Antonio 3233 North St. Mary's San Antonio, Texas 78212 Attention: Ross Magsig with copies to: Cox & Smith 112 E. Pecan, Suite 1800 San Antonio, Texas 78205 Attention: Kerry T. Benedict The parties hereto may change the above designated addresses and notice parties by giving notice pursuant to the terms of this Section 32. 33. Severability. In case any one or more of the provisions contained in this Agreement is for any reason held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability will not affect any other provision hereof, and this Agreement will be considered as if such invalid, illegal, or unenforceable provision had never been contained in this Agreement. 3,. Governing Law and Venue. This Agreement will be governed by the laws of the State of Texas. All performance and payment made pursuant to this Agreement will be deemed to have occurred in Guadalupe County, Texas. Exclusive venue for any claims, suits, or any other action arising from or connected in any way to this Agreement or the performance of this Agreement is agreed to be in Guadalupe County, Texas. The obligations and undertakings of each of the parties to this Agreement will be deemed to have occurred in Guadalupe County, Texas. 35 Non - Solicitation of YMCA Employees. Upon the expiration or termination of this Agreement, regardless of the cause of such termination, Schertz will not solicit for employment, and/or employ, any then active employee of the YMCA for any reason for a period of one (1) year after the date of termination and /or expiration hereof, without the prior written consent of the YMCA. 36. Amendments. This Agreement may not be modified except in writing signed by Schertz and the YMCA. 33 Headings. The headings of the various sections and paragraphs in this Agreement are used for convenience only and shall not modify, define, limit, or expand the express provisions of this Agreement. Formatte 5202643.2 18 5235310.1523c i i 3$ Counterparts. This Agreement may be signed in multiple counterparts, each of which shall be deemed an original and all of which when taken together shall constitute one instrument. 39- Entire Agreement. This Agreement contains the entire agreement among the parties and supersedes all prior agreements and understandings, both written and oral, between the parties relating to the subject matter hereof. 40. Exhibits and Recitals. The exhibits and recitals are incorporated herein fully as matters of contract and not mere exhibits and recitals. The following exhibits are attached hereto: � lI 'o Exhibit A - Real Property Description Exhibit A -1 - Installed Items, Maintenance and Repair Responsibilities Exhibit B - Employee Job Descriptions Exhibit C - Initial Membership Rates Exhibit D - Samples of Existing Signage Exhibit E - Advisory Board Member Job Descriptions Exhibit F - Form of Sublicense Agreement and Related Documentation Exhibit G - Aquatic Facility ILA Exhibit H - Acknowledgement of Swimming Pool and Aquatic Center Completion Date Exhibit I - Scope of Work Related to the Outdoor Pools pp Is, nes on P allowing page] I' 111 Formatte 5202643.2 19 / 5235310.1523- i i IN WITNESS HEREOF, the parties hereto have executed this Agreement to be effective the day and year set forth above. CITY OF SCHERTZ, TEXAS, a Texas home rule city C John C. Kessel, City Manager YOUNG MEN'S CHRISTIAN ASSOCIATION OF GREATER SAN ANTONIO, a Texas non - profit corporation By: Name: President and CEO Formatte 1 A -1 5202643.2 5235310.1523c i i EXHIBIT A (Real Property Description) See attached Formatte A -2 5202643.2 ,5235310.1523- i I w 1 I K I �� ELBA R6. it 1 City Of 5chertz s New Recreation Cente �y �° � Schertz, i exas .sB AI, on _ yyy It 5 1 A A is 1 1 11 H A 1 I 1 i A �if I Z i 1 A 1 11 ref 1 Formatte A -3 5202643.2 5235310.1523- i i EXHIBIT A -1 Installed Items; Maintenance and Repair Responsibilities YMCA Installed Items -YMCA to Provide 1. All equipment, furniture, and supplies required by the YMCA for its operation of the Facility. 2. Vending machines containing drinks and snacks (pursuant to third party contracts). II. Maintenance and Repair Responsibilities of the YMCA' 1. Customary cleaning the interior of the Facility. 2. Removal of litter, trash and waste. 3. All of YMCA's information technology systems 4. Re- painting of the interior walls, as required by the YMCA. 5. Re- carpeting as required by the YMCA. 6. Normal and routine maintenance and repair of the HVAC systems serving the Facility. 7. Signage installed by the YMCA. 8. All components of the interior of the Facility which are (i) not covered by any warranty applicable to the construction of the Facility, or any component thereof, and (ii) not otherwise specifically allocated to Schertz as set forth below. 9. Repairs described in Part III below resulting from damage solely caused by the YMCA, its personnel, or members. 10. Routine maintenance and cleaning of the Swimming Pool and Aquatic Center. 11. Maintain proper PH and chlorine levels of the Swimming Pool and Aquatic Center. 12. Vacuum Swimming Pool and Aquatic Center and hose down deck. III. Maintenance and Repair Responsibilities of Schertz2 1. The exterior of the Facility, real property grounds, and parking lot, and all related components. 2. The foundation, exterior walls, interior walls (excluding routine re- painting as allocated to the YMCA above), structural walls, floors (excluding routine re- carpeting as allocated to the YMCA above), ceilings (both structural and drop) and other structural components of the Facility, roof, exterior doors, exterior door hardware, fixtures, exterior plate glass windows, and water, sewer, electrical, gas, telephone and cable facilities installed as part of the Facility, including, but not limited to those inside the foundation, inside of any wall, on the roof, or otherwise outside of the interior of the Facility, or on any other portion of the real property. 3. Damage to any part of the Facility due to any water leaks. Repairs described in this Part II resulting from damage by Schertz or its employees or the failure of Schertz to undertake its obligations under Part III shall be the responsibility of Schertz. 2 Repairs described in this Part III resulting from damage by the YMCA, its personnel, or members (other than routine wear and tear) or failure of the YMCA to undertake its obligations under Part II shall be the responsibility of the YMCA. 1 A -1 -1 5202643.2 5235310.1523c i Formatte 4. 5. 6. 7. 8. 9. 10 11. 12. 13. Damage to any part of the Facility due to any structural defect. Mold, mildew or other environmental issues pertaining to water intrusion or leaks. All capital repairs to the Facility (interior or exterior). Replacement of the HVAC systems, and related components, for the Facility Signage installed by Schertz. Exterior landscaping and all watering and irrigation components (including replacement of damaged landscaping and pruning of trees). The parking lot, curbs, driveways, sidewalks, and exterior lighting facilities (including striping of the parking lot). Drainage channels, rights of way and other easements on the real property. Any security equipment or facilities installed by Schertz. All items still covered under any original warranty applicable as part of the construction of the Facility by Schertz. Formatte 2 A -1 -2 5202643.2 5235310.1523- i EXHIBIT B Employee Job Descriptions See Attached. Formatte 3 B -1 5202643.2 ,5235310.1523- i EXHIBIT C Initial Membership Rates See Attached. Formatte C -1 5202643.2 ,5235310.1523- i EXHIBIT D Samples of Existing Signage See Attached. D -1 5202643.2 5235310.1523- i Formatte EXHIBIT E YMCA of Greater San Antonio Job Description for Advisory Board Member Title: Member, YMCA Advisory Board Responsible to: Chair of the Board Term: Three years (unless serving by special appointment or filling an unexpired term). Can be elected for two additional terms. Purpose: To serve as a voting member of the Advisory Board, advise the planning and policy decisions, promote fiscal responsibility, monitor and sanction activities, and raise funds through personal contributions and participation in the annual Partner's Campaign. Specific Duties: 1. Attend 70% of Board meetings. 2. Ask discerning questions, constructively participate in deliberations, and vote. 3. Assume leadership of Board groups and events as requested (such as committee, task force, or special project chairs). 4. Assume a major responsibility on at last one standing committee and on task forces as needed and attend 90% of committee meetings. 5. Work in areas where personal background and interests would be of value. 6. Assume a leadership role in the annual Partner's Campaign and set a goal to raise a minimum of $2,500 for the campaign. 7. Become a financial supporter of the YMCA through the Partner's Campaign at a stretching level with an optimal goal of achieving Chairman's Roundtable. Make a minimum contribution of $500 to the Partner's Campaign and set a goal to raise a minimum of $2,500 for the Campaign. 8. With other Board members and staff, review the budget, policies and program efforts for consistency within the YMCA's mission, programs, and core values. 9. Be willing and able to act as advocate of the YMCA in general and our association in particular. 10. Familiarize yourself with the YMCA's mission, programs, and objectives. 11. Become a member of the YMCA. 12. Be informed about YMCA programs and policies. 13. Educate yourself about the needs of the community. 14. Represent the YMCA at community events, organizations, and with private individuals. Speak proudly and positively. Personal Attributes: 1. Unquestionable character; live the charter values of caring, honesty, respect, and responsibility. 2. Commitment to the YMCA mission and Character Development Initiative. Formatte E -1 5202643.2 5235310.1523- i 3. High standing among his or her colleagues. 4. Respected citizen of the community. 5. Breadth of understanding and a tolerance of viewpoints of others. 6. Willing to state one's convictions and equally willing to accept the majority decision when in conflict with one's own stand. 7. An interest in the objectives and programs of the organization. 8. Deal openly and directly with the staff and other Board members when pleased and displeased. Responsibilities and Powers of the Board: 1. Recommend policies for administering programs and services which are in harmony with the mission and goals of the YMCA. 2. Recommend long -range goals and develop long -range strategies and tactics of the YMCA. 3. Secure funds for the current expenses by mobilizing the entire volunteer and staff forces for active participation in the annual Partner's Campaign. 4. Monitor the financial affairs in a responsible manner in accordance with established policies. 5. Recommend policies to maintain the property of the YMCA and the property for which the YMCA is responsible in a reasonable state of repair. Resignation Process: In writing to the Chair of the Board and Executive Director. Schertz Representation: The Schertz City Manager may designate up to three (3) persons to serve on the Board. FormattE E -2 5202643.2 5235310.1523c i EXHIBIT F Form of Sublicense Agreement and Related Documentation See attached. Forn 1 F -1 5202643.2 23S 5310.]�53'�.' CITY OF SCHERTZNMCA 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, S1 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 2 F -2 5202643.2 23S 5310.1523 - n i To Forn Attachment I 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 "). 1. FACILITY AND EVENT: kkkkkk. The YMCA agrees to furnish the User with the follow- Described space located in the City of s: hhhhhkk ,. 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) (Month) (Day) (Year) And terminating: (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 sums 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 -parry 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. Forn 3 F -3 5202643.2 23S 5310.1523 - n i 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. REMOVAL OF MATERIALS: All materials and installations placed in the facility by the User shall be removed from the facility by the end of the contracted time. In the event that this is not done, time 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 may be 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 KIND OR NATURE. k k 6. EXTRA HELP: In case it is necessary to employ 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 from and correct such violations. 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 any part of said building, nor shall the User make, or allow to be made, any alterations of 4 F -4 5202643.2 23S 5310.1523 - n i Forn any kind therein. Also, the User shall be responsible to insure no objects shall be placed in the drains, restroom facilities, or any other part of the water or sewer system so that maintenance 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 entrances, 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. Forn 5 F -5 5202643.2 23S 5310.1523 - n i 16. ATTORNEYS' 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 attorneys' fees. 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 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. Forn 6 F -6 5202643.2 j 23S 5310 1523 - i n i 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. 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 201 USER: �'!'�� THE YOUNG MEN'S CHRISTIAN ASSOCIATION OF GREATER SAN ANTONIO & THE HILL COUNTRY: Signature: Printed Na Name and address for security /cancellation deposit refund (if applicable): Name: Address: City, State, Zip Code: 7 F -7 5202643.2 23S 5310.1523 - n i President and CEO Forn 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 strictly prohibited. Clean -up 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. 2. 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 /YMCA Facility Sublicense Agreement. Printed Name: Address: City, State: Phone Number: Signature of the User's Representative: Forn 8 F -8 5202643.2 23S 5310.1523 - n i EXHIBIT G Aquatic Facility ILA See Attached. Formatte 1 G -1 5202643.2 ,5235310.1523- i EXHIBIT H Acknowledgement of Swimming Pool and Aquatic Center Completion Date To Be Attached. Formatte 1 H -1 5202643.2 23S 53101co�cin i EXHIBIT I Scope of Work for the Outdoor Pools I. Pickrell Park Pool A. Schedule 1. Dates of Operation: the three -month active term (approximately May 24- August 24 of each year of this Contract) 2. Hours of Operation: Mon, Tues, Wed, Fri, Sat, Sun Pool will be closed for cleaning on Thursday B. Employee Requirements 1. Minimum four guards on stands, one roving guard and one guard at wading pool 2. Minimum one manger on duty 3. Minimum one cashier on duty C. Services to be provided by YMCA 1. Maintain proper PH and chlorine levels and one guard at wading pool (chemicals to be provided by Schertz) 2. Vacuum pools and hose down deck 3. Clean locker rooms /restrooms 4. Empty trash receptacles 5. Collect admittance fees 6. Records maintenance II. Northcliffe Pool A. Schedule 1. Dates of Operation (approximately May 24 — August 24 of each year of this Contract) 2. Hours of Operation: Mon, Wed, Thurs, Fri, Sat, Sun Pool will be closed for cleaning on Tuesday B. Employee Requirements 1. Minimum two guards on stands, one roving guard, and one guard at wading pool 2. Minimum one manger on duty 3. Minimum one cashier on duty C. Services to be provided by YMCA 1. Maintain proper PH and chlorine levels (chemicals to be provided by Schertz) 2. Vacuum pools and hose down deck 3. Clean locker rooms /restrooms 4. Empty trash receptacles 5. Collect admittance fees 6. Records maintenance Formatte 1 I -1 5202643.2 5235310.1523c i III. Schertz shall provide the following: Required chemicals Routine maintenance Emergency repairs Formatte 2 I -2 5202643.2 ,5235310.1523- i SCHERTZ ENCLOSED COMMUNITY SWIMMING POOL AND AQUATIC FACILITY OF COMPETITION QUALITY, SPLASH PAD AND INDOOR RECREATION POOL LICENSE AGREEMENT THIS SCHERTZ ENCLOSED COMMUNITY SWIMMING POOL AND AQUATIC FACILITY OF COMPETITION QUALITY, SPLASH PAD, AND INDOOR RECREATION POOL LICENSE AGREEMENT (this "Agreement ") dated to be effective as of the day of , 2014 (the "Effective Date ") is between the City of Schertz, Texas, a Texas home rule city ( "Schertz "), and the Young Men's Christian Association of Greater San Antonio, a Texas non -profit corporation (the "YMCA "). WITNESSETH: WHEREAS, Schertz is the owner of a Schertz public recreation facility on the real property described on the attached Exhibit A ( "Real Property "), with a street address of 621 Westchester Drive, Schertz, Texas, upon which has been constructed a recreation center currently operated by the YMCA known as the Schertz Recreation Center (the "Recreation Center "). WHEREAS, Schertz and the YMCA previously entered into that certain Schertz Recreation Center License Agreement dated as of April 28, 2009 (the "Original Facility License Agreement "), pursuant to which Schertz and the YMCA set forth certain terms by which the YMCA manages the Recreation Center for Schertz, which Original Facility License Agreement was amended pursuant to that certain First Amendment to Schertz Recreation Center License Agreement dated as of March 15, 2011 (the "Facility License Agreement Amendment ", and collectively with the Original Facility License Agreement, the "Facility License Agreement "). WHEREAS, Schertz is in the process of constructing, or causing to be constructed, (1) an enclosed community swimming pool and aquatic facility of competition quality (the "Swimming Pool and Aquatic Center "); and (2) an indoor recreation pool (the "Recreation Pool "). WHEREAS, the Recreation Center is referred to herein as the "Facili " WHEREAS, the Swimming Pool and Aquatic Center, Splash Pad and Recreation Pool are collectively referred to herein as the "Aquatic Facili ". WHEREAS, the Facility and the Aquatic Facility are collectively referred to herein as the "Entire Facility ". WHEREAS, this Agreement relates to the Swimming Pool and Aquatic Center, Splash Pad and Recreation Pool ( "Aquatic Facility "). WHEREAS, Schertz and the YMCA entered into an Amended and Restated Schertz Recreation Center License Agreement and Outdoor Pools Management Agreement (the "Amended Facility License Agreement ") regarding, among other things, a license for, and operation and maintenance of, the Facility, dated as of the date of this Agreement, which amended and replaced in its entirety the Facility License Agreement. Formatte 5202648.2 j 5235178.1523- i i WHEREAS, Schertz desires that the YMCA manage the Aquatic Facility for Schertz, and the YMCA has agreed to do so pursuant to the terms and conditions of this Agreement. NOW THEREFORE, for good and valuable consideration, the sufficiency of which is acknowledged by both parties, Schertz and the YMCA accept this Agreement for the purposes, and upon the terms and conditions, set forth herein: 1. Exclusive License. Subject to the restrictions, terms, and conditions of this Agreement and further subject to the restrictions, terms, conditions, license, and rights granted to the Schertz - Cibolo- Universal City Independent School District ( "SCUCISD ") pursuant to the Natatorium Interlocal Agreement between Schertz and SCUCISD attached hereto as Exhibit G and incorporated herein for all purposes (the "Natatorium Interlocal Agreement "), Schertz hereby grants to the YMCA an exclusive right and license to manage and operate the Aquatic Facility for the purposes, in the manner, and for the period of time described in this Agreement (the "Rights "). This Agreement is not a lease of the Aquatic Facility and does not confer any ownership, leasehold, or other interest in the Aquatic Facility or the land on which it is located except as set forth herein. 