YMCA Rec Center & Natatorium License Agreements 7-1-16RESOLUTION NO. 16-R-41
A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF
SCHERTZ, TEXAS AUTHORIZING LICENSE AND MANAGEMENT
AGREEMENTS WITH THE YMCA FOR THE MANAGEMENT AND
OPERATIONS OF THE RECREATION 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 and Indoor Recreation Pool License 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 exec1J.te and
deliver the Agreements with the YMCA in substantially the form set forth on Exhibit A and
Exhibit B.
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any provision of this Resolution are hereby repealed to the extent of such conflict, and the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. after its final
ATTEST:
(CITY SEAL)
50234811.l
EXIIlBIT A
Recreation Center License Agreement and Outdoor Pools Management Agreement
Exhibit B
Enclosed Community Swimming Pool and Aquatic Facility of Competition Quality
and Indoor Recreation Pool License Agreement
AMENDED AND RESTATED SCHERTZ RECREATION CENTER
LICENSE AGREEMENT AND
OUTDOORPOOLSMANAGEMENTAGREEMENT
THIS AMENDED AND RESTATED SCHERTZ RECREATION CENTER LICENSE
AGREEMENT AND OUTDOOR POOL ~ANAGEMEN~ AGREEMENT (th i
Agreement") dated to be eff ctive as of the \ ~ day of j 'A'/ , 2016 (th
'Effective Date") is b twe en the City of S hertz, Texas a Texas home rul city ('Schertz' or
the "City"), and the Young Men's Christian Association of Greater San Antonio, a Texas non-
profit corporation (the "YMCA").
WITNESS ETH:
WHEREAS, Schertz is the owner of a Schertz public recreation facility, including splash pad,
on the real property described on the attached Ex11ibit A ("Real Property"), with a street
address of 621 Westchester Drive, Schertz, Texas, upon which has been constructed a recreation
center, including splash pad, 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 Lice11se 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 Faci lity").
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 Pool· 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
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4838-1608-0942.2
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 Aquatic Facility is 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:
1. Exclusive License. Schertz hereby grants to the YMCA an exclusive right and
license to manage and operate the Recreation Center 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 Recreation Center and does not confer any
ownership, leasehold, or other interest in the Recreation Center 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 such term is defined in the Aquatic Facility Agreement). The parties shall
complete Exhibit G attached hereto and incorporated herein with the Aquatic
Facility Completion Date promptly after such date is known. Upon termination of
this Agreement, the Rights licensed to the YMCA herein will automatically revert
back to Schertz, subject to the rights of SCUCISD. 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, subject to the rights
ofSCUCISD.
3. General Terms of Operation, Use and Maintenance of the Recreation Center.
4838-1608-0942.2
The YMCA, at its cost and expense, will (i) perform the work and services for the
operation and management of the Recreation Center as required herein; (ii)
maintain the furniture, equipment and supplies as shown in Section l 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 Recreation
Center within the interior of the Recreation Center (collectively, the "YMCA
Installed Item ' ; and (iii) conduct maintenance and repairs required in the
interior of the Recreation Center as further described in Section II of Exhibit A-1
attached hereto. Schertz, at its cost and expense, (i) will provide the license to the
YMCA with use of the Recreation Center in its current condition; and (ii) will
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conduct maintenance and repairs required for the exterior and other components
of the Recreation Center as further described in Section III of Exhibit A-1
attached hereto.
4. Operations; Employees.
(a) The YMCA will have exclusive control of the day-to-day operations of the
Recreation Center, subject to the rights of SCUCISD and the right of
Schertz, described in Section 13, to inspect the Recreation Center 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, training, and dismissal of all employees.
5. Sublicense.
4838-1608-0942.2
(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) when requested, the YMCA shall use its best efforts to make the Facility
(or parts thereof) reasonably available to Schertz (or the applicable
sublicensee as designated below) without the need for a sublicense
agreement, and at no charge to Schertz, for the following purposes:
(1) for Healthy Kids Day (YMCA Program) -Saturdays 9 am to 1 pm;
(2) for Schertz Library/YMCA collaboration -Fall Fest 1-day event;
(3) for the Schertz Area Senior Center-meeting rooms, gymnasium.
(ii) when requested, the YMCA shall use its best efforts to make the Facility
(or parts thereof) reasonably available to Schertz (or the applicable
sublicensee as designated below) without the need for a sublicense
agreement, but with an agreed fee with the sublicensee, for the following
purposes:
(1) for birthday parties (YMCA Program)-periodically;
(2) for health and wellness courses or seminars;
(3) Family Nights (YMCA Program);
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4838-1608-0942 .2
(4) for martial arts programs -evenmgs 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;
(8) Teen Lock-Ins;
(9) Clemens High School and Steele High School Project Graduation;
(10) American Cancer Society Relay for Life;
(11) Career days;
(12) College prep seminars;
(13) Meeting space for for-profit organizations;
(14) 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.
(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.
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( 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 sub license 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, which must be at least
one (1) business day prior to the date that the lic ensee plans to use the
Facility.
( 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 ection S(a), the City will refer
the applicant to the YMCA, in all events subject to Section S(b).
6. Recreation Center Revenues and Allocation of Expenses.
4838-1608-0942.2
(a) The YMCA will receive and retain all membership fees, vending machine
profits, revenues from YMCA programs, receipts from Recreation Center
sublicenses, and all other revenues generated from any event or operations
at the Recreation Center.
(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
Recreation Center 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 Recreation Center, 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 Recreation Center, 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 Recreation Center,
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 (prorated for any partial month): electric service
for the lighting of the parking lot of the Recreation Center (which will be
separately metered), and water service for all landscape irrigation for the
Recreation Center (which will be separately metered).
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7. Grants of Funds to the YMCA.
4838-1608-0942.2
(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 upon opening the Aquatic Facility to the public, Schertz will
provide a grant of money annually (the "Operations Grant") to the
YMCA, initially in the amount of Three Hundred Eighty Thousand and
No/100 Dollars ($380,000) per year, and payable in equal monthly
installments by the tenth (10th) day of each month during each year for the
first five (5) years of the term of this Agreement, which Operations Grant
shall be used to pay for the Recreation Center operation and maintenance
expenses allocated to the YMCA herein. In order to provide for
inflationary factors on operating and maintenance expenses, the
Operations Grant payable by Schertz shall be increased by an amount
equal to five percent 5% of the previous applicable annual Operations
Grant amount on each five (5) year anniversary date during the term of
this Agreement, to the effect that the Operations Grant payable each year
and in monthly installments shall be as follows:
(i) Term years 1 through 5: $380,000.00 per year (payable in equal
monthly installments)
(ii) Term years 6 through 10: $399,000.00 per year (payable in equal
monthly installments)
(iii) Term years 11 through 15: $418,950.00 per year (payable in equal
monthly installments)
(iv) Term years 16 through 20: $439,897.00 (rounded down) per year
(payable in equal monthly installments)
( c) Further, commencing upon opening of the Aquatic Facility to the public,
Schertz will provide a grant of money to the YMCA in the amount of one
hundred thousand 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 Recreation Center and Aquatic Facility
generate a surplus of funds (calculated as gross revenues for the
Recreation Center minus total expenses for the Recreation Center and
Aquatic 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")
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(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.
( e) In the event of a casualty, which is not due to the gross negligence, willful
misconduct, or act of Schertz, that makes the Recreation Center wholly
inoperable for a period in excess of one (1) week, the amount of the
Grants shall be reduced on a pro rata basis to account for the duration of
such inoperability (for example, if the Recreation Center is inoperable for
a period of fifteen (15) days in a calendar month containing thirty (30)
calendar days, the Grants paid during such calendar month shall be
reduced by fifty percent (50%) to account for the Recreation Center being
inoperable during fifty percent (50%) of such calendar month).
8. Membership Rates and Service Charges.
4838-1608-0942.2
(a) The cmTent rates charged at the Recreation Center and Aquatic Facility
are set forth on Exhibit C. Rates charged at the Recreation Center and
Aquatic 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 by more than two
percent (2%) annually above the rates set on Exhibit C throughout the
term of the Agreement. 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 Recreation Center and Aquatic Facility. Any Schertz employee
who, after becoming a member and later canceling the membership, then
reapplies for membership at the Recreation Center and Aquatic 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.
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9. Marketing and Signage.
(a) Using its normal and customary marketing programs as generally applied
in ~he Bexar County, Texas area, the YMCA will be responsible for all
marketing related to the Recreation Center and the YMCA's programs
conducted therein, and will so market the Recreation Center, at a
minimum, within the entire area in the 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 Recreation
Center, and as determined by the YMCA in its sole and reasonable
discretion from time to time, for providing all additional necessary or
desirable interior signage within the Recreation Center, as well as any
exterior Recreation Center signage that includes the YMCA name. In the
event any new or replacement signage contains both the name of the
Recreation Center 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
Recreation Center, in addition to that displayed by the YMCA, and the
YMCA will permit such signage to be placed in the interior of the
Recreation Center in reasonable locations if requested by Schertz.
Samples of the signage currently located at the Recreation Center are
shown on the attached Exhibit D.
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 Ex hibit 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 . General Terms of Operation, Use and Maintenance of the Outdoor Pools.
4838-1608-0942.2
The YMCA will perform the work and services for the operation and management
of the Outdoor Pools in accordance with the following terms and conditions:
(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/I 00 Dollars ($179,878.00), which shall be paid in two (2) payments of
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4838-1608-0942.2
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 tl(t), the cost associated with
the remaining Outdoor Pool shall be one half (1/2) of the total amount set
forth above.
(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-1, 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
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
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4838-1608-0942 .2
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) Termin a tlon of th e Outdo o r P ool (s) M anagement: 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
cction ll(g) upon termination of the provisions of this Agreement set
forth in this S ection J 1 with respect to one or both of the Outdoor Pools
becoming effective.
(g) Payment: 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 ll(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 S ection ll(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
payable to YMCA under ection ll(a) through the effective date of such
termination.
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12. Insurance.
4838-1608-0942.2
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) ommercial Gen ral Liability (including contractual liability):
(b)
Bodily Injury & Property Damage: $1,000,000 per occurrence
$2,000,000 General Aggregate
Worker's Compensation: Statutory requirements applicable to the
YMCA
( c) Employers Liabili ty:
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
mm1mum amounts with companies authorized to do business in the State of
Texas:
(a) Commercia l neral Liability (including contractual liability):
Bodily Injury & Property Damage: $1,000,000 per occurrence
$2,000,000 General Aggregate
(b) 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 Recreation Center 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 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
11
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
msurers.
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 Recreation Center and/or the
Outdoor Pools pursuant to this Agreement.
Other Requirements. 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.
13. Inspections. The Schertz City Manager and/or his/her designee and the Schertz
Director of Parks, Recreation and Community Services (or the equivalent position
if such position is renamed) and/or his/her designee (each a "Schertz
Representative") may make periodic visits to the Recreation Center 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.
