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R-07-05-10-8F1 - 5/10/2007 RESOLUTION NO. R-07-05-10-8171 WHEREAS, YMCA of Greater Williamson County ("YMCA") is in the process of developing a year round indoor pool recreation facility, and WHEREAS, pursuant to a Memorandum of Understanding approved by the Council on March 8, 2007 by Resolution No. R-07-03-08-12C2, the City of Round Rock ("City") and the YMCA have developed a community pool construction agreement, including the terms, conditions and provisions pursuant to which YMCA and the City shall design, develop and construct the pool, 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 an Agreement Regarding Construction of a Community Pool Addition to the YMCA of Greater Williamson County Recreation Center, a copy of same being attached hereto as Exhibit "A" and incorporated herein. 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 10th day of May, 20 ELL, Mayor City of Round Rock, Texas I�TTEST: 4n I fil-14i n )k. RISTINE R. MARTINEZ, City Se etary 0:\Wdox\RESOLUTI\R70510F1.WPD/=C/0112-0702 AGREEMENT REGARDING CONSTRUCTION OF A COMMUNITY POOL ADDITION TO THE YMCA OF GREATER WILLIAMSON COUNTY RECREATION CENTER Dated as of May 10,2007 between CITY OF ROUND ROCK,TEXAS as the City and YMCA OF GREATER WILLIAMSON COUNTY as the YMCA CAHIBIT W' O:\WDOX\CORK\gnl\YMCAPOOL\00115424.DOC TABLE OF CONTENTS Page ARTICLE 1 GENERAL TERMS...............................................................................................4 Section 1.1 Definitions and Usage.......................................................................................4 ARTICLE 2 REPRESENTATIVES OF THE PARTIES.........................................................4 Section 2.1 The City Representatives. ................................................................................4 Section 2.2 YMCA Representatives...................................................................................4 ARTICLE3 TERM......................................................................................................................4 Section3.1 Term...................................................................................................................4 ARTICLE 4 PROJECT DESIGN...............................................................................................4 Section4.1 Design.................................................................................................................4 ARTICLE5 CONDITIONS ........................................................................................................ 5 Section 5.1 Conditions to City's Obligations to Perform.................................................. 5 Section 5.2 Conditions to YMCA's Obligations to Perform............................................. 5 Section 5.3 Termination for Failure of Conditions ........................................................... 5 ARTICLE 6 PROJECT COSTS ................................................................................................. 5 Section6.1 Project Costs...................................................................................................... 5 Section 6.2 City's Contribution to Project Costs............................................................... 5 Section 6.3 YMCA's Contribution to Project Costs.......................................................... 6 ARTICLE 7 SCOPE OF DEVELOPMENT..............................................................................6 Section 7.1 Project Improvements ...................................................................................... 6 Section7.2...................................................................................................................................6 CompletionDates.......................................................................................................................6 Section 7.3 Record Drawings and Other Documents........................................................ 7 Section 7AContract Requirements and Warranty Claims.................................................... 7 Section 7.5 Access to the Project......................................................................................... 7 Section 7.6 Construction Cooperation/Coordination........................................................ 7 ARTICLE 8 YMCA OBLIGATIONS ........................................................................................ 8 Section8.1 Project Costs...................................................................................................... 8 Section 8.2 Joint Use and Access Agreement..................................................................... 8 ARTICLE 9 CITY'S CONTRIBUTION.................................................................................... 8 Section 9.1 City's Contribution........................................................................................... 8 ARTICLE 10 APPROVALS AND RELATED MATTERS..................................................... 9 Section 10.1 Items and Matters to be Reviewed and Confirmed and/or Approved by City....................................................................................................................9 ARTICLE 11 DEFAUTLS AND REMEDIES........................................................................... 