2. Term. The initial term of this Agreement begins on the Effective Date and ends on the date which is twenty (20) years after the Aquatic Facility Completion Date (as defined in Section 11). Upon termination of this Agreement, the Rights licensed to the YMCA herein will automatically revert back to Schertz. If this Agreement is terminated, and if requested by Schertz, the YMCA and Schertz will acknowledge such termination and reversion in a signed written document. 3. General Terms of Construction, Use and Maintenance. The YMCA, at its cost and expense, will (1) perform the work and services for the operation and management of the Aquatic Facility as required herein, (ii) maintain the furniture, equipment and supplies as shown in Section I on the attached Exhibit A -1, and install and maintain any other furniture, equipment and supplies as otherwise required by the YMCA for its operation of the Aquatic Facility ( "YMCA Installed Items "), and (iii) conduct maintenance and repairs required for the Aquatic Facility as further described in Section II of Exhibit A -1 attached hereto. Schertz, at its cost and expense, (i) will provide, after the construction of the Aquatic Facility is complete, which the parties estimate to be by , 201_, the YMCA with the completed Aqutic Facility and a final Certificate of Occupancy for the Aquatic Facility in accordance with final plans and specifications provided to and approved by the the YMCA prior to final design of the Aquatic Facility, with all interior finishes completed (wall and floor coverings, lighting, HVAC systems, and other electrical and plumbing facilities and other items as set forth in the plans and specifications for the Aquatic Facility 1), which the YMCA hereby accepts [YMCA needs copies to review and approve. Approval is pending.], and ready for installation of the YMCA's Installed Items, and (ii) will install such additional components for the Aquatic Facility as further described on Exhibit attached hereto, and (iii) will conduct maintenance and repairs required for the exterior and Formatte 5202648.2 2 5235178.1523- i i other components of the Aquatic Facility as further described in Section III of Exhibit A -1 attached hereto. 4. Aquatic Facility Operations; Employees. (a) The YMCA will have exclusive control of the day -to -day operations of the Aquatic Facilityl, subject to the right of Schertz, described in Section 14, to inspect the Aquatic Facility for maintenance purposes or to ensure that the YMCA is properly carrying out its obligations under this Agreement. (b) The YMCA will provide all necessary employees for the Aquatic Facility, including employees who will meet or exceed the requirements described on Exhibit B. The YMCA agrees that all of its employees will be fully qualified and competent to do the work required of the YMCA under the terms of this Agreement. The YMCA shall be fully responsible for the hiring and dismissal of all employees. 5. Sublicense. (a) The YMCA shall have the authority to sublicense the Aquatic Facility to the following organizations or for the following purposes for members and/or non - members: (i) at no charge to the sublicensee: (1) for City of Schertz meetings;��''��, (2) for Healthy Kids Day (YMCA Program) — Saturdays 9 am to 1 pm; Q) for the Schertz Senior Center; and (ii) for an agreed fee with the sublicensee: (1) for birthday parties (YMCA Program) — periodically; (2) for health and wellness courses or seminars — periodically; Family Nights (YMCA Program); �4- for youth sports programs; � 5- Teen Lock -Ins; Clemens and Steel High School Project Graduation; 7 American Cancer Society Relay for Life; and U8 Swim clubs and swim teams; and Formatte 5202648.2 3 5235178.1523- i i (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 Aquatic Facility as permitted above (gross revenue, less direct Aquatic Facility expenses related to the event) shall be separately identified in the YMCA's books and records for the YMCA's activities at the Aquatic Facility and shall be used in full by the YMCA in operating the YMCA's activities at the Aquatic 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) Aquatic Facility sublicenses that involve exclusive reservation for a group of the entire Aquatic Facility must be scheduled for times other than during the YMCA's publicized hours of operation. Aquatic Facility sublicenses that do not provide a group exclusive use of the entire Aquatic Facilitymay not adversely affect members' usage of the Aquatic Facility during the YMCA's publicized hours of operation. (c) Any sublicense granted by the YMCA under this Section 5 shall be evidenced in writing using the Form of Sublicense Agreement attached hereto as Exhibit F. 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 or his/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 Section 5(a) , the City will refer the applicant to the YMCA, in all events subject to Section 5(b). 6. Aquatic Facility Revenues and Allocation of Expenses. (a) The YMCA will receive and retain all membership fees, vending machine profits, revenues from YMCA programs, receipts from Aquatic Facility sublicenses, and all other revenues generated from any event or operations at the Recreation Pool except for concession sales associated with SCUCISD swim meets. (b) Except as otherwise allocated to Schertz as provided herein, the YMCA will be responsible for all expenses related to the operation and management of the Aquatic Facility, including, but not limited to, employee salaries and the maintenance and repair of those items allocated to the YMCA in Section I on Exhibit A -1. At the time the YMCA Formatte 5202648.2 4 5235178.1523- i i occupies and begins operations of the Aquatic Facility, the YMCA shall be responsible for paying the monthly usage charges for the following utility services (prorated for any partial month): cable or satellite television service, telephone service, internet service, water and sewer service separately metered for the interior of the Aquatic Facility area, electric service separately metered for the interior of the Aquatic Facility area, and gas service (if any). (c) Schertz will be responsible for all expenses related to the maintenance and repair of those items allocated to Schertz in Section III on Exhibit A -1. Schertz will be responsible for paying all monthly usage charges for the following utility services: electric service for the lighting of the parking lot for the Entire Facility (which will be separately metered), and water service for all landscape irrigation for the Entire Facility (which will be separately metered). (d) Schertz will not charge to the YMCA, and the YMCA will not pay to Schertz, a license fee or any other fee during the term hereof. 7. Taxable Bonds. (a) Schertz will issue Two Million ($2,000,000.00) in taxable bonds (the "Bonds "), the proceeds of which Bonds shall be used to construct the Recreation Pool. (b) Commencing on the Recreation Pool Completion Date, the YMCA will pay to Schertz an amount of One Hundred Thousand and No /100 Dollars ($100,000.00) annually (the "YMCA Payment "), payable in equal monthly installments by the tenth (10th) day of each month of the term of this Agreement, in exchange for the license to use and operate the Recreation Pool as granted to the YMCA in this Agreement, which amount Schertz shall use to pay the debt service on the Bonds. 8. Membership Rates. (a) The membership rates for the Entire Facility set forth in the Amended Facility License Agreement shall include usage of the Aquatic Facility. Such rates are also set forth on Exhibit C attached hereto. No additional rate shall be charged for usage of the Aquatic Facility. 9. Marketing and Signage. (a) Using its normal and customary marketing programs as generally applied in the Bexar County, Texas area, the YMCA will be responsible for all marketing related to the Aquatic Facility and the YMCA's programs conducted therein, and will so market the Aquatic Facility, at a minimum, within the entire area in the Schertz city limits. Formatte 5202648.2 5 5235178.1523- i i (b) Unless the need of maintenance, repair or replacement is the result of the actions of Schertz, or those under its control, the YMCA, as determined by it in its sole and reasonable discretion from time to time, will be responsible for providing all necessary or desirable interior signage at the Aquatic Facility, as well as any exterior Aquatic Facility signage that includes the YMCA name. In the event any signage contains both the name of the Aquatic Facility as designated by Schertz, and the YMCA names or logos, the parties will agree as to the allocation of the costs of such signage prior to the manufacture of such signage. Exterior and interior signage desired by the YMCA will be subject to reasonable advance written approval by Schertz. Schertz may provide Schertz- related signage for the exterior and interior of the Recreation Pool, in addition to that displayed by the YMCA, and the YMCA will permit such signage to be placed in reasonable locations if requested by Schertz. Samples of signage currently located at the Recreation Center are shown on Exhibit D. Schertz and the YMCA agree to use their best efforts to finalize initial signage needed for the Aquatic Facility by 201_ 10. Aquatic Facility Pre - Opening YMCA Representative. The YMCA will designate an employee to work with Schertz during the construction period for the Aquatic Facility , to advise Schertz of YMCA recommendations with respect to the Aquatic Facility and to coordinate pre- opening activities. Subject to safety concerns and regulations, Schertz will allow the YMCA representatives to conduct tours of safe portions of the Aquatic Facility as part of its pre- opening marketing activities. 11. Initial Occupancy of the Aquatic Facility. Unless otherwise requested and approved by Schertz, the YMCA will have full access to the Aquatic Facility immediately after Schertz issues an initial Certificate of Occupancy for the Aquatic Facility. Subject to events beyond its control, the YMCA will open the Aquatic Facility to the public, and commence full operation thereof, no later than [ O] days after issuance of a final Certificate of Occupancy (the actual date upon which operations commence with respect to the Recreation Pool is referred to herein as the "Aquatic Facility Completion Date ", the parties shall acknowledge such date in a signed writing, which shall be attached to this Agreement as Exhibit H and which shall become a part of this Agreement). 12. Advisory Board. An advisory board (the "Advisory Board ") has been established by the YMCA to informally assist the YMCA in its operation of the Recreation Center, all in accordance with the procedures and requirements and Schertz representation set forth on the attached Exhibit E. The Advisory Board is and will continue to be to advise only, and will have no power to dictate policy or procedures to the YMCA. Commencing on the Effective Date of this Agreement and continuing throughout the term of this Agreement, the Advisory Board shall also informally assist the YMCA in its operation of the Aquatic Facility. Formatte 5202648.2 6 5235178.1523- i i 13. Insurance. YMCA Insurance. The YMCA will at all times during the term of this Agreement maintain and keep in full force and effect insurance in the following types and minimum amounts with companies authorized to do business in the State of Texas: (a) Commercial General Liability (including contractual liability): Bodily Injury & Property Damage: $1,0,00,000 per occurrence $5g< ,000 General Aggregate (b) Worker's Compensation: (c) Employers' Liability Bodily Injury by Accident - $500,000 each acci Bodily Injury by Disease - $500,000 each emplo: Bodily Injury by Disease - $500,000 policy limit Schertz Insurance. Schertz will at all times during the term of this Agreement maintain and keep in full force and effect insurance in the following types and minimum amounts with companies authorized to do business in the State of Texas: (a) Schertz Property Insurance Coverage: Throughout the term of this Agreement, Schertz shall maintain in full force a policy or policies of property insurance, issued by one or more insurance carriers licensed to do business in Texas, covering all buildings and improvements comprising the Aquatic Facility to the extent of their full replacement value (exclusive of subsurface foundation and excavation cost). Waiver of Subrogation. Schertz and the YMCA agree (and this Agreement shall bind Schertz and the YMCA, as well as their respective property insurers) that (i) if the Aquatic Facility (and /or in the case of Schertz, the other portions of the Real Property) or its contents are damaged or destroyed by fire or other casualty for which insurance is maintained, or an employee sustains an injury covered by Worker's Compensation insurance (or such damage or injury is of a type for which insurance was required to be maintained under the terms of this Agreement), the rights, if any, of either party against the other with respect to such damage, destruction or injury are waived with respect to both losses to the extent covered by insurance that is obtained as required under this Agreement and losses not covered due to deductibles, coinsurance penalties, insurance carrier insolvency, disputes with the insurance carrier regarding coverage or under - insurance; and (ii) that all property coverage policies, other insurance covering such property or its contents and Worker's Compensation insurance shall contain a clause or endorsement providing in substance that the insurance shall not be prejudiced if the insured have waived right of recovery from any person or Formatte 5202648.2 % 5235178.1523- i i persons prior to the date and time of loss or damage, if any. The failure of the parties to obtain such endorsements, however, shall not negate or otherwise adversely affect the waiver of subrogation herein set forth, which waiver in all instances shall be binding upon the parties and their respective insurers. Workers' Compensation. The Workers' Compensation coverage provided by the YMCA will inure to the benefit of employees injured during the course and scope of their employment by the YMCA at the Facility pursuant to this Agreement. All insurance required to be maintained by the YMCA pursuant to this Agreement, except for Worker's Compensation Insurance, will name Schertz as an additional insured. All insurance required to be maintained by Schertz pursuant to this Agreement, will name the YMCA as an additional insured. All such insurance coverage and each party's status as an additional insured, as appropriate, will be evidenced by one or more certificate(s) of insurance provided to the other party upon signing of this Agreement. Each party will be provided the notice by the other party's insurance provider not later than thirty (30) days prior to any reduction or termination of such coverage. 14. Inspections. The Schertz City Manager and /or his /her designee and the Schertz Director of Parks, Recreation and Community Services and /or his /her designee (each a "Schertz Representative ") may make periodic visits to the Aquatic Facility to assess any maintenance needs and /or to observe the progress and quality of the YMCA's executed work and services and to determine, in general, if the work and services are proceeding in accordance with this Agreement. The Schertz Representative will not be required to make exhaustive or continuous on- site inspections to check the quality or quantity of the work, nor will the Schertz Representative be responsible for the means, methods, techniques, sequences or procedures, or the safety precautions incident thereto. The Schertz Representative will not be responsible for the YMCA's failure to perform the work in accordance with this Agreement. 15. Notice for Repairs by YMCA. The YMCA will provide Schertz prompt written notice of any capital or other repairs and/or replacements to the Aquatic Facility for which Schertz is responsible under the terms of this Agreement, whereupon Schertz will use reasonable efforts (subject to public bidding requirements) to promptly initiate necessary repairs /replacement, and thereafter diligently and continuously pursue the completion thereof, provided, however, that notice of emergency repairs (those where there is imminent danger to life or property) shall require Schertz to respond immediately to either written or telephonic notice, and diligently undertake efforts to alleviate the immediate danger to life or property, and thereafter initiate necessary repairs /replacement as required above to diligently and continuously pursue the repair /replacement process to completion. Emergency repairs shall include, but shall not be limited to (i) water intrusion causing damage to the interior of the Aquatic Facility and/or the property of the YMCA, (ii) the failure of the HVAC system, (iii) the failure of any essential utility component of the Aquatic Facility (including, but not limited to water, electrical or sewage service), and/or (iv) the presence of, or introduction Formatte 5202648.2 g 5235178.1523- i i of, hazardous substance(s) in the Aquatic Facility. Schertz's obligation to undertake emergency repairs pursuant to this Section 15 may not relieve the YMCA of the obligation to pay for such repairs, depending on whether such emergency repairs were necessitated by actions of the YMCA, its employees, or its patrons. 