14. Notice for Repairs by YMCA. The YMCA will provide Schertz prompt written
notice of any capital or other repairs and/or replacements to the Recreation
Center 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
12
4838-1608-0942.2
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 Facility and/or the property of the YMCA ,
(ii) the failure of the HV AC system, (iii) the failure of any essential utility
component of the Recreation Center 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 Recreation Center 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.
15 . 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.
17. Quarterly Reports-Facility. The YMCA 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
Center and Aquatic 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.
13
4838-1608-0942.2
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
actual Facility and all records related to 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.
19. Semi-Annual "Schertz Night". The Recreation Center will be made available
exclusively to the City of Schertz residents at no cost to Schertz or to the City
residents two times each year, at dates and times to be mutually agreed upon by
the YMCA and Schertz (each occurrence referred to as a "Schertz Night").
During these occasions, the YMCA will provide adequate staff and will open the
Facility for full use by City residents. These times are intended to acquaint City
residents with the Facility and to encourage membership. The Facility Schertz
Nights shall occur at the same time as the Aquatic Facility "Schertz Nights"
addressed in Section 20 of' the Aquatic Facility Agreement.
20. 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 how 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 in accordance with the
provisions of this Agreement.
21. INDEMNITY. THE YMCA WILL INDEMNIFY AND HOLD HARMLESS
AND DEFEND SCHERTZ AND ALL OF SCHERTZ'S
COUNCILMEMBERS, OFFICERS, AGENTS, ATTORNEYS, AND
14
4838-1608-0942.2
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
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.
22. RELEASE. NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS
AGREEMENT, THE YMCA HEREBY RELEASES, ACQUITS,
RELINQUISHES, AND FOREVER DISCHARGES SCHERTZ,
SCHERTZ'S EMPLOYEES, OFFICERS, COUNCILMEMBERS,
ATTORNEYS, 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 sub licenses permitted by Section 5, neither party
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.
4838-1608-0942.2
(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
15
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
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.
25. Schertz Warranties. Schertz hereby represents and warrants to the YMCA as
follows:
4838-1608-09422
(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 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.
16
26. 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.
( 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.
27 . 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.
28. No Waiver of Sovereign Immunity. By executing this Agreement, Schertz is
not waiving its right of sovereign immunity except, and only to the extent
permitted by law, with respect to actions by the YMCA to enforce the YMCA's
Rights under this Agreement.
29. Third-Party Beneficiary. Except as described in Sections 21 and 22 , this
Agreement does not create any third-party beneficiaries. Except as described in
Sections 21 and 22, there are no third-party beneficiaries 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 of the Entire Agreement. 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 , by written notice
to the defaulting party, 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 in accordance
with the foregoing provision without penalty to the terminating party. Upon any
17
4838 -1608 -0942 .2
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. If such items
are not removed within such timeframe, then such items shall become the
property of Schertz and Schertz may keep or dispose of such items as it sees fit in
its sole discretion, and any costs associated therewith shall be the responsibility of
the YMCA. Upon 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 Section 21
and 22 shall survive termination of this Agreement. Further, in the event of a
termination of this Agreement due to a default by the YMCA, the YMCA shall
return a pro rata portion of the Grants attributable to the remaining portion of the
applicable term year in which the termination occurs.
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 YMCA 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 . Attorneys' Fees. If it shall become necessary for either party to bring or
commence any legal action or proceeding to enforce this Agreement, including an
action seeking specific performance, the prevailing party in such action shall be
entitled to the recovery of all costs and expenses of litigation, including, without
limitation, reasonable attorneys' fees, court costs, and costs of appeal.
18
4838-1608-0942.2
33. 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:
with copies to:
Ifto the YMCA:
with copies to:
City of Schertz
1400 Schertz Parkway
Schertz, Texas78154
Attention: City Manager
City of Schertz
1400 Schertz Parkway
Schertz, Texas 78154
Attention: Director of Parks, Recreation and
Community Services
City Attorney
c/o Denton Navarro Rocha Bernal Hyde & Zech, P.C.
2517 North Main Street
San Antonio, Texas 78212
Attention: Charles E. Zech
YMCA of Greater San Antonio
321 E. Rhapsody
San Antonio, Texas 78216
Attention: Ross Magsig
Dykema 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 33.
34. 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.
35. 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
19
4838-1608-0942.2
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.
36. 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.
3 7. Amendments. This Agreement may not be modified except in writing signed by
Schertz and the YMCA.
38. 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.
39. 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.
40. 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.
41. 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:
4838-1608-0942.2
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 -Acknowledgement of Aquatic Facility Completion Date
Exhibit H -Scope of Work Related to the Outdoor Pools
[Signatures on the following page]
20
SIGNATURE PAGE TO
AMENDED AND RESTATED SCHERTZ RECREATION CENTER
LICENSE AGREEMENT AND
OUTDOORPOOLSMANAGEMENTAGREEMENT
IN WITNESS HEREOF, the parties hereto have executed this Agreement to be effective as of
the Effective Date.
CITY OF SCHERTZ, TEXAS,
a Texas home rule city
By:_(J-{-P ____ _
John C. Kessel,
City Manager
50855853.3
4838-1608-0942.2
S-1
YOUNG MEN'S CHRISTIAN
ASSOCIATION OF GREATER
SAN ANTONIO,
a Texas non-profit cor rati on
By:
N an
President and CEO
50855853.3
4838-1608-0942.2
EXHIBIT A
(Real Property Description)
See attached
A-1
50855853.3
483 8-1608-0942.2
0
n
City of Schertz
New Recreation Center
Sch&rtz, Texas
A-2
ELBEL RD. I
II
r----------
1
e
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 Facility.
2 . Vending machines containing drinks and snacks (pursuant to third party
contracts).
II. Maintenance and Repair Responsibilities of the YMCA1
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 Outdoor Pools.
11. Maintain proper PH and chlorine levels of the Outdoor Pools .
12. Vacuum Outdoor Pools and hose down decks.
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.
4. Damage to any part of the Facility due to any structural defect.
1 Repairs described in this Part II resulting from damage by Schertz or its employee s or the fa ilure of Sche1iz to
undertake its obligations under Part III shall be th e respon sibility 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 fa ilure of the YMCA to undertake it s obligations under Part II sh all be the responsibility of
the YMCA.
50855853 .3
4 838-1608-0942 .2
A-1-1
5.
6.
7.
8.
9.
10.
11.
12.
13.
50855853.3
4838-1608-0942.2
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.
A-1-2
50855853 .3
4838-1608-0942.2
EXHIBIT B
Employee Job Descriptions
See Attached.
B-1
50855853.3
YMCA of Greater San Antonio
Job Description
Position Title: Aquatics Director
Incumbent:---------
Supervisor: Executive Director
General Function:
Branch:~
Department: Aguatlcs
Date: April 2014
Under the supervision of the Executive Director, this position Is responsible for planning and
organizing all aquatic activities and programs; hiring and training new staff; training staff In
CPR, Flrst Ald, and AED; fiscal management; and member satisfaction.
Entrv Requirements:
Must be 21 years of age and have one to three years of recreation, pool management,
lifeguard, swim Instructor, or water park experience and/or equivalent combinat ion of
education, training and experience. Experience supervising staff and developing pool and
class schedules required,
Strong people skills, organizational skills and attention to detail required. Strong personal
commitment to creating a safe aquatic environment Is necessary.
Bache lor's Degree In physica l education, recreatlon or re lated field from an accred ited
college or Lmlvers lty, preferred. Current YMCA or American Red a·oss Llreguard, CPR for the
Professional Rescuer, AED, and Oxygen Administration and YMCA Swim I nstruc tor
certification preferred. A Texas Driver's license Is required as well as driving to various
locations within the city.
Ph ysical/Mental Requirements;
Work ls performed In a fast-paced office environment. Incllmbent rnust have _the ability to
communicate both orally and In writing with al l levels of staff, members, and volunt!'ler ·s
Visual acuity Is required for scann ing the water In bright sunlight and Indoor conditions.
This position requires analytical ab ll ltles and mu l titasking In order to Identify problems and
recommend solutions. Job requires accuracy and attention to detail, organizational and Urhe
management s kills, whi l e maintaining high levels of Initiative In order to work within
deadlines. Occas ional stooping and bend ing with regular li~lng of up to 20 pounds Is
required. I ncumbent must be able to sit for long periods of time and necessary aquatic
skills to properly delive r both programs, as wel l as, able to manipula t e keyboards, telephon e
keypads, and writing utensils is essential.
Primary Duties:
Manages all aspects of lifeguard and aqu atics safety at the designated location.
Develops, Implements, and overs ee s aquatic programs such as, but not limited to
sw im lessons, swim team and pool parties.
Interviews, hires, trains, supervises, and evaluates aquatics staff In accordance with
YMCA guidelines.
Administrative duties Include accurately recording staff certifications, scheduling,
program development, and budget oversight.
Maintains pool, equipment, and grounds to meet all necessary program and
regulatory standards.
Follows systems, practices, and trainings related to risk management and safety of
participants and staff.
• Follows accident reporting procedures and policies.
B-25400000.3
50855853 .3
• Coordinates and Implements marketing and promotions.
Develops and distributes all program promotional pieces with the YMCA Association
marketing team.
Participates In Y Partners Campaign.
Maintains a profess lonci l Image af)d manner consistent with the YMCA mission and
goals.
• Assists with branch operations, works as Staff-On, and supports branch
administrative projects when needed.
other duties as assigned
Employee's Signature Date
Supervisor's Signature Date
B-35400000.3
50855853.3
YMCA of Greater San Antonio
Job Description
Title: Ac.iuatlcs Coordlhator
Incumbent: ______ _
Supervisor: a· i;s Director
General Function:
Branch: Ami.
Department: Aquatics
Revised Date June 13. 2012
The Aquatics Coordinator will assist the Health and Wellness Director wi t h the overall
planning, development, management and supervision of all aquatics programs of the
branch.
Entry Requirements :
Position requires th e completion of 2 years of college or equ i valent experienc e working with
Aqu atics Progra ming . Must be 21 years of aye. Incumbent must nave prior experience or
tra ining 111 staff supervision and fadllty management. Must be a team player with
exceptiona l organization skills. Must have strong commun lciltlon skills and the abi li ty to
relate well to YMCA members, staff and diverse co mmunity. Incumbent shou ld possess a
thorough knowledge of train ing and certification lh sports and aquat i cs. Certification In First
Aid, CPR, BBP, AED, 02, Li feguard, ancl Pool Operation Is also requ i red or must obtain within
60 days, Must have a valid class C driver license as driving to offslte locations Is required.
Physical/Mental Requirements:
Work Is perfo rm ed In a fast-paced office environment. Incumbent must have the ability to
communicate both orally and written with all levels of staff, members and voluntee rs Visual
acuity Is requ11 ·ed for reading computer scree ns and/or documents and making changes as
necessary/required. This posit ion requi res analytical ab llltles and multitasking In order to
Identify problems and recommend so lutions. Job require s accuracy and attention to detail,
organlzatlena l, and time man age men t skills, whll e m<1lntalr1lng high level s of Initiative In
order to wo r k wlth·ln deadlines. Occasional stooping and bending with regula r lifting of up to
20 pounds Is required. Incumbent must be able to sit For long pe r iods of time and necessary
aquatic skllls to properly deliver both programs, as well as, able to manipulate keyboards ,
telephone keypads, and writing utensils Is essential.