9 Section11.1 Events of Default............................................................................................... 9 11.1.1 YMCA Default.............................................................................................................. 9 11.1.2 CITY Default.............................................................................................................. 10 Section 11.2 YMCA's Remedies......................................................................................... 10 Section 11.3 The City's Remedies....................................................................................... 10 Section 11.4 Cumulative Remedies..................................................................................... 10 Section 11.5 No Indirect Damages ...................................................................................... 11 Section 11.6 Declaratory or Injunctive Relief.................................................................... 11 ARTICLE12 ASSIGNMENT ................................................................................................... 11 1 Section 12.1 Assignments of YMCA's Interest.................................................................. 11 Section 12.2 Transfers by the City...................................................................................... 11 ARTICLE 13 DISPUTE RESOLUTION................................................................................. 11 Section 13.1 Dispute Resolution............................................................................................. 11 ARTICLE 14 GENERAL PROVISIONS................................................................................. 12 Section 14.1 Relationship of the Parties ............................................................................. 12 Section 14.2 Certificates Regarding Project Documents .................................................. 12 Section 14.3 Approvals and Consents; Standards for Review......................................... 12 14.3.1 Review and Approvals or Consent Rights............................................................ 12 14.3.2 Standard for Review............................................................................................... 13 14.3.3 Deemed Approval or Consent................................................................................ 13 Section 14.4 Incorporation of Appendices, and Exhibits.................................................. 13 Section 14.5 Interest on Overdue Obligations................................................................... 13 Section14.6 Definitions........................................................................................................ 13 Section14.7 Survival............................................................................................................ 13 Section14.8 Notices.............................................................................................................. 13 Section14.9 Severability...................................................................................................... 14 Section 14.10 Entire Agreement; Amendment and Waiver............................................... 14 Section 14.11 Table of Contents; Headings.......................................................................... 14 Section 14.12 Parties in Interest; Limitation on Rights of Others..................................... 14 Section 14.13 Method of Payment......................................................................................... 14 Section14.14 Counterparts ................................................................................................... 14 Section14.15 Governing Law................................................................................................ 14 Section 14.16 Court Proceedings........................................................................................... 15 Section14.17 Time.................................................................................................................. 15 Section 14.18 Interpretation and Reliance........................................................................... 15 Section14.19 Attorneys' Fees................................................................................................ 15 APPENDICES AND EXHIBITS PAGE APPENDICES: APPENDIX A RULES OF USAGE AND GLOSSARY OF DEFINED TERMS..........................................16 APPENDIX B ADDRESSES FOR NOTICES ......................................................................................23 EXHIBITS: EXHIBIT"A" DESCRIPTION OF PROPERTY....................................................................................24 EXHIBIT`B" PROJECT SCOPE......................................................................................................25 EXHIBIT"C" JOINT USE AND ACCESS AGREEMENT.....................................................................28 2 AGREEMENT REGARDING CONSTRUCTION OF A COMMUNITY POOL ADDITION TO THE YMCA OF GREATER WILLIAMSON COUNTY RECREATION CENTER THIS AGREEMENT REGARDING