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19-R-18 A BVYA Extension contractRESOLUTION NO. 19 -R -18 A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS AUTHORIZING AN EXTENSION OF THE PUBLIC FACILITY LICENSE AGREEMENT WITH THE BUFFALO VALLEY YOUTH ASSOCIATION, AND OTHER MATTERS IN CONNECTION THEREWITH WHEREAS, in 2007 the City of Schertz (the "City ") entered into a License agreement with the Buffalo Valley Youth Association relating to the sports facility maintenance and program management; and WHEREAS, the City owns and operates various properties for the use and benefit of its citizens; WHEREAS, BVYA is organized for the purpose of providing organized youth recreational baseball, softball, football, cheerleading, swimming, volleyball, basketball, and other recreational services activities to the youth of Schertz and surrounding areas; and WHEREAS, the City and the BVYA desire to enter into an arrangement to support youth athletic programs on behalf of the City; and WHEREAS, the City Council has determined that it is in the best interest of the City to enter into another contract with the Buffalo Valley Youth Association pursuant to the Public Facility License Agreement attached hereto as Exhibit A (the "Agreement "). BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS THAT: Section 1. The City Council hereby authorizes the City Manager to execute and deliver the Agreement with the Buffalo Valley Youth Association in substantially the form set forth on Exhibit A. Section 2. The recitals contained in the preamble hereof are hereby found to be true, and such recitals are hereby made a part of this Resolution for all purposes and are adopted as a part of the judgment and findings of the City Council. Section 3. All resolutions, or parts thereof, which are in conflict or inconsistent with any provision of this Resolution are hereby repealed to the extent of such conflict, and the provisions of this Resolution shall be and remain controlling as to the matters resolved herein. Section 4. This Resolution shall be construed and enforced in accordance with the laws of the State of Texas and the United States of America. Section 5. If any provision of this Resolution or the application thereof to any person or circumstance shall be held to be invalid, the remainder of this Resolution and the application of such provision to other persons and circumstances shall nevertheless be valid, and the City Council hereby declares that this Resolution would have been enacted without such invalid provision. Section 6. It is officially found, determined, and declared that the meeting at which this Resolution is adopted was open to the public and public notice of the time, place, and subject matter of the public business to be considered at such meeting, including this Resolution, was given, all as required by Chapter 551, Texas Government Code, as amended. Section 7. This Resolution shall be in force and effect from and after its final passage, and it is so resolved. PASSED AND ADOPTED, this 12th day of February, 2019. ATTEST: (renda Dennis, City Secretary 50077397.1 CITY OF SCHERT7,_ TEXAS 11,00 �.a 50077397.1 A -1 This Public Facility License Agreement (this "Agreement ") is between the City of Schertz, a Texas municipal corporation ( "City "), and the Buffalo Valley Youth Association, a Texas non- profit corporation and a 501(c)(3) organization ( "BVYA ") (collectively, the "Parties "). RECITALS WHEREAS, the City owns and operates various properties for the use and benefit of its citizens; WHEREAS, BVYA is organized for the purpose of providing organized youth recreational baseball, softball, football, cheerleading, swimming, volleyball, basketball, and other recreational services activities to the youth of Schertz and surrounding areas; and WHEREAS, the City and the BVYA desire to enter into an arrangement to support youth athletic programs on behalf of the City; and NOW, THEREFORE, the Parties agree as follows: ARTICLE I "us 1.01 Purpose. The purpose of this Agreement is to establish the terms and conditions under which BVYA will use certain of the City's properties, described in Article II below, for the operation of its recreational services for the youth of Schertz. Such properties shall not be used by BVYA for either political or sectarian activity. ARTICLE Il LICENSE 2.01 Licensed Premises. In consideration of the obligations herein contained to be performed by BVYA, the City hereby grants to BVYA a nonassignable, revocable license to use the following property, including all improvements thereon (the "Licensed Premises "): 1. H.P. Thulemeyer Park concession stand at 900 Oak Street 2. H.P. Thulemeyer Park ball fields at 901, 903, 1001, and 1003 Oak Street 3. Schertz Ballpark/Johnie McDow Sports Complex concession stand, 955 Community Circle , 4. Schertz Ballpark/Johnie McDow Sports Complex, 955 Community Circle, and 5. Oak Street Office Building located at 401 Oak Street. 