16. Complaint Resolution. The YMCA will be responsible for resolving all complaints by members and patrons regarding the Aquatic Facility and YMCA operations. As part of the quarterly reports required by Section 18, the YMCA will provide Schertz with a summary of all material complaints received by the YMCA and the corresponding resolution to each. 17. Licenses, Certification, and Permits. The YMCA will, at its expense, obtain all permits, certifications, and licenses, and pay all related fees and taxes, necessary for the performance of its work and services under this Agreement, and will comply with all laws, ordinances, rules and regulations governing the YMCA's performance of this Agreement, including all environmental laws and regulations applicable to the YMCA's operation of the Aquatic Facility, whether state or federal. Schertz hereby waives all fees for City- required permits, licenses, and inspections relating to the Aquatic Facility. Schertz will comply with all laws, ordinances, rules and regulations governing its ownership of the Aquatic Facility and the Real Property, and its performance of this Agreement, including all environmental laws and regulations applicable to its ownership of the Aquatic Facility and the Real Property, whether state or federal. ` @��sc 9��sssssg° �Raaaaaaaa��Rx. 18. Quarterly Reports 7RecreAtion Pool. The YMCA will provide a report to Schertz covering the initial operating period of the Aquatic Facility from the Effective Date of this Agreement through , 201_ and thereafter will provide quarterly reports to Schertz covering January through March, April through June, July through September, and October through December of each year. Quarterly reports will be delivered to Schertz no later than the 45th calendar day after the end of each reporting period, and will provide generally the details regarding the budget, donations, membership roll, revenues, sponsorships, member and material patron written complaints, and other relevant operating details related to the Recreation Pool. The YMCA will make the Entire Facility's Executive Director available on reasonable request by the Schertz City Manager to make quarterly reports to the Schertz City Council. 19. Annual Audit. Schertz will conduct an audit each year, at the sole expense of Schertz, of the operations at the Entire Facility including the Aquatic Facility. The audit will be conducted by an internal and/or external audit team selected by Schertz. The YMCA will allow the persons conducting the audit to have full access to the Entire Facility including the Recreation Pool and all records related to the Entire Facility including the Aquatic Facility, including, but not limited to budgets, financial statements, and other financial and operational records, in order to complete the audit and will fully cooperate throughout the audit process. Schertz will provide the YMCA with a copy of each final audit report. Formatte 5202648.2 9 5235178.1523— i i 20. Semi - Annual "Schertz Night ". The Aquatic Facility will be made available exclusively to Schertz residents two times each year, at dates and times to be mutually agreed upon by the YMCA and Schertz. During these occasions, the YMCA will provide adequate staff and will open the Aqutic Facility for full use by Schertz residents. These times are intended to acquaint Schertz residents with the Aquatic Facility and to encourage membership. 21. Independent Contractor. It is expressly understood and agreed that the YMCA will perform all work and services described herein as an independent contractor and not as an officer, agent, servant, or employee of Schertz; that the YMCA will have exclusive control of and the exclusive right to control the details of the services and work performed hereunder, and all persons performing the same; that the YMCA will be solely responsible for the acts and omissions of its officers, agents, servants, employees, contractors, and subcontractors; that the doctrine of respondent superior will not apply as between Schertz and the YMCA, its officers, agents, servants, employees, contractors, and subcontractors; and that nothing herein will be construed as creating a partnership or joint enterprise between Schertz and the YMCA. No person performing any of the work or services described hereunder by the YMCA will be considered an officer, agent, servant, or employee of Schertz. Further, it is specifically understood and agreed that nothing in this Agreement is intended or will be construed as creating a "Community of Pecuniary Interest" or "An Equal Right of Control" which would give rise to vicarious liability. The YMCA will be an independent contractor under this Agreement and will assume all of the rights, obligations, and liabilities applicable to it as such independent contractor hereunder. Schertz does not have the power to direct the order in which the work is done or the services are provided. Schertz will not have the right to control the means, methods, or details of the YMCA's work or services. The YMCA will assume exclusive responsibility for the work or services, and the YMCA will be entirely free to do the work and provide the services as determined by it. 22. INDEMNITY. THE YMCA WILL INDEMNIFY AND HOLD HARMLESS AND DEFEND SCHERTZ AND ALL OF SCHERTZ'S COUNCILMEMBERS, OFFICERS, AGENTS, AND EMPLOYEES FROM ALL SUITS, ACTIONS, CLAIMS, DAMAGES, PERSONAL INJURIES, LOSSES, PROPERTY DAMAGE, AND EXPENSES OF ANY CHARACTER WHATSOEVER, INCLUDING REASONABLE ATTORNEYS' FEES, BROUGHT FOR OR ON ACCOUNT OF ANY INJURIES OR DAMAGES RECEIVED OR SUSTAINED BY ANY PERSON OR PERSONS OR PROPERTY, AS A RESULT OF ANY NEGLIGENT ACT OF THE YMCA, ITS AGENTS OR EMPLOYEES, OR ANY SUBCONTRACTOR OF THE YMCA, ARISING OUT OF, OR RESULTING FROM THE YMCA'S ACTIVITIES IN CONNECTION WITH THIS AGREEMENT. IN THE EVENT OF INJURIES OR DAMAGES RESULTING FROM THE NEGLIGENCE OF BOTH SCHERTZ AND THE YMCA (INCLUDING THEIR RESPECTIVE OFFICERS, AGENTS, EMPLOYEES, OR SUBCONTRACTORS), THE Formatte 5202648.2 10 5235178.1523- i i YMCA'S INDEMNITY HEREUNDER WILL BE LIMITED SOLELY TO THE EXTENT OF THE YMCA'S (INCLUDING ITS AGENT'S, EMPLOYEE'S, OR SUBCONTRACTOR'S) COMPARATIVE PORTION OF SUCH NEGLIGENCE. THIS INDEMNITY PROVISION DOES NOT APPLY TO FACILITY DEFECTS, WHICH ARE THE RESPONSIBILITY OF SCHERTZ. 23. RELEASE. NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, THE YMCA HEREBY RELEASES, ACQUITS, RELINQUISHES, AND FOREVER DISCHARGES SCHERTZ, SCHERTZ'S EMPLOYEES, OFFICERS, COUNCILMEMBERS, AND AGENTS, FROM ANY AND ALL DEMANDS, CLAIMS, DAMAGES, OR CAUSES OF ACTION REGARDING ANY AND ALL OPERATIONS IN CONNECTION WITH THIS AGREEMENT WHICH THE YMCA HAS OR MIGHT HAVE IN THE FUTURE, INCLUDING BUT NOT LIMITED TO QUANTUM MERUIT, CLAIMS UNDER THE DUE PROCESS AND TAKINGS CLAUSES OF THE TEXAS AND UNITED STATES CONSTITUTIONS, TORT CLAIMS, OR SCHERTZ'S NEGLIGENCE. THIS PROVISION DOES NOT INCLUDE CLAIMS FOR BREACH OF CONTRACT RELATED TO THIS AGREEMENT. 24. Assignment. Except for the sublicenses permitted by Section 5, neither parry may, either directly or indirectly, assign all or any part of this Agreement or any interest, right or privilege herein, without the prior written consent of the other party. The issue of whether or not to grant consent to an assignment is in the sole discretion of the party from whom consent has been requested. [Prior `Payment" Section from prior agreement is deleted. Under review] 25. Infringement. (a) If any of the Rights appear to be infringed by a third party, then the party becoming aware of such infringement will promptly notify the other party. Schertz will have the right, but not the obligation, to take action against the infringer, including the filing of lawsuits, without the prior consent of the YMCA. Schertz will notify the YMCA promptly of its election to do so. The YMCA may elect to join in any such legal proceedings initiated by Schertz against the alleged infringer. If Schertz elects not to take any action hereunder, then the YMCA may initiate legal proceedings on its own behalf, and Schertz may elect to join in those proceedings. (b) If either party hereto elects to join in legal proceedings commenced by the other party, then the control of such proceedings will remain in the hands of the initiating party, and all fees, costs, and expenses incurred by the initiating party, along with all damages and awards recovered thereby, shall be shared equally between the parties. If one party elects not to join in legal proceedings initiated by the other party, then such other party shall Formatte 5202648.2 5235178.1523- i i be responsible for all fees, costs, and expenses incurred therein, and shall receive all damages and awards recovered thereby. (c) Each party hereto will cooperate fully with the other in all aspects of any such litigation whether or not joining in the proceedings. 26. Schertz Warranties. Schertz hereby represents and warrants to the YMCA as follows: (a) To Schertz's actual knowledge without any investigation, (i) Schertz is the owner of the Rights; (ii) Schertz has the power and authority to enter into this Agreement and to grant to the YMCA the licenses set forth herein; and (iii) Schertz has good title and ownership in and to all Rights and the Real Property. (b) Schertz has not granted,:' rported to gra� spy third party any rights inconsistent with this Yement or with the R s and license granted the YMCA hereunder.,. (c) Schertz has not entered in any agreement with any thira0rty that would conflict with this Agreement or prevent Schertz's performance of this Agreement in accordance with its terms. (d) Schertz has the authority to enter into this Agreement, and Schertz has taken all necessary action lawfully to delegate that authority to Schertz's signatory hereto. (e) Except for the representations and warranties specifically provided above, Schertz makes no other representations or warranties regarding the Rights, its rights to the Rights, or its use of the Rights, and Schertz expressly disclaims and negates any and all warranties (express or implied) as to the Rights or its rights to the Rights. Except as specifically provided herein, THE RIGHTS ARE LICENSED TO THE YMCA ON AN AS -IS, WHERE -IS, AND WITHOUT FAULTS BASIS. 27. YMCA Warranties. YMCA hereby represents and warrants to Schertz as follows: (a) To YMCA's actual knowledge without any investigation, YMCA has the power and authority to enter into this Agreement and to accept the grants to the YMCA set forth herein. (b) YMCA has not granted or purported to grant any third party any rights inconsistent with this Agreement or with the Rights and license granted to the YMCA hereunder. Formatte 5202648.2 12 / 5235178.1523- i i (c) YMCA has not entered in any agreement with any third party that would conflict with this Agreement or prevent YMCA's performance of this Agreement in accordance with its terms. (d) YMCA has the authority to enter into this Agreement, and YMCA has taken all necessary action lawfully to delegate that authority to YMCA's signatory hereto. 28. Waiver of Attorneys' Fees. BY EXECUTING THIS AGREEMENT, THE YMCA AGREES TO WAIVE AND HEREBY WAIVES ANY CLAIM IT HAS OR MAY HAVE AGAINST SCHERTZ REGARDING THE AWARD OF ATTORNEYS' FEES WHICH ARE IN ANY WAY RELATED TO THE YMCA'S BREACH OF THIS AGREEMENT. 29. No Waiver of Sovereign Immunity. By executing this Agreement, Schertz is not waiving its right of sovereign immunity except with respect to actions by the YMCA to enforce its rights under this Agreement. 30. Third -Party Beneficiary. Except as described in Sections 22 and 23, this Agreement does not create a third -party beneficiary. Except as described in Sections 22 and 23, there is no third -party beneficiary to this Agreement. Except as described in Sections 22 and 23, no person or entity who is not a party to this Agreement will have any third party beneficiary or other rights hereunder. 31. Termination. In the event either party defaults under this Agreement (and such default remains uncured as set forth below), the non - defaulting party may terminate this Agreement; provided that the non - defaulting parry must first give the other party notice of any alleged event of default, and the opportunity for thirty (30) days after such notice (or such longer period the parties agree is reasonably necessary, but in no case longer than ninety (90) days) to cure such default. If the default is not cured in such thirty (30) day period (or agreed longer period), the non - defaulting party may thereafter declare this Agreement terminated and of no further force or effect. The parties to this Agreement understand and agree that it is in each party's reasonable discretion whether or not to terminate this Agreement without penalty to the terminating party. Upon any termination, all equipment, furniture, fixtures, and supplies purchased, provided, owned, or brought into the Aquatic Facility by the YMCA will remain the property of the YMCA, and will be removed from the Aquatic Facility within thirty (30) days after the termination hereof. Upon termination, all equipment, furniture, fixtures, and supplies purchased, provided, owned, or brought into the Aquatic Facility by Schertz will remain the property of Schertz. In the event Schertz terminates the agreement as a result of a uncured default on the part of the YMCA, the YMCA will pay to Schertz an amount of One Hundred Thousand and No /100 Dollars ($100,000.00) annually (the "YMCA Payment "), payable in equal monthly installments by the tenth (10th) day of each month for the original term of this Agreement, which amount Schertz shall use to pay the debt service on the Bonds. The provisions of Sections 22 and 23 shall survive termination of this Formatte 5202648.2 13 / 5235178.1523- i i Agreement. Schertz may terminate the provisions of this Agreement in its entirety if the Bonds are not approved and /or issued as described above or within six (6) months of issuing the Bonds. 31. Notice of Alleged Breach; Statutory Prerequisites. Before the YMCA may file suit for alleged damages incurred by an alleged breach of an express or implied provision of this Agreement, the YMCA or its legal representative, will give the Schertz City Manager notice in writing of such damages, duly verified, within ninety (90) days after the same has been sustained. The notice will include when, where, and how the damages occurred, the apparent extent thereof, the amount of damages sustained, the amount for which the YMCA will settle, the physical and mailing addresses of the YMCA at the time and date the claim was presented, the physical and mailing addresses of the YMCA for the six (6) months immediately preceding the occurrence of such damages, and the names and addresses of the witnesses upon whom the YMCA relies to establish its claim. Failure by the YMCA to so notify the Schertz City Manager within the time, in the manner, and to the extent herein provided will exonerate, excuse, and except Schertz from any liability whatsoever. Schertz reserves the right to request additional information regarding the claim. Said additional information will be supplied to Schertz within thirty (30) days after the YMCA's receipt of such request. The statutory prerequisites outlined herein constitute jurisdictional requirements pursuant to Section 271.154 of the Texas Local Government Code and Section 311.034 of the Texas Government Code. Notwithstanding any other provision, the YMCA's failure to comply with the requirements herein will perpetually bar the YMCA's claim for damages under Chapter 271 of the Texas Local Government Code, and Section 311.034 of the Texas Government Code, regardless of whether Schertz has actual or constructive notice or knowledge of said claim or alleged damages. 32. Notice. Any notice or demand made regarding this Agreement will be made in writing and delivered either in person or by certified or registered mail. Except as otherwise specifically provided herein, notice by mail will be complete upon deposit of the paper, postage prepaid, in a post office or official depository under the care and custody of the United States Postal Service addressed as follows: If to Schertz: City of Schertz 1400 Schertz Parkway Schertz, Texas 78154 Attention: City Manager with copies to: City of Schertz 1400 Schertz Parkway Schertz, Texas 78154 Attention: Director of Parks, Recreation and Community Services Formatte 5202648.2 14 / 5235178.1523- i i City Attorney Norton Rose Fulbright 300 Convent Street, Suite 2100 San Antonio, Texas 78205 Attention: Katherine A. Tapley If to the YMCA: YMCA of Greater San Antonio 3233 North St. Mary's San Antonio, Texas 78212 Attention: Ross Magsig with copies to: Cox & Smith 112 E. Pecan, Suite 1800 San Antonio, Texas 78205 Attention: Kerry T. Benedict The parties hereto may change the above designated addresses and notice parties by giving notice pursuant to the terms of this Section 32. 33. Severability. In case any one or more of the provisions contained in this Agreement is for any reason held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability will not affect any other provision hereof, and this Agreement will be considered as if such invalid, illegal, or unenforceable provision had never been contained in this Agreement. 34. Governing Law and Venue. This Agreement will be governed by the laws of the State of Texas. All performance and payment made pursuant to this Agreement will be deemed to have occurred in Guadalupe County, Texas. Exclusive venue for any claims, suits, or any other action arising from or connected in any way to this Agreement or the performance of this Agreement is agreed to be in Guadalupe County, Texas. The obligations and undertakings of each of the parties to this Agreement will be deemed to have occurred in Guadalupe County, Texas. 35. Non - Solicitation of YMCA Employees. Upon the expiration or termination of this Agreement, regardless of the cause of such termination, Schertz will not solicit for employment, and/or employ, any then active employee of the YMCA for any reason for a period of one (1) year after the date of termination and /or expiration hereof, without the prior written consent of the YMCA. 36. Amendments. This Agreement may not be modified except in writing signed by Schertz and the YMCA. 37. Headings. The headings of the various sections and paragraphs in this Agreement are used for convenience only and shall not modify, define, limit, or expand the express provisions of this Agreement. Formatte 5202648.2 15 / 5235178.1523- i i 38. Counterparts. This Agreement may be signed in multiple counterparts, each of which shall be deemed an original and all of which when taken together shall constitute one instrument. 39. Entire Agreement. This Agreement contains the entire agreement among the parties and supersedes all prior agreements and understandings, both written and oral, between the parties relating to the subject matter hereof. 40. Exhibits and Recitals. The exhibits and recitals are incorporated herein fully as matters of contract and not mere exhibits and recitals. The following exhibits are attached hereto: I "�Ijo Exhibit A — Real Property Description Exhibit A -1 — Installed Items, Maintenance and Repair Responsibilities Exhibit B — Employee Job Descriptions Exhibit C — Initial Membership Rates Exhibit D — Samples of Existing Signage Exhibit E — Advisory Board Member Job Descriptions Exhibit F — Form of Sublicense Agreement and Related Documentation Exhibit G — Natatorium ILA Exhibit H — Acknowledgement of Recreation Pool Completion Date [ Signatures on the following page] a. 06666666$.. . Formatte 5202648.2 16 / 5235178.1523— i i IN WITNESS HEREOF, the parties hereto have executed this Agreement to be effective the day and year set forth above. CITY OF SCHERTZ, TEXAS, a Texas home rule city John C. Kessel, City Manager YOUNG MEN'S CHRISTIAN ASSOCIATION OF GREATER SAN ANTONIO, a Texas non - profit corporation By: Name: President and CEO Formatte 1 A -1 5202648.2 5235178.1523- i i EXHIBIT A (Real Property Description) See attached Formatte A -2 5202648.2 ,5235178.1523- i I w 1 I K I �� ELBA R6. it 1 City Of 5chertz s New Recreation Cente �y �° � Schertz, i exas .sB AI, on _ yyy It 5 1 A A is 1 1 11 H A 1 I 1 i A �if I Z i 1 A 1 11 ref 1 Formatte A -3 5202648.2 5235178.1523- i i EXHIBIT A -1 Installed Items; Maintenance and Repair Responsibilities I. YMCA Installed Items -YMCA to Provide 1. All equipment, furniture, and supplies required by the YMCA for its operation of the Recreation Pool. II. Maintenance and Repair Responsibilities of the YMCA' 1. Removal of litter, trash and waste. 