CONSTRUCTION OF A COMMUNITY POOL ADDITION TO THE YMCA OF GREATER WILLIAMSON COUNTY RECREATIONAL CENTER(this "Agreement') is made and entered into effective as of the 10th day of May, 2007, (the "Effective Date") by and between the CITY OF ROUND ROCK, TEXAS, a Texas home rule municipal corporation (the "CLAY') and the YMCA OF GREATER WILLIAMSON COUNTY, a Texas corporation (") MCA"). The City and YMCA collectively are referred to herein as the"Parties." RECITALS A. The YMCA is the owner of a certain parcel of real property located at 1812 N. Mays Street, Round Rock, Williamson County, Texas as described in Exhibit "A", attached hereto and incorporated herein, (the"Pro "). B. The YMCA currently owns and operates a recreational center (the "Recreation Center')on the Property. C. The YMCA is in the process of designing certain improvements to the Recreation Center to include a year-round indoor competitive and recreation pool. D. The City has identified a need for a public facility that will allow year-round indoor competitive and recreational swimming for the citizens of Round Rock. E. The YMCA and the City have determined that by combining their resources they can provide one larger facility that will better serve the needs of the community and the citizens than two separate facilities. F. The YMCA has committed $4,000,000 and the City is willing to commit $2,000,000 to design and construct improvements to the Recreation Center to include a year- round indoor recreation and competitive pool, boys and girls locker rooms and spectator seating, The detailed scope of the aforesaid improvements is described in Exhibit `B" and is hereinafter referred to as the"Project." G. The City and YMCA are executing and entering into this Agreement to set forth certain agreements of the City and YMCA with respect to the Project, including the terms, conditions and provisions pursuant to which YMCA and the City shall design, develop and construct the Project. H. In consideration of the $2,000,000 to be paid by the City for the construction of the Project, the City will receive joint use and access rights to the Recreation Center for the benefit of the residents of the City. 3 AGREEMENTS For and in consideration of the respective covenants and agreements of the Parties herein set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the Parties,the City and YMCA do hereby agree as follows: ARTICLE 1 GENERAL TERMS Section 1.1 Definitions and Usage. Unless the context shall otherwise require, capitalized terms used in this Agreement shall have the meanings assigned to them in the Glossary of Defined Terms attached hereto as Appendix A, which also contains rules as to usage that shall be applicable herein. ARTICLE 2 REPRESENTATIVES OF THE PARTIES Section 2.1 The City Representatives. City hereby designates James R. Nuse, P.E., its City Manager and David Kautz, its Chief Financial Officer, or their replacements to be the City Representatives (the "City Representatives.") Any consent, approval, decision or determination hereunder by either of the City Representatives shall be binding on City; provided, however, the City Representatives shall not have any right to modify, amend or terminate this Agreement. Section 2.2 YMCA Representatives. YMCA hereby designates its CEO Jeff Andresen and its Chairman of Board Roy Beard or their replacements to serve as the YMCA Representatives (the "YMCA Representatives.") Any consent, approval, decision or determination hereunder by either of the YMCA Representatives shall be binding on YMCA; provided, however, the YMCA Representatives shall not have any right to modify, amend or terminate this Agreement. ARTICLE 3 TERM Section 3.1 Term. The term of this Agreement shall commence on the Effective Date and except as otherwise expressly provided herein shall expire on the Substantial Completion Date(the"Project Term.") ARTICLE 4 PROJECT DESIGN Section 4.1 Design. YMCA has entered into the Architect's Contract with the Architect for the preliminary design of the Project Plans. The Project Plans will be completed in strict accordance with the Project Scope, which is attached hereto and incorporated herein as Exhibit `B". The Project Scope shall not be amended without the express written consent of the City. 4 ARTICLE 5 CONDITIONS Section 5.1 Conditions to City's Obligations to Perform. As provided for in Article 9 below, and satisfaction of the other requirements set forth therein, the City's obligation to contribute to the YMCA the City Contribution which sum is to be used by the YMCA in constructing the Project Improvements shall be expressly subject to: (a) the execution of the Deed of Trust provided for in the Joint Use and Access Agreement and approval thereof by the Lender; (b) the successful sale by the City of Certificates of Obligation in an amount of at least $2,000,000 and (c) actual receipt of the proceeds from such sale. If such sale is unsuccessful within 180 days from the Effective Date, the City agrees to use its best efforts to obtain the funding in some other manner. If despite its best efforts, the City is unable to obtain the funds within one year of the Effective Date, then this Agreement shall become null and void for all purposes, and the Parties