1 2.02 BVYA may also place (at its expense) and operate additional concession facilities within the above -named parks for BVYA activities during BVYA events with the prior written consent of the Parks and Recreation Director or his/her designee. 2.03 Ci1y Use. The City shall have exclusive use of all facilities at H. P. Thulemeyer Park from July 1 through July 6 of each year. BVYA shall not schedule any events at the Park without written permission from the City Manager. 2.04 Other Users. The City agrees that BVYA shall be the primary licensee of the Licensed Premises. When H. P. Thulemeyer ball fields are not in use by BVYA for scheduled tournaments, league play, required maintenance, or use by other party pursuant to Section 4.02, the complexes shall be available to the general public for general usage during normal park hours. Any organization or group desiring to use one of the Licensed Premises during the term of this Agreement shall contact BVYA, and BVYA agrees to make said facilities available to such other parties pursuant to Section 4.02. 2.05 Swimming Pool. In addition to its use of the Licensed Premises, BVYA shall have a non- assignable, revocable license to use the City's municipal swimming pool located at 701 Oak Street (the "Swimming Pool ") as set forth in Article VIII of this Agreement. 2.06 Term. The initial term of this Agreement shall be October 1, 2018 through September 30, 2019. This Agreement shall be extended thereafter for successive one (1) year periods for up to ten (10) annual renewals (through September 30, 2029) unless either party notifies the other in writing not later than 90 days prior to the end of the then current term of this Agreement that it does not want to extend the term hereof. This Agreement, and the parties' obligations hereunder, shall terminate at the end of the then - current term if either party gives such notice. 2.07 Termination. Notwithstanding the provisions of Section 2.06, either party may cancel this Agreement at any time by giving ninety (90) days written notice to the other party of its intention to cancel. ARTICLE III CONSIDERATION 3.01 Fees. BVYA shall pay the City the following license fees: 1. H. P. Thulemeyer Park concession stand: $1.00 per year, 2. H. P. Thulemeyer Park ball fields: $1.00 per year, 3. Schertz Ballpark/Johnie McDow Sports Complex concession stand: $1.00 per year, 4. Schertz Ballpark/Johnie McDow Sports Complex: $1.00 per year, 5. Oak Street Office Building: $1.00 per year, and 6. Swimming Pool: $1.00 per year. These fees are due and payable no later than May 1 of each year of this Agreement. 2 3.02 Non- Resident Surcharge. BVYA agrees that a majority of all youth enrolled in BVYA activities and using the Licensed Premises shall be residents of Schertz. BVYA shall charge non - residents of Schertz an additional $10 to participate in BVYA activities on the Licensed Premises. BVYA shall remit such fee to the City no later than 14 days after the regular season games for a sport begin. 3.03 Utilities at Ball Fields and Concession Stands. The City agrees to pay all electric, water, and sewer utility charges for the H.P. Thulemeyer ball fields and concession stands and the Schertz Ballpark/Johnie McDow Sports Complex and concession stands. BVYA agrees to reimburse the City for thirty percent (30 %) of all electric, water, and sewer utility charges at these facilities. Payments shall be made by BVYA monthly within thirty (30) days after invoicing from City. 3.04 Utilities at Oak Street Office Building. BVYA shall be responsible for all electric, water, and sewer utility charges for the Office Building located at 401 Oak Street. 3.05 Permits. BVYA shall be responsible for obtaining all required permits from the City relating to operation of the Licensed Premises and the Swimming Pool under this Agreement including, but not limited to, food handlers' licenses, health inspection permits, and electrical, plumbing, and construction permits. Electrical, plumbing, and construction permit fees may be waived on a case -by -case basis by the City Manager. 3.06 Financial Reporting. BVYA shall submit a copy of its annual financial statement for the previous year to the City Manager's office no later than May 1 of each year of this Agreement. This statement shall reflect all revenues and expenditures incurred during the prior BVYA fiscal year (October 1 through September 30). The City reserves the right to require BVYA to submit a certified financial audit conducted by a registered certified public accountant upon request. 