Primary Duties:
Assists In th e hiring, training, and supervision of all necessary personnel to deliver each
prog ra m component.
Coordinates scheduling to provide proper program delivery.
Maintains records of attendance and monitors payments for each program participant.
Maintains pool, equipment, and grounds to meet all necessary program and regulatory
standards.
Maintains relatlonshlps with vendors and provides excellent customer service to
participants and their parents.
Follows system s, practices, and train ing re lated to risk management and safety of
participants and staff, and follow accident report procedures and policies.
Coordinates and Implements marketing and promotion s.
Assists In the development and distribution of all progra m promotional pieces.
Other duties as assigned by supervisor.
B-45400000.3
By signing below, employee confirms receipt of this job description.
Supervisor's Signature Date
Employee's Signature Date
50855853.3 B-5s4ooooo.3
50855853 .3
YMCA of Greater San Antonio
Job Description
Title: 1llil9.!J.9L<!
Incumbent: --------
Supervisor: Aau atlcs Director
General Function:
Branch: All¥
Department: Aquatics
Date: Mar ch 8 , 2014
The llfegu ard Is responsible for direct supervision, control, and safety of participants during
classes, l'ec reatlonal, and fitness swimming. Lifeguards are al so re sponsible for poo l
maintenance and monitoring chemical readings In the pool.
Entry Requirements:
Incumb ent must be llfeguard ce rtifi ed and at least 18 years old. Lifegu ard must hold a YMCA
lifeguard certification. First Aid, CPR , BBP, AEP, and 0 2 ce rt ificati ons are required and must
be current. Incumbent must have excellent communication skills.
Physical/Mental Requirements:
Work is performed In a fast-paced environment, Visual acuity Is necessary for scanning the
pool In bright sunlight and Indoor conditions. Ability to respond appropriately to medical
emergencies Is required. Incumbent must be able hear and think clearly In order to perform
job. Job requires high levels of alertness and concentration. Repetitive stooping and
bending with lifting of light to medium Is required. Ablllty to sit attentively for long periods
of time are required, as well as the ability to swim and hold breath under water when
necessary.
Prh:narv Duties:
Responsible for loggi ng dally attendance sh ee ts.
Responsible for kee ping the pool cl ea r of equipment and putting equipment In proper
stora ge pl ace,
Resp onsibl e for attending all staff meetings and training sessions when scheduled.
Maintains a professional attitude at all times.
Reports to duty 10 minutes before pool opening.
Rep ort s hee ded eq Ul pmen t re pa irs to pool manag er l n writing.
Enforces al l facility rul es such as "no fo od or dri nk allo wed In the pool area"; "clear
all swimmers from th e wat er duri ng an el ectrica l storm ".
Checks chemical before and after duty, reports malfunctions.
Secures substitute lifeguards as necessary,
Provides direct supervision and maintains safety standards during recreational and
fitness swims.
Responsible for appropriate child-adult ratios and group sizes.
Responsible for cl ea nllness of desk and lo cke r ro om s.
Responsible for ope nin g and dosing pro cedu re s a nd securing door.
Engages In posi tive mem ber relations with all participants.
Knows all emergency procedures and administers First Aid, AED, CPR, 02, and
water rescues, as necessary.
other duties as assigned by supervisor.
B-65400000.3
By signing below, employee confirms receipt of this job description.
Employee's Signature Date
Supervisor's Signature Date
50855853.3 B-7 5400000.3
50855853.3
YMCA of Greater San Antonio
Job Description
Title: Swim Le sso n Iostru£.!'.QC
Incumbent: -------
Supervisor: Aquatics Director
General Function:
Branch:~---
Department: Aquatics
Date: March B. 2014
Provides direct teaching leadership by practicing water safety and aquatics Instruction In
accordance with YMCA aquatics guJdellnes.
Entry Requirements:
Incumbent must be YMCA lifegu ard ce rtified and at least 16 years old. CPR, First Aid, AED,
0 2 , and BBP certJncatlon are required and they must be current. In cumbent must have
exce ll ent cornmunli:atlon and coachi ng ski ll s.
Physica l/ Mental Requirements:
Work Is performed Jn a fa st-paced env ironm ent. Vi sual acuity is necessary for scanning the
poo l In bright sunlight and Indoor conditions. Aoltlty to respond appropriately to medical
emergencies Is r eq uired . Incumb ent must be ab l e hear and thin k clea rly In order to perform
job. Job requires high l ev els of alertness and concentration. Repetitive stooping and
bend i ng wi th lifting of lig ht to med i um Is required. Ablllty to si t attentively for Jo ng periods
of time are r equired, as well as the ability to swlm and hold breath under water when
necessary.
Primary Duties:
Responsible for Jogging dally attendan ce sheets.
Responsible for keeping the pool clea r of equipment and putting equipment Jn proper
s torage place,
Responsible for attending all staffs meetings and training sessions when scheduled.
Maintains a professional attitude at all times.
Reports to duty 10 m inutes before pool opening .
Reports need ed equipment r epal rs to pool man ag er In writing.
Enforc es all raclllty rules such as "no foo d or drink allowed In the pool area"; "clear all
swimmers from the water during an electrical storm".
Checks chemical before and after duty and reports malfunctions.
Secures substitutes as necessary. Must notify supervisor.
Prov id es direct teaching leadership Jn a youth group env iro nmen t.
Shares respon sl blllty of Interpreti ng and commun i cating each child's progress to pa re nts.
Responsib l e for prop er reco rd-kee ping, awards, and progres s card s at the conclusion of
each session.
Assists Jn proper storage of aquatic equipment.
Practices safety procedures before, during, and after classes.
Follows all aquatic program currlculums.
Follows all YMCA of Greater San Antonio pollcles and procedures
Other duties as assigned by supervisor.
B-85400000.3
By signing below, employee confirms receipt of this job description.
Employee's Signature Date
Supervisor's Signature Date
50855853 .3 B-95400000.3
50855853 .3
YMCA of Greater San Antonio
Job Description
Title: Swlrn Team Coacb
Incumbent: --------
Supervisor: Aguatlr.s Director
General Function:
Branch: ___ _
Department: Aquatics
Date: May B. 2012
The swim team coach oversees the activities, practices, and competitions of the swim team .
Entry Requirements:
Bachelor's degree In a related field strongly preferred. Three to five years experience and
certification as a ASCA level 1 swim coach, CPR, First Aid, AED, 0 2 , and BBP certification are
required and they must be current. Incumbent must have good communication skills.
Physical/Mental Requirements:
Work Is performed In an aquatics envi ron ment. Visual acuity Is necessary , to keep track of
everyone In the pool. Ability to respond properly to medical eme rg ency Is necessary.
lncumben t mu st be able to hea r and think clea rly In orde r to perform job. Job requires high
levels of alertness and concentration. Repetitive stooping and bending with lifting of li ght to
medium Is required.
Primary Duties:
Oversees the swim team, Including registrations, practices, and competitions.
Tracks dally cittendance sheets.
Keep s the poo l dear of equipment and stores equipment In proper place.
At t en ds a ll staffs meetings and training sessions wh en scheduled.
Maintains a profess ional attitude at all times .
Reports need ed equipment rep a irs t o pool manager In writing .
Enforces all fa cility ru l es In cluding-no food or drinks allowed In the pool area; clear all
swimmers from the water during an electrical storm.
Secures substitutes as necessary.
Provid es direct teaching leadership In a group en v11·onment situation .
Sh ares responsibili t y In Inte rpreting and comm uni cating child's prog ress to parents.
Assists In proper storage of aquatic equi p ment.
Practices safety procedu res before, during and after classes.
Follows all aquatic program cu r rlculums.
Ensure the YMCA swim team adheres to all AASSL policies.
Follows all YMCA of Greater San Antonio policies and procedures
other duties as assigned by supervisor.
By signing below, employee confirms receipt of this job description.
Employee's Signature Date
Supervisor's Signature Date
B-105400000,3
50855853.3
4838-1608-0942 .2
EXHIBIT C
Initial Membership Rates
See Attached.
C-1
EXHIBIT C
Schertz Family YMCA Membership Rates
As of March 1, 2016
Family I-Households with two adults OR one adult plus any dependent children*
Non-Schertz Residents $85 Schertz Residents $78
Family II-Households with two adults plus any dependent children*
Non-Schertz Residents $98 Schertz Residents $91
Adult -One adult age 18 -61
Non-Schertz Residents $57 Schertz Residents $50
Student -Students age 13 -18 or students through age 25 with proof of current full-time
student status
Non-Schertz Residents $46 Schertz Residents $39
Senior -One adult age 62+
Non-Schertz Residents $55
$49 Joining Fee
Schertz Residents $35
*Children must be under the age of 18. Dependent children through age 25 also qualify
with proof of full-time student status and must live at parent's address.
Schertz Residents will receive a 15% discount off of youth swim lessons.
Day Passes for the Aquatic Facility
As of March 1, 2016
Schertz Resident Day Passes
$6 Individual
$15 Family
Non-Schertz Resident Day Passes
$10 Individual
$20 Family
50855853.3 C-254000003
50855853.3
5400000.3
EXHIBIT D
Samples of Existing Signage
See Attached.
D-1
EXHIBIT 11 E11
Advisory Board Member
Role and Responsibilities
YMCA of Greater San Antonio
r-o.q YOUTH IW/F.WPM!:Nt '
FOi! ttr:1\l:lllY Lii/iNG
FOil sor.IAI. RESPONS\lllLITY
Goal: Branch Advisory Boards ar e composed of community leaders who are
committed advocates of the YMCA's Mission Sta te me nt, Core Values and
Strategic Visio n fo r. the futu re . As those closest to the "puls e" of their
community, the Branch Advi sory Board will ensure that the YM CA effectively
meets community needs and brings value to thos e neighborhoods In which it
serves.
This goal Is accomplished by Advisory Board Members performing the
following duties:
Duties:
Counsel and Advisement
1. Identify. communl~y needs and service gaps . Recommend relevant
programming to Impact these areas.
2. Review and analyze program participation while supporting program
quality, effectiveness and market penetrati on.
3. Review member satisfaction and th e overa ll member experience. Hold
staff accountable to quality operations through valuable feedback and
Insight on exceptional customer service and member engagement.
Community Conn ector
L Serve as an amb assador for the YMCA by promoting the organization
and Its Initia t ives in t he community .
2. Open doors to bu si ness, civic and community leaders for Y staff.
3. Help Fa cilitate community pa rtnerships and collaborations with other
appropri ate community o r ganizations and businesses.
4. Recruit <i nd qu alify other Advi sory Board volunteers .
Le e · o ·
1. Collectively as a board, lead a comprehensive annual campaign
(Partners) that meets loca l sc ho la rs hip n eeds.