2. All of YMCA's information technology systems 3. Re- painting of the interior walls, as required by the YMCA. 4. Re- carpeting as required by the YMCA. 5. Normal and routine maintenance and repair of the HVAC systems serving the Facility. 6. Signage installed by the YMCA. 7. All components of the interior of the Facility which are (i) not covered by any warranty applicable to the construction of the Facility, or any component thereof, and (ii) not otherwise specifically allocated to Schertz as set forth below. 8. Repairs described in Part III below resulting from damage solely caused by the YMCA, its personnel, or members. 9. Routine maintenance and cleaning of the Recreation Pool. 10. Maintain proper PH and chlorine levels of the Recreation Pool. 11. Vacuum Recreation Pool and hose down deck. III. Maintenance and Repair Responsibilities of Schertz2 1. The exterior of the Recreation Pool portion of the Natatorium, real property grounds, and parking lot, and all related components. 2. The foundation, exterior walls, interior walls (excluding routine re- painting as allocated to the YMCA above), structural walls, floors (excluding routine re- carpeting as allocated to the YMCA above), ceilings (both structural and drop) and other structural components of the Recreation Pool, roof, exterior doors, exterior door hardware, fixtures, exterior plate glass windows, and water, sewer, electrical, gas, telephone and cable facilities installed as part of the Recreation Pool portion of the Natatorium, including, but not limited to those inside the foundation, inside of any wall, on the roof, or otherwise outside of the interior of the Recreation Pool portion of the Natatorium, or on any other portion of the real property. 3. Damage to any part of the Recreation Pool portion of the Natatorium due to any water leaks. 1 Repairs described in this Part II resulting from damage by Schertz or its employees or the failure of Schertz to undertake its obligations under Part III shall be the responsibility of Schertz. 2 Repairs described in this Part III resulting from damage by the YMCA, its personnel, or members (other than routine wear and tear) or failure of the YMCA to undertake its obligations under Part II shall be the responsibility of the YMCA. Formatte 1 A -1 -1 5202648.2 5235178.1523- i 4. Damage to any part of the Recreation Pool portion of the Natatorium due to any structural defect. 5. Mold, mildew or other environmental issues pertaining to water intrusion or leaks. 6. All capital repairs to the Recreation Pool portion of the Natatorium (interior or exterior). 7. Replacement of the HVAC systems, and related components, for the Recreation Pool portion of the Natatorium. 8. Signage installed by Schertz. 9. Exterior landscaping and all watering and irrigation components (including replacement of damaged landscaping and pruning of trees). 10. The parking lot, curbs, driveways, sidewalks, and exterior lighting facilities (including striping of the parking lot). 11. Drainage channels, rights of way and other easements on the real property. 12. Any security equipment or facilities installed by Schertz. 13. All items still covered under any original warranty applicable as part of the construction of the Recreation Pool portion of the Natatorium by Schertz. 2 A -1 -2 5202648.2 5235178.1523- i Ca Formatte EXHIBIT B Employee Job Descriptions See Attached. Formatte 3 B -1 5202648.2 ,5235178.1523- i EXHIBIT C Initial Membership Rates See Attached. Formatte C -1 5202648.2 ,5235178.1523- i EXHIBIT D Samples of Existing Signage See Attached. D -1 5202648.2 5235178.1523- i Formatte EXHIBIT E YMCA of Greater San Antonio Job Description for Advisory Board Member Title: Member, YMCA Advisory Board Responsible to: Chair of the Board Term: Three years (unless serving by special appointment or filling an unexpired term). Can be elected for two additional terms. Purpose: To serve as a voting member of the Advisory Board, advise the planning and policy decisions, promote fiscal responsibility, monitor and sanction activities, and raise funds through personal contributions and participation in the annual Partner's Campaign. Specific Duties: 1. Attend 70% of Board meetings. 2. Ask discerning questions, constructively participate in deliberations, and vote. 3. Assume leadership of Board groups and events as requested (such as committee, task force, or special project chairs). ggggggs�G 4. Assume a major responsibility on at last one standing committee and on task forces as needed and attend 90% of committee meetings. 5. Work in areas where personal background and interests tould be of value. 6. Assume a leadership role in the annual Partner's Campaign and set a goal to raise a minimum of $2,500 for the campaign. 7. Become a financial supporter of the YMCA through the Partner's Campaign at a stretching level with an optimal goal of achieving Chairman's Roundtable. Make a minimum contribution of $500 to the Partner's Campaign and set a goal to raise a minimum of $2,500 for the Campaign. 8. With other Board members and staff, review the budget, policies and program efforts for consistency within the YMCA's mission, programs, and core values. 9. Be willing and able to act as advocate of the YMCA in general and our association in particular. 10. Familiarize yourself with the YMCA's mission, programs, and objectives. 11. Become a member of the YMCA. 12. Be informed about YMCA programs and policies. 13. Educate yourself about the needs of the community. 14. Represent the YMCA at community events, organizations, and with private individuals. Speak proudly and positively. Formatte E -1 5202648.2 5235178.1523- i Personal Attributes: 1. Unquestionable character; live the charter values of caring, honesty, respect, and responsibility. 2. Commitment to the YMCA mission and Character Development Initiative. 3. High standing among his or her colleagues. 4. Respected citizen of the community. 5. Breadth of understanding and a tolerance of viewpoints of others. 6. Willing to state one's convictions and equally willing to accept the majority decision when in conflict with one's own stand. 7. An interest in the objectives and programs of the organization. 8. Deal openly and directly with the staff and other Board members when pleased and displeased. Responsibilities and Powers of the Board: 1. Recommend policies for administering ,qgrams and services which are in harmony with the mission and goals of the YMCAgo��ss. 2. Recommend long -range goals and develop long -range strategies and tactics of the YMCA. 3. Secure funds for the current expenses by mobilizing the entire volunteer and staff forces for active participation in the annual Partner's Campaign. 4. Monitor the financial affairs in a responsible manner in accordance with established policies. 5. Recommend policies to maintain the property of the YMCA and the property for which the YMCA is responsible in a reasonable state of repair. Resignation Process: In writing to the Chair of the Board and Executive Director. Schertz Representation: The Schertz City Manager may designate up to three (3) persons to serve on the Board. Formatte E -2 5202648.2 5235178.1523- i EXHIBIT F Form of Sublicense Agreement and Related Documentation See attached. 1 F -1 5202648.2 23S 5178 1 2X-47Q i / Preferred room(s): Organization: Proposed use i Date(s) of prod Estimated atte Contact Persoi Name: Address: City, State, Zip Code: Email: Telephone: CITY OF SCHERTZ/YMCA RECREATION CENTER RESERVATION APPLICATION "BBBBaa b ,4800000809034 ;, Alternate Telephone: Time of use (set -up and clean -up time must be included in the time of use): From Event official starting and ending times: From To ":588999$x. Attachment 1 — City of Schertz/YMCA Facility Sublicense Agreement Attachment 2 — Decoration Restrictions and Clean -up Requirements To 2 F -2 5202648.2 23S 5178 1 2X_47Q i / Attachment I 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 Schertz YMCA Recreation Center: to be used for the purpose of and for no other purpose without the written (Time) And terminating: (Time) (Month) the YMCA for a bed space located in the City of (Year (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 sums 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. Forn F -3 5202648.2 23�$ 5178 1 523- i 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. REMOVAL OF MATERIALS: All materials and installations placed in the facility by the User shall be removed from the facility by the end of the contracted time. In the event that this is not done, time 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. oeBBk8888888�; 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 may be 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 KIND OR NATURE. 6. EXTRA HELP: hhhhhhh -, In case it is necessary to employ 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 from and correct such violations. 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 any part of said building, nor shall the User make, or allow to be made, any alterations of Forn F -4 5202648.2 23�$ 5178 1 523— i any kind therein. Also, the User shall be responsible to insure no objects shall be placed in the drains, restroom facilities, or any other part of the water or sewer system so that maintenance 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 entrances, 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. Forn F -5 5202648.2 23�$ 5178 1 523- i 16. ATTORNEYS' 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 attorneys' fees. 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 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 Forn F -6 5202648.2 23�$ 5178 1 523- i 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. 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. A& IN WITNESS WHEREOF, we have affixed our §,JOW',es, this day of 201_ USER: Signature: W THE YOUNG ME RISTIAN ASSOCIATION O7FG ER SAN ANTONIO & THE HILL COUNTkR"' President and CEO Printed Name: -q Name and address for security /cancellation deposit refund (if applicable): Name: FIX Re = City, State, Zip Code: F-7 5202648.2 �235178.1523- i. /( Eorn 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 strictly prohibited. Clean -up requirements The User will be responsible for the following: Litter: All paper, cups, plates, foil, and decorations, etc. must be picked up and placed in a trash receptacle. 18888SSSS, 2. 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/YMCA Facility Sublicense Agreement. Printed Name: Address: City, State: Phone Number: Signature of the User's Representative: Formatte F -8 5202648.2 5235178.1523- i EXHIBIT G Natatorium ILA See Attached. Formatte 1 G -1 5202648.2 ,5235178.1523- i EXHIBIT H Acknowledgement of Recreation Pool Completion Date To Be Attached. Formatte 1 H -1 5202648.2 23S 5178 lco�c�4 i Agenda No. 5 CITY COUNCIL MEMORANDUM City Council Meeting: July 8, 2014 Department: Parks and Recreation Subject: Resolution 14 -R -60 — A Resolution Authorizing the Design Services Agreement for the New Indoor Aquatic Facility and Associated Support Systems BACKGROUND Goal To provide the citizens with a new indoor Aquatics Facility that meets the needs of the growing community and the requirements of the 2010 Bond. Community Benefit The community will benefit from this new indoor Aquatic Facility containing a community pool of competition quality and a second pool that will be suitable for a variety of uses. Selection Process The original Request for Qualifications for design services was issued in December 2011. Evaluation of the seven responses resulted in the selection of Marmon Mok as the most qualified respondent. A Contract for Masterplanning the site was issued to Marmon Mok in April of 2012 and the Masterplan was completed in August of 2012. Following the approval of the Masterplan the process was placed on hold to allow discussions with other groups as to their level of interest of participation in the Project. Those discussions have been concluded and an Agreement has been reached with Marmon Mok to provide complete Architectural and Engineering services for the new Aquatic Facility. Summary of Recommended Action Staff recommends approval of Resolution No 14 -R -60 authorizing the City Manager to execute an Agreement for the design of the new Aquatic Facility and associated support systems. FISCAL IMPACT Funds will be from the 2010 Bond Package. The total amount payable under this Agreement shall not exceed $650,800.00 plus $25,000.00 of City contingency funds for a total amount of $675,800.00. RECOMMENDATION Approval of Resolution 14 -R -60 ATTACHMENT(S) Copy of Marmon Mok Agreement Copy of the Masterplan Resolution No. 14 -R -60 RESOLUTION NO. 14 -R -60 A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS AUTHORIZING THE DESIGN SERVICES AGREEMENT FOR THE NEW INDOOR AQUATIC FACILITY AND ASSOCIATED SUPPORT SYSTEMS AND OTHER MATTERS IN CONNECTION THEREWITH WHEREAS, the City staff of the City of Schertz (the "City ") has recommended that the City enter into an Agreement with Marmon Mok for Architectural and Engineering services for the design of the new indoor Aquatic Facility; and WHEREAS, the City Council has determined that it is in the best interest of the City to enter into an Agreement with Marmon Mok and the Agreement attached hereto as Exhibit A (the "Agreement "). BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS THAT: Section 1. The City Council hereby authorizes the City Manager to execute and deliver the Agreement with Marmon Mok in substantially the form set forth on Exhibit A. The total amount payable under this Agreement shall not exceed $650,800.00 plus $25,000.00 of City contingency funds for a total amount of $675,800.00. Section 2. The recitals contained in the preamble hereof are hereby found to be true, and such recitals are hereby made a part of this Resolution for all purposes and are adopted as a part of the judgment and findings of the City Council. Section 3. All resolutions, or parts thereof, which are in conflict or inconsistent with any provision of this Resolution are hereby repealed to the extent of such conflict, and the provisions of this Resolution shall be and remain controlling as to the matters resolved herein. Section 4. This Resolution shall be construed and enforced in accordance with the laws of the State of Texas and the United States of America. Section 5. If any provision of this Resolution or the application thereof to any person or circumstance shall be held to be invalid, the remainder of this Resolution and the application of such provision to other persons and circumstances shall nevertheless be valid, and the City Council hereby declares that this Resolution would have been enacted without such invalid provision. Section 6. It is officially found, determined, and declared that the meeting at which this Resolution is adopted was open to the public and public notice of the time, place, and subject matter of the public business to be considered at such meeting, including this Resolution, was given, all as required by Chapter 551, Texas Government Code, as amended. Section 7. This Resolution shall be in force and effect from and after its final passage, and it is so resolved. PASSED AND ADOPTED, this day of , 2014. CITY OF SCHERTZ, TEXAS Michael R Carpenter, Mayor ATTEST: Brenda Dennis, City Secretary (CITY SEAL) 50234811.1 EXHIBIT A MARMON MOK AGREEMENT 11'ilA Document B101`-2007- AGREEMENT made as of the day of in the year (In words, indicate day, month and year.) BETWEEN the Architect's client identified as the Owner: ADDITIONS AND DELETIONS: (Name, legal status, address and other information) The author of this document has added information needed for its City of Schertz completion. The author may also 1400 Schertz Parkway have revised the text of the original Schertz, Texas 78154 AIA standard form. An Additions and Deletions Report that notes added information as well as revisions to the standard form text is available and the Architect: from the author and should be (Name, legal status, address and other information) reviewed. A vertical line in the left margin of this document indicates Marmon Mok where the author has added One Riverwalk Place necessary information and where 700 North St. Mary's; Suite 1600 the author has added to or deleted San Antonio, Texas 78205 from the original AIA text. for the following Project: This document has important legal (Name, location and detailed description) consequences. Consultation with an attorney is encouraged with respect Aquatic Facility to its completion or modification. Schertz, Texas 'The Owner and Architect agree as follows. Init. AIA Document 8101 r —2007 (formerly 8151 T — 1897). Copyright C 1974, 1978, 1987, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA (f Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIAe Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible t der the law. This document was produced by AIA software at 12 :49:50 on 08/27/2014 under Order No.7931813803 which expires on 08!1512015, and is not resale. user Notes: (389ADA22) TABLE OF ARTICLES 1 INITIAL INFORMATION 2 ARCHITECT'S RESPONSIBILITIES 3 SCOPE OF ARCHITECT'S BASIC SERVICES 4 ADDITIONAL SERVICES 5 OWNER'S RESPONSIBILITIES 6 COST OF THE WORK 7 COPYRIGHTS AND LICENSES 8 CLAIMS AND DISPUTES 9 TERMINATION OR SUSPENSION 10 MISCELLANEOUS PROVISIONS 11 COMPENSATION 12 SPECIAL TERMS AND CONDITIONS 13 SCOPE OF THE AGREEMENT EXHIBIT A INITIAL INFORMATION ARTICLE 1 INITIAL INFORMATION § 1.1 This Agreement is based on the Initial Information set forth in this Article 1 and in optional Exhibit A, Initial Information: t :: (Complete Exhibit A, Initial Information, and incorporate it into the Agreement at Section 13.2, or state below Initial Information such as details of the Project's site and program, Owner's contractors and consultants, Architect's consultants, Owner's budget for the Cost of the Work, authorized representatives, anticipated procurement method, and other information relevant to the Project.) A Natatorium consisting of an enclosed community pool of competition quality measuring twenty-five (25) yards by twenty-five (25) meters and a second body of water measuring approximately thirty-five hundred (3,500) square feet by with a depth of zero inches (0' -0 ") to a maximum of four feet zero inches (4' -0 ") and shall include at a minimum a ramp, slide and exercise area. The facility shall contain locker and toilet facilities in addition to support areas as required by the Owner and the approved program. The primary pool area shall contain timing equipment and seating for not less than three hundred (300) spectators. The Ownees budget for this Project is $8,000,000.00, which includes construction costs, contingencies, equipment, and