3.07 Annual Report. At the end of each year of this Agreement, BVVA shall provide City's Parks and Recreation Department or his/her designee with a report detailing the services it has provided, which report shall address all performance indicators identified in Exhibit A. 3.08 Calendar of Events. BVYA shall provide the Director of Parks and Recreation or his/her designee a yearly calendar, updated monthly on the first of the month, of anticipated usage for each sports complex of the Licensed Premises and for the Swimming Pool. A schedule of sport programs and their season beginning dates shall be provided to the City no later than May 1 of each year of this Agreement. ARTICLE IV TOURNAMENTS AND SUBLICENSING 4.01 Hosting of Tournaments. BVYA shall have authority to host tournaments on the Licensed Premises. BVYA may charge and retain a fee to spectators attending any tournament to help defray the cost of those tournaments and serve as a BVYA fundraiser. 4.02 Sublicensing of Ball Fields and Concessions. The City grants BVYA the right to sublicense ball fields and concessions to non -BVYA groups for recreational purposes. BVYA will be responsible for coordinating all such sublicensing. Fees charged by BVYA for sublicensing must be approved in advance in writing by the Parks and Recreation Director of the City or his/her designee. BVYA shall be responsible for all maintenance, clean up and providing necessary field equipment such as bases, field chalk, scoreboards and other needed equipment when sublicensing fields and /or concessions to other parties. No such sublicensing shall release BVYA from any of its obligations hereunder. 4.03 Office Building. The Office Building at 401 Oak Street is restricted to the use and activities of BVYA and may not be sublicensed. BVYA may allow the building to be used by other youth or City- related groups at no charge. ARTICLE V FACILITY EOUIPMENT AND MAINTENANCE 5.01 Improvements to Facilities. BVYA shall not make any alterations, additions, or improvements to the Licensed Premises without the prior written consent of the City Manager, which consent will not be unreasonable withheld. All alterations, additions, or improvements made by BVYA shall become the property of the City at the termination of the Agreement. 5.02 Damages to Facilities. BVYA shall repair, replace, or reimburse the City for any and all damages incurred caused by misuse, negligence, and /or deliberate destruction of facilities by BVYA participants and spectators, either during regular scheduled activities or sanctioned tournaments. 5.03 City Inspections. The City's Parks and Recreation Director or his/her designee and BVYA shall inspect the Licensed Premises at least annually to review their condition and repair needs. The Parks and Recreation Director or his/her designee shall file an annual report on the result of the inspection with the City Manager on or before May 1 of each year. The City reserves the right to inspect the Licensed Premises at any time. 5.04 Ball Field Equipment. BVYA shall provide equipment for ball fields including pitcher's plates, home plates, bases, scoreboard controllers, chalking, machines, batter's box templates, mowers, tractors, field groomers, and other similar equipment. The City may use this equipment upon request and is responsible for its return to BVYA. 5.05 Ball Field Maintenance. 4 5.05.1 BVYA. BVYA shall provide daily maintenance, cleaning, policing, and other minor maintenance of ball field facilities, including grass mowing, aeration, fertilizing, and minor irrigation repairs. 5.05.2 Ci1y. The City shall perform all maintenance on lighting systems, backstops, fencing, dugouts, scorer booths, and parking lots as needed. 5.06 Facility Maintenance and Equipment, Concession Areas. 5.06.1 BVYA. BVYA shall perform maintenance and operate the existing concession stands, restroom facilities, and auxiliary concession stands. BVYA shall be responsible for furnishing and maintaining all concession equipment including but not limited to ice machines, fountain drink dispensing equipment, fryers, grills, freezers, refrigerators and other assorted food preparation and storage equipment. BVYA shall perform minor maintenance on the restroom facilities including but not limited to painting, plumbing fixture replacement, and lighting replacement. BVYA agrees to keep concession stands and other facilities operated by it within the Licensed Premises, and at the Swimming Pool, including restrooms, clean and free from all refuse 5.06.2 CLty. The City agrees to repair structural damage on concession and restroom facilities in H.P. Thulemeyer and the Schertz Ballpark/Johnie McDow Sports Complex. Proposed facilities repair work orders may be submitted only by BVYA Board President (or his duly appointed representative) to the Parks and Recreation Director or his/her designee. 5.07 Facility Maintenance, 401 Oak Street. 