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R-13-02-28-I2 - 2/28/2013RESOLUTION NO. R -13-02-28-I2 WHEREAS, the YMCA of Greater Williamson County ("YMCA") is the owner of property located on N. Mays Street, upon which there are certain sports fields; and WHEREAS, the City of Round Rock will construct certain improvements on said property and in consideration for this will be granted access and joint use rights to the YMCA fields; and WHEREAS, the YMCA and the City desire to enter into an Agreement for the joint use and access by the City and YMCA, and for management and operation by the YMCA of the fields, Now Therefore BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS, That the Mayor is hereby authorized and directed to execute on behalf of the City a Community Lighted Sports Fields Joint Use and Access Agreement with YMCA of Greater Williamson County, a copy of same being attached hereto as Exhibit "A" and incorporated herein for all purposes. The City Council hereby finds and declares that written notice of the date, hour, place and subject of the meeting at which this Resolution was adopted was posted and that such meeting was open to the public as required by law at all times during which this Resolution and the subject matter hereof were discussed, considered and formally acted upon, all as required by the Open Meetings Act, Chapter 551, Texas Government Code, as amended. RESOLVED this 28th day of February, 2013. ALAN MCGRAW, Mayor City of Round Rock, Texas EXHIBIT "A„ COMMUNITY LIGHTED SPORTS FIELDS JOINT USE AND ACCESS AGREEMENT BY AND BETWEEN THE CITY OF ROUND ROCK, TEXAS ("City") YMCA OF GREATER WILLIAMSON COUNTY ("YMCA") January 2013 COMMUNITY LIGHTED SPORTS FIELDS JOINT USE, ACCESS AND MANAGEMENT AGREEMENT THIS COMMUNITY LIGHTED SPORTS FIELDS JOINT USE, ACCESS AND MANAGEMENT AGREEMENT ("Agreement"), dated the day of the month of , 2013, by and between the CITY OF ROUND ROCK, TEXAS, a Texas home rule city (hereinafter referred to as the "City"), and YMCA OF GREATER WILLIAMSON COUNTY, a Texas 501(c)(3) corporation (hereinafter referred to as the "YMCA") is as follows: RECITALS: WHEREAS, YMCA is the Owner of the Property, as hereinafter defined, upon which there are certain sports fields, ("Fields"); and WHEREAS, pursuant to this Agreement, City agrees to construct certain improvements and additions to the Fields for purposes of lighting them; and WHEREAS, the consideration to the City for the aforesaid construction is the access and joint use rights provided for in this Agreement; and WHEREAS, both City and YMCA are desirous of entering into this Agreement for the joint use and access by the City and YMCA, and for management and operation by YMCA of the Fields; NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained herein, City and YMCA agree as follows: DEFINITIONS For the purposes of this Agreement, the following terms shall have the meanings indicated: Default. The term "Default" shall have the meaning as defined in Article 13 hereof. Operating_ Expenses. The term "Operating Expenses" shall mean those necessary or reasonable operating expenses of the Fields incurred or paid in connection with the normal course of conducting and operating the business affairs of the Fields, including but not limited to the following items: 1. Salaries, wages, employee benefits and payroll expenses, including but not limited to standard pension and/or profit sharing plans, payroll taxes, profit sharing programs and insurance of all employees employed on-site in the direct operation of the Fields; 2 2. Marketing, advertising and promotional expenses; 3. Replacement of inventories of parts and supplies; 4. Replacement of broken, lost or damaged equipment; 5. Office supplies, postage, printing, routine office expenses and accounting services incurred in the on-site operation of the Fields; 6. Insurance premiums; 7. Auditing, accounting costs, computer fees and legal fees performed by any non - affiliate of YMCA and incurred in respect of the operation of the Fields, including any financial management and accounting fees paid for services rendered by any non -affiliate of YMCA; Costs incurred for utilities, including but not limited to all electric, gas, and water costs and any other private utility charges incurred in connection with the operation of the Fields; 9. Ordinary maintenance and repairs, as well as the cost of any capital improvements or capital replacements; 10. Principal or interest payments on indebtedness of YMCA in providing the services under the terms of this Agreement; 1 l . Rental or lease payments for items of furniture, fixtures or equipment incurred by YMCA in providing the services under the terms of this Agreement; and 12. All other customary and reasonable expenses incurred in the operation of the Fields. PropertX. The term "Property" shall mean that certain parcel or parcels of land owned by YMCA and described in Exhibit "A" attached hereto, which exhibit is incorporated herein by reference for all purposes. Term. The term "Term" of this Agreement shall mean the period of time set forth in Article 3, unless sooner terminated as provided herein. ARTICLE 1. RESPONSIBILITIES OF CITY 1_l. Construction of Lighting Improvements. City shall have the obligation to purchase necessary equipment to light the Fields described in Exhibit "A," shall properly secure by contract and pay for necessary design services related to lighting the referenced Fields, and 3 shall properly secure by contract and pay for necessary construction services related to lighting the referenced Fields. 1_2. Consideration. As consideration for City's obligation under this Article, and as a part of its public purpose, City shall secure and enjoy for the Term of this Agreement, for the benefit of its citizens, exclusive use of the Fields at the times and on the days delineated herein in Article 6. ARTICLE 2. MANAGEMENT OF SPORTS FIELDS 21. Management of the Propertx. YMCA is the owner of the Property and, as such, shall have the sole responsibility to supervise, manage, direct and operate the Fields and the Property during the Term of this Agreement, and YMCA hereby accepts said responsibility upon and subject to the terms, conditions, covenants and provisions set forth herein. Subject to the conditions set forth herein, City hereby acknowledges that YMCA has the sole responsibility, discretion and authority to determine operating policies and procedures, standards of operation, rules, standards of service and maintenance, pricing, and other policies, rules and regulations affecting the Fields or the operation thereof, and to implement all such policies and procedures for the operations and maintenance of the Fields. ARTICLE 3. TERM 3_l .. Term. The Term of this Agreement shall be for a period of twenty-five (25) years beginning upon execution hereof unless sooner terminated in accordance with the provisions of this Agreement. ARTICLE 4. GENERAL RESPONSIBILITIES OF YMCA 4_l. Operation of Fields. YMCA shall operate, maintain and manage the Fields in a manner which YMCA deems in its sole discretion to be necessary to operate sports fields used by the public; provided, however, the Fields shall be maintained by YMCA in a good and attractive condition and in compliance with any requirements of state law. YMCA shall have the authority and duty to exercise all prerogatives of management with respect to the Fields, including implementing all policies and procedures established by YMCA. 4.2. Effective Date. From and after the Effective Date, YMCA shall maintain, preserve and keep the Property in good repair, working order and condition, and shall from time to time make all repairs, replacements and improvements necessary to keep the Property in such condition. City shall have no responsibility, financial or otherwise, for such maintenance or for any of these repairs, replacements or improvements. 4 443. Status Meetings. A representative of YMCA and a representative of City shall hold annual meetings for the purpose of having the representative of YMCA update City on the general operations of the Fields. 444. Fields Maintenance Standards. During the Term of this Agreement, YMCA agrees to keep the Fields maintained in accordance with the standards set forth in 4.1 above. 