all architectural /engineering fees associated with this Agreement's Scope of Work. The Owner will procure construction using the Construction Manager At -Risk (CMAR) delivery method. § 1.2 The Owner's anticipated dates for commencement of construction and Substantial Completion of the Work are set forth below: .1 Commencement of construction date: Novermber 2014 .2 Substantial Completion date: snit AIA Document B101 T'" — 2007 (formerly 8151 TM — 1997). Copyright @ 1974, 1978, 1987, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA° Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIAO Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible t nder the law. This document was produced by AIA software at 12:49:50 on 06/27/2014 under Order No.7931813803 which expires on 06/1512015, and is not resale. User Notes: (389ADA22) November 2015 § 1.3 The Owner and Architect may rely on the Initial Information. Both parties, however, recognize that such information may materially change and, in that event, the Owner and the Architect shall appropriately adjust the schedule, the Architect's services and the Architect's compensation. ARTICLE 2 ARCHITECT'S RESPONSIBILITIES § 2.1 The Architect shall provide the professional services as set forth in this Agreement. § 2.2 The Architect shall perform its services consistent with the professional skill and care ordinarily provided by architects practicing in the same or similar locality under the same or similar circumstances. The Architect shall perform its services as expeditiously as is consistent with such professional skill and care and the orderly progress of the Project. § 2.3 The Architect designates Gregory J. Houston, AIA Principal, and Cody McBrearty, Project Manager, as the Architect's representatives authorized to act on behalf of the Architect with respect to the Project. The Architect's representatives shall be available to the Owner at all reasonable times for consultation with the Owner. The Architect may not change its representatives without written approval of the Owner. Such approval shall not be unreasonably withheld. § 2.4 Except with the Owner's knowledge and consent, the Architect shall not engage in any activity, or accept any employment, interest or contribution that would reasonably appear to compromise the Architect's professional judgment with respect to this Project. § 2.5 The Architect shall provide and maintain the following insurance for the duration of this Agreement. Professional liability shall be maintained for not less than (2) years following Substantial Completion of the Project. Insurance of the following types and with indemnification limits not less than the amounts indicated are required: (Ident , types and limits of insurance coverage, and other insurance requirements applicable to the Agreement, if any) Professional Liability: $1,000,000 per claim and $2,000,000 in the aggregate Worker's Compensation $1,000,000.00 Comprehensive General Liability Occurance $1,000,000.00 ('Paragraph Deleted) Aggregate $2,000,000.00 Personal Injury $1,000,000.00 each person (Coverage to include groups A,B & C w /exclusion "C" aggregate removed Automobile Liability $1,000,000 combined single limit Architect's Consultants $500,000 (Paragraph Deleted) .1 The required insurance must be written by a company licensed to do business in Texas at the time The policy is issued. In addition, the company must be acceptable to the Owner. The Owner's Representative will contact the State Board of Insurance to confirm that the issuing companies are admitted and authorized to issue such polices in the State of Texas. /nit AIA Document B101 m —2007 (formerly 8151 M — 1997). Copyright Q 1974, 1978, 1987, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA (f Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible t rider the law. This document was produced by AIA software at 12:49:50 on 08/27/2014 under Order No.7931813803 which expires on 08/15/2015, and is not or resale. User Notes: (389ADA22) (Paragraph Deleted) .2 The policy so issued in the name of Architect shall also name the Owner as additional insured, except for professional liability insurance and worker's compensation insurance. To the extent an Architect's Consultant is named as an additional insured on any policy held by the Architect, separate coverage shall not be required of the Architect's Consultants. All policies held by the Architect shall be primary coverage. (Paragraph Deleted) 3. Architect shall have its insurance carrier(s) furnish to Owner insurance certificates in form satisfactory to Owner specifying the types and amounts of coverage in effect, the expiration dates of each policy, a statement that no insurance will be canceled or materially changed while the Work is in progress without thirty (30) calendar days prior written notice to Owner, and a statement that, except for professional liability insurance and worker's compensation insurance, the Owner is named as additional insured. Architect shall permit Owner to examine the insurance policies, or at Owner's option, Architect shall furnish Owner with copies, certified by the carrier(s), of insurance policies required. If Architect neglects or refuses to provide any insurance required herein, or if any insurance is canceled, Owner may, but shall not be obligated to, procure such insurance at Architect's expense. .4 Insurance provided pursuant to this Section shall be considered a part of the Architect's Basic services and shall not be Reimbursable Expense within the scope of Section 11. 8, or other provisions of this Agreement. \ .5 Architect's General Liability, Automobile Liability, and Worker's Compensation Insurance policies shall be endorsed to provide a waiver of subrogation in favor of the Owner. (Paragraph Deleted) ARTICLE 3 SCOPE OF ARCHITECT'S BASIC SERVICES § 3.1 The Architect's Basic Services consist of those described in Article 3 and include usual and customary structural, mechanical, and electrical engineering services. Services not set forth in this Article 3 are Additional Services. § 3.1.1 The Architect shall manage the Architect's services, consult with the Owner, research applicable design criteria, attend Project meetings, communicate with members of the Project team and report progress to the Owner. The Architect shall assist in the selection of a Construction Manager and shall consult with the Construction Manger during the design phase to maintain the Project budget, increase value to the Owner, and ensure constructability. The Architect shall provide draft design documents for estimating and pricing at the 30 %, 60% and 90% completion for review by the Owner and the Construction Manager. § 3.1.2 The Architect shall coordinate its services with those services provided by the Owner and the Owner's consultants. The Architect shall be entitled to rely on the accuracy and completeness of services and information furnished by the Owner and the Owner's consultants. The Architect shall provide prompt written notice to the Owner if the Architect becomes aware of any error, omission or inconsistency in such services or information. § 3.1.3 As soon as practicable after the date of this Agreement, the Architect shall submit for the Owner's approval a schedule for the performance of the Architect's services. The schedule initially shall include anticipated dates for the commencement of construction and for Substantial Completion of the Work as set forth in the Initial Information. The schedule shall include allowances for periods of time required for the Owner's review, for the performance of the Owner's consultants, and for approval of submissions by authorities having jurisdiction over the Project. Once approved by the Owner, time limits established by the schedule shall not, except for reasonable cause, be exceeded by the Architect. With the Owner's approval, the Architect shall adjust the schedule, if necessary, as the Project proceeds until the commencement of construction. § 3.1.4 The Architect shall not be responsible for an Owner's directive or substitution made without the Architect's approval. NIL AIA Document 13101 TM —2007 (formerly 8151 TM — 1997). Copyright 01974, 1978, 1987, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible Ander the law. This document was produced by AIA software at 12:49:50 on 06/27/2014 under Order No.7931813803 which expires on 06/1512015, and is not I Firm resale. 7 User Notes: (3B9ADA22) § 3.1.5 The Architect shall, at appropriate times, contact the governmental authorities required to approve the Construction Documents and the entities providing utility services to the Project. In designing the Project, the Architect shall respond to applicable design requirements imposed by such governmental authorities and by such entities providing utility services. § 3.1.6 The Architect shall assist the Owner in connection with the Owner's responsibility for filing documents required for the approval of governmental authorities having jurisdiction over the Project. § 3.2 SCHEMATIC DESIGN PHASE SERVICES § 3.2.1 The Architect shall review the program and other information furnished by the Owner, and shall review laws, codes, and regulations applicable to the Architect's services. § 3.2.2 The Architect shall prepare a preliminary evaluation of the Owner's program, schedule, budget for the Cost of the Work, Project site, and the proposed procurement or delivery method and other Initial Information, each in terms of the other, to ascertain the requirements of the Project. The Architect shall notify the Owner of (1) any inconsistencies discovered in the information, and (2) other information or consulting services that may be reasonably needed for the Project. § 3.2.3 The Architect shall present its preliminary evaluation to the Owner and shall discuss with the Owner alternative approaches to design and construction of the Project, including the feasibility of incorporating environmentally responsible design approaches. The Architect shall reach an understanding with the Owner regarding the requirements of the Project. § 3.2.4 Based on the Project's requirements agreed upon with the Owner, the Architect shall prepare and present for the Owner's approval up to three preliminary designs illustrating the scale and relationship of the Project components. § 3.2.5 Based on the Owner's approval of a preliminary design, the Architect shall prepare Schematic Design Documents for the Owner's approval. The Schematic Design Documents shall consist of drawings and other documents including a site plan, if appropriate, and preliminary building plans, sections and elevations; and may include some combination of study models, perspective sketches, or digital modeling. Preliminary selections of major building systems and construction materials shall be noted on the drawings or described in writing. § 3.2.5.1 The Architect shall consider environmentally responsible design alternatives, such as material choices and building orientation, together with other considerations based on program and aesthetics, in developing a design that is consistent with the Owner's program, schedule and budget for the Cost of the Work. The Owner may obtain other environmentally responsible design services under Article 4. § 3.2.5.2 The Architect shall consider the value of alternative materials, building systems and equipment, together with other considerations based on program and aesthetics, in developing a design for the Project that is consistent with the Owner's program, schedule and budget for the Cost of the Work. § 3.2.6 The Architect shall submit to the Owner an estimate of the Cost of the Work prepared in accordance with Section 6.3. If a Construction Manager has been selected by the Owner during this Phase, the Architect shall coordinate and work with the Construction Manager in preparing an estimate of the Cost of the Work. § 3.2.7 The Architect shall submit the Schematic Design Documents to the Owner, and request the Owner's approval. § 3.3 DESIGN DEVELOPMENT PHASE SERVICES § 3.3.1 Based on the Owner's approval of the Schematic Design Documents, and on the Owner's authorization of any adjustments in the Project requirements and the budget for the Cost of the Work, the Architect shall prepare Design Development Documents for the Owner's approval. The Design Development Documents shall illustrate and describe the development of the approved Schematic Design Documents and shall consist of drawings and other documents including plans, sections, elevations, typical construction details, and diagrammatic layouts of building systems to fix and describe the size and character of the Project as to architectural, structural, mechanical and )nit AIA Document B101 TM — 2007 (formerly B161--1997). Copyright Q 1974, 1978, 1987, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIAO Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIAO Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible j nder the law. This document was produced by AIA software at 12:49:50 on 06127/2014 under Order No.7931813803 which expires on 06/15/2015, and is not for resale. User Notes: (389ADA22) electrical systems, and such other elements as may be appropriate. The Design Development Documents shall also include outline specifications that identify major materials and systems and establish in general their quality levels § 3.3.2 The Architect shall coordinate and work with the Construction Manager to update the estimate of the Cost of the Work previously submitted pursuant to Section 3.2.6, § 3.3.3 The Architect shall submit the Design Development Documents to the Owner, advise the Owner of any adjustments to the estimate of the Cost of the Work, and request the Owner's approval. § 3.4 CONSTRUCTION DOCUMENTS PHASE SERVICES § 3.4.1 Based on the Owner's approval of the Design Development Documents, and on the Owner's authorization of any adjustments in the Project requirements and the budget for the Cost of the Work, the Architect shall prepare Construction Documents for the Owner's approval. The Construction Documents shall illustrate and describe the further development of the approved Design Development Documents and shall consist of Drawings and Specifications setting forth in detail the quality levels of materials and systems and other requirements for the construction of the Work. The Owner and Architect acknowledge that in order to construct the Work the Construction Manager will provide additional information, including Shop Drawings, Product Data, Samples and other similar submittals, which the Architect shall review in accordance with Section 3.6.4. § 3.4.2 The Architect shall incorporate into the Construction Documents the design requirements of governmental authorities having jurisdiction over the Project in effect at the time of document preparation or reasonably foreseeable. § 3.4.3 During the development of the Construction Documents, the Architect shall assist the Owner in the development and preparation of (1) bidding and procurement information that describes the time, place and conditions of bidding, including bidding or proposal forms; (2) the form of agreement between the Owner and Construction Manager; and (3) the Conditions of the Contract for Construction (General, Supplementary and other Conditions). The Architect shall also compile a project manual that includes the Conditions of the Contract for Construction and Specifications and may include bidding requirements and sample forms. § 3.4.4 The Architect shall coordinate and work with the Construction Manager to update the estimate of the Cost of the Work previously submitted pursuant to Section 3.3.2. § 3.4.5 The Architect shall submit the Construction Documents to the Owner, advise the Owner of any adjustments to the estimate of the Cost of the Work, take any action required under Section 6.5, and request the Owner's approval. § 3.5 BIDDING OR NEGOTIATION PHASE SERVICES § 3.5.1 GENERAL The Architect shall assist the Construction Manager and/or the Owner in establishing a list of prospective contractors. Following the Owner's approval of the Construction Documents, the Architect shall assist the Owner in (1) obtaining either competitive bids or negotiated proposals; (2) confirming responsiveness of bids or proposals; (3) determining the successful bid or proposal, if any; and, (4) awarding and preparing contracts for construction. § 3.5.2 COMPETITIVE BIDDING § 3.5.2.1 Bidding Documents shall consist of bidding requirements and proposed Contract Documents. § 3.5.2.2 The Architect shall assist the Owner in bidding the Project by .1 procuring the reproduction of Bidding Documents for distribution to prospective bidders; .2 distributing the Bidding Documents to prospective bidders, requesting their return upon completion of the bidding process, and maintaining a log of distribution and retrieval and of the amounts of deposits, if any, received from and returned to prospective bidders; .3 organizing and conducting a pre -bid conference for prospective bidders; .4 preparing responses to questions from prospective bidders and providing clarifications and interpretations of the Bidding Documents to all prospective bidders in the form of addenda; and .5 organizing and conducting the opening of the bids, and subsequently documenting and distributing the bidding results, as directed by the Owner. Init. AIA Document B101 m —2007 (formerly 13151 TM — 1997). Copyright ®1974, 1978, 1987, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA° Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA° Document, or any portion of It, may result In severe civil and criminal penalties, and will be prosecuted to the maximum extent possible /nder the law. This document was produced by AIA software at 12:49:50 on 06/27/2014 under Order No.7931813803 which expires on 06/152015, and is not r resale. User Notes: (389ADA22) § 3.5.2.3 The Architect shall consider requests for substitutions, if the Bidding Documents permit substitutions, and shall prepare and distribute addenda identifying approved substitutions to all prospective bidders. § 3.5.3 NEGOTIATED PROPOSALS § 3.5.3.1 Proposal Documents shall consist of proposal requirements and proposed Contract Documents. § 3.6.3.2 The Architect shall assist the Owner in obtaining proposals by .1 procuring the reproduction of Proposal Documents for distribution to prospective contractors, and requesting their return upon completion of the negotiation process; .2 organizing and participating in selection interviews with prospective contractors; and .3 participating in negotiations with prospective contractors, and subsequently preparing a summary report of the negotiation results, as directed by the Owner. § 3.5.3.3 The Architect shall consider requests for substitutions, if the Proposal Documents permit substitutions, and shall prepare and distribute addenda identifying approved substitutions to all prospective contractors. § 3.6 CONSTRUCTION PHASE SERVICES § 3.6.1 GENERAL § 3.6.1.1 The Architect shall provide administration of the Contract between the Owner and the Construction Manager as set forth below and in AIA Document