5.07.1 BVYA. BVYA shall be responsible for all minor maintenance and repairs as required for the building at 401 Oak Street, consisting of plumbing, floors, ceiling, interior walls, windows, doors, heating and air conditioning systems, and interior and exterior electrical systems. 5.07.2 Qi1y. The City agrees to perform major component or structural repair requests on facilities at 401 Oak Street. Proposed facilities repair work orders may be submitted only by BVYA Board President (or his duly appointed representative) to the Parks and Recreation Director or his/her designee. ARTICLE VI CONCESSIONS 6.01 Exclusive Right. BVYA shall have the exclusive rights to furnish concession services selling consumer items usually and customarily sold at sporting event concession stands (but not including alcoholic beverages) in H.P. Thulemeyer Park and the Schertz Ballpark complex for BVYA - sponsored and organized events including tournaments. 5 6.02 Reservation of Rights. The City reserves the right to operate concessions at City - designated or operated events. • FACILITY ADVERTISING 7.01 Exclusive Right. BVYA shall have the exclusive rights to solicit and display advertising at H.P. Thulemeyer Park ball fields and the Schertz Ballpark/Johnie McDow Sports Complex, including banners and scoreboard panels. All advertising banners and signs shall be appropriate for youth related activities. 7.02 Prohibited Signs, Locations. Signs erected pursuant to Section 7.01 are exempt from sign permitting requirements, but no sign shall be erected that is otherwise in violation of the City's Sign Ordinance. Under no circumstances shall signs be affixed to utility poles, light poles, traffic control devices, or a building /park location or directional signage. The City Manager or his/her designee may order the removal of any sign that is deemed by him/her to be out of compliance or in bad taste. 7.03 Material. All advertising banners attached to fencing shall be made of light- weight banner material. No wood advertising panels may be attached to any fencing. 7.04 Securing Material. All advertising attached to City -owned structures or fences must be done to ensure the safety of users and visitors. 7.05 Damage, Repair. BVYA shall be responsible for any damages caused by banners or other advertising signs on City property. ARTICLE VIII SWIMMING POOL 8.01 Use. The City shall allow BVYA to use the Pickrell Park Swimming Pool for the BVYA youth swim team program. BVYA shall coordinate the required dates and times needed for practices and swim meets with the Pool Manager. BVYA shall be allowed, as part of the swim program, to host swim meets on selected Mondays, when the pool is normally closed, during the Alamo Area Aquatic Summer Swim League ( AAASL) season. The AAASL season normally runs from May lst through July 1st. BVYA shall provide the lane ropes and lifeguards required during BVYA swim practices and hosted meets. BVYA shall be allowed use of bathrooms and showers during practices and meets. 8.02 Concessions. BVYA may place (at its expense) and operate additional concession facilities at the pool during swim meets. BVYA may not utilize the existing concession stand at the Swimming Pool, which has been converted to storage. 6 8.03 Clean -up. BVYA shall be responsible for policing and cleaning up all areas surrounding the pool after practices and meets. 8.04 Lifeguards. BVYA shall use City certified or approved lifeguards for practices and meets. BVYA shall pay the hourly expenses for the lifeguards. 8.05 Non - Resident Surcharge. BVYA shall charge $10 per participant for non- Schertz residents at BVYA events at the Swimming Pool and this fee will be paid to the City to offset operating expenses for the pool. ARTICLE IX INSURANCE 9.01 Insurance. The City shall provide insurance it deems appropriate for all facilities listed in Section 2.01 and the Swimming Pool. 9.02 BVYA Insurance. BVYA shall maintain commercial general liability insurance in the amount of at least $1,000,000 per occurrence, $1,000,000 annual aggregate, naming the City as additional insured, and shall provide the City with a certificate of insurance for that policy. BVYA shall also maintain statutory workers compensation insurance and shall provide the City with a certificate of insurance for that policy granting a waiver or subrogation in favor of the City. ARTICLE X RELEASE AND INDEMNIFICATION 10.01 BVYA releases and indemnifies the City and its officers, agents and employees from any and all liability claims, demands, damages, expenses, fees, fines, penalties, suits, proceedings, actions, and causes of action of any and every kind and nature arising or growing out of or in any way connected with this Agreement, including for the negligence of the City and its officers, agents, and employees. This obligation to indemnify shall include