445. Representations and Warranties as to Tax -Exempt Status of YMCA. YMCA hereby represents and warrants as follows: YMCA is an organization exempt from federal income taxation under Section 501(a) of the Code by virtue of being described in Section 501(c)(3) of the Code; 2. The purposes, character, activities and methods of operation of YMCA have not changed materially since its organization and are not materially different from the purposes, character, activities and methods of operation at the time of its receipt of a determination by the Internal Revenue Service that it was an organization described in Section 501 (c)(3) of the Code (the "Determination"); 3. YMCA has not diverted a substantial part of its corpus or income for a purpose or purposes other than for which it is organized or operated and disclosed to the Internal Revenue Service in connection with the Determination; 4. YMCA has not operated since its organization in a manner that would result in it being classified as an "action" organization within the meaning of section 1.501(c)(3) -(1)(c)(3) of the Regulations, including but not limited to by promoting or attempting to influence legislation by means of propaganda or otherwise; 5. With the exception of the payment of compensation (and the payment or reimbursement of expenses) which is not excessive and is for personal services which are reasonable and necessary to carrying out the purposes of YMCA, no person controlled by any such individual or individuals nor any person having a personal or private interest in the activities of YMCA has acquired or received, directly or indirectly, any income or assets, regardless of form, of YMCA during the current Fiscal Year and the period, if any, preceding the current Fiscal Year, other than as reported to the internal Revenue Service by the YMCA; 6. YMCA is not a "private foundation" within the meaning of Section 509(a) of the Code; 7. YMCA has not received any indication or notice whatsoever to the effect that its exemption under Section 501(c)(3) of the Code has been revoked or modified, or that the Internal Revenue Service is considering revoking or modifying such exemption, and such exemption is still in full force and effect; 8. YMCA has filed with the Internal Revenue Service all requests for determination, reports and returns required to be filed by it and such requests for determination, reports and returns have not omitted or misstated any material fact and has notified the Internal Revenue Service of any changes in its organization and operation since the date of the application for the Determination; 9. YMCA has not devoted more than an insubstantial part of its activities in furtherance of a purpose other than an exempt purpose within the meaning of Section 501(c)(3) of the Code. 10. YMCA agrees that it will not use the Fields or any part thereof, or permit the Fields or any part thereof to be used in a manner which would violate the Establishment of Religion Clause of the First Amendment to the Constitution of the United States of America, including the decisions of the United States Supreme Court interpreting the same or any comparable provisions of the Constitution of the State, including the decisions in the Supreme Court of the State interpreting the same. ARTICLE 5. UTILITIES AND SERVICES 5.1. Utilities and Services. YMCA agrees to pay all charges for utilities and services used by it for the Fields, including but not limited to gas, electricity, telephone, sanitary sewer, water, and trash collection. YMCA will charge a utility usage fee to teams and individuals utilizing the lighted fields. ARTICLE 6. CITY'S JOINT USE AND ACCESS RIGHTS 6.1. Community Access. The community's access to the Fields shall be given top priority at the times and on the days specified. City and the community shall have access to the fields from 5:00 P.M. until Midnight on Wednesdays during the school year (September through May), and from 7:00 P.M. until Midnight on Wednesdays during the summer (June, July and August), and from 6:00 A.M. until Midnight on all Sundays. Site supervision will be provided by City or YMCA during these hours. If YMCA is responsible for site supervision, the teams and individuals utilizing the fields will be charged a fee. YMCA policies, procedures and rules must be followed and property must be secured at all times. YMCA reserves the right to close the fields due to inclement weather or poor field conditions. In addition, the Fields may be closed to the community during certain competitive events only as expressly agreed in writing in advance by City and YMCA. YMCA reserves the right to cancel/close programs, services and operations due to unforeseen circumstances or events which are beyond its control. YMCA agrees to post notices at all entrances to the Fields and other appropriate places stating that the Fields are partly funded by the City and that they are open to the general public at the times and on the days specified. PC ARTICLE 7. INDEMNITY AND INSURANCE 7_l. YMCA's Indemnification. YMCA covenants to defend and to save City and its officers and employees, while acting within the scope of their duties, harmless and indemnified from and against any and all actions, suits, proceedings, claims, demands, costs (including attorneys' fees and court costs), expenses and liability of any kind or nature whatsoever, for injury to or death of person or damage of property (including property owned by City), which may be brought, made, filed against, imposed upon or sustained by City, its officers or employees, based upon or arising out of an act or omission of YMCA, its officers, agents, or employees. This indemnity shall not include claims based upon or arising out of the willful misconduct of City, its officers or employees. Further, this indemnity shall not require payment of a claim by City or its officers or employees as a condition precedent to City's recovery under this provision. 7.2. City's Indemnification,. City covenants and agrees, to the extent permitted by law, to indemnify and save YMCA, YMCA's affiliates, and all its respective officers, directors, legal representatives, and employees (hereinafter referred to as the "Indemnified Parties") harmless from any and all costs, expenses, penalties, claims, demands, and liabilities resulting from (i) any action or claim, or otherwise, arising with respect to City's operation of the Fields or the Property, or for its contribution for the construction of the Improvements, and (ii) any negligent act or omission of City or of its invitees, agents or employees, but this indemnity shall not extend to costs, expenses, penalties, claims, demands and liabilities resulting from acts of willful misconduct of YMCA, its employees or agents. Further, this indemnity shall not require the payment of a claim by any of the Indemnified Parties as a condition to recovery under this provision. 7_3. YMCA's Insurance. YMCA shall obtain, as Operating Expenses, the following insurance concerning the Property and cause all contractors to maintain similar insurance, where appropriate: 1. Worker's compensation and employer's liability insurance, or equivalent coverage, as may be required under applicable laws covering all employees of YMCA included in the operation of the Fields, with such deductible limits as are generally established by YMCA; 2. Comprehensive general public liability insurance against claims for bodily injury, death or property damage occurring on, in, or about the Property, and automobile insurance on vehicles operating in conjunction with the Property, with a combined single limit of not less than TWO MILLION AND NO/100 DOLLARS ($2,000,000.00) each occurrence for personal injury, death, and property damage, with such deductible limits as are generally established by YMCA; 3. Insurance on the Property, including the ILnprovements and Personal Property, against loss or damage by fire, lightning, flood, earthquake, and all other risks covered by the usual standard extended coverage endorsements, in such amounts 7 and with such deductible limits as established by YMCA and agreed to by City, all in an amount of not less than ninety percent (90%) of the replacement cost thereof; and 4. Such other insurance in amounts as YMCA, in its reasonable judgment, deems advisable for protection against claims, liabilities and losses arising out of, or connected with, the operation of the Fields. 5. All insurance provided by YMCA under this Article shall name YMCA and City as named insureds. YMCA shall deliver to City, at least thirty (30) days prior to the Effective Date, certificates of insurance with respect to all policies so procured, including existing, additional, and renewal policies, and in the case of insurance about to expire, shall deliver certificates of insurance with respect to the renewal policies not less than ten (10) days prior to the respective dates of expiration. All policies of insurance provided under this Article I I shall, to the extent obtainable, have attached thereto an endorsement that such policy shall not be canceled or materially changed without at least thirty (30) days prior written notice to City and YMCA. 7_4. Subrogation. Anything in this Agreement to the contrary notwithstanding, City and YMCA each hereby waive any and all rights of recovery, claims, actions or causes of action against the other, its agents, officers, and employees for any loss or damage that may occur to the Property, any personal property therein, or any improvements made thereto, or any part thereof, or any other real or personal property of either party by reason of fire, the elements, or any other cause which is insured against under the term of the policies of casualty insurance that YMCA or City are required to provide hereunder or may otherwise carry, only to the extent of any proceeds actually received by City or YMCA, respectively, with respect thereto, regardless of cause or origin, including negligence of either party hereto, its agents, officers, or employees, and each party covenants that no insurer shall hold any right of subrogation against the other. ARTICLE 8. DESTRUCTION BY FIRE OR OTHER CASUALTY 8_1. Total Destruction. In the event that the Improvements are totally destroyed by fire or other casualty to the extent that the damage cannot be materially restored with due diligence within three hundred sixty (360) days from the date construction commences, YMCA may, at its option, terminate this Agreement by giving written notice to the City within sixty (60) days following such damage or destruction. In the event of termination of this Agreement pursuant to this Article, this Agreement shall cease and come to an end as of the date of such damage or destruction as though such date were the date originally fixed for the expiration of the Term of this Agreement. 