shall have no further rights, obligations or liabilities under this Agreement. Section 5.2 Conditions to YMCA's Obligations to Perform. The YMCA's obligation to perform its obligations hereunder shall be expressly subject to the following: (a) payment by the City to YMCA of the City's Contribution; and (b) YMCA's receipt of written consents and approvals required pursuant to the indenture, the loan agreement, the credit facility and the collateral documents securing payment of the tax exempt bonds issued to finance the construction of the Cedar Park Twin Lakes YMCA and reimbursement of the Lender(as defined in the Joint Use Agreement), as well as any consents and approvals required under the Loan Documents(as defined in the Joint Use Agreement). Section 5.3 Termination for Failure of Conditions. If for any reason the conditions set forth in Section 5.1 or 5.2 of this Agreement have not been fully and timely satisfied, this Agreement shall terminate at the option of either Party by written notice to the other Party and upon such termination, notwithstanding anything herein contained to the contrary, the Parties shall have no further rights, obligations or liabilities under this Agreement or otherwise relating to this Agreement. ARTICLE 6 PROJECT COSTS Section 6.1 Proiect Costs. "Project Costs" includes all of the costs to design, construct, and equip the Project Improvements. Section 6.2 City's Contribution to Proiect Costs. The City's sole contribution to all Project Costs is the sum of$2,000,000, (herein referred to as the "City's Contribution.") YMCA agrees and understands that under no circumstances whatsoever shall the City be expected or required to contribute any sum of money in excess of said $2,000,000 for Project Costs; it being the understanding of the Parties that ALL liability for Project Costs in excess of the City's Contribution, including but not limited to, cost overruns, Project Construction Change Orders, unforeseen contingencies, additions, modifications, etc. shall be the sole responsibility of YMCA. Further, it is neither the intent nor desire of the City or YMCA to incur costs or fees 5 under the Project Construction Contract in excess of the Project Contract Sum. The YMCA, subject to Council approval,will receive a waiver of the following permit fees: o Concept Plan and Plat Fees o Building Permit Fees o Landscape Inspection Fee o Wastewater Discharge Permit Fees o Water/Sewer Line Inspection Fees The City and YMCA agree to cooperate with one another in taking actions reasonably necessary to minimize the risks of change orders under the Project Construction Contract. In the event it appears likely that the Project Contractor will be entitled to change orders under the Project Construction Contract increasing the contract sum to be paid thereunder above the original contract sum set forth in such contract, the City and YMCA will prepare and submit to the Project Contractor proposed change orders effecting value engineering as to eliminate, to the extent practicable, such increases. Provided however, the Project Scope will not be amended or decreased without the express written consent of the City, which will not be unreasonably withheld. Section 6.3 YMCA's Contribution to Proiect Costs. YMCA agrees to pay for all Project Costs that exceed the City's Contribution(the "YMCA's Contribution"). ARTICLE 7 SCOPE OF DEVELOPMENT Section 7.1 Proiect Improvements. The Parties anticipate utilizing the Construction Manager-at-Risk method of project delivery in accordance with § 271.118 of the Texas Local Government Code. The YMCA shall enter into a Project Construction Contract with the offeror that submits the proposal that offers the best value based on the published selection criteria and ranking evaluation, for the Project Improvements Work for the Project Improvements The Project Construction Contract shall include a Guaranteed Maximum Price ("GMP"), as provided by § 271.118. The City and YMCA representatives will cooperate together and each participate in developing the selection criteria and in the ranking evaluation of the proposals for Construction Manager-at-Risk. All modifications to the Project prior to the execution of the Project Construction Contract for the Project Improvements must be approved by the City and YMCA. The Project Plans (including detailed plans and specifications) are the responsibility of YMCA and shall be developed and prepared by the Architect in cooperation with the City. Any changes in the Project Plans shall be subject to the prior approval of YMCA and the City. Any termination and replacement of the Project Contractor following a default by the Project Contractor shall be subject to the approval of YMCA and the City. Section 7.2 Completion Dates. Subject to extensions for Force Majeure, the YMCA shall cause Substantial Completion of all of the Project Improvements Work for Project Improvements to occur on or before one year following the City's receipt of the proceeds of the sale of Certificates of Obligation, or otherwise obtains funding as set forth in Section 5.1 above 6 (such date, as so extended, being the "Deadline for Substantial Com letion"). YMCA agrees to cause the Project Construction Contract to include a