A20IV11-2007, General Conditions of the Contract for Construction, as modified by the Owner. Should the Architect determine that the Owner's modifications to the A201 alter the Architect's scope of services or require services which the Architect cannot perform, the Architect will notify the Owner of such determination, in writing, and seek a change order to this Agreement or further modification to the A201. § 3.6.1.2 The Architect shall advise and consult with the Owner during the Construction Phase Services. The Architect shall have authority to act on behalf of the Owner only to the extent provided in this Agreement. The Architect shall not have control over, charge of, or responsibility for the construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work, nor shall the Architect be responsible for the Construction Manager's failure to perform the Work in accordance with the requirements of the Contract Documents, The Architect shall be responsible for the Architect's negligent acts or omissions, but shall not have control over or charge of, and shall not be responsible for, acts or omissions of the Construction Manager or of any other persons or entities performing portions of the Work. § 3.6.1.3 Subject to Section 4.3, the Architect's responsibility to provide Construction Phase Services commences with the execution of the Guaranteed Maximum Price Amendment between the Owner and the Construction Manager and terminates on the date the Architect issues the final Certificate for Payment. § 3.6.2 EVALUATIONS OF THE WORK § 3.6.2.1 The Architect shall visit the site at intervals appropriate to the stage of construction, or as otherwise required in Section 4.3.3, to become generally familiar with the progress and quality of the portion of the Work completed, and to determine, in general, if the Work observed is being performed in a manner indicating that the Work, when fully completed, will be in accordance with the Contract Documents. On the basis of the site visits, the Architect shall keep the Owner reasonably informed about the progress and quality of the portion of the Work completed, and report to the Owner , 1, known deviations from the Contract Documents and from the most recent construction schedule submitted by the Construction Manager, and (2) defects and deficiencies observed in the Work. Failure to notify the Owner of observed defects and deficiencies constitutes a breach of this Agreement shall be a deviation from the Architect's agreed standard of professional care. § 3.6.2.2 The Architect has the authority to reject Work that does not conform to the Contract Documents. Whenever the Architect considers it necessary or advisable, the Architect shall have the authority to require inspection or testing of the Work in accordance with the provisions of the Contract Documents, whether or not such Work is fabricated, installed or completed. However, neither this authority of the Architect nor a decision made in good faith either to exercise or not to exercise such authority shall give rise to a duty or responsibility of the Architect to the Construction Manager, Subcontractors, material and equipment suppliers, their agents or employees or other persons or entities perforining portions of the Work. AtA Document 81011TM —2007 (formerly 6151 TM —1997). Copyright Q 1974, 1978, 1987, 1997 and 2007 by The American Institute of Architects. All rights [nit reserved. WARNING: This AIA11 Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA11 Document, or any portion of It, may result In severe civil and criminal penalties, and will be prosecuted to the maximum extent possible erider the law. This document was produced try AIA software at 12:49:50 on 06/27/2014 under Order No.7931813803 which expires on 06/16/2015, and is not Or resale. userNotes: (309AIDA22) § 3.6.2.3 The Architect shall interpret and decide matters concerning performance under, and requirements of, the Contract Documents on written request of either the Owner or Construction Manager, The Architect's response to such requests shall be made in writing within any time limits agreed upon or otherwise with reasonable promptness. § 3.6.2.4 Interpretations and decisions of the Architect shall be consistent with the intent of and reasonably inferable from the Contract Documents and shall be in writing or in the form of drawings. When making such interpretations and decisions, the Architect shall endeavor to secure faithful performance by both Owner and Construction Manager, shall not show partiality to either, and shall not be liable for results of interpretations or decisions rendered in good faith. The Architect's decisions on matters relating to aesthetic effect shall be subject to the Owner's approval. § 3.6.2.5 Unless the Owner and Construction Managerdesignate another person to serve as an Initial Decision Maker, as that term is defined in AIA Document A201 -2007, the Architect shall render initial decisions on Claims between the Owner and Construction Manageras provided in the Contract Documents. § 3.6.3 CERTIFICATES FOR PAYMENT TO CONSTRUCTION MANAGER § 3.6.3.1 The Architect shall review and certify the amounts due the Construction Manager and shall issue certificates in such amounts. The Architect's certification for payment shall constitute a representation to the Owner, based on the Architect's evaluation of the Work as provided in Section 3.6.2 and on the data comprising the Construction Manager's Application for Payment, that, to the best of the Architect's knowledge, information and belief, the Work has progressed to the point indicated and that the quality of the Work is in accordance with the Contract Documents. The foregoing representations are subject (1) to an evaluation of the Work for conformance with the Contract Documents upon Substantial Completion, (2) to results of subsequent tests and inspections, (3) to correction of minor deviations from the Contract Documents prior to completion, and (4) to specific qualifications expressed by the Architect. § 3.6.3.2 The issuance of a Certificate for Payment shall not be a representation that the Architect has (1) made exhaustive or continuous on -site inspections to check the quality or quantity of the Work, (2) reviewed construction means, methods, techniques, sequences or procedures, (3) reviewed copies of requisitions received from Subcontractors and material suppliers and other data requested by the Owner to substantiate the Construction Manager's right to payment, or (4) ascertained how or for what purpose the Construction Manager has used money previously paid on account of the Contract Sum. § 3.6.3.3 The Architect shall maintain a record of the Applications and Certificates for Payment. § 3.6.4 SUBMITTALS § 3.6.4.1 The Architect shall review the Construction Manager's submittal schedule and shall not unreasonably delay or withhold approval. The Architect's action in reviewing, approving, or not approving submittals shall be taken in accordance with the approved submittal schedule or, in the absence of an approved submittal schedule, within ten (10) days. § 3.6.4.2 In accordance with the Architect- approved submittal schedule, the Architect shall review and approve or take other appropriate action upon the Construction Manager's submittals such as Shop Drawings, Product Data and Samples, but only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents. Review of such submittals is not for the purpose of determining the accuracy and completeness of other information such as dimensions, quantities, and installation or performance of equipment or systems, which are the Construction Manager's responsibility. The Architect's review shall not constitute approval of safety precautions or, unless otherwise specifically stated by the Architect, of any construction means, methods, techniques, sequences or procedures. The Architect's approval of a specific item shall not indicate approval of an assembly of which the item is a component. § 3.6.4.3 If the Contract Documents specifically require the Construction Manager to provide professional design services or certifications by a design professional related to systems, materials or equipment, the Architect shall specify the appropriate performance and design criteria that such services must satisfy. The Architect shall review Shop Drawings and other submittals related to the Work designed or certified by the design professional retained by the Construction Managerthat bear such professional's seal and signature when submitted to the Architect. The Init. AIA Document 8101 TM —2007 (formerly 8151 TO — 1997). Copyright Q 1974, 1978, 1987, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this ALAI Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible / ndr the law. This document was produced by AIA software at 12:49:50 on 08127/2014 under Order No.7931813803 which expires on 08/1512015, and is not or r:. ale User Notes: (3B9ADA22) Architect shall be entitled to rely upon the adequacy, accuracy and completeness of the services, certifications and approvals performed or provided by such design professionals. § 3.6.4.4 Subject to the provisions of Section 4.3, the Architect shall review and respond to requests for information about the Contract Documents. The Architect shall set forth in the Contract Documents the requirements for requests for information. Requests for information shall include, at a minimum, a detailed written statement that indicates the specific Drawings or Specifications in need of clarification and the nature of the clarification requested. The Architect's response to such requests shall be made in writing within any time limits agreed upon, or otherwise with reasonable promptness. If appropriate, the Architect shall prepare and issue supplemental Drawings and Specifications in response to requests for information. § 3.6.4.5 The Architect shall maintain a record of submittals and copies of submittals supplied by the Construction Manager in accordance with the requirements of the Contract Documents. § 3.6.5 CHANGES IN THE WORK § 3.6.5.1 The Architect may authorize minor changes in the Work that are consistent with the intent of the Contract Documents and do not involve an adjustment in the Contract Sum or an extension of the Contract Time. Subject to the provisions of Section 4.3, the Architect shall prepare Change Orders and Construction Change Directives for the Owner's approval and execution in accordance with the Contract Documents. § 3.6.5.2 The Architect shall maintain records relative to changes in the Work. § 3.6.6 PROJECT COMPLETION § 3.6.6.1 The Architect shall conduct inspections to determine the date or dates of Substantial Completion and the date of final completion; issue Certificates of Substantial Completion; receive from the Construction Manager and forward to the Owner, for the Owner's review and records, written warranties and related documents required by the Contract Documents and assembled by the Construction Manager; and issue a final Certificate for Payment based upon a final inspection indicating the Work complies with the requirements of the Contract Documents. § 3.6.6.2 The Architect's inspections shall be conducted with the Owner to check conformance of the Work with the requirements of the Contract Documents and to verify the accuracy and completeness of the list submitted by the Construction Manager of Work to be completed or corrected. § 3.6.6.3 When the Work is found to be substantially complete, the Architect shall inform the Owner about the balance of the Contract Sum remaining to be paid the Construction Manager, including the amount to be retained from the Contract Sum, if any, for final completion or correction of the Work. § 3.6.6.4 The Architect shall forward to the Owner the following information received from the Construction Manager: (1) consent of surety or sureties, if any, to reduction in or partial release of retainage or the making of final payment; (2) affidavits, receipts, releases and waivers of liens or bonds indemnifying the Owner against liens; and (3) any other documentation required of the Construction Manager under the Contract Documents. § 3.6.6.5 Upon request of the Owner, and prior to the expiration of one year from the date of Substantial Completion, the Architect shall, without additional compensation, conduct a meeting with the Owner to review the facility operations and performance. ARTICLE 4 ADDITIONAL SERVICES § 4.1 Additional Services listed below are not included in Basic Services but may be required for the Project. The Architect shall provide the listed Additional Services only if specifically designated in the table below as the Architect's responsibility, and the Owner shall compensate the Architect as provided in Section 11.2. (Designate the Additional Services the Architect shall provide in the second column of the table below. In the third column indicate whether the service description is located in Section 4.2 or in an attached exhibit. If in an exhibit, identify the exhibit.) snit AIA Document 5101 w —2007 (formerly 8161 T — 1997). Copyright O 1974, 1978, 1987, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA ( Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA' Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible i under the law. This document was produced by AIA software at 12:49:50 on 06/27/2014 under Order No.7931813803 whin expires on 06/15/2015, and is not for resale. User Notes: (3B9ADA22) Additional Services Responsibility (Architect, Owner or Not Provided) Location of Service Description (Section 4.2 below or in an exhibit attached to this document and identified below 4.1.1 Programming 202TM -2009 4.1.2 Multiple preliminary designs 4.1.3 Measured drawings 4.1.4 Existing facilities surveys 4.1.5 Site Evaluation and Planning B203TM -2007 § 4.1.6 Building Information Modeling (E202TM- 2008 4.1.7 Civil engineering 4.1.8 Landscape design 4.1.9 Architectural Interior Design 252TM -2007 4.1.10 Value Analysis B204TM -2007 4.1.11 Detailed cost estimating § 4.1.12 On -site Project Representation (B207TM- 2008 4.1.13 Conformed construction documents 4.1.14 As-Designed Record drawings 4.1.15 As- Constructed Record drawings 4.1.16 Post occupancy evaluation 4.1.17 Facility Support Services B210TM -2007 4.1.18 Tenant - related services 4.1.19 Coordination of Owner's consultants 4.1.20 Telecommunications /data design § 4.1.21 Security Evaluation and Planning (B206TM- 2007 4.1.22 Commissioning B211TM -2007 4.1.23 Extensive environmentally responsible design 4.1.24 LEED® Certification B214TM -2012 4.1.25 Fast -track design services 4126 Historic Preservation 205TM -2007 §4.1.27 Furniture, Furnishings, and Equipment Design B253TM -2007 § 4.2 Insert a description of each Additional Service designated in Section 4.1 as the Architect's responsibility, if not further described in an exhibit attached to this document. § 4.3 Additional Services may be provided after execution of this Agreement, without invalidating the Agreement. Except for services required due to the fault of the Architect, any Additional Services provided in accordance with this Section 4.3 shall be compensated as provide in section 11.2. The provision of Additional Services in excess of those referenced in this Section 4, et al. shall not entitle the Architect to additional compensation or an adjustment in the Architect's schedule unless specifically authorized by Owner and memorialized by written change order to this Agreement. § 4.3.1 Upon recognizing the need to perform the following Additional Services, the Architect shall notify the Owner with reasonable promptness and explain the facts and circumstances giving rise to the need. The Architect shall not proceed to provide the following services until the Architect receives the Owner's written authorization. Such written authorization to proceed shall not be construed as a change order or acquiescence to a request for change order unless the Owner expressly states in such written authorization that the notice constitutes a change order entitling the Architect to additional compensation: Init AIA Document 13101n —2007 (formerly 13161" — 1997). Copyright ®1974, 1978, 1987, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA° Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of 10 this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible / nder the law. This document was produced by AIA software at 12:49:50 on 06/27/2014 under Order No.7931813803 which expires on 06/15!2015, and is not or resale. User Notes: (3B9ADA22) .1 Services necessitated by a change in the Initial Information, previous instructions or approvals given by the Owner, or a material change in the Project including, but not limited to, size, quality, complexity, the Owner's schedule or budget for Cost of the Work, or procurement or delivery method; .2 Services necessitated by the Owner's request for extensive environmentally responsible design alternatives, such as unique system designs, in- depth material research, energy modeling, or LEEDV certification; .3 Changing or editing previously prepared Instruments of Service necessitated by the enactment or revision of codes, laws or regulations or official interpretations, not reasonably foreseeable; .4 Services necessitated by decisions of the Owner not rendered in a timely manner or any other failure of performance on the part of the Owner or the Owner's consultants or contractors; .5 Preparing digital data for transmission to the Owner's consultants and contractors, or to other Owner authorized recipients; .6 Preparation of design and documentation for alternate bid or proposal requests proposed by the Owner; .7 Preparation for, and attendance at, a public presentation, meeting or hearing, other than city council meetings; .8 Preparation for, and attendance at a dispute resolution proceeding or legal proceeding, except where the Architect is party thereto; .9 Consultation concerning replacement of Work resulting from fire or other cause during construction; or (Paragraph Deleted) § 4.3.2 To avoid delay in the Construction Phase, the Architect shall provide the following Additional Services, notify the Owner with reasonable promptness, and explain the facts and circumstances giving rise to the need. If the Owner subsequently determines that all or parts of those services are not required, the Owner shall give prompt written notice to the Architect, and the Owner shall have no further obligation to compensate the Architect for those services: ( Paragraph Deleted) Preparing Change Orders and Construction Change Directives that require evaluation of Construction Manager's proposals and supporting data, or the preparation or revision of Instruments of Service; .2 Evaluating an extensive number of Claims as the Initial Decision Maker; .3 Evaluating substitutions proposed by the Owner or Construction Manager and making subsequent revisions to Instruments of Service resulting therefrom; or .4 To the extent the Architect's Basic Services are affected, providing Construction Phase Services 60 days after (1) the date of Substantial Completion of the Work or (2) the anticipated date