8.2. Partial Destruction. In the event the Improvements are damaged by fire or other casualty and such damage can be materially restored with due diligence within three hundred sixty (360) days following the date construction commences, YMCA shall have the obligation to repair the Improvements, as the case may be, as nearly as practicable to the condition same was in prior to such damage. YMCA shall cause such repair to be commenced with all reasonable dispatch so as to complete the same at the earliest, reasonable, possible date. ARTICLE 9. CONDEMNATION 9_l. Notice of Taking. YMCA shall, within ten (10) days of YMCA's receipt of notice of a proposed and/or actual taking of the Property, or a portion of either, under any governmental law, ordinance or regulation, or by right of eminent domain, provide City (i) written notice of such proposed or actual taking, and (ii) a copy of the documents and/or pleadings received from the governmental authorities. 9_2. Effect of Entire Taking. If, during the Term of this Agreement, the entire Property shall be appropriated or taken for any public or quasi -public use under any governmental law, ordinance or regulation, or under the power of eminent domain by any public or quasi -public authority, then this Agreement and the Term hereof shall cease and come to an end as though such date were the date originally fixed for the expiration of the Term of this Agreement. 993. Effect of Partial Taking. If, during the Term of this Agreement, a portion of the Property shall be appropriated or taken for any public or quasi -public use under any governmental law, ordinance or regulation, or under the power of eminent domain by any public or quasi -public authority so as to render the Property substantially unusable for the purposes and in the manner contemplated herein, then, in such event, YMCA shall have the right to cancel and terminate this Agreement by giving written notice to City within sixty (60) days after the receipt by YMCA from City of written notice of such appropriation or taking. In the event of termination of this Agreement pursuant to this Article, then this Agreement shall cease and come to an end as of the date of such written notice by YMCA as though such date were the date originally fixed for the expiration of the Term of this Agreement, and neither party shall have any obligation to the other arising out of or in any way connected with this Agreement by virtue of such termination. 9.4. YMCA's Award. If this Agreement is terminated pursuant to the provisions of this Article, then the damage award to be made pursuant to the condemnation proceedings shall be apportioned between City and YMCA according to the value of their respective interests in the Property and this Agreement. ARTICLE 10. RIGHT TO CURE 10.1. City's Performance. After the expiration of any permitted grace period recited in this Agreement, if YMCA shall have failed to cure any Default in the performance of any covenant or promise on its part to be performed, City may immediately, or at any time thereafter, without further notice, perform the same for the account and at the expense of YMCA. Notwithstanding the above, in the case of an emergency (being defined as a situation involving the immediate threat of a loss of property or injury), City may, after notice to YMCA, so perform E in YMCA's stead prior to the expiration of any applicable grace period; provided, however, YMCA shall not be deemed in default under this Agreement. 10.2. YMCA's Performance. After the expiration of any permitted grace period, if City shall have failed to cure any Default in the performance of any covenant or promise on its part to be performed, YMCA may immediately, or at any time thereafter, without further notice, perform the same for the account and at the expense of the City. Notwithstanding the above, in the case of an emergency, YMCA may, after notice to City, so perform in City's stead prior to the expiration of any applicable grace period; provided, however, City shall not be deemed in default under this Agreement. 10.3. Reimbursement. If, pursuant to this Article, City or YMCA at any time is compelled or elects to (i) pay any sum of inoney, (ii) do any act which will require the payment of any sum of money, or (iii) incur any expense (including reasonable attorneys' fees) in instituting, prosecuting and/or defending any action or proceeding instituted by reason of YMCA's or City's failure to reimburse, as herein provided, the sum or sums so paid or payable by City or YMCA, as the case may be, with all interest, costs and damages, shall be immediately due from the other upon receipt of a statement thereof. ARTICLE 11. INSPECTION 1 I. I. Inspection and Maintenance of Property. YMCA agrees that City shall have the right at all reasonable times to enter upon and to examine and inspect the Property. YMCA further agrees that City and any representative of City shall have such rights of access of the Property as may be reasonably necessary to cause the proper maintenance of the Property in the event of a Default herewith, or to carry out City's obligations and exercise City's rights under Article 6, or to determine whether YMCA is in compliance with this Agreement. ARTICLE 12. SALE AND ASSIGNMENT OR REPLACEMENT FACILITY 12.1. YMCA's Sale or Assignment. YMCA shall not assign, sublet or permit an assignment by operation of law of this Agreement or any interest hereunder without the prior written approval of City, which approval shall not be unreasonably withheld by City. 12.2. Effect of Assignment. Any person who shall by operation of law or otherwise become an assignee of this Agreement or become vested with any interest hereunder, or a portion thereof, shall be bound by and liable upon all covenants and provisions contained in this Agreement, but YMCA shall not be relieved of liability hereunder, unless approved by City, which approval shall not be unreasonably withheld. In the case of any transfer or vesting of the interest hereunder, or any part thereof, either through foreclosure proceedings or otherwise by operation of law, it shall be a condition to the validity of such transfer or vesting of interest that, if so requested by City, any person or persons claiming the interest hereunder, or any part thereof, so derived shall promptly execute and deliver to City a written assumption of the obligations of YMCA hereunder, in such form so that such person or persons shall thereupon be 10 bound by and liable upon all the covenants and provisions of this Agreement to the same extent as was YMCA. ARTICLE 13. EVENTS OF DEFAULT 13.1. YMCA's Default. The occurrence of any of the following events which is not cured in the time permitted herein shall constitute a default under this Agreement (hereinafter referred to as a "Default"): If YMCA shall fail in the performance of or compliance with any of the covenants, agreements, terms or conditions contained in this Agreement, and such failure shall continue for a period of thirty (30) days after written notice thereof from City to YMCA specifying in detail the nature of such failure, or, in case such failure cannot be cured with due diligence within thirty (30) days, YMCA fails to proceed promptly and with all due diligence to cure the same and thereafter to prosecute the curing of such failure with all due diligence (it being intended that in connection with a failure not susceptible of being cured with due diligence within thirty days, that the time within which to cure the same shall be extended for such period as may be reasonably necessary to complete the same with all due diligence). 13.2. City's Default. The occurrence of any of the following events which is not cured in the time permitted herein shall constitute a default under this Agreement (hereinafter referred to as a "Default"): 1. If City shall fail in the performance of or compliance with any of the covenants, agreements, terms or conditions contained in this Agreement and such failure shall continue for a period of thirty (30) days after written notice thereof from YMCA to City specifying in detail the nature of such failure, or, in the case such failure cannot, with due diligence, be cured within thirty (30) days, City fails to proceed promptly and with all due diligence to cure the same and thereafter prosecute the curing of such failure with all due diligence, it being intended that in connection with a failure not susceptible to being cured with due diligence within thirty days, that the time within which to cure the same shall be extended for such period as may be necessary to complete the same with all due diligence. ARTICLE 14. REMEDIES 14.1. City's Remedies. Upon the occurrence of a Default by YMCA which is not cured within the time permitted, City shall be entitled to proceed with the following remedies as set forth below; 1. Right to Remedy Defaults of YMCA. City may remedy any Default of YMCA, and in connection with such remedy, City may pay all expenses and employ 11 counsel, and all sums so expended or obligations incurred by City in connection therewith shall be paid by YMCA to City, upon demand by City, and on failure of such reimbursement. 