schedule for project completion. Section 7.3 Record Drawings and Other Documents. Upon Substantial Completion of the Project Improvements Work for Project Improvements , the YMCA shall furnish to City (i) one (1) copy of the marked drawings that the Project Contractor is obligated to deliver to the YMCA under the Project Construction Contract, together with all applicable permits, authorizations, and licenses necessary for YMCA to use the same fully for purposes of the operation, maintenance, and occupancy of the Project Improvements, (ii) two (2) copies of the operating and maintenance data binders required to be supplied by the Project Contractor under the Project Construction Contract, and (iii) certified true copies of all approvals, permits and certificates which shall then be required by any Governmental Authority in order for YMCA to use and occupy the Project. Section 7.4 Contract Requirements and Warranty Claims. The YMCA shall ensure that the Project Construction Contract for the Project Improvements and all subcontracts for the supply of equipment or systems to the Project Contractor for the Project Improvements shall provide for the assignment of all warranties, maintenance agreements thereunder to YMCA and give YMCA the independent right to enforce the same. The City and YMCA shall cooperate with each other in prosecuting any and all warranty and similar claims under any and all contracts or other agreements with third parties for the design or construction of the Project Improvements Work, including, but not limited to any and all such claims under the Project Construction Contract (each a "Warran , Claim"). All recoveries from any Warranty Claim shall be applied first to the costs and expenses incurred in effecting such recovery and then to the costs and expenses incurred in order to repair, restore, or replace any part of the Project Improvements to which such Warranty Claim relates. Section 7.5 Access to the Proiect. The City and its agents, employees, and contractors, have the right of access, for themselves and their authorized representatives, to the Property and the Project Improvements and all portions thereof, and at normal construction hours during the construction period, provided that such persons take such reasonable protective precautions or measures as the YMCA or the Project Contractor may reasonably request for the purpose of conducting inspections to determine compliance with this Agreement. Section 7.6 Construction Cooperation/Coordination. The YMCA agrees that at all times during the Project Improvements Work for the Project Improvements, the YMCA will do the following: (a) Conduct the Project Improvements Work, and require all of its contractors, subcontractors and agents to conduct the Project Improvements Work, in cooperation with City so that City will be kept reasonably apprized of all aspects of the Project Improvements Work; (b) Make a reasonable effort to deliver to City a copy of all notices and correspondence, including, but not limited to, any notice of default, sent or received by the YMCA under any Project Construction Documents, relating to the Project 7 Improvements Work or the Property, unless directed otherwise by City or any such notice or correspondence received by the YMCA shows that a copy has been delivered to City; (c) Instruct the Project Contractor and all other contractors and consultants engaged by the YMCA with respect to the Project Improvements Work to provide City with a duplicate copy of all notices, correspondence, reports, drawings or specifications, and other documentation delivered or received by either of them simultaneously with their delivery to the YMCA, including, but not limited to, advance notice of weekly progress meetings; and (d) Allow City and its representatives to attend meetings relating to the Project Improvements Work, including, but not limited to, weekly progress meetings and design review meetings. Each party hereto agrees that all Project Construction Contract(s) will contain a provision stating that the City is a third party beneficiary of the agreements with such parties. YMCA agrees to cause the Architect to deliver to the City a copy of all notices, correspondence,reports, drawings, specifications and other documentation received by YMCA from the Architect. ARTICLE 8 YMCA OBLIGATIONS Section 8.1 Proiect Costs. YMCA agrees to pay when due all Project Costs in excess of the City Contribution. The failure of YMCA to pay such costs within thirty (30) days after they are due shall be a YMCA Default. The YMCA reserves all rights granted to dispute improperly calculated costs. Section 8.2 Joint Use and Access Aereement. YMCA agrees that in consideration of City's Contribution, the YMCA will enter into a Joint Use and Access Agreement with the City, a copy of which is attached hereto and incorporated herein as EXHIBIT"C". ARTICLE 9 CITY'S CONTRIBUTION Section 9.1 City's Contribution. Subject to the provisions of Section 5.1, City agrees to deposit with the YMCA its contribution,to be applied to Project Costs, as follows: (a) $1,000,000 within 30 days after the Architect has certified in writing that the construction of the Community Pool is at least fifty percent(50%) complete; (b) $800,000 within 30 days after the Architect has certified in writing that the construction of the Community Pool is 90% complete; and (c) $200,000 within 30 days after a Certificate of Occupancy has been issued for the Community Pool. 8 ARTICLE 10 APPROVALS AND RELATED MATTERS Section 10.1 Items and Matters to be Reviewed and Confirmed and/or Approved by City. The YMCA must obtain the prior approval of City, acting through the City Representative, of the Project Submission Matters and any issuance of or changes to, or modifications of, the Project Submission Matters. ARTICLE 11 DEFAULTS AND REMEDIES Section 11.1 Events of Default. 