2. Identify new sources of potential donors.
3. Commit to finan cia l su pport for fu ndralsl ng campaigns and engage in
activities to support their success.
YMCA Mission: To put Judea-Christian principles Into practice through programs that build healthy spirit, mind and body for all ,
50855853.3
4838-1608-0942.2
E-1
50855853.3
4838-1608-0942 .2
Terni: 3 years, unless serving by special appointment or fllllng an unexpired
ter m (Class). Terms will be renewable through Advisory Board app ro val.
Expectations: Advisory Board Members are accountable to the Branch
Advisory Board Chair and are expected to fulfill the followlng specific
responsibilities.
1. Regular attendance {.lt board meetings; minimum 80% attendance
a. Re view agenda ltertls In advance of schedllled meetings
b. As.k discerning questloris, construct1vely participate In
deliberations, vote according to convictions and In th e best
interest of the YMCA
2. Actively participate on a minimum of 1 Branch Board Committee
a. Become vested In an area where p ers onal/professional
background and interests would be of value
3. Drive success toward Branch fundralslng goals through participation In
the Annual Partners Campaign
a. Make a personal monetary g l~ to the campaign
b, Commit to a "Give or Get" goal of $2,000
4. Participate In the Board Development process
a. Ideritffy and help recruit Influen t ia l community leaders to
partlclpate on the Branch Advisory Board
Relationship with the YMCA of Greater San Antonio Corporate Board
The Corporate Board for the YMCA of Greater San Antonio ass umes the
tJltlmate legal authority for the organization lncludlng holding title to all
properties, establishing general pollcy for the association, authorizing all
contractual r e lationships, establishing long range goa ls, endorsin g all fls ca l
and banking re lationships, and hiring the President. In concert with the
Corporate Boa r d, the Branch Advisory Boards shall serve as th e key
community stakeholders through Y ambassadorship, fundralslng to tneet
local nee ds, servi ng as an a.dvlsor to Y leadership and working closely wi t h
the Executive Directo r to ensure that all programs and serv ices of the YMCA
fulflll the needs of the comm Unity as w ell as aligns with key priorities and
strategic vision of the YMCA of Greater San Antonio.
Received :
Signature Date
E-2
508558533
4838-1608-0942.2
EXHIBIT F
Form of Sublicense Agreement
and Related Documentation
See attached.
F-1
CITY OF SCHERTZ/YMCA RECREATION CENTER
RESERVATION APPLICATION
Preferred room(s):
Organization:----------------------------------
Proposeduseoffuerescrvedspace: _________________________ ~
Date(s) of proposed use:------------------------------
Estimated attendance: -------------------------------
Contact Person
Name: ----------------------------------
Address: ---------------------------------
City, State, Zip Code:-----------------------------
Email: ----------------------------------
Telephone: _____________ Alternate Telephone:------------
Time of use (set-up and clean-up time must be included in the time of use): From ____ To
Event official starting and ending times: From __________ To ________ _
Attachment 1 -City of Schertz/YMCA Facility Sublicense Agreement
Attachment 2 -Decoration Restrictions and Clean-up Requirements
50855853 .3
4838-1608-0942.2
F-2
Attachment 1
CITY OF SCHERTZ/YMCA FACILITY SUBLICENSE AGREEMENT
This City of Schertz/YMCA Facility Sublicense Agreement (this "Agreement") is between the
Young Men's Christian Association of Greater San Antonio (the "YMCA"), acting with authority of the
City of Schertz, Texas, a home rule city and a municipal corporation of the State of Texas (the "City"),
and (the "User").
1. FACILITY AND EVENT:
The YMCA agrees to furnish the User with the following described space located in the City of
Schertz YMCA Recreation Center:
to be used for the purpose of
~~~~~~~~~~~~~~~~~~~~~~~~~~~
and for no other purpose without the written consent of the YMCA for a term commencing:
(Time) (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-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.
50855853.3
4838-1608-0942.2
F-3
4. CONTROL OF FACILITY:
In allowing the User to use the facility, the YMCA does not relinquish the right to control the
management thereof and to enforce all necessary and proper rules for the management and operation of
the same; and the employees of the YMCA and the City may enter the same, and all the premises, at any
time and on any occasion.
5. REMOVAL OF MATERIALS:
All materials and installations placed in the facility by the User shall be removed 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.
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.
8. SEATING CAPACITY:
In no event shall tickets be sold or dispensed in excess of the seating capacity of the facility, as
determined by the City's Fire Chief.
9. NO DEFACEMENT OF FACILITY OR BUILDING:
The User shall not injure or mar or in any manner deface the facility or the building in which it is
located, and shall not cause nor permit anything to be done whereby such premises shall be in any
manner injured, marred, or defaced, nor shall the User drive, or permit to driven, any nails, hooks, tacks,
or screws in any part of said building, nor shall the User make, or allow to be made, any alterations of
50855853.3
4838-1608-0942.2
F-4
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.
50855853.3
4838-1608-0942.2
F-5
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 or license 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 LJ 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
50855853.3
4838-1608-0942.2
F-6
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 __ per hour fee will be deducted from the
security/cancellation deposit.
25. INSURANCE:
If the User is a for-profit entity, such User shall obtain and maintain insurance in such types and
amounts as may be required by the City in the City's sole discretion, and such User shall provide the
City with certificates evidencing such required insurance coverage.
IN WITNESS WHEREOF, we have affixed our signatures, this_ day of ____ _
201
USER:
Signature: ____________ _
Printed Name: -----------
THE YOUNG MEN'S CHRISTIAN
ASSOCIATION OF GREATER SAN ANTONIO:
President and CEO
----------~·
Name and address for security/cancellation deposit refund (if applicable):
Name: -----------------------------------
Address:
---------------------------------~
City, State, Zip Code:-----------------------------
50855853.3
4838-1608-0942.2
F-7
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 strict ly 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 oflitter 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.
City, State:-------------------------------
Phone Number:
----------------------------~
Signature of the User's Representative:---------------------
50855853.3
4838-1608-0942.2
F-8
EXHIBIT G
Acknowledgement of Aquatic Facility Completion Date
The parties confirm that the Aquatic Facility Completion Date is __________ _
and that the end of the initial term of this Agreement is ___________ _
CITY OF SCHERTZ, TEXAS,
a Texas home rule city
John C. Kessel,
City Manager
50855853.3
4838-1608-0942.2
G-1
YOUNG MEN'S CHRISTIAN
ASSOCIATION OF
GREATER SAN ANTONIO,
a Texas non-profit corporation
By:
Name: -----------
President and CEO
EXHIBITH
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
(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
H-1
4838-1608-0942.2
III. Schertz shall provide the following:
4838-1608-0942.2
Required chemicals
Routine maintenance
Emergency repairs
H-2
SCHERTZ ENCLOSED COMMUNITY SWIMMING POOL AND AQUATIC FACILITY
OF COMPETITION QUALITY AND INDOOR RECREATION POOL
LICENSE AGREEMENT
THIS SCHERTZ ENCLOSED COMMUNITY SWIMMING POOL AND AQUATIC
FACILITY OF COMPETITION QUALITY AND INDOOR RECREATIO~ POOL
LICENSE AGREEMENT (this "Agreement") dated to be ffe tive as of the ~ day of
~\J \ '/ 2016 (the "Effective Date") is between the City of Schertz, Texas, a
Texas home rule city ("Schertz" or the "City"), 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 Llce11se
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
PooJ and Aquatic enter") and (2) an indoor recreation pool (the "Recreation Pool").
WHEREAS, the Recreation Center is referred to herein as the "Facility".
WHEREAS, the Swimming Pool and Aquatic Center and Recreation Pool are collectively
referred to herein as the "Aquatic Facility".
WHEREAS, the Facility and the Aquatic Facility are collectively referred to herein as the
"En tire Facility".
WHEREAS, this Agreement relates to the 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.
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.
1
4834-13 88-65102
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.
2.
3 .
50855852.3
4834-1388-6510,2
Exclusive License. Subject to the restrictions, terms, and conditions of this
Agreement, and further subject to the now current restrictions, terms, conditions,
license, and rights granted to the Schertz-Cibolo-Universal City Independent
School District ("SCUCISD") pursuant to the Aquatic Facility Interlocal
Agreement between Schertz and SCUCISD attached hereto as Exhibit G and
incorporated herein for all purposes (the "Aquatic Facility Interlocal
Agreement") (but not subject to any future amendments or supplements thereto),
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.
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, subject to
the rights of SCUCISD. 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, subject to the rights of SCUCISD.
General Terms of Construction, Use and Maintenance. The YMCA, at its cost
and expense, will (i) 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 1 on the attached ExJ1ibit 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 September 1,
2016, the license to the YMCA with use of the completed Aquatic Facility and a
final Certificate of Occupancy for the Aquatic Facility in accordance with final
plans and specifications provided to and approved by 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), which the YMCA hereby accepts, and ready for installation of the
YMCA's Installed Items , (ii) will install such additional components for the
Aquatic Facility as further described on Exhibit I attached hereto, and (iii) will
conduct maintenance and repairs required for the exterior and other components
2
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 Facility, subject to the rights of SCUCISD and 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 Il. 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, training, and dismissal of all employees.
5. Sublicense.
50855852.3
4834-1388-6510.2
(a) The YMCA shall have the authority to sublicense the Aquatic Facility (or
parts thereof) to the following organizations or for the following purposes
for members and/or non-members:
(i) when requested, the YMCA shall use its best efforts to make the Aquatic
Facility (or parts thereof) reasonably available to Schertz without the need
for a sublicense and at no charge to Schertz;
(ii) when requested, the YMCA shall use its best efforts to make the Aquatic
Facility (or parts thereof) reasonably available to Schertz (or the
applicable sublicensee as designated below) without the need for a
sublicense agreement, and at no charge to Schertz, for the following
purposes:
(1) for Healthy Kids Day (YMCA Program)-Saturdays 9 am to 1 pm;
(2) for the Schertz Area Senior Center-meeting rooms, gymnasium.
(iii) when requested, the YMCA shall use its best efforts to make the Facility
(or parts thereof) reasonably available to Schertz (or the applicable
sublicensee as designated below) without the need for a sublicense
agreement, but with an agreed fee with the sublicensee, for the following
purposes:
(1)
(2)
for birthday parties (YMCA Program) -periodically;
for health and wellness courses or seminars;
3
50855852.3
4834-1388-6510 2
(3) Family Nights (YMCA Program);
(4) for youth sports programs;
(5) Teen Lock-Ins;
(6) Clemens and Steele High School Project Graduation;
(7) American Cancer Society Relay for Life; and
(8) Swim clubs and swim teams; and
(iv) such other specific purposes as are approved in advance in writing by the
Schertz City Manager and/or his/her designee.
(b)
(c)
(d)
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.
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
Facility may not adversely affect members' usage of the Aquatic Facility
during the YMCA's publicized hours of operation.
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, which must be at least
one ( 1) business day prior to the date that the licensee plans to use the
Aquatic Facility.