2. Right to Terminate Agreement. City may terminate this Agreement by City's written notice to termination to YMCA, and such termination shall extinguish all obligations in any Exhibits to this document. 14.2. YMCA's Remedies. Upon the occurrence of a Default which is not cured by City within the time permitted, YMCA may terminate this Agreement by YMCA's written notice of termination to City, and such termination shall extinguish all obligations in any Exhibits to this document. 14.3. Attorneys' Fees. In the event YMCA or City should Default under any of the provisions of this Agreement and the non -defaulting party should employ attorneys or incur other expenses for the enforcement of performance or observance of any obligation or agreement on the part of the defaulting party, the defaulting party shall, on demand therefor, pay to the non - defaulting party the reasonable and necessary fees of such attorneys and such other expenses reasonably incurred, as provided by Tex. Loc. Gov't. Code § 271.159. ARTICLE 15. TERMINATION 15.1. Termination, The Term of this Agreement shall terminate on the occurrence of any of the events set forth: A Default by YMCA which is not cured within the time permitted, and City sends to YMCA a written notice of termination for cause; 2. A Default by City which is not cured within the time permitted, and YMCA sends to City a written notice of termination for cause; 3. The expiration of the Term of tris Agreement. ARTICLE 16. NOTICES 16.1. Any notices or other communications required or permitted hereunder shall be sufficiently given if in writing and (i) delivered personally, or (ii) sent by certified mail, return receipt requested, postage prepaid, addressed as shown below, or to such other address as the party concerned may substitute by written notice to the other. All notices personally delivered shall be deemed received on the date of delivery. All notices forwarded by mail shall be deemed received on a date seven (7) days (excluding Sundays and holidays) immediately following date of deposit in the U.S. mail; provided, however, the return receipt indicating the date upon which all notices were received shall berp ima facie evidence that such notices were received on the date on the return receipt. 12 If to City: CITY OF ROUND ROCK, TEXAS 221 East Main Round Rock, Texas 78664 Attention: City Manager With a copy to: Stephan L. Sheets, City Attorney 309 East Main Round Rock, Texas 78664 If to YMCA: YMCA OF GREATER WILLIAMSON COUNTY 1812 North Mays Street Round Rock, Texas 78664 With a copy to: R. Mark Dietz Dietz & Jarrard, P.C. 106 Fannin Avenue East Round Rock, Texas 78664 The addresses may be changed by giving notice of such change in the manner provided herein for giving notice. Unless and until such written notice is received, the last address and addressee given shall be deemed to continue in effect for all purposes. No notice of either City or YMCA shall be deemed given or received unless the entity noted "With a copy to" is simultaneously delivered notice in the same manner as any notice given to either City or YMCA. ARTICLE 17. GENERAL PROVISIONS 17.1. Entire Agreement. This Agreement embodies the entire agreement and understanding of City and YMCA relating to the subject matter hereof and supersedes all prior representations, agreements and understandings, oral and written, relating thereto. Neither this Agreement nor any provision hereof may be amended, enlarged, modified, waived, discharged or terminated orally, but only as expressly provided herein by instrument signed by both parties. 17.2. Counterparts. This Agreement may be executed in any number of counterparts and all of such counterparts taken together shall be deemed to constitute one and the same instrument. 17.3. Successors and Assigns. This Agreement and terms and provisions hereof shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns whenever the context so requires or permits. 17.4. Time. Time is of the essence in this Agreement and each and all of its provisions. Any extension of time granted for the performance of any duty or obligation under this 13 Agreement shall not be considered an extension of time for the performance of any other duty of obligation under this Agreement. 17.5. Severability. Except as expressly provided to the contrary herein, each section, part, term, or provision of this Agreement shall be considered severable, and if for any reason any section, part, term, or provision herein is determined to invalid and contrary to or in conflict with any existing or future law or regulation by a court or agency having valid jurisdiction, such determination shall not impair the operation of or have any other effect on other sections, parts, terms, or provisions of this Agreement as may remain otherwise intelligible, and the latter shall continue to be given full force and effect and bind the parties hereto, and said invalid sections, parts, terms, or provisions shall be deemed not to be a part of this Agreement. 17.6. Applicable Law. This Agreement has been executed and delivered in the State of Texas and shall be construed in accordance with the laws of the State of Texas. Any action brought to enforce or interpret this Agreement shall be brought in the court of appropriate jurisdiction in which the Property is located, that being Williamson County, Texas. Should any provision of this Agreement require judicial interpretation, it is agreed that the court interpreting or considering same shall not apply the presumption that the terms hereof shall be more strictly construed against a party by reason of the rule or conclusion that a document should be construed more strictly against the patty who itself or through its agent prepared the same; it being agreed that all parties hereto have participated in the preparation of this Agreement and that legal counsel was consulted by each responsible party before the execution of this Agreement. 17.7. Amendment and Waiver. This Agreement may not be amended or modified in any way except by an instrument in writing executed by all parties hereto; provided, however, either City or YMCA may, in writing, (i) extend the time for performance of any of the obligations of the other, (ii) waive any inaccuracies and representations by the other contained in this Agreement, (iii) waive compliance by the other with any of the covenants contained in this Agreement, and (iv) waive the satisfaction of any condition that is precedent to the performance by the party so waiving any of its obligations under this Agreement. 17.8. No Joint Venture. Nothing contained herein shall be deemed or construed by the parties hereto or by any third party as creating the relationship of (i) principal agent, (ii) a partnership, or (iii) a joint venture between the parties hereto. 17.9. Exhibits. All Exhibits attached hereto are incorporated herein by this reference as if fully set forth herein; provided, however, in the event that at the time of the execution of this Agreement any of the Exhibits to be attached are incomplete, the parties shall use their best efforts to complete such Exhibits at the earliest possible date. To the extent this Agreement may be rendered unenforceable by the lack of completion of any of the Exhibits, such defect shall be cured as such incomplete Exhibits are made complete in accordance with this Section, except to the extent that such Exhibits are deemed and stipulated by the parties to be complete on the execution of this Agreement by the parties hereto. If any Exhibits are subsequently changed by the mutual written agreement of the parties, the Exhibits shall be modified to reflect such change or changes and initialed by the parties. 14 17. 10. Caption. Captions, titles to sections, and paragraph headings used herein are for convenience or reference and shall not be deemed to limit or alter any provision hereof. 17.11. Survival. All covenants, agreements, representations, and warranties made herein shall survive the execution and delivery of this Agreement. All other documents and instruments to be executed in accordance herewith shall continue in full force and effect. 17.12. Governing Document. This Agreement shall govern in the event of any inconsistency between this Agreement and any of the Exhibits attached hereto. 