the retention of legal counsel for the City and the other indemnified parties, and investigation costs and all other reasonable costs, expenses, and liabilities of the City and the other indemnified parties arising from the initial notice that a claim or demand has been made, or may be made. ARTICLE XI 11.01 Notices. Unless otherwise provided in this Agreement, any notice, communication, request, replay or advice (herein severally and collectively for convenience called "notice ") herein provided or permitted to be given, made or accepted by either party to the other shall be in writing and may be given or be served by depositing the same in the United States Mail, postpaid and registered or certified and addressed to the party to be notified, with return receipt requested, or by delivering the same to an officer of such party, or by prepaid telegram or facsimile, when appropriate, addressed to the party, to be notified. Notice deposited in the mail in the manner herein above described shall conclusively deemed to be effective, unless otherwise stated in this Agreement, from the expiration of three (3) days after it is so deposited. Notice given in any other manner shall be effective only if and when received by the party to be notified. For the purposes of notice, the addresses of the parties shall, until change as hereinafter provided, be as shown below. The parties may specify any other address in the State of Texas by at least fifteen (15) days written notice to the other party. If to the City to: City of Schertz, Texas 1400 Schertz Parkway Schertz, Texas 78154 Attention: City Manager If to BVYA to: Buffalo Valley Youth Association 401 Oak Street Schertz, Texas 78154 Attention: President ARTICLE XII GENERAL AND MISCELLANEOUS PROVISIONS 12.01 Regulatory Requirements. This Agreement and the obligations of the parties hereunder are subject to all rules, regulations, and laws that may be applicable by the United States, the State of Texas or any regulatory agency having jurisdiction. 12.02 Non Discrimination. BVYA shall not discriminate against any board member or volunteer on the basis of age, race, sex, creed, religion, or national origin, or participant on the basis of race, sex, creed, religion or national origin. BVYA shall comply with all applicable local, state, and federal employment, opportunity, and affirmative action rules, regulations, and laws. 12.03 Implied Waiver. The failure of either party hereto to insist, in any one or more instances, upon performance of any of the terms, covenants, or conditions of this Agreement shall not be construed as a waiver or relinquishment of the future performance of any such term, covenant or condition by the other party hereto, but the obligation of such other party with respect to such future performance shall continue in full force and effect. 12.04 Independent Contract or; No Agency. BVYA is an independent contractor and operator and is solely responsible to all third parties for its acts or omissions. Under no circumstances shall BVYA be or be deemed to be an agent of the City, and BVYA shall have no authority to obligate the City financially or otherwise. 12.05 Severability. The provisions of this Agreement are severable, and if any word, phrase, clause, sentence, paragraph, section or other part of this Agreement or the application thereof to any person or circumstance shall ever be held by any court of competent jurisdiction to be invalid or unconstitutional for any reason, the remainder of this Agreement and the application of such word, phrase, clause, sentence, paragraph, section or other part of this Agreement to the other persons or circumstances shall not be affected thereby. 12.06 Merger. This Agreement constitutes the entire agreement between the parties relative to the subject matter hereof. There are no agreements, covenants, representations, or warranties between the parties as to the subject matter hereof other than those expressly stated or provided for herein. 12.07 Cooperation. Each party hereby agrees that it shall take all actions and execute all documents necessary to fully carry out the purposes and intent of this Agreement. 12.08 Governing Law. This Agreement shall be construed under and in accordance with the laws of the State of Texas, and all obligations of the parties created hereunder are performable in Guadalupe County, Texas. 12.09 Amendments. No amendment, modification, or alteration of the terms hereof shall be binding unless it is in writing, dated subsequent to the date of this Agreement, and duly executed by the Parties. [rlhe rest of this page intentionaffy left bfani J 9 IWNIII 1111 II1 Sport Schertz Resident Participants Non - Schertz Resident Participant Boys Girls Boys Girls Baseball Swimming Football Cheerleading Volleyball Basketball Other (specify) 10