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 S(a), the City will refer
the applicant to the YMCA, in all events subject to S ection S(b).
4
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 Aquatic Facility 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
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 (prorated for any partial month): 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) Except as provided in Section 7{b) below, 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.
50855852.3
4834-1388-6510.2
(a)
(b)
Schertz will issue approximately Two Million ($2,000,000.00) in bonds
(the "Bonds"), the proceeds of which Bonds shall be used to construct the
Recreation Pool.
Commencing on the Aquatic Facility Completion Date, the YMCA will
pay to Schertz an amount of One Hundred Thousand and No/100 Dollars
($100,000.00) annually (the "YMCA Pavment"), by the tenth (10th) day
of January each year during the term of this Agreement, in exchange for
the license to use and the ability to 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.
5
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. Daily passes to the
Recreation Pool shall be available to Schertz residents at a rate not to
exceed 20% of the monthly "Schertz Resident" membership rate,
however, the YMCA shall have the right, with the approval of Schertz
(such approval not to be unreasonably withheld or delayed) to set and/or
adjust day pass limitations and/or rates (as shown on Exhibit , as the
same are adjusted from time to time) if the YMCA determines the current
day pass rates and/or policies result in unfavorable and/or detrimental
business operations of the Entire Facility.
9. Marketing and Signage.
10.
50855852.3
4834-1388-6510 .2
(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 City limits.
(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 June 1, 2016.
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
6
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
Thirty (30) days after issuance of a final Certificate of Occupancy (the actual date
upon which operations commence with respect to the Aquatic Facility is referred
to herein as the "Aquatic Facili ty Comp letion Date", and the parties shall
acknowledge such date in a signed writing, which shall be attached to this
Agreement as Exhibit Hand 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 Exllibit 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.
13. Insurance.
50855852.3
4834-1388-6510.2
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:
(b)
Bodily Injury & Property Damage: $1,000,000 per occurrence
$2,000,000 General Aggregate
mpensation: Statutory requirements applicable to the
(c) Em ployer s' Li bility:
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
7
50855852.3
4834-1388-6510.2
mm1mum amounts with companies authorized to do business in the State of
Texas:
(a) chertz 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
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.
Other Requirements. 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.
8
14.
15.
16.
17.
50855852.3
4834-1388 -6510.2
Inspections. The Schertz City Manager and/or his/her designee and the Schertz
Director of Parks, Recreation and Community Services (or the equivalent position
if such position is renamed) 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.
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 HV AC 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
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.
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.
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
9
18.
19.
20.
21.
50855852.3
4834-1388-65 10.2
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.
Quarterly Reports -Recreation Pool. The YMCA 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.
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 Aquatic Facility 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.
Semi-Annual "Schertz Night". The Aquatic Facility will be made available
exclusively to the City residents at no cost to Schertz or to the City residents two
times each year, at dates and times to be mutually agreed upon by the YMCA and
Schertz (each occurrence referred to as a "Schertz Night"). During these
occasions, the YMCA will provide adequate staff and will open the Aquatic
Facility for full use by City residents. These times are intended to acquaint City
residents with the Aquatic Facility and to encourage membership. The Aquatic
Facility Schertz Nights shall occur at the same time as the Facility "Schertz
Nights" addressed in Section 19 of the Amended Facility License Agreement.
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
10
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 how 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 in accordance with the
provisions of this Agreement.
22. INDEMNITY. THE YMCA WILL INDEMNIFY AND HOLD HARMLESS
AND DEFEND SCHERTZ AND ALL OF SCHERTZ'S
COUNCILMEMBERS, OFFICERS, AGENTS, ATTORNEYS, 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
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 AQUATIC 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,
ATTORNEYS, AND AGENTS, FROM ANY AND ALL DEMANDS,
CLAIMS, DAMAGES, OR CAUSES OF ACTION REGARDING ANY
AND ALL OPERATIONS IN CONNECTION WITH THIS AGREEMENT
50855852.3 11
4834-1388-6510 .2
WHICH THE YMCA HAS OR MIGHT HA VE 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 and subject to the
rights of SCUCISD, neither party 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.
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
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:
50855852.3
4834-1388-6510.2
(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.
12
(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.
27. YMCA Warranties. YMCA hereby represents and warrants to Schertz as
follows:
28.
29.
50855852.3
4834-1388-6510.2
(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.
Waiver of Attorneys' Fees. BY EXECUTING THIS AGREEMENT, THE
YMCA AGREES TO WAIVE AND HEREBY WAIVES ANY CLAIM IT HAS
OR MAY HA VE AGAINST SCHERTZ REGARDING THE A WARD OF
ATTORNEYS' FEES WHICH ARE IN ANY WAY RELATED TO THE
YMCA'S BREACH OF THIS AGREEMENT.
No Waiver of Sovereign Immunity. By executing this Agreement, Schertz is
not waiving its right of sovereign immunity except, and only to the extent
13
30.
31.
32.
50855852.3
4834-1388-6510.2
permitted by law, with respect to actions by the YMCA to enforce the YMCA's
Rights under this Agreement.
Third-Party Beneficiary. Except as described in Section 22 and 23, this
Agreement does not create any third-party beneficiaries. Except as described in
Section 22 and 23, there are no third-party beneficiaries to this Agreement.
Except as described in Section 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.
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, by written notice to the
defaulting party, 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 in accordance with the
foregoing provision 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. If such items are not removed within
such timeframe, then such items shall become the property of Schertz and Schertz
may keep or dispose of such items as it sees fit in its sole discretion, and any costs
associated therewith shall be the responsibility of the YMCA. 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 continue to pay to Schertz the annual
YMCA Payment in the amount of One Hundred Thousand and Noll 00 Dollars
($100,000.00), 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 Agreement. Schertz may terminate this
Agreement in its entirety without penalty if the Bonds are not approved and/or
issued as described above or within six ( 6) months of issuing the Bonds.
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
14
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 YMCA 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.
33. Attorneys' Fees. If it shall become necessary for either party to bring or
commence any legal action or proceeding to enforce this Agreement, including an
action seeking specific performance, the prevailing party in such action shall be
entitled to the recovery of all costs and expenses of litigation, including, without
limitation, reasonable attorneys' fees, court costs, and costs of appeal.
34. 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:
50855852.3
4834-1388-6510.2
If to Schertz:
with copies to:
City of Schertz
1400 Schertz Parkway
Schertz, Texas78154
Attention: City Manager
City of Schertz
1400 Schertz Parkway
Schertz, Texas78154
Attention: Director of Parks, Recreation and
Community Services
City Attorney
c/o Denton Navarro Rocha Bernal Hyde & Zech, P.C.
2517 North Main Street
San Antonio, Texas 78212
Attention: Charles E. Zech
15
35.
36.
37.
38.
39.
40 .
41.
50855852.3
4834-1388-6510.2
If to the YMCA:
with copies to :
YMCA of Greater San Antonio
231 E. Rhapsody
San Antonio, Texas 78216
Attention: Ross Magsig
Dykema 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 34.
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.
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.
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.
Amendments. This Agreement may not be modified except in writing signed by
Schertz and the YMCA.
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.
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.
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.
16
42. Non-Binding Third Party Agreements. This Agreement is only subject to the
current provisions of the Aquatic Facility Interlocal Agreement as attached hereto
as Exhibit G, and not as to any future amendments or supplements thereto, and
shall not be subject to, or conditioned on, any other agreement the City may now
have, or in the future may have, have with any third party.
43 . 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:
50855852.3
4834-1388-6510.2
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 Interlocal Agreement
Exhibit H -Acknowledgement of Aquatic Facility Completion Date
Exhibit I -Additional Installed Items
[Signatures on the following page}
17
SIGNATURE PAGE TO
SCHERTZ ENCLOSED COMMUNITY SWIMMING POOL AND AQUATIC FACILITY
OF COMPETITION QUALITY AND INDOOR RECREATION POOL
LICENSE AGREEMENT
IN WITNESS HEREOF, the parties hereto have executed this Agreement to be effective as of
the Effective Date.
CITY OF SCHERTZ, TEXAS,
a Texas home rule city
By:~~~---
John C. Kessel,
City Manager
50855852.3
4834-1388-6510.2
18
YOUNG MEN'S CHRISTIAN
ASSOCIATION OF
GREATER SAN ANTONIO,
a Texas non-profit corporation
By:
Name: -~~an:~--1'!!.~~~y_
President and CEO
50855852.3
4834-1388-6510.2
EXHIBIT A
(Real Property Description)
See attached
A-1
~ ¢~ I l 1 '-----
50855852.3
4834-1388-6510.2
0
n
City of Schertz
New Recreation Center
Schertz. Texas
A-2
ELBEL RD. I
'!
lJ :
-----ill : a Q : ~ L: __
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-----H. ~rl 0 1 · I
I I 1-_=1_1 I
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i!HlilljPlftt Ill ·1· 1 ••• x. I ni ii . l' I' 11 G) * i 1 I 111 J·1
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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 Aquatic Facility.
II. Maintenance and Repair Responsibilities of the YMCA 1
1. Removal oflitter, 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 Entire 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 Aquatic Facility.
10. Maintain proper PH and chlorine levels of the Aquatic Facility.
11. Vacuum Aquatic Facility and hose down deck.
III. Maintenance and Repair Responsibilities of Schertz2
1. The exterior of the Aquatic 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 Aquatic 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 Aquatic
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 Aquatic Facility, or on
any other portion of the real property.
3. Damage to any part of the Aquatic Facility due to any water leaks.
4. Damage to any part of the Aquatic Facility due to any structural defect.
5. Mold, mildew or other environmental issues pertaining to water intrusion or leaks.
6. All capital repairs to the Aquatic Facility(interior or exterior).
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.
50855852.3
4834-1388-6510.2
A-1-1
7.
8.
9.
10.
11.
12.
13.
50855852.3
4834-13 88-6510.2
Replacement of the HV AC systems, and related components, for the Aquatic
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 Aquatic Facility by Schertz.
A-1-2
50855852.3
4834-1388-6510.2
EXHIBITB
Employee Job Descriptions
See Attached.
B-1
50855852.3
5399994.2
YMCA of Greater San Antonio
Job Description
Position Title: Aquatics Director
Incumbent:~~~~~~~~~
Supervisor: WJ;.ytlye Director
General Function:
Branch:~
Department: Agyatlcs
Date: April 2014
Under the supervision of the Executive Director, this position Is responsible for planning and
organizing all aquatic activities and progrcims; hiring and tra i ning n ew staff; training staff In
CPR, First Aid, and AED; fiscal management; and member satisfaction.
Entry RC"qUlrements1
Must be 21 years of age and have one to three years of recreation, pool management ,
li feguard, swim Instructor, or water park experience and/or equlv<!lent combination of
education, training and experl.ence. Experience supervising staff and developing pool and
class schedules required,
Strong people skllls, organizational skills and attention to detail required. Strong personal
commitmen t to creating a safe aquatic environment Is necessary.