17.13. Effective Date. The Effective Date hereof shall be IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their proper, duly authorized corporate officers, all as of the day and year first above set forth. CITY OF ROUND ROCK, TEXAS By: Printed Name: Title: Date Signed: FOR CITY, ATTEST: By: Sara L. White, City Clerk FOR CITY, APPROVED AS TO FORM: By: Stephan L. Sheets, City Attorney By: Printed Nal e: qt=r' t t Title: 'C' V e-,.1r/rte T Date Signed: ' Z s- 2D r FOR YMC TTEST• By: d Board Secretary FOR YMCA, APPROVED AS TO FORM: By: Q ---- Attorney 15 EXHIBIT "A" PROPERTY DESCRIPTION Two football/soccer fields located at 1500 North Mays, Round Rock Two baseball fields located at 107 East Old Bowman Road, Round Rock I6 DIETZ & JARRARD, P.C. ATTORNEYS AND COUNSELORS AT LAW 106 Fannin Avenue East Round Rock, Texas 78664-5219 Telephone (512) 244-9314 Facsimile (512) 244-3766 www.lawdietz.com R. Mark Dietz Melissa G. Dietz J. Lee Jarrard, Jr. February 12, 2013 J. Kay Gayle Sheets & Crossfield 309 E. Main St. Round Rock, Texas 78664 Re: YMCA Sports Fields Agreements Dear J. Kay: Douglas G. Cornwell Steven B. Tredennick Of Counsel Please find enclosed duplicate originals of the Community Lighted Sports Fields Joint Use and Access Agreement. Please have your clients execute and return an original to this office. Your attention to this matter is appreciated. Sincerely, !C. R. ark Dietz RMD/cbj City of Round Rock ,ROUND ROCK TEXAS eiaivusE vssan wmsvmrrc Agenda Item Summary Agenda Number: 12. Title: Consider a resolution authorizing the Mayor to execute a Community Lighted Sports Fields Joint Use and Access Agreement with the YMCA of Greater Williamson County. Type: Resolution Governing Body: City Council Agenda Date: 2/28/2013 Dept Director: Rick Atkins, Parks and Recreation Director Cost: $325,000.00 Indexes: General Self -Financed Construction Attachments: Resolution, Exhibit "A" Text of Legislative File 13-038 This item would authorize the City to enter into an agreement with the YMCA of Greater Williamson County for the joint use and access to the YMCA fields located on N. Mays Street. As outlined in the agreement, the City will construct certain improvements (sports lighting for the fields) on the YMCA property and in consideration for this will be granted access and joint use rights to the YMCA fields. The fields will be owned, maintained and operated by the YMCA of Greater Williamson County. The City and community shall have access to the fields from 5:00 p.m. through midnight on Wednesdays during the school year, 7:00 p.m. through midnight during the summer, and 6:00 a.m. through midnight on Sundays. This item is in line with the Strategic Plan principles including 'The Sports Capital" - balance field facilities use: recreation, tournaments, tourism and multi -use fields and facilities for practice and games. Staff recommends approval. City of Round Rock Page 1 Printed on 212212013 � ( } . { : ( } ( } ( } ( } ORIGINAL ( } ( DOCUMEN15 F LLO 0 } ( / } \ ) \ { \ ( } ( } ( ( \ \ } { ( \ ( } { } / } { } { COMMUNITY LIGHTED SPORTS FIELDS JOINT USE AND ACCESS AGREEMENT BY AND BETWEEN THE CITY OF ROUND ROCK, TEXAS ("City") AND YMCA OF GREATER WILLIAMSON COUNTY ("YMCA") tZll (A MA -d; & 2013 y-'13 -M-?,Ib -1, -7, COMMUNITY LIGHTED SPORTS FIELDS JOINT USE, ACCESS AND MANAGEMENT AGREEMENT THIS COMMUNITY LIGHTED SPORTS FIELDS JOINT USE, ACCESS AND MANAGEMENT AGREEMENT ("Agreement"), dated the day of the month of 2013, by and between the CITY OF ROUND ROCK, TEXAS, a Texas home rule city (hereinafter referred to as the "City"), and YMCA OF GREATER WILLIAMSON COUNTY, a Texas 501(c)(3) corporation (hereinafter referred to as the "YMCA") is as follows: RECITALS: WHEREAS, YMCA is the Owner of the Property, as hereinafter defined, upon which there are certain sports fields, ("Fields"); and WHEREAS, pursuant to this Agreement, City agrees to construct certain improvements and additions to the Fields for purposes of lighting them; and WHEREAS, the consideration to the City for the aforesaid construction is the access and joint use rights provided for in this Agreement; and WHEREAS, both City and YMCA are desirous of entering into this Agreement for the joint use and access by the City and YMCA, and for management and operation by YMCA of the Fields; NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained herein, City and YMCA agree as follows: DEFINITIONS For the purposes of this Agreement, the following terms shall have the meanings indicated: Default. The term "Default' shall have the meaning as defined in Article 13 hereof. Operating Expenses. The term "Operating Expenses" shall mean those necessary or reasonable operating expenses of the Fields incurred or paid in connection with the normal course of conducting and operating the business affairs of the Fields, including but not limited to the following items: 1. Salaries, wages, employee benefits and payroll expenses, including but not limited to standard pension and/or profit sharing plans, payroll taxes, profit sharing programs and insurance of all employees employed on-site in the direct operation of the Fields; 2 2. Marketing, advertising and promotional expenses; 3. Replacement of inventories of parts and supplies; 4. Replacement of broken, lost or damaged equipment; 5. Office supplies, postage, printing, routine office expenses and accounting services incurred in the on-site operation of the Fields; 6. Insurance premiums; 7. Auditing, accounting costs, computer fees and legal fees performed by any non - affiliate of YMCA and incurred in respect of the operation of the Fields, including any financial management and accounting fees paid for services rendered by any non -affiliate of YMCA; 8. Costs incurred for utilities, including but not limited to all electric, gas, and water costs and any other private utility charges incurred in connection with the operation of the Fields; 9. Ordinary maintenance and repairs, as well as the cost of any capital improvements or capital replacements; 10. Principal or interest payments on indebtedness of YMCA in providing the services under the terms of this Agreement; 11. Rental or lease payments for items of furniture, fixtures or equipment incurred by YMCA in providing the services under the terms of this Agreement; and 12. All other customary and reasonable expenses incurred in the operation of the Fields. Pro . The term "Property" shall mean that certain parcel or parcels of land owned by YMCA and described in Exhibit "A" attached hereto, which exhibit is incorporated herein by reference for all purposes. Term. The term "Term" of this Agreement shall mean the period of time set forth in Article 3, unless sooner terminated as provided herein. ARTICLE 1. RESPONSIBILITIES OF CITY 1_l. Construction of Lighting Improvements. City shall have the obligation to purchase necessary equipment to light the Fields described in Exhibit "A," shall properly secure by contract and pay for necessary design services related to lighting the referenced Fields, and 3 shall properly secure by contract and pay for necessary construction services related to lighting the referenced Fields. 1.2. Consideration. As consideration for City's obligation under this Article, and as a part of its public purpose, City shall secure and enjoy for the Term of this Agreement, for the benefit of its citizens, exclusive use of the Fields at the times and on the days delineated herein in Article 6. ARTICLE 2. MANAGEMENT OF SPORTS FIELDS 2_l .. Management of the Property. YMCA is the owner of the Property and, as such, shall have the sole responsibility to supervise, manage, direct and operate the Fields and the Property during the Term of this Agreement, and YMCA hereby accepts said responsibility upon and subject to the terms, conditions, covenants and provisions set forth herein. Subject to the conditions set forth herein, City hereby acknowledges that YMCA has the sole responsibility, discretion and authority to determine operating policies and procedures, standards of operation, rules, standards of service and maintenance, pricing, and other policies, rules and regulations affecting the Fields or the operation thereof, and to implement all such policies and procedures for the operations and maintenance of the Fields. ARTICLE 3. TERM 3_l .. Term. The Term of this Agreement shall be for a period of twenty-five (25) years beginning upon execution hereof unless sooner terminated in accordance with the provisions of this Agreement. ARTICLE 4. GENERAL RESPONSIBILITIES OF YMCA 4_l. Operation of Fields. YMCA shall operate, maintain and manage the Fields in a manner which YMCA deems in its sole discretion to be necessary to operate sports fields used by the public; provided, however, the Fields shall be maintained by YMCA in a good and attractive condition and in compliance with any requirements of state law. YMCA shall have the authority and duty to exercise all prerogatives of management with respect to the Fields, including implementing all policies and procedures established by YMCA. 4.2. Effective Date. From and after the Effective Date, YMCA shall maintain, preserve and keep the Property in good repair, working order and condition, and shall from time to time make all repairs, replacements and improvements necessary to keep the Property in such condition. City shall have no responsibility, financial or otherwise, for such maintenance or for any of these repairs, replacements or improvements. In 4_3. Status Meetings. A representative of YMCA and a representative of City shall hold annual meetings for the purpose of having the representative of YMCA update City on the general operations of the Fields. 4.4. Fields Maintenance Standards. During the Term of this Agreement, YMCA agrees to keep the Fields maintained in accordance with the standards set forth in 4.1 above. 