of Substantial Completion identified in Initial Information, whichever is earlier. § 4.3.3 The Architect shall provide Construction Phase Services exceeding the limits set forth below as Additional Services. When the limits below are reached, the Architect shall notify the Owner: .1 Two ( 2 ) reviews of each Shop Drawing, Product Data item, sample and similar submittal of the Construction Manager .2 Fifty -two ( 52 ) visits to the site by the Architect over the duration of the Project during construction .3 Two ( 2 ) inspections for any portion of the Work to determine whether such portion of the Work is substantially complete in accordance with the requirements of the Contract Documents .4 Two ( 2 ) inspections for any portion of the Work to determine final completion § 4.3.4 If the services covered by this Agreement have not been completed within Twenty ( 20 ) months of the date of this Agreement, through no fault of the Architect, extension of the Architect's services beyond that time shall be compensated as Additional Services. ARTICLE 5 DINNER'S RESPONSIBILITIES § 5.1 Unless otherwise provided for under this Agreement, the Owner shall provide information in a timely manner regarding requirements for and limitations on the Project. The Owner shall furnish to the Architect, within 15 days after receipt of a written request, information relevant for the Architect to evaluate same. snit AIA Document 8101 - —2007 (formerly 8151'• — 1997). Copyright 0 1974, 1978, 1987, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA (f Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of ) this AIAO Document, or any portion of it, may result In severe civil and criminal penalties, and will be prosecuted to the maximum extent possible nder the law. This document was produced by AIA software at 12:49:50 on 08/27/2014 under Order No.7931813803 which expires on 0611 5/2 01 5, and is not r resale. User Notes: (369ADA22) § 5.2 The Owner shall establish and periodically update the Owner's budget for the Project, including (1) the budget for the Cost of the Work as defined in Section 6.1; (2) the Owner's other costs; and, (3) reasonable contingencies related to all of these costs. If the Owner significantly increases or decreases the Owner's budget for the Cost of the Work, the Owner shall notify the Architect. The Owner and the Architect shall thereafter agree to a corresponding change in the Project's scope and quality. § 5.3 The Owner identifies Phil Gaudreau, Jackson A &E Assoc. Inc. as its representative authorized to act on the Owner's behalf with respect to the Project. The Owner shall render decisions and approve the Architect's submittals in a timely manner in order to avoid unreasonable delay in the orderly and sequential progress of the Architect's services. § 5.4 The Owner shall furnish surveys to describe physical characteristics, legal limitations and utility locations for the site of the Project, and a written legal description of the site. The surveys and legal information shall include, as applicable, grades and lines of streets, alleys, pavements and adjoining property and structures; designated wetlands; adjacent drainage; rights -of -way, restrictions, easements, encroachments, zoning, deed restrictions, boundaries and contours of the site; locations, dimensions and necessary data with respect to existing buildings, other improvements and trees; and information concerning available utility services and lines, both public and private, above and below grade, including inverts and depths. All the information on the survey shall be referenced to a Project benchmark. § 5.5 The Owner shall furnish services of geotechnical engineers, which may include but are not limited to test borings, test pits, determinations of soil bearing values, percolation tests, evaluations of hazardous materials, seismic evaluation, ground corrosion tests and resistivity tests, including necessary operations for anticipating subsoil conditions, with written reports and appropriate recommendations. § 5.6 The Owner shall coordinate the services of its own consultants with those services provided by the Architect. Upon the Architect's request, the Owner shall furnish copies of the scope of services in the contracts between the Owner and the Owner's consultants. The Owner shall furnish the services' of consultants other than those designated in this Agreement, or authorize the Architect to furnish them as an Additional Service, when the Architect requests such services and demonstrates that they are reasonably required by the scope of the Project. The Owner shall require that its consultants maintain professional liability insurance as appropriate to the services provided. § 5.7 The Owner shall furnish tests, inspections and reports required by law or the Contract Documents, such as structural, mechanical, and chemical tests, tests for air and water pollution, and tests for hazardous materials. § 5.8 The Owner shall furnish all legal, insurance and accounting services, including auditing services, that may be reasonably necessary at any time for the Project to meet the Owner's needs and interests. § 5.9 The Owner shall provide prompt written notice to the Architect if the Owner becomes aware of any fault or defect in the Project, including errors, omissions or inconsistencies in the Architect's Instruments of Service. § 5.10 Except as otherwise provided in this Agreement, or when direct communications have been specially authorized, the Owner shall endeavor to communicate with the Construction Managerand the Architect's consultants through the Architect about matters arising out of or relating to the Contract Documents. The Owner shall promptly notify the Architect of any direct communications that may affect the Architect's services. § 5.11 Before executing the Contract for Construction, the Owner shall coordinate the Architect's duties and responsibilities set forth in the Contract for Construction with the Architect's services set forth in this Agreement. The Owner shall provide the Architect a copy of the executed agreement between the Owner and Construction Manager, including the General Conditions of the Contract for Construction. § 5.12 The Owner shall provide the Architect access to the Project site prior to commencement of the Work and shall obligate the Construction Manager to provide the Architect access to the Work wherever it is in preparation or progress. Init AIA Document B101 TM —2007 (formerly 8151 TM — 1997). Copyright ®1974, 1978, 1987, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA° Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of 12 this AIA® Document, or any portion of It, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible nder the law. This document was produced by AIA software at 12:49:50 on 06127/2014 under Order No.7931813803 which expires on 06/15/2015, and is not resale. User Notes: (3B9ADA22) ARTICLE 6 COST OF THE WORK § 6.1 For purposes of this Agreement, the Cost of the Work shall be the total cost to the Owner to construct all elements of the Project designed or specified by the Architect and shall include contractors' general conditions costs, overhead and profit. The Cost of the Work does not include the compensation of the Architect, the costs of the land, rights -of -way, financing, contingencies for changes in the Work or other costs that are the responsibility of the Owner. § 6.2 The Owner's budget for the Cost of the Work is provided in Initial Information, and may be adjusted throughout the Project as required under Sections 5.2, 6.4 and 6,5. Evaluations of the Owner's budget for the Cost of the Work, the preliminary estimate of the Cost of the Work and updated estimates of the Cost of the Work prepared by the Architect, represent the Architect's judgment as a design professional. It is recognized, however, that neither the Architect nor the Owner has control over the cost of labor, materials or equipment; the Construction Manager's methods of determining bid prices; or competitive bidding, market or negotiating conditions. Accordingly, the Architect cannot and does not warrant or represent that bids or negotiated prices will not vary from the Owner's budget for the Cost of the Work or from any estimate of the Cost of the Work or evaluation prepared or agreed to by the Architect. § 6.3 In preparing estimates of the Cost of Work, the Architect shall be permitted to include contingencies for design, bidding and price escalation; to determine what materials, equipment, component systems and types of construction are to be included in the Contract Documents; to make reasonable adjustments in the program and scope of the Project; and to include in the Contract Documents alternate bids as may be necessary to adjust the estimated Cost of the Work to meet the Owner's budget for the Cost of the Work. The Architect's estimate of the Cost of the Work shall be based on current area, volume or similar conceptual estimating techniques. If the Owner requests detailed cost estimating services, the Architect shall provide such services as an Additional Service under Article 4. § 6.4 If the Bidding or Negotiation Phase has not commenced within 90 days after the Architect submits the Construction Documents to the Owner, through no fault of the Architect, the Owner's budget for the Cost of the Work shall be adjusted to reflect changes in the general level of prices in the applicable construction market. § 6.5 If at any time the Architect's estimate of the Cost of the Work exceeds the Owner's budget for the Cost of the Work, the Architect shall make appropriate recommendations to the Owner to adjust the Project's size, quality or budget for the Cost of the Work, and the Owner shall cooperate with the Architect in making such adjustments. § 6.6 If the Owner's budget for the Cost of the Work at the conclusion of the Construction Documents Phase Services is exceeded by the lowest bona fide bid or negotiated proposal, the Owner shall .1 give written approval of an increase in the budget for the Cost of the Work; .2 authorize rebidding or renegotiating of the Project within a reasonable time; .3 terminate in accordance with Section 9.5; .4 in consultation with the Architect, revise the Project program, scope, or quality as required to reduce the Cost of the Work; or .5 implement any other mutually acceptable alternative. § 6.7 If the Owner chooses to proceed under Section 6.6.4, the Architect, without additional compensation, shall modify the Construction Documents as necessary to comply with the Owner's budget for the Cost of the Work at the conclusion of the Construction Documents Phase Services, or the budget as adjusted under Section 6.6.1. The Architect's modification of the Construction Documents shall be the limit of the Architect's responsibility under this Article 6. ARTICLE 7 COPYRIGHTS AND LICENSES § 7.1 The Architect and the Owner warrant that in transmitting Instruments of Service, or any other information, the transmitting party is the copyright owner of such information or has permission from the copyright owner to transmit such information for its use on the Project. If the Owner and Architect intend to transmit Instruments of Service or any other information or documentation in digital form, they shall endeavor to establish necessary protocols governing such transmissions. (nit AIA Document 81101 - —2007 (formerly 8151 - — 1987). Copyright C 1974, 1978, 1987, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of 3 this AIA° Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible / under the law. This document was produced by AIA software at 12:49:50 on 08!27/2014 under Order No.7931813803 which expires on 08115/2015, and is not for resale. User Notes: (389ADA22) § 7.2 As part of the total compensation which Owner has agreed to pay Architect for the professional services to be rendered under this Contract, Architect agrees that hard copies of all finished and unfinished "Instruments of Service" including but not limited to documents, data, studies, surveys, drawings, specifications, field notes, maps, models, photographs, preliminary reports, reports, bid packet/construction contract documents /advertisement for bids incorporating any Owner standard provisions provided by Architect, all of which are produced by Architect and paid for by Owner are, and will remain, the property of the Owner. Architect will furnish Owner with electronic copies in .PDF format, to the extent they are available, of all of the foregoing to facilitate coordination; however, ownership of the underlying work product shall remain the intellectual property of the Architect. Architect shall have the right to use such work products for Architect's purposes on this Project. However, such documents are not intended to be suitable for reuse by Owner or others. Any reuse without the express written consent of the Architect will be at the Owner's sole risk and without liability or legal exposure to the Architect. The above notwithstanding, Architect shall retain all rights in its standard drawing details, designs, specifications, databases, computer software and any other proprietary and intellectual property information provided pursuant to this Contract. § 7.3 Upon execution of this Agreement, the Architect grants to the Owner a nonexclusive license to use the Architect's Instruments of Service solely and exclusively for purposes of constructing, using, maintaining, altering and adding to the Project, provided that the Owner substantially performs its obligations, including prompt payment of all sums when due, under this Agreement. The Architect shall obtain similar nonexclusive licenses from the Architect's consultants consistent with this Agreement. The license granted under this section permits the Owner to authorize the Construction Manager, Subcontractors, Sub - subcontractors, and material or equipment suppliers, as well as the Owner's consultants and separate contractors, to reproduce applicable portions of the Instruments of Service solely and exclusively for use in performing services or construction for the Project. § 7.3.1 In the event the Owner uses the Instruments of Service without retaining the author of the Instruments of Service, the Owner releases the Architect and Architect's consultant(s) from all claims and causes of action arising from such uses. The terms of this Section 7.3.1 shall not apply if the Owner rightfully terminates this Agreement for cause under Section 9.4. § 7.4 Except for the licenses granted in this Article 7, no other license or right shall be deemed granted or implied under this Agreement. The Owner shall not assign, delegate, sublicense, pledge or otherwise transfer any license granted herein to another party without the prior written agreement of the Architect. Any unauthorized use of the Instruments of Service shall be at the Owner's sole risk and without liability to the Architect and the Architect's consultants. ARTICLE 8 CLAIMS AND DISPUTES § 8.1 GENERAL § 8.1.1 The Owner and Architect shall commence all claims and causes of action, whether in contract, tort, or otherwise, against the other arising out of or related to this Agreement in accordance with the requirements of the method of binding dispute resolution selected in this Agreement within the period specified by applicable law, but in any case not more than 10 years after the date of Substantial Completion of the Work. The Owner and Architect waive all claims and causes of action not commenced in accordance with this Section 8.1.1. § 8.1.2 To the extent damages are covered by property insurance, the Owner and Architect waive all rights against each other and against the contractors, consultants, agents and employees of the other for damages, except such rights as they may have to the proceeds of such insurance as set forth in AIA Document A201 -2007, General Conditions of the Contract for Construction. § 8.1.3 The Architect and Owner waive consequential damages for claims, disputes or other matters in question arising out of or relating to this Agreement. This waiver shall not apply to damages that are within the coverage of the insurance Architect is required to maintain under Section 2.5. This mutual waiver is applicable, without limitation, to all consequential damages due to either party's termination of this Agreement, except as specifically provided in Section 9.7. § 8.2 MEDIATION § 8.2.1 Any claim, dispute or other matter in question arising out of or related to this Agreement shall be submitted to senior management for each party for attempted resolution and then be referred to non - binding mediation as a condition precedent to the institution of legal proceedings by either party. Irtlt AIA Document 8101w —2007 (formerly 9151T — 1997). Copyright ®1974, 1978, 1987, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING; This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of 14 this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible t nder the law. This document was produced by AIA software at 12:49:50 on 06127/2014 under Order No.7931813803 which expires on 06/15/2015, and is not r resale. ser Notes: (3B9ADA22) § 8.2.2 Mediation shall be administered by the American Arbitration Association in accordance with its Construction Industry Mediation Procedures in effect on the date of the Agreement unless the Parties agree on a mediation administered by a mutually selected mediator. A request for mediation shall be made in writing, delivered to the other party to the Agreement, and filed with the person or entity administering the mediation.. § 8.2.3 The parties shall share the mediator's fee and any filing fees equally. The mediation shall be held in the place where the Project is located, unless another location is mutually agreed upon. Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof. § 8.2.4 If the parties do not resolve a dispute through mediation pursuant to this Section 8.2, the method of binding dispute resolution shall be the following: (Check the appropriate box. If the Owner and Architect do not select a method of binding dispute resolution below, or do not subsequently agree in writing to a binding dispute resolution method other than litigation, the dispute will be resolved in a court of competent jurisdiction) [ ] Arbitration pursuant to Section 8.3 of this Agreement [ X ] Litigation in the District Court of Guadalupe County, Texas [ ] Other (Specify) (Paragraphs Deleted) ARTICLE 9 TERMINATION OR SUSPENSION § 9.1 If the Owner fails to make payments to the Architect in accordance with this Agreement, and such failure continues for fifteen (15) days following written notice, it shall be considered substantial nonperformance and cause for termination or, at the Architect's option, cause for suspension of performance of services under this Agreement. If the Architect elects to suspend services, the Architect shall give seven days' written notice to the Owner before suspending services. in the event of a suspension of services, the Architect shall have no liability to the Owner for delay or damage caused the Owner because of such suspension of services. Before resuming services, the Architect shall be paid all sums due prior to suspension and any expenses incurred in the interruption and resumption of the Architect's services. The Architect's fees for the remaining services and the time schedules shall be equitably adjusted. § 9.2 If the Owner suspends the Project, the Architect shall be compensated for services performed prior to notice of such suspension. When the Project is resumed, the Architect shall be compensated for expenses incurred in the interruption and resumption of the Architect's services. The Architect's fees for the remaining services and the time schedules shall be equitably adjusted. § 9.3 If the Owner suspends the Project for more than 90 cumulative days for reasons other than the fault of the Architect, the Architect may terminate this Agreement by giving not less than seven days' written notice. (nit AIA Document 8101 TM — 2007 (formerly 5151 TM — 1997). Copyright 0 1974, 1978, 1987, 1997 and 2007 by The American institute of Archftects. All rights reserved. WARNING: This AIA' Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of 15 this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible / under the law. This document was produced by AIA software at 12:49:50 on 06/27/2014 under Order No.7931813803 which expires on 06/1512015, and is not under User Notes: (369ADA22) § 9.4 Either party may terminate this Agreement upon not less than seven days' written notice should the other party fail substantially to perform in accordance with the terms of this Agreement through no fault of the party initiating the termination. § 9,5 The Owner may terminate this Agreement upon not less than seven days' written notice to the Architect for the Owner's convenience and without cause. § 9.6 In the event of termination not the fault of the Architect, the Architect shall be compensated for services performed prior to termination, together with Reimbursable Expenses then due. § 9.7 The Owner's rights to use the Architect's Instruments of Service in the event of a termination of this Agreement are set forth in Article 7. ARTICLE 10 MISCELLANEOUS PROVISIONS § 10.1 This Agreement shall be governed by the law of the State of Texas. § 10.2 Terms in this Agreement shall have the same meaning as those in AIA Document A2O1- 2007_, General Conditions of the Contract for Construction. § 10.3 The Owner and Architect, respectively, bind themselves, their agents, successors, assigns and legal representatives to this Agreement. Neither the Owner nor the Architect shall assign this Agreement without the written consent of the other, except that the Owner may assign this Agreement to a lender providing financing for the Project if the lender agrees to assume the Owner's rights and obligations under this Agreement. § 10.4 If the Owner requests the Architect to execute certificates, the proposed language of such certificates shall be submitted to the Architect for review at least 14 days prior to the requested dates of execution. If the Owner requests the Architect to execute consents reasonably required to facilitate assignment to a lender, the Architect shall execute all such consents that are consistent with this Agreement, provided the proposed consent is submitted to the Architect for review at least 14 days prior to execution. The Architect shall not be required to execute certificates or consents that would require knowledge, services or responsibilities beyond the scope of this Agreement. § 10.5 Nothing contained in this Agreement shall create a contractual relationship with or a cause of action in favor of a third party against either the Owner or Architect. § 10.6 Unless otherwise required in this Agreement, the Architect shall have no responsibility for the discovery, presence, handling, removal or disposal of, or exposure of persons to, hazardous materials or toxic substances in any form at the Project site. § 10.7 The Architect shall have the right to include photographic or artistic representations of the design of the Project among the Architect's promotional and professional materials. The Architect shall be given reasonable access to the completed Project to make such representations. However, the Architect's materials shall not include the Owner's confidential or proprietary information if the Owner has previously advised the Architect in writing of the specific information considered by the Owner to be confidential or proprietary. The Owner shall provide professional credit for the Architect in the Owner's promotional materials for the Project. § 10.8 If the Architect or Owner receives information specifically designated by the other party as "confidential" or "business proprietary," the receiving party shall keep such information strictly confidential and shall not disclose it to any other person except to (1) its employees, (2) those who need to know the content of such information in order to perform services or construction solely and exclusively for the Project, or (3) its consultants and contractors whose contracts include similar restrictions on the use of confidential information. ARTICLE 11 COMPENSATION § 11.1 For the Architect's Basic Services described under Article 3, the Owner shall compensate the Architect as follows and in accordance with Exhibit A. Compensation for Basic Services shall not increase regardless of any (nit AIA Document B101 TM — 2007 (formerly 8151 TM — 1997). Copyright 0 1974, 1978, 1987, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of 16 this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 12:49:50 on 06/27/2014 under Order No.7931813803 which expires on 06/1512015, and is not for resale. User Notes: (389ADA22) increase in the Project budget or negotiated Guaranteed Maximum Price with the Construction Manager unless authorized by written change order to this Agreement as may be necessitated by an increase in Project scope that creates material differences to the Initial Information. (Insert amount of, or basis for, compensation) Six hundred eight thousand dollars ($608,000) § 11.2 For Additional Services designated in Section 4, 1, the Owner shall compensate the Architect as follows: (Insert amount of or basis for, compensation. If necessmy, list specific services to which particular methods of compensation apply.) N/A § 11.3 For Additional Services that may arise during the course of the Project, including those under Section 4.3, the Owner shall compensate the Architect as follows: (Insert amount of, or basis for, compensation) Twelve thousand eight hundred dollars ($12,800) § 11.4 Compensation for Additional Services of the Architect's consultants when not included in Section 11.2 or 11.3, shall be the amount invoiced to the Architect plus percent( %), or as otherwise stated below: N/A § 11.5 Where compensation for Basic Services is based on a stipulated sum or percentage of the Cost of the Work, the compensation for each phase of services shall be as follows: Schematic Design Phase Fifteen percent ( 15 %) Design Development Phase Twenty percent ( 20 %) Construction Documents Forty percent ( 40 %) Phase Bidding or Negotiation Phase Five percent ( 5 %) Construction Phase Twenty percent ( 20 %) Total Basic Compensation one hundred percent ( 100 %) § 11.6 When compensation is based on a percentage of the Cost of the Work and any portions of the Project are deleted or otherwise not constructed, compensation for those portions of the Project shall be payable to the extent services are performed on those portions, in accordance with the schedule set forth in Section 11.5 based on (1) the lowest bona fide bid or negotiated proposal, or (2) if no such bid or proposal is received, the most recent estimate of the Cost of the Work for such portions of the Project. The Architect shall be entitled to compensation in accordance with this Agreement for all services performed whether or not the Construction Phase is commenced. § 11.7 The hourly billing rates for services of the Architect and the Architect's consultants, if any, are set forth below. The rates shall be adjusted in accordance with the Architect's and Architect's consultants' normal review practices. ('If applicable, attach an exhibit of hourly billing rates or insert them below.) Employee or Category § 11.8 COMPENSATION FOR REIMBURSABLE EXPENSES § 11.8.1 Reimbursable Expenses are in addition to compensation for Basic and Additional Services and include expenses incurred by the Architect and the Architect's consultants directly related to the Project, as follows: ��(� AIA Document 8101 TM —2007 (formerly 8151 *" — 1997). Copyright 0 1974, 1978, 1987, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA"' Document is protected by U.S. Copyright Law and international Treaties. Unauthorized reproduction or distribution of 17 this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible t under the law. This document was produced by AIA software at 12:49:50 on 08/27/2014 under Order No.7931813803 which expires on 08/15/2015, and is not resale. User Notes: (MADA22) .1 Transportation and authorized out -of -town travel and subsistence for the Architect's Aquatics Consultant; .2 Courier Service; .3 Models; .4 Renderings; .5 Survey; .6 Geotechnical Study; .7 Storm Water Management Plan .8 Development Site Plan submittal .9 Traffic Impact Analysis .10 Flood Plan Development Permit; and .11 Printing of Plans and Specifications for Bidding and Construction. § 11.8.2 For Reimbursable Expenses the compensation shall be the expenses incurred by the Architect and the Architect's consultants plus ten percent ( 10 %) of the expenses incurred. (Paragraph Deleted) Pursuant to Exhibit A, Reimbursable Expenses are estimated to be $30,000. For any amounts requested by the Architect as Reimbursable Expenses in excess of the estimated amount, in total, the Architect must obtain written authorization for such expenses prior to incurring the same. Failure by the Architect to obtain such written authorization for any amounts in excess of the estimate is an express waiver of its rights to compensation for such expenses. (Paragraph Deleted) § 11.9 PAYMENTS TO THE ARCHITECT § 11.9.1 An initial payment of ($ ) shall be made upon execution of this Agreement and is the minimum payment under this Agreement. It shall be credited to the Owner's account in the final invoice. § 11.9.2 Timeless and interest due on late payments are governed by chapter 2251 of the (Paragraph Deleted) Texas Government Code. (Paragraph Deleted) § 11.9.3 The Owner shall not withhold amounts from the Architect's compensation to impose a penalty or liquidated damages on the Architect, or to offset sums requested by or paid to contractors for the cost of changes in the Work unless the Architect agrees or has been found liable for the amounts in a binding dispute resolution proceeding. § 11.9.4 Records of Reimbursable Expenses, expenses pertaining to Additional Services, and services performed on the basis of hourly rates shall be available to the Owner at mutually convenient times. ARTICLE 12 SPECIAL TERMS AND CONDITIONS Special terms and conditions that modify this Agreement are as follows: §12.1 INDEMNFICATION THE ARCHITECT SHALL INDEMNIFY, DEFEND, AND HOLD HARMLESS THE OWNER, ITS OFFICERS, OFFICIALS, AGENTS AND EMPOLYEES FROM ALL SUITS, ACTIONS, LOSSES, DAMAGES, CLAIMS, OR LIABILITY OF ANY CHARACTER, TYPE OR DESCRIPTION, INCLUDING WITHOUT LIMITATION, ALL EXPENSES OF LITIGATION, INCLUDING EXPERT OR CONSULTANT FEES, COURT COSTS, AND ATTORNEY'S FEES RESULTING FROM PERSONAL INJURY OR PROPERTY DAMAGE, TO THE EXTENT SUCH PERSONAL INJURY OR PROPERTY DAMAGE IS CAUSED BY OR ARISES OUT OF, OR IS OCCASIONED BY, IN WHOLE OR IN PART, Init AIA Document B101- —2007 (formerly B151 TM — 1997). Copyright 01974, 1978, 1987, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA° Document is protected by U.S. Copyright Law and IntemationaI Treaties. Unauthorized reproduction or distribution of 18 this AIA° Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible 4,under the law. This document was produced by AIA software at 12:49:50 on 06/27/2014 under Order No.7931813803 which expires on 06/1512015, and is not '�4forresale. User Notes: (3B9ADA22) THE ACTS OF THE ARCHITECT, ITS CONSULTANTS, AGENTS, AND EMPLOYEES, IN THE EXECUTION OR PERFORMANCE OF THIS AGREEMENT. THE ARCHITECT'S TOTAL LIABILITY TO THE OWNER FOR ANY LOSS OR DAMAGES FROM CLAIMS ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT FROM ANY CAUSE INCLUDING ARCHITECT'S PROFESSIONAL NEGLIGENCE, ERRORS AND OMISSIONS SHALLNOT EXCEED THE COVERAGE LIMITS CONTAINED IN SECTION 2.5. §12.2 The Architect acknowledges that the Owner intends to execute an agreement, `AIA A•133, Standard Form of Agreement Between Owner and Construction Manager as Constructor where the basis of payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum Price ". ARTICLE 13 SCOPE OF THE AGREEMENT § 13.1 This Agreement represents the entire and integrated agreement between the Owner and the Architect and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both Owner and Architect. § 13.2 This Agreement is comprised of the following documents listed below: .1 AIA Document B101TM -2007, Standard Form Agreement Between Owner and Architect .2 AIA Document E201Tm -2007, Digital Data Protocol Exhibit, if completed, or the following: .3 Other documents: (List other documents, if any, including Exhibit A, Initial Information, and additional scopes of service, if arty, forming part of the Agreement.) This Agreement entered into as of the day and year first written above. CITY OF SCHERTZ Marmon Mok, L.L.P. By: Marmon Mok Management Group, LLC, a Texas limited liability company, Its General Partner Init. AIA Document B101'" —2007 (formerly B151- — 1997). Copyright ©1974, 1978, 1987, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA° Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of 19 this AIA° Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible / under the taw. This document was produced by AIA software at 12:49:50 on 06/27/2014 under Order No.7931813803 which expires on 06/1512015, and is not for resale. User Notes: (3B9ADA22) March 20, 2014 John C. Kessel City Manager City of Schertz 1400 Schertz Parkway Schertz, Texas 78154 Re: A/E Proposed Scope and Fee for Design Services and Construction Administration Revised 3 -20 -14 City of Schertz Aquatics Center Project No. 12007 Dear Mr. Gaudreau: As discussed in our Meeting on February 12, 2014, we have updated our proposal based on the revised construction budget of $8,000,000. Our proposed consultant team remains as previously presented to the City as follows: • Aquatics /Pool Consultant - Counsilman Hunsaker • MEP /FP - Goetting & Associates • Structural - Jaster Quintanilla • Civil - Bury +Partners • Landscape Architecture - Bill Nicholson The project scope is further defined by the following parameters: • An enclosed competition pool (natatorium) measuring 25 yards by 25 meters will be included in the base cost of the project. • An enclosed leisure pool of approximately 3,500 square feet x 4' deep including a ramp, slide and exercise area will be included. The pool may be an alternative bid /pricing option and the leisure pool enclosure will be in the base cost. If the leisure pool is not constructed in the base project, the future leisure pool room will be utilized as an open activity room to be programmed by the facility operator. • The competition pool room will be adjacent to the leisure pool room with the ability to open the wall /doors between the rooms. • The Natatorium (competition pool) will have seating for 300 hundred spectators. • Two entrances (one public from the exterior and one from the existing Recreational Center) will be incorporated. • Locker rooms for use by the School District swimmers will be incorporated into the Natatorium. Project Meetings will be bi- weekly during the design phase. A R C H I T E C T U R E One Riverwalk Place 700 N. St. Mary's, Suite 1600 San Antonio TX 78205 210- 223 -9492 T 210 - 223 -2582 F '� John [.Kesse March 2U,2O14 Page 2 of 3 • Project Meetings during construction will be monthly which includes a site visit. Additional site visits will be made by the A-Eteam associated with the construction work in progress, • A progress submittal will be issued for each phase — Schematic Design, Design Development and Construction Documents. AQUATICS CENTER— COMPETITION POOL/LEISURE POOL/SUPPORT SPACES BasicServices ...................................................................................... $608,800 Architectural, Structural, Mechanical, Plumbing, Electrical and Fire Protection Engineering, Civil Engineering, Landscape Architecture and Aquatics/Puo|Design ADDITIONAL SERVICES Programming.......................................................................................... $121800 1. An initial meeting with [oumsilman Hunsaker (Aquatics Consultant), Marmon Mok, City, YMCA and SCUCISDto discuss appropriate program activities and features for acornpetition/instruction pool, a leisure pool and asplash pad. • Counsi|nnan Hunsaker will discuss national trends and options on pool features that may be incorporated into the project. • Locker rooms, seating and support spaces will also be discussed related to pool and activity trends for a shared use facility. • [ounsilnnan Hunsaker will lead a discussion for pool equipment options, filtration system options and support equipment related tooperations. • A discussion of pool hours anticipated by each User Group will be discussed and analyzed byCounsi|noan Hunsaker. 2. Based on the initial meeting, Counsi|nnan Hunsaker will prepare written Pool Program document documenting topics discussed, options presented and decisions made. 3, Program Review meeting with Counsilman Hunsaker and Marmon Mok to present and review the written program documents and answer questions from the City, YMCA and SCUCISD. REIMBURSABLE EXPENSES Reimbursable expenses are proposed at cost times 1.10. Expenses are estimated at $30,000. John C. Kessel March 20, 2014 Page 3of3 Reimbursable expenses will include: • Travel Expenses for out of town consultants (including airfare, ground transportation, lodging and meals) • Courier Service • Models • Renderings • Survey • Geotechnical Study • Storm Water Management Plan • Development Site Plan submittal • Traffic Impact Analysis • Flood Plan Development Permit • Printing of Plans and Specifications for Bidding and Construction The Basic Services scope is defined in the AIA 8101 and itemized on the enclosed Schedule of Services excerpted from AIA B101. Additional Consultants are proposed as added expertise for specific areas of the project. Additional Services are proposed services outside the basic building design services but which may be required by local statute, or provided by the Owner, for project development. Please call me on my mobile phone (210- 410 -4264) with any questions you may have. Sincerely, 77- Gregory J. Houston, AIA Partner Enclosure Y: \12007 \Acct \FeeProp \Schertz Natatorium Fee Proposal 03- 19- 2014.doc SCHERTZ AQUATICS FACILITY -A, 4A, 08.07.2W I� Mf ofiW PLAN Marmon) ►v. Me . I k G N l 1 L V N!