Bachelor's Degre e In physical education, recreation or related fi eld from an accredited
co ll ege or university, preferred. current YM CA or American Red Cross Lifeguard, CPR for the
Professional Rescuer, AED, and Oxygen Administration and YMCA Sw im Instructor
certification preferred. A Texas Driver's license Is required as well as drivi ng to various
locations within the city.
Physical/Mental Requirements.:
Work Is performed In a fast-paced office environment. Jncumbent must have .the abili ty to
commu nicate both orally and In writing with all levels of staff, members, and volunteers
Visual acuity Is required for scanning the water In bright sunlight and Indoor co nditions.
T his posltloh requires ana lytical abl ll tles and multl.t!lsklng In order to Identify prob lems and
recommend solutions. Job requires accuracy and attention to detail, organlziltlonal and time
management skllls, while maintaining high leve ls of in itiative In order to work within
deadllnes. Occasiona l stooping and bend i ng with regul ar lifting of up to 20 pounds Is
required. I ncumbent must be able to sit for long periods of time and necessary aquatic
skills to properly deliver both prog rams, as well as, ab le to manipulate keybocirds, te lephone
keypads, and writing utensils Is essential.
Primary Duties:
Manages. all aspects of lifeg uard and aquatics safety at the designated location.
Develops, Implements, and oversees aquatic programs su ch as, but not llmlted to
swim lessons, swim team and pool parties.
Intervi ews, hires, trains, supe rvise s, and evaluates aquatics staff In accordance with
YMCA guidelines.
Administrativ e duties Include accurately recording staff certifications, scheduling,
program deve lopment, and budget oversight.
Maintains pool, equipment, and grounds to meet all necessary program and
regulatory standards.
Follows systems, practices, and trainings related to risk management and safety of
participants and staff.
Follows accid ent reporting procedures and policies.
B-2
50855852.3
5399994.2
• Coordin ates and Implements ma r keting and promotions.
Dev elo ps and distribu tes all program promotional pieces with the YMCA Association
marketing team,
Parti ci pate s In Y Pa rt ners Cam pa ign .
• Maintains a profession al Imag e and manner consistent with the YMCA mission and
goals .
• Assists with branch operations, works as Staff-On, and supports branch
administrative projects when needed.
other duties as assigned
Employee's Signature Date
Supervisor's Signature Date
B-3
50855852.3
5399994.2
YMCA of Greater San Antonio
Job Description
Title: &J.ufilU;s Coordinator
Incumbent:-------
Supervisor: A.quatlcs Director
General Function:
Branch:~
Department: Aquatics
Revised Date June 13. 2012
The Aquatics Coordinator wlll assist the Health and Wellness Director with the overall
planning, development, management and supervision of all aquatics programs of the
branch,
Entry Requirements:
Position requln"Js the completion of 2 years of co llege or equivalent experience working with
Aquatics Programing. Must be 21 years of age. Incumbent must have prior experience or
tra ining In staff supe rvision and raclllty management. Must be a team player with
exceptional organlratlon skills. Must have strong communication skllls and the ability to
relate well to YMCA members, staff and diverse community, Incumbent shou ld possess a
thorougl) knowledge of training and certification in sports and aquatics. Certification In First
Aid, CPR, BBP, AED, 02, Lifeguard, and Pool Operation ls also required or must obtain within
60 d<1ys, Must have a valid class C driver llcense as driving to offslte locations Is required.
Physical/Mental Req uirements:
Work Is performed In a fast-paced office environment. Incumbent must have the abl llty to
commun icate both orally and written with all levels of staff, members and volunteers Visual
acuity. Is required for read ing computer screens and/or documents and making changes as
necessary/required. Th is position requires analytical abllltles ancj multitasking In order to
Identify problems and recommend sr:ilutlons. Job requires accuracy and attention to deta il,
organizational, and time management sk ill s, while maintaining high levels of Initiative Jn
ord er to work within deadlines, Occasiona l stoopi ng and bending With regular lifting of up to
20 pounds Is required. Incumbent must be able to sit for long periods of time and necessary
aquatic ski ll s to properly deliver both programs, as well as, able to manipulate keyboards,
telephone keypads, and writing utensils Is essential.
Primary Duties:
Assists In the hiring, training, and supervision of all necessary personnel to dellver each
program component.
Coord i nates scheduling to provide proper program delivery.
Maintains records of attendance and monitors payments for each program participant.
Maintains pool, equipment, and grounds to meet all necessary program and regulatory
standards.
Maintains relationships with vendors and provides excellent customer service to
participants and their parents.
Follows systems, practice s, and t ra ining related to risk management and safety of
participants and staff, and fo.llow accident report procedures and policies.
Coordinates and implements marketing and promotions .
Assists In the developn1ent and distribution of all program promotional pieces.
Other duties as assigned by supervisor.
B-4
50855852.3
5399994.2
By signing below, employee confirms receipt of this job description.
Supervisor's Signature Date
Employee's Signature Date
B-5
50855852,3
5399994.2
YMCA of Greater San Antonio
Job Description
Title: Lifeguard
Incumbent:~~~~~~~
Supervisor: Aquatics Director
Ge11e1·a1 Funotion1
Branch: Am:
Department: Aquatics
Date: March 8. 2014
The lifeguard Is responsible for direct supervision, control, and safety of participants during
classes, recreatlo11al 1 and fitness swimming. Lifeguards are also responsible for pool
maintenance and mon itorin g chemical readings In the pool.
Entry Requirements:
lncurnbent must be lifeguard cettlf!ed and at least 18 years o ld . Lifeguard must hold a YMCA
lifeguard certification. First Aid, CPR, BBP, AED, and 0 2 certifications are required and must
be current. Incumbent mLrst have excellent communication skllls.
Physical/ Mental Req ulrements:
Work Js pe1formed In a fast-paced environment. Visual acuity ls necessary for scanning the
pool In bright sunllg ht and Indoor conditions. Ability to respond appropriately to medical
emergenc ies ls required. Incumbent must be a:ble hear and th ink clearly In order to perform
job. Job requires high l evels cif alertness and concentration. Repetitive stooping and
bending with llftlng of light to medium Is required. Ability to s it attentively for long periods
of ti me are required, as well as the ablllty to sw im and hold breath under water when
necessary.
Primary Duties:
Responsible for logging dally attendance sheets.
Responsible for keeping the pool clear of equipment and putting equipment In proper
storage place.
Resp,onslble for attending all staff meetings and training sessions when scheduled.
Maintains a professional attitude at all times.
Reports to duty 10 minutes before pool opening.
Reports needed equipment repairs to pool manager In writing.
Enforces all faclllty rules such as "no food or drink allowed In the pool area"; "clear
all swimmers from the water during an el ectrlca l sto r m".
Checks chemical before and after duty, reports malfunctions.
Secures substitute lifeguards as necessary.
Provides direct supervision and maintains safety standards during recreational and
fitness swims.
Responsible for appropriate chi Id-adult ratios and group sizes.
Responsible for c lean liness of desk and locker rooms.
Responsible for opening and closing procedures end securing door.
Engages In pos itive member relations with all participants.
Knows all emergency p1·ocedures an d admi nisters First Aid, AED, CPR, 02, and
water rescues, as necessary.
Other duties as assigned by supervisor.
B-6
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By signing below, employee confirms receipt of this job description.
Employee's Signature Date
Supervisor's Signature Date
B-7
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YMCA of Greater San Antonio
Job Description
Title: Swim lesson Instructor
Incumbent: ______ _
Supervisor: Aquati cs Director
General Function:
Branch: ____ ~
Department: Aquatics
Date: March 8, 2014
Provides direct teaching leadership by practicing water safety and aquatics Instruction In
accordance with YMCA aquatics guldellnes.
Entry Requirements:
Incumbent must be YMCA lifeguard certified and at least 16 years old. CPR, First Aid, AED,
0 2 , and BBP certification are required and they must be current. Incumbent must have
excellent communication and coaching skllls.
Physical/ Mental Requirements:
Work ls performed In a Fast-paced en viron ment. Visual acuity is necessary for scanning the
pool In bri ght s unlight an d Indoor condition s. Ability to re spo nd approprlate lY to m edical
emerge ncies Is required. Incumbent mu st be ab le hear and think cl ea rly In order to pe r form
job . Job requ ires high l evels of al ertn ess and concentration. Repetitive stooping and
bend ing with li fting of li g ht ~o medium Is r equired. Ability to sit attentively for long periods
of t ime are r equired, as well as the ablllty to swim and ho ld breath under wat er when
necessary.
Primary Duties:
Responsible for logging dally attendan ce she ets .
Responsible for keeping the pool clear of eq uipment and putting equipment In proper
stora ge place,
Responsible for attending all staffs meetings and training sessions when scheduled.
Malntalns a professional attitude at all times.
Repo r t s to d uty 10 m inutes before pool opening.
Reports needed equ ip ment repa i rs to pool manager In writing.
Enforces all faclllty rules such as "no food or drink allowed in the pool area"; "clear all
swimmers from the water during an electrical storm".
Checks chemical before and after duty and reports malfunctions.
Secures substitutes as necessary. Must notify supervisor.
Prov id es d irect teaching l eadership In a youth group environm ent.
Shares re5 pon slblllty of Inter preting and communicating each child's progress to parents.
Respo nsible for proper reco rd-keeping, award s, and progress ca rds at the conclusion of
each session . ·
Assists In proper storage of aquatic equipment.
Practices safety procedures before, during, and after classes,
Follows all aquatic prog ram currlculums.
Follows all YMCA of Gre ater San Antonio pollcles and procedures
Other duties as assigned by supervisor.
B-8
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By signing below, employee confirms receipt of this job description.
Employee's Signature Date
Supervisor's Signature Date
B-9
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YMCA of Greater San Antonio
Job Description
Title: Swim Team Coacb
Incumbent:--------
Supervisor: Aquatics Director
General Function:
Branch: ____ ~
Department: Aquatics
l:>ate: May 8. 20l.7.
The swim team coach oversees the activities, practices, and competitions of the swim team.
Entry Requirements:
Bachelor's degree In a related field strongly preferred. Three to five years ex perience and
certification as a ASCA level l swim coach, CPR, First Aid, AED, 0 2 , and BBP certification are
required and they must be current. Incumbent must have good communication skills.
Physica l/Mental Requ i rements:
Work Is performed In an aquatics envlro11merit. Visual acuity Is necessary, to keep track of
eve ryon e in the pool , Ability to respond properly to medical emergency Is necessary.
Incumbent must be able to hear and th ink clearly In order to perform job. Job requires high
levels of al ertness and concentration. Repetitive stoop ing and bending with lifting of llght to
medium Is required.
Primary Duties:
Oversees the swim team, lnclud1ng registrations, practices, and competitions.
Tracks dCJJly attendance sheets.
Keeps the pool clear of equipment and stores equipment In proper place.
Attends all staffs meetings and training sessions when scheduled.
Maintains a professional attitud e at all times.
Reports needed equipment repairs to pool manager In writing.