4_5. Representations and Warranties as to Tax -Exempt Status of YMCA YMCA hereby represents and warrants as follows: YMCA is an organization exempt from federal income taxation under Section 501(a) of the Code by virtue of being described in Section 501(c)(3) of the Code; 2. The purposes, character, activities and methods of operation of YMCA have not changed materially since its organization and are not materially different from the purposes, character, activities and methods of operation at the time of its receipt of a determination by the Internal Revenue Service that it was an organization described in Section 501 (c)(3) of the Code (the "Determination"); 3. YMCA has not diverted a substantial part of its corpus or income for a purpose or purposes other than for which it is organized or operated and disclosed to the Internal Revenue Service in connection with the Determination; 4. YMCA has not operated since its organization in a manner that would result in it being classified as an "action" organization within the meaning of section 1.501(c)(3) -(1)(c)(3) of the Regulations, including but not limited to by promoting or attempting to influence legislation by means of propaganda or otherwise; 5. With the exception of the payment of compensation (and the payment or reimbursement of expenses) which is not excessive and is for personal services which are reasonable and necessary to carrying out the purposes of YMCA, no person controlled by any such individual or individuals nor any person having a personal or private interest in the activities of YMCA has acquired or received, directly or indirectly, any income or assets, regardless of form, of YMCA during the current Fiscal Year and the period, if any, preceding the current Fiscal Year, other than as reported to the Internal Revenue Service by the YMCA; 6. YMCA is not a "private foundation" within the meaning of Section 509(a) of the Code; 7. YMCA has not received any indication or notice whatsoever to the effect that its exemption under Section 501(c)(3) of the Code has been revoked or modified, or that the Internal Revenue Service is considering revoking or modifying such exemption, and such exemption is still in full force and effect; 8. YMCA has filed with the Internal Revenue Service all requests for determination, reports and returns required to be filed by it and such requests for determination, reports and returns have not omitted or misstated any material fact and has notified the Internal Revenue Service of any changes in its organization and operation since the date of the application for the Determination; 9. YMCA has not devoted more than an insubstantial part of its activities in furtherance of a purpose other than an exempt purpose within the meaning of Section 501(c)(3) of the Code. 10. YMCA agrees that it will not use the Fields or any part thereof, or permit the Fields or any part thereof to be used in a manner which would violate the Establishment of Religion Clause of the First Amendment to the Constitution of the United States of America, including the decisions of the United States Supreme Court interpreting the same or any comparable provisions of the Constitution of the State, including the decisions in the Supreme Court of the State interpreting the same. ARTICLE 5. UTILITIES AND SERVICES 5_l. Utilities and Services. YMCA agrees to pay all charges for utilities and services used by it for the Fields, including but not limited to gas, electricity, telephone, sanitary sewer, water, and trash collection. YMCA will charge a utility usage fee to teams and individuals utilizing the lighted fields. ARTICLE 6. CITY'S JOINT USE AND ACCESS RIGHTS 6_1. Community Access. The community's access to the Fields shall be given top priority at the times and on the days specified. City and the community shall have access to the fields from 5:00 P.M. until Midnight on Wednesdays during the school year (September through May), and from 7:00 P.M. until Midnight on Wednesdays during the summer (June, July and August), and from 6:00 A.M. until Midnight on all Sundays. Site supervision will be provided by City or YMCA during these hours. If YMCA is responsible for site supervision, the teams and individuals utilizing the fields will be charged a fee. YMCA policies, procedures and rules must be followed and property must be secured at all times. YMCA reserves the right to close the fields due to inclement weather or poor field conditions. In addition, the Fields may be closed to the community during certain competitive events only as expressly agreed in writing in advance by City and YMCA. YMCA reserves the right to cancel/close programs, services and operations due to unforeseen circumstances or events which are beyond its control. YMCA agrees to post notices at all entrances to the Fields and other appropriate places stating that the Fields are partly funded by the City and that they are open to the general public at the times and on the days specified. Z ARTICLE 7. INDEMNITY AND INSURANCE 7_l. YMCA's Indemnification. YMCA covenants to defend and to save City and its officers and employees, while acting within the scope of their duties, harmless and indemnified from and against any and all actions, suits, proceedings, claims, demands, costs (including attorneys' fees and court costs), expenses and liability of any kind or nature whatsoever, for injury to or death of person or damage of property (including property owned by City), which may be brought, made, filed against, imposed upon or sustained by City, its officers or employees, based upon or arising out of an act or omission of YMCA, its officers, agents, or employees. This indemnity shall not include claims based upon or arising out of the willful misconduct of City, its officers or employees. Further, this indemnity shall not require payment of a claim by City or its officers or employees as a condition precedent to City's recovery under this provision. 7.2. City's Indemnification. City covenants and agrees, to the extent permitted by law, to indemnify and save YMCA, YMCA's affiliates, and all its respective officers, directors, legal representatives, and employees (hereinafter referred to as the "Indemnified Parties") harmless from any and all costs, expenses, penalties, claims, demands, and liabilities resulting from (i) any action or claim, or otherwise, arising with respect to City's operation of the Fields or the Property, or for its contribution for the construction of the Improvements, and (ii) any negligent act or omission of City or of its invitees, agents or employees, but this indemnity shall not extend to costs, expenses, penalties, claims, demands and liabilities resulting from acts of willful misconduct of YMCA, its employees or agents. Further, this indemnity shall not require the payment of a claim by any of the Indemnified Parties as a condition to recovery under this provision. 7_3. YMCA's Insurance. YMCA shall obtain, as Operating Expenses, the following insurance concerning the Property and cause all contractors to maintain similar insurance, where appropriate: 1. Worker's compensation and employer's liability insurance, or equivalent coverage, as may be required under applicable laws covering all employees of YMCA included in the operation of the Fields, with such deductible limits as are generally established by YMCA; 2. Comprehensive general public liability insurance against claims for bodily injury, death or property damage occurring on, in, or about the Property, and automobile insurance on vehicles operating in conjunction with the Property, with a combined single limit of not less than TWO MILLION AND NO/100 DOLLARS ($2,000,000.00) each occurrence for personal injury, death, and property damage, with such deductible limits as are generally established by YMCA; 3. Insurance on the Property, including the Improvements and Personal Property, against loss or damage by fire, lightning, flood, earthquake, and all other risks covered by the usual standard extended coverage endorsements, in such amounts 7 and with such deductible limits as established by YMCA and agreed to by City, all in an amount of not less than ninety percent (90%) of the replacement cost thereof; and 4. Such other insurance in amounts as YMCA, in its reasonable judgment, deems advisable for protection against claims, liabilities and losses arising out of, or connected with, the operation of the Fields. 5. All insurance provided by YMCA under this Article shall name YMCA and City as named insureds. YMCA shall deliver to City, at least thirty (30) days prior to the Effective Date, certificates of insurance with respect to all policies so procured, including existing, additional, and renewal policies, and in the case of insurance about to expire, shall deliver certificates of insurance with respect to the renewal policies not less than ten (10) days prior to the respective dates of expiration. All policies of insurance provided under this Article 11 shall, to the extent obtainable, have attached thereto an endorsement that such policy shall not be canceled or materially changed without at least thirty (30) days prior written notice to City and YMCA. 7.4. Subrogation. Anything in this Agreement to the contrary notwithstanding, City and YMCA each hereby waive any and all rights of recovery, claims, actions or causes of action against the other, its agents, officers, and employees for any loss or damage that may occur to the Property, any personal property therein, or any improvements made thereto, or any part thereof, or any other real or personal property of either party by reason of fire, the elements, or any other cause which is insured against under the term of the policies of casualty insurance that YMCA or City are required to provide hereunder or may otherwise carry, only to the extent of any proceeds actually received by City or YMCA, respectively, with respect thereto, regardless of cause or origin, including negligence of either party hereto, its agents, officers, or employees, and each party covenants that no insurer shall hold any right of subrogation against the other. ARTICLE 8. DESTRUCTION BY FIRE OR OTHER CASUALTY 8_l. Total Destruction. In the event that the Improvements are totally destroyed by fire or other casualty to the extent that the damage cannot be materially restored with due diligence within three hundred sixty (360) days from the date construction commences, YMCA may, at its option, terminate this Agreement by giving written notice to the City within sixty (60) days following such damage or destruction. In the event of termination of this Agreement pursuant to this Article, this Agreement shall cease and come to an end as of the date of such damage or destruction as though such date were the date originally fixed for the expiration of the Term of this Agreement. 8.2. Partial Destruction. In the event the Improvements are damaged by fire or other casualty and such damage can be materially restored with due diligence within three hundred sixty (360) days following the date construction commences, YMCA shall have the obligation to repair the Improvements, as the case may be, as nearly as practicable to the condition same was E:3 in prior to such damage. YMCA shall cause such repair to be commenced with all reasonable dispatch so as to complete the same at the earliest, reasonable, possible date. ARTICLE 9. CONDEMNATION 9_l. Notice of Taking. YMCA shall, within ten (10) days of YMCA's receipt of notice of a proposed and/or actual taking of the Property, or a portion of either, under any governmental law, ordinance or regulation, or by right of eminent domain, provide City (i) written notice of such proposed or actual taking, and (ii) a copy of the documents and/or pleadings received from the governmental authorities. 9_2. Effect of Entire Taking. If, during the Term of this Agreement, the entire Property shall be appropriated or taken for any public or quasi -public use under any governmental law, ordinance or regulation, or under the power of eminent domain by any public or quasi -public authority, then this Agreement and the Term hereof shall cease and come to an end as though such date were the date originally fixed for the expiration of the Term of this Agreement. 9_3. Effect of Partial Taking. If, during the Term of this Agreement, a portion of the Property shall be appropriated or taken for any public or quasi -public use under any governmental law, ordinance or regulation, or under the power of eminent domain by any public or quasi -public authority so as to render the Property substantially unusable for the purposes and in the manner contemplated herein, then, in such event, YMCA shall have the right to cancel and terminate this Agreement by giving written notice to City within sixty (60) days after the receipt by YMCA from City of written notice of such appropriation or taking. In the event of termination of this Agreement pursuant to this Article, then this Agreement shall cease and come to an end as of the date of such written notice by YMCA as though such date were the date originally fixed for the expiration of the Term of this Agreement, and neither party shall have any obligation to the other arising out of or in any way connected with this Agreement by virtue of such termination. 9.4. YMCA's Award. If this Agreement is terminated pursuant to the provisions of this Article, then the damage award to be made pursuant to the condemnation proceedings shall be apportioned between City and YMCA according to the value of their respective interests in the Property and this Agreement. ARTICLE 10. RIGHT TO CURE 10.1. City's Performance. After the expiration of any permitted grace period recited in this Agreement, if YMCA shall have failed to cure any Default in the performance of any covenant or promise on its part to be performed, City may immediately, or at any time thereafter, without further notice, perform the same for the account and at the expense of YMCA. Notwithstanding the above, in the case of an emergency (being defined as a situation involving the immediate threat of a loss of property or injury), City may, after notice to YMCA, so perform 7 in YMCA's stead prior to the expiration of any applicable grace period; provided, however, YMCA shall not be deemed in default under this Agreement. 10.2. YMCA's Performance. After the expiration of any permitted grace period, if City shall have failed to cure any Default in the performance of any covenant or promise on its part to be performed, YMCA may immediately, or at any time thereafter, without further notice, perform the same for the account and at the expense of the City. Notwithstanding the above, in the case of an emergency, YMCA may, after notice to City, so perform in City's stead prior to the expiration of any applicable grace period; provided, however, City shall not be deemed in default under this Agreement. 10.3. Reimbursement. If, pursuant to this Article, City or YMCA at any time is compelled or elects to (i) pay any sum of money, (ii) do any act which will require the payment of any sum of money, or (iii) incur any expense (including reasonable attorneys' fees) in instituting, prosecuting and/or defending any action or proceeding instituted by reason of YMCA's or City's failure to reimburse, as herein provided, the sum or sums so paid or payable by City or YMCA, as the case may be, with all interest, costs and damages, shall be immediately due from the other upon receipt of a statement thereof. ARTICLE 11. INSPECTION 11.1. Inspection and Maintenance of Property. YMCA agrees that City shall have the right at all reasonable times to enter upon and to examine and inspect the Property. YMCA further agrees that City and any representative of City shall have such rights of access of the Property as may be reasonably necessary to cause the proper maintenance of the Property in the event of a Default herewith, or to carry out City's obligations and exercise City's rights under Article 6, or to determine whether YMCA is in compliance with this Agreement. ARTICLE 12. SALE AND ASSIGNMENT OR REPLACEMENT FACILITY 12.1. YMCA's Sale or Assignment. YMCA shall not assign, sublet or permit an assignment by operation of law of this Agreement or any interest hereunder without the prior written approval of City, which approval shall not be unreasonably withheld by City. 12.2. Effect of Assignment. Any person who shall by operation of law or otherwise become an assignee of this Agreement or become vested with any interest hereunder, or a portion thereof, shall be bound by and liable upon all covenants and provisions contained in this Agreement, but YMCA shall not be relieved of liability hereunder, unless approved by City, which approval shall not be unreasonably withheld. In the case of any transfer or vesting of the interest hereunder, or any part thereof, either through foreclosure proceedings or otherwise by operation of law, it shall be a condition to the validity of such transfer or vesting of interest that, if so requested by City, any person or persons claiming the interest hereunder, or any part thereof, so derived shall promptly execute and deliver to City a written assumption of the obligations of YMCA hereunder, in such form so that such person or persons shall thereupon be 10 bound by and liable upon all the covenants and provisions of this Agreement to the same extent as was YMCA. ARTICLE 13. EVENTS OF DEFAULT 13.1. YMCA's Default. The occurrence of any of the following events which is not cured in the time permitted herein shall constitute a default under this Agreement (hereinafter referred to as a "Default"): 1. If YMCA shall fail in the performance of or compliance with any of the covenants, agreements, terms or conditions contained in this Agreement, and such failure shall continue for a period of thirty (30) days after written notice thereof from City to YMCA specifying in detail the nature of such failure, or, in case such failure cannot be cured with due diligence within thirty (30) days, YMCA fails to proceed promptly and with all due diligence to cure the same and thereafter to prosecute the curing of such failure with all due diligence (it being intended that in connection with a failure not susceptible of being cured with due diligence within thirty days, that the time within which to cure the same shall be extended for such period as may be reasonably necessary to complete the same with all due diligence). 13.2. City's Default. The occurrence of any of the following events which is not cured in the time permitted herein shall constitute a default under this Agreement (hereinafter referred to as a "Default"): 1. If City shall fail in the performance of or compliance with any of the covenants, agreements, terms or conditions contained in this Agreement and such failure shall continue for a period of thirty (30) days after written notice thereof from YMCA to City specifying in detail the nature of such failure, or, in the case such failure cannot, with due diligence, be cured within thirty (30) days, City fails to proceed promptly and with all due diligence to cure the same and thereafter prosecute the curing of such failure with all due diligence, it being intended that in connection with a failure not susceptible to being cured with due diligence within thirty days, that the time within which to cure the same shall be extended for such period as may be necessary to complete the same with all due diligence. ARTICLE 14. REMEDIES 14.1. City's Remedies. Upon the occurrence of a Default by YMCA which is not cured within the time permitted, City shall be entitled to proceed with the following remedies as set forth below: 1. Right to Remedy Defaults of YMCA. City may remedy any Default of YMCA, and in connection with such remedy, City may pay all expenses and employ 11 counsel, and all sums so expended or obligations incurred by City in connection therewith shall be paid by YMCA to City, upon demand by City, and on failure of such reimbursement. 