Enforces all facility rules Including -no food or drinks allowed In the pool area; clear all
swimmers from the water during an electrical storm.
Secures substitutes as necessary.
Provides direct teaching leadersh ip In a group environment si tuation.
Shares responslblllty In Interpreting and communlccitlng child's progress to parents.
Assists In proper storage of aquatic equipment.
Practices safety p r ocedures before, during and after classes.
Follows all aquatic program currlculums.
Ensure the YMCA swim team adheres to all AASSL policies.
Follows all YMCA of Greater San Antonio policies and procedures
Other duties as assigned by supervisor.
By signing below, employee confirms receipt of this job description.
Employee's Signature Date
Supervisor's Signature Date
B-10
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EXHIBITC
Initial Membership Rates
See Attached.
C-1
EXHIBITC
Schertz Family YMCA Membership Rates
As of March 1, 2016
Family I-Households with two adults OR one adult plus any dependent children*
Citywide $85 Schertz Residents $78
Family II-Households with two adults plus any dependent children*
Citywide $98 Schertz Residents $91
Adult -One adult age 18 -61
Citywide $57 Schertz Residents $50
Student -Students age 13 -18 or students through age 25 with proof of current full-time
student status
Citywide $46 Schertz Residents $39
Senior -One adult age 62+
Citywide $55 Schertz Residents $35
$49 Joining Fee
*Children must be under the age of 18. Dependent children through age 25 also qualify
with proof of full-time student status and must live at parent's address.
Schertz Residents will receive a 15% discount off of youth swim lessons.
Day Passes for the Aquatic Facility
As of March 1, 2016
Schertz Resident Day Passes
$6 Individual
$15 Family
Non-Resident Day Passes
$10 Individual
$20 Family
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C-2
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EXHIBITD
Samples of Existing Signage
See Attached.
D-1
t i
EXH!EIT 11 E11
Advisory Board Member
Role and Responsibilities
YMCA of Greater San Antonio
fOR YOIHll IJEVF.LIJPMEN f 1·
FOi~ l·fr:1\IJI IY LIVING
FOil sor.ti\I. RF.SPONSllilllrY
Goal: Branch Advisory Boards are com posed of community leaders who are
committed advocates of the YMCA's Miss ler) Statement, Core Values and
Strategic Vi sion foi; the future. As those closest to the "pulse" of their
community, the Branch Advisory Board will ensure that the YMCA effectively
meets community needs anQ brings value to those neighborhoods In which It
serves.
This goal Is accomplished by Advisory Board Members performing the
following duties:
Duties:
Counsel and Advisement
1. Identify community needs and service gaps. Recommend relevant
programming to Impact these areas,
2. Rev iew and analyze program participation while supporting program
quality, effectiveness and markt:t penetration.
3. Review member satisfaction ar1d the overall member experience, Hold
staff accountable to quality operations throug h valuable feedback and
Insight on exceptional customer service and member engagement.
Commun ity Connector
1. Serve as an ambassador for the YMCA by promoting the organization
and Its Initiatives In the community.
2. Open doors to business, civic and community leaders for Y staff.
3. Help facilitate community partnerships and collaborations with other
appropriate community organizations and businesses.
4. Recruit and qualify other Advisory Board volunteers.
Lead a Elnanclal Develop,ment ~rQ.m
1. Collectively as a board, lead a comprehensive annual campaign
(Partners) that meets loca l scholarshfp needs.
2. Identify new sources of potentfal donors.
3. Commit to financial support for fundraislng campaigns and engage in
activities to support their success.
YMCA Mission: To put Judeo-Chrlstlan principles Into practl~e through programs that build healthy spirit, mind and body for all,
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E-1
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Term: 3 years, unless serving by special appointment or filli ng an unexpired
term (Class). Terms wlll be renewable through Advisory Board approval.
Expectations: Advisory Board Memb ers are accountable to the Branch
Advisory Board Chair and are expected to fulfill the following specific
responslbllltles.
1. Regular attendance Git board meetings; minimum 80% attendance
a. Review agenda Items In advance of scheduled meetings
b. Ask discerning questions, constructively participate In
deliberations, vote according to convictions and In the best
Interest of the YMCA
2. Actlvely participate on a minimum of 1 Branch Board Committee
a. Becom e vested In an area where personal/professlonal
background and Interests would be of value
3. Drive success toward Branch fundralslng goals through participation In
the Annual Partners Campaign
a. Make a personal monetary gift to the campaign
b. Commit to a "Give or Get" goal of $2,000
4. Participa te In the Boa rd Development process
a. Identify and hel p recruit lnflu entlal community leaders to
participate on the Brancl1 Advi so ry Board
Relationship with the YMCA of Greater San Antonio Corporate Board
The Corporate Board for the YMCA of Greater San Antonio assumes the
ultimate legal authority for the organization Including holding title to all
properties, establishing general policy for the association, alJthorlzlng all
contractua l re latlonshlps, establlshlng lon g range goals, endors in g all fiscal
and banking relat ionships, and hiring the President. In concert With the
Corporate Bo<!rd, the Branch Advisory Boards shall serve as the key
community stakeholders through Y ambassadorship, fundralslng to tneet
local needs, serving as an advisor to Y leade rshi p and working closely with
the Execut iv e Director to ensure tha t all programs and services of the YM CA
fulfi ll the needs of the community as well as allgns with key priorities and
strategic vision of the YMCA of Greater San Antonio.
Received :
Signature Date
E-2
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EXHIBITF
Form of Sublicense Agreement
and Related Documentation
See attached.
F-1
CITY OF SCHERTZ/YMCA RECREATION CENTER
RESERVATION APPLICATION
Preferred room(s):
Organization:----------------------------------
Pro~s~u~ofilie~~~d~~e: _________________________ ~
Date(s) of proposed use:------------------------------
Estimated attendance: -------------------------------
Contact Person
Name:
---------------------------------~
Address : ---------------------------------
City, State, Zip Code:-----------------------------
Email: ---------------------------------~
Telephone: _____________ Alternate Telephone : ___________ _
Time of use (set-up and clean-up time must be included in the time of use): From ____ To ___ _
Event official starting and ending times: From __________ To __________ _
Attachment 1 -City of Schertz/YMCA Facility Sublicense Agreement
Attachment 2 -Decoration Restrictions and Clean-up Requirements
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F-2
Attachment 1
CITY OF SCHERTZ/YMCA FACILITY SUBLICENSE AGREEMENT
This City of Schertz/YMCA Facility Sublicense Agreement (this "Agreement") is between the
Young Men's Christian Association of Greater San Antonio (the "YMCA"), acting with authority of the
City of Schertz, Texas, a Texas home rule city and a municipal corporation of the State of Texas (the
"City"), and (the "User").
1. FACILITY AND EVENT:
The YMCA agrees to furnish the User with the following described space located in the City of
Schertz YMCA Recreation Center:
to be used for the purpose of __________________________ _
and for no other purpose without the written consent of the YMCA for a term commencing:
(Time) (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-party beneficiary of this Agreement.
3. DAMAGE TO FACILITY:
In case the facility, or any part thereof, shall be destroyed or damaged by fire or by any other
cause, or if any other casualty or unforeseen occurrence shall render the fulfillment of this Agreement by
the YMCA impossible, neither the YMCA nor the City shall be liable or responsible to the User for any
damage or consequential damage caused thereby, provided that the User shall be refunded the unused
portion of payments made.
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F-3
4. CONTROL OF FACILITY:
In allowing the User to use the facility, the YMCA does not relinquish the right to control the
management thereof and to enforce all necessary and proper rules for the management and operation of
the same; and the employees of the YMCA and the City may enter the same, and all the premises, at any
time and on any occasion.
5. REMOVAL OF MATERIALS:
All materials and installations placed in the facility by the User shall be removed 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.
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.
8 . SEATING CAPACITY:
In no event shall tickets be sold or dispensed in excess of the seating capacity of the facility, as
determined by the City's Fire Chief.
9. NO DEFACEMENT OF FACILITY OR BUILDING:
The User shall not injure or mar or in any manner deface the facility or the building in which it is
located, and shall not cause nor permit anything to be done whereby such premises shall be in any
manner injured, marred, or defaced, nor shall the User drive, or permit to driven, any nails, hooks, tacks,
or screws in any part of said building, nor shall the User make, or allow to be made, any alterations of
any kind therein. Also, the User shall be responsible to insure no objects shall be placed in the drains,
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F-4
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.
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.
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F-5
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 or license 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 LJ days prior to an event.
21. HEADINGS:
The paragraph headings contained herein are for convenience in reference and are not intended
to define, extend, or limit any provision in this Agreement.
22. ASSIGNMENTS:
The User shall not assign this Agreement, nor permit any use of the premises other than herein
specified, without the prior written consent of the City Manager.
23. NO RESPONSIBILITY FOR PROPERTY IN BUILDING:
Neither the YMCA nor the City assumes any responsibility whatever for any property placed in
the facility or building, and both the YMCA and the City is hereby expressly released from
responsibility for any loss of or damage to the User's or any guest's personal property that may be
sustained by reason of the occupancy under this Agreement.
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F-6
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 _____ per hour fee will be deducted from the
security/cancellation deposit.
25. INSURANCE:
If the User is a for-profit entity, such User shall obtain and maintain insurance in such types and
amounts as may be required by the City in the City's sole discretion, and such User shall provide the
City with certificates evidencing such required insurance coverage.
IN WITNESS WHEREOF, we have affixed our signatures, this_ day of _____ .
201
USER:
Signature: ____________ _
Printed Name : -----------
THE YOUNG MEN'S CHRISTIAN
ASSOCIATION OF GREATER SAN ANTONIO :
President and CEO
----------~~
Name and address for security/cancellation deposit refund (if applicable):
Name: -----------------------------------
Address: _________________________________ ~
City, State, Zip Code: -----------------------------
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F-7
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.
City, State:-------------------------------
Phone Number: -----------------------------
Signature of the User's Representative:---------------------
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F-8
EXHIBIT G
Aquatic Facility Interlocal Agreement
natatorium interlocal tds.vl. l 01615
4834-1388-6510.2
See Attached.
G-1
INTERLOCAL AGREEMENT BETWEEN THE CITY OF SCHERTZ, TEXAS AND
THE SCHERTZ-CIBOLO-UNIVERSAL CITY INDEPENDENT SCHOOL DISTRICT
REGARDING THE CONSTRUCTION AND USE OF A NATATORIUM
This Interlocal Agreement Between the City of Schertz, Texas and the Schertz-Cibolo-
Universal City Independent School District regarding the construction and use of a Natatoriurn
(the "Agreement") is entered into between the City of Schertz, Texas, a Texas municipal
corporation (the "City"), and the Schertz-Cibolo-Universal City Independent School District,
a political subdivision of the State of Texas (the "Di. trict"), acting by and through its Board of
Trustees pursuant to authority granted under the Interlocal Cooperation Act, Chapter 791, Texas
Government Code, as the same may be amended from time to time, to be effective as of the date
on which the last Party signs this Agreement (the "Effect.iv Date"). The City and the District
are collectively referred to herein as the "Parties" and are each a "Party".