2. Right to Terminate Agreement. City may terminate this Agreement by City's written notice to termination to YMCA, and such termination shall extinguish all obligations in any Exhibits to this document. 14.2. YMCA's Remedies. Upon the occurrence of a Default which is not cured by City within the time permitted, YMCA may terminate this Agreement by YMCA's written notice of termination to City, and such termination shall extinguish all obligations in any Exhibits to this document. 14.3. Attorneys' Fees. In the event YMCA or City should Default under any of the provisions of this Agreement and the non -defaulting party should employ attorneys or incur other expenses for the enforcement of performance or observance of any obligation or agreement on the part of the defaulting party, the defaulting party shall, on demand therefor, pay to the non - defaulting party the reasonable and necessary fees of such attorneys and such other expenses reasonably incurred, as provided by Tex. Loc. Gov't. Code § 271.159. ARTICLE 15. TERMINATION 15.1. Termination. The Term of this Agreement shall terminate on the occurrence of any of the events set forth: A Default by YMCA which is not cured within the time permitted, and City sends to YMCA a written notice of termination for cause; 2. A Default by City which is not cured within the time permitted, and YMCA sends to City a written notice of termination for cause; 3. The expiration of the Term of this Agreement. ARTICLE 16. NOTICES 16.1. Any notices or other communications required or permitted hereunder shall be sufficiently given if in writing and (i) delivered personally, or (ii) sent by certified mail, return receipt requested, postage prepaid, addressed as shown below, or to such other address as the party concerned may substitute by written notice to the other. All notices personally delivered shall be deemed received on the date of delivery. All notices forwarded by mail shall be deemed received on a date seven (7) days (excluding Sundays and holidays) immediately following date of deposit in the U.S. mail; provided, however, the return receipt indicating the date upon which all notices were received shall be pdma facie evidence that such notices were received on the date on the return receipt. 12 If to City: CITY OF ROUND ROCK, TEXAS 221 East Main Round Rock, Texas 78664 Attention: City Manager With a copy to: Stephan L. Sheets, City Attorney 309 East Main Round Rock, Texas 78664 If to YMCA: YMCA OF GREATER WILLIAMSON COUNTY 1812 North Mays Street Round Rock, Texas 78664 With a copy to: R. Mark Dietz Dietz & Jarrard, P.C. 106 Fannin Avenue East Round Rock, Texas 78664 The addresses may be changed by giving notice of such change in the manner provided herein for giving notice. Unless and until such written notice is received, the last address and addressee given shall be deemed to continue in effect for all purposes. No notice of either City or YMCA shall be deemed given or received unless the entity noted "With a copy to" is simultaneously delivered notice in the same manner as any notice given to either City or YMCA. ARTICLE 17. GENERAL PROVISIONS 17.1. Entire Agreement. This Agreement embodies the entire agreement and understanding of City and YMCA relating to the subject matter hereof and supersedes all prior representations, agreements and understandings, oral and written, relating thereto. Neither this Agreement nor any provision hereof may be amended, enlarged, modified, waived, discharged or terminated orally, but only as expressly provided herein by instrument signed by both parties. 17.2. Counterparts. This Agreement may be executed in any number of counterparts and all of such counterparts taken together shall be deemed to constitute one and the same instrument. 17.3. Successors and Assigns. This Agreement and terms and provisions hereof shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns whenever the context so requires or permits. 17.4. Time. Time is of the essence in this Agreement and each and all of its provisions. Any extension of time granted for the performance of any duty or obligation under this 13 Agreement shall not be considered an extension of time for the performance of any other duty of obligation under this Agreement. 17.5. Severabilitv. Except as expressly provided to the contrary herein, each section, part, term, or provision of this Agreement shall be considered severable, and if for any reason any section, part, term, or provision herein is determined to invalid and contrary to or in conflict with any existing or future law or regulation by a court or agency having valid jurisdiction, such determination shall not impair the operation of or have any other effect on other sections, parts, terms, or provisions of this Agreement as may remain otherwise intelligible, and the latter shall continue to be given full force and effect and bind the parties hereto, and said invalid sections, parts, terms, or provisions shall be deemed not to be a part of this Agreement. 17.6. Applicable Law. This Agreement has been executed and delivered in the State of Texas and shall be construed in accordance with the laws of the State of Texas. Any action brought to enforce or interpret this Agreement shall be brought in the court of appropriate jurisdiction in which the Property is located, that being Williamson County, Texas. Should any provision of this Agreement require judicial interpretation, it is agreed that the court interpreting or considering same shall not apply the presumption that the terms hereof shall be more strictly construed against a party by reason of the rule or conclusion that a document should be construed more strictly against the party who itself or through its agent prepared the same; it being agreed that all parties hereto have participated in the preparation of this Agreement and that legal counsel was consulted by each responsible party before the execution of this Agreement. 17.7. Amendment and Waiver. This Agreement may not be amended or modified in any way except by an instrument in writing executed by all parties hereto; provided, however, either City or YMCA may, in writing, (i) extend the time for performance of any of the obligations of the other, (ii) waive any inaccuracies and representations by the other contained in this Agreement, (iii) waive compliance by the other with any of the covenants contained in this Agreement, and (iv) waive the satisfaction of any condition that is precedent to the performance by the party so waiving any of its obligations under this Agreement. 17.8. No Joint Venture. Nothing contained herein shall be deemed or construed by the parties hereto or by any third party as creating the relationship of (i) principal agent, (ii) a partnership, or (iii) a joint venture between the parties hereto. 17.9. Exhibits. All Exhibits attached hereto are incorporated herein by this reference as if fully set forth herein; provided, however, in the event that at the time of the execution of this Agreement any of the Exhibits to be attached are incomplete, the parties shall use their best efforts to complete such Exhibits at the earliest possible date. To the extent this Agreement may be rendered unenforceable by the lack of completion of any of the Exhibits, such defect shall be cured as such incomplete Exhibits are made complete in accordance with this Section, except to the extent that such Exhibits are deemed and stipulated by the parties to be complete on the execution of this Agreement by the parties hereto. If any Exhibits are subsequently changed by the mutual written agreement of the parties, the Exhibits shall be modified to reflect such change or changes and initialed by the parties. 14 17.10. Caption. Captions, titles to sections, and paragraph headings used herein are for convenience or reference and shall not be deemed to limit or alter any provision hereof. 17.11. Survival. All covenants, agreements, representations, and warranties made herein shall survive the execution and delivery of this Agreement. All other documents and instruments to be executed in accordance herewith shall continue in full force and effect. 17.12. Governing Document. This Agreement shall govern in the event of any inconsistency between this Agreement and any of the Exhibits attached hereto. 17.13. Effective Date. The Effective Date hereof shall beV6 rua Z M . IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their proper, duly authorized corporate officers, all as of the day and year first above set forth. CITY OF ROUND ROCK, TEXAS By: at --h/ " Printed Name: 400 ft/f-6adi Title: P Date Signed: 2 • ?1lj 13 FOR CITY, ATTEST: By: _GNA," &W:: Sara L. White, City Clerk FOR CITY, PRO ED S TO FORM: By: StephaWL. Sheets, City 1knomey By: Printed N ie: fin= Title: k—/ice r_ Date Signed:2,0 t FOR YMC TTEST- By: t Board Secretary FOR YMCA, APPROVED AS TO FORM: By: Q Attorney 15 EXHIBIT "A" PROPERTY DESCRIPTION Two football/soccer fields located at 1500 North Mays, Round Rock Two baseball fields located at 107 East Old Bowman Road, Round Rock 16