WITNESS ETH:
WHEREAS, Chapter 791 of the Texas Government Code, as amended, titled Interlocal
Cooperation Contracts, authorizes contracts between political subdivisions for the performance
of governmental functions and services;
WHEREAS, the City desires to construct a natatorium (Natatorium) for the use by
citizens of the City, which Natatoriurn will be funded in part from the proceeds of bonds
previously authorized by the citizens of the City; and
WHEREAS, the District desires to have access to the Natatorium for use by the District
swim teams; and
WHEREAS, in order for the Natatorium to be suitable for use by District Swim teams it
will have to include a competition pool, seating, locker rooms, a scoreboard, etc. ; and
WHEREAS, the District desires to contribute $1,650,000.00 to the City for use by the
District swim teams and certain exclusive rights of use by the District; and
WHEREAS, the Parties have determined that it is in the best interest of the residents of
both the City and the residents residing in areas served by the District to enter this Agreement;
and
NOW THEREFORE, in consideration of the mutual covenants and agreements herein
contained, the sufficiency of which are acknowledged, and subject to the terms and conditions
hereinafter set forth, the Parties agree as follows:
natatorium inter local tds. vl.101615
4834-1388-6510.2
G-2
I. Construction of the Natatorium by the City
1.1 The City shall have sole responsibility for the design, construction, operation and
maintenance of the Natatorimn. The design, construction, operation and maintenance shall
accommodate the needs of the District for its swim teams.
1.2 To ensure the Natatorium meets the needs to the District it must include: seating for 300
spectators, locker facilities with 60 men's and 60 women's lockers, starting blocks, electronic
timing system, scoreboard, and comply with the minimum requirements of the USA Swimming
2014 Rulebook, article 103 Facilities Standards.
II. Payments from District to City
2.1 District shall contribute $1,650,000.00 to the City. Payments will be made monthly
following the commencement of construction based on the estimated percentage of project
completion, based on cost. Payments shall be made within approximately 30 days of receipt of a
pay application letter from the City.
III. Use of the Natatorium by the District
3 .1 The City agrees to allow the District exclusive use of the Natatorium or portions thereof,
for fifteen (15) years, under the general terms and conditions set forth in the attached Preliminary
Facility Use Agreement, which is hereby incorporated as part of this Agreement. Upon
completion of the project the District will work with the City to provide parking for large events
at the Natatorium by utilizing available parking on District property, the terms for which will be
included in the final Facility Use Agreement.
IV. Binding Effect; Benefiting Parties
4.1 This Agreement shall bind and benefit the respective Parties and their legal successors,
but shall not otherwise be assignable, in whole or in part, by either Party without first obtaining
the written consent of the other Party.
4.2 This Agreement inures to the benefit of and obligates only the Parties. No term or
provision of this Agreement shall benefit or obligate any person or entity not a Party to the
Agreement. The Parties shall cooperate fully in opposing any attempt by any third person or
entity to claim any benefit, protection, release, or other consideration under this Agreement.
V. Governmental Functions; Liability; No Waiver of Immunity or Defenses
5.1 Notwithstanding any provision to the contrary herein, this Agreement is a contract for
and with respect to the performance of governmental functions by governmental entities.
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5 .1.1 The services provided for herein are governmental functions, and the City and the
District shall be engaged in the conduct of a governmental function while providing
and/or performing any service pursuant to this Agreement.
5 .1.2 The relationship of the District and the City shall, with respect to that part of any
service or function undertaken as a result of or pursuant to this Agreement, be that of
independent contractors.
5.1.3 Nothing contained herein shall be deemed or construed by the Parties, or by any
third party, as creating the relationship of principal and agent, partners, joint ventures, or
any other similar such relationship between the Parties.
5.2 The District shall have no liability whatsoever for the actions of, or failure to act by, any
employees, contractors, subcontractors, agents, representatives, or assigns of the City in
connection with the construction, operation and maintenance of the Natatorium, except as stated
in 5 .3 below. The City covenants and agrees, to the extent permitted by law, that the City shall
be solely responsible, as between the District and the City, for and with respect to any claim or
cause of action arising out of or with respect to any act, omission, or failure to act by the City or
its respective employees, contractors, subcontractors, agents, representatives, or assigns, in
connection with the construction, operation and maintenance of the Natatorium, except as stated
in 5.3 below.
5.3 The City shall have no liability whatsoever for the actions of, or failure to act by, any
employees, contractors, subcontractors, agents, representatives, or assigns of the District in
connection with the operation of the Natatorium or parts thereof, during use by, the District, its
employees, contractors, subcontractors, agents, representatives, or assigns. The District
covenants and agrees, to the extent permitted by law, that the District shall be solely responsible,
as between the District and the City, for and with respect to any claim or cause of action arising
out of or with respect to any act, omission, or failure to act by the District or its respective
employees, contractors, subcontractors, agents, representatives, or assigns, in connection with its
use of the Natatorium.
5.3 Each Party reserves and does not waive any defense available to it at law or in equity as
to any claim or cause of action whatsoever that may arise or result from or in connection with
this Agreement. This Agreement shall not be interpreted nor construed to give to any third party
the right to any claim or cause of action, and neither the City nor the District shall be held legally
liable for any claim or cause of action arising pursuant to or in connection with this Agreement
except as specifically provided herein or by law.
5.4 Neither Party waives or relinquishes any immunity or defense on behalf of itself, its
trustees, councilmembers, officers, employees , and agents as a result of the execution of this
Agreement and the performance of the covenants and agreements contained herein.
VI. Notices
6.1 All correspondence and communications concerning this Agreement shall be directed to:
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SCHERTZ:
With a copy to:
DISTRICT:
With a copy to:
City of Schertz
1400 Schertz Parkway
Schertz, Texas 78154
Attention: City Manager
Denton, Navarro, Rocha, Bernal, Hyde & Zech, P.C.
2517 N. Main Avenue
San Antonio, Texas 78212
Attention: Charles E. Zech
Schertz-Cibolo-Universal City Independent School District
1060 Elbel Road
Schertz, Texas 78154-209
Attn: Superintendent of Schools
Walsh, Anderson, Gallegos, Green & Trevino, P.C.
100 N.E. Loop 410, Suite 900
San Antonio, Texas 78216
Attn: George E. Grimes, Jr.
Notices required hereunder shall be hand-delivered or sent by prepaid certified mail, return
receipt requested.
VII. Severability
7 .1 If any provision of this Agreement shall be deemed void or invalid, such provision shall
be severed from the remainder of this Agreement, which shall remain in force and effect to the
extent that it does not destroy the benefit of the bargain.
VIII. Entire Agreement
8.1 This Agreement is the entire agreement between the City and the District as to the subject
matter hereof and supersedes any prior understanding or written or oral agreement relative to the
subject matter hereof. This Agreement may be amended only by written instrument duly
approved and executed by both Parties in accordance with the formalities of this Agreement.
IX. Governing Law; Venue
9 .1 All Parties agree that this Agreement shall be construed under the laws of the State of
Texas, and obligations under the Agreement shall be performed in Guadalupe County, Texas. In
the event that any legal proceeding is brought to enforce this Agreement or any provision hereof,
the same shall be brought in the State District Court of Guadalupe County, Texas. The Parties
agree to submit to the jurisdiction of said court.
[Signatures and acknowledgements on the following pages]
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SIGNATURE PAGE TO
INTERLOCAL AGREEMENT BETWEEN THE CITY OF SCHERTZ, TEXAS AND
THE SCHERTZ-CIBOLO-UNIVERSAL CITY INDEPENDENT SCHOOL DISTRICT
REGARDING THE CONSTRUCTION AND USE OF A NATATORIUM
The Parties hereto have executed this Agreement as of the dates set forth below to be effective as
of the Effective Date.
CITY OF SCHERTZ, TEXAS
By:
John C. Kessel,
City Manager
THE STATE OF TEXAS §
§
COUNTY OF GUADALUPE §
This instrument was acknowledged before me on the __ day of ,
201_, by John C. Kessel, the City Manager of the City of Schertz, Texas, a Texas municipal
corporation, on behalf of said City.
[Seal]
50855852.3
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Notary Public in and for the State of Texas
G-6
SIGNATURE PAGE TO
INTERLOCAL AGREEMENT BETWEEN THE CITY OF SCHERTZ, TEXAS AND
THE SCHERTZ-CIBOLO-UNIVERSAL CITY INDEPENDENT SCHOOL DISTRICT
REGARDING THE CONSTRUCTION AND USE OF A NATATORIUM
SCHERTZ-CIBOLO-UNIVERSAL CITY INDEPENDENT SCHOOL DISTRICT
By:
Greg Gibson,
Superintendent of Schools
THE STATE OF TEXAS §
§
COUNTY OF GUADALUPE §
This instrument was acknowledged before me on the __ day of ______ ___,
201_, by Greg Gibson, the Superintendent of Schools of the Schertz-Cibolo-Universal City
Independent School District, a political subdivision of the State of Texas, on behalf of said
entity.
[Seal]
50855852.3
4834-1388-6510.2
Notary Public in and for the State of Texas
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EXHIBIT A TO INTERLOCAL AGREEMENT
FACILITY USE AGREEMENT
[See attachedJ
G-8
Preliminary Facility Use Agreement
Schertz-Cibolo-Universal City I.S.D. (the "District") shall have use of 6 lanes of the competition
pool and exclusive use of the locker facilities in the Natatorium from 5:30 am to 9:30 am,
Monday through Friday beginning the first instruction day and ending the last instruction day the
school year.
The District shall have exclusive use of the Natatorium, exclusive of the community pool for
approximately two (2) to (4) swim meets during the school year. The District shall coordinate the
dates and times of those meets by August 1 each year.
With prior written or email approval from the District, the YMCA may utilize the competition
pool and lockers for other purposes when not in use by the District during normal practice times
(holidays, etc.)
Lifeguards as necessary will be provided by the City through facility operator (at this time the
YMCA) during the above practice times and swim meets at no charge to the District.
The City through the facility operator (at this time the YMCA) shall ensure the facility is
available, in order, and all needed equipment is in place for District practices (Lane barriers, pool
temperature, lighting, access, etc.)
The District shall have the use of the facility as outlined above for 15 years beginning from when
the District begins use of the facility.
The agreement may be reviewed on a yearly basis prior to August 1 of each year.
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EXHIBITH
Acknowledgement of Aquatic Facility Completion Date
The parties confirm that the Aquatic Facility Completion Date is __________ _
and that the end of the initial term of this Agreement is ___________ _
CITY OF SCHERTZ, TEXAS,
a Texas home rule city
By: ____________ _
John C. Kessel ,
City Manager
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H-1
YOUNG MEN'S CHRISTIAN
ASSOCIATION OF
GREATER SAN ANTONIO,
a Texas non-profit corporation
By:
Name: ___________ _
President and CEO
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EXHIBIT I
Additional Installed Items
To Be Attached.
I-1