11.1.1 YMCA Default. The occurrence of any of the following shall be an "Event of Default"by the YMCA or a"YMCA Default": (a) The failure of the YMCA to pay any of its monetary obligations under this Agreement when due and payable under this Agreement if such failure continues for thirty(30) days after City gives notice to the YMCA that such amount was not paid when due; (b) Abandonment of the Project by the YMCA or any termination, in whole or in part, of any of the Project Construction Contract or any of the work thereunder by the YMCA without the consent of City unless pursuant to a right of termination based upon the existence of an event of default under such Project Construction Contract; (c) Any suspension of the Project Improvements Work by the YMCA for longer than sixty(60) consecutive days or one hundred twenty(120) days in any three hundred sixty- five(365) day period for any reason other than Force Majeure; or (d) The failure of the YMCA to substantially perform or substantially observe any of the obligations, covenants or agreements to be performed or observed by YMCA under this Agreement within thirty (30) days after notice from City of such failure; provided, however, that if such performance or observance cannot reasonably be accomplished within such thirty (30) day period, then no Event of Default by the YMCA shall occur unless the YMCA fails to commence such performance or observance within such thirty (30) day period and fails to diligently prosecute such performance or observance to conclusion thereafter; provided further, however, that if such performance or observance has not been accomplished within one hundred twenty (120) days after notice from the City to the YMCA of such failure (notwithstanding the YMCA's diligent prosecution of its curative efforts), then such failure shall constitute an Event of Default by the YMCA hereunder. (e) The (i) filing by YMCA of a voluntary petition in bankruptcy; or (ii) adjudication of YMCA as a bankrupt; or (iii) approval as properly filed by a court of competent jurisdiction of any petition or other pleading in any action seeking reorganization, rearrangement, adjustment, or composition of, or in respect of YMCA under the United 9 States Bankruptcy Code or any other similar state or federal law dealing with creditors' rights generally; or (iv) appointment of a receiver, trustee or other similar official for YMCA or its Property, unless within thirty (30) days after such approval of filing or appointment YMCA causes such proceeding or appointment to be stayed or discharged. 11.1.2 CITY Default. The occurrence of the following shall be an "Event of Default"by City or a" City Default": (a) The failure of City to pay any of its monetary obligations to the YMCA under this Agreement when due and payable if such failure continues for thirty (30) days after the YMCA gives notice to City that such amount was not paid when due; (b) The failure of City to substantially perform or substantially observe any of the obligations, covenants or agreements to be performed or observed by City under this Agreement within thirty(30) days after notice from the YMCA of such failure; provided, however, that if such performance or observance cannot reasonably be accomplished within such thirty (30) day period, then no Event of Default by City shall occur unless City fails to commence such performance or observance within such thirty (30) day period and fails to diligently prosecute such performance or observance to conclusion thereafter; provided further, however, that if such performance or observance has not been accomplished within one hundred twenty(120) days after notice from the YMCA to City of such failure (notwithstanding City's diligent prosecution of its curative efforts), then such failure shall constitute an Event of Default by City hereunder. Section 11.2 YMCA's Remedies. Upon the occurrence of any City Default, YMCA may, at its sole discretion, have the option to pursue any and all remedies available to YMCA at law or in equity, but subject to any limitations thereon set forth in this Agreement, without any notice or demand whatsoever, other than any notice expressly provided in this Agreement. Section 11.3 The City's Remedies. Upon the occurrence of any YMCA Default, the City's delivery of the required notice to Lender and the expiration of the applicable cure period pursuant to the Subordination Agreement (as defined in the Joint Use and Access Agreement), the City may, at its sole discretion,have the option to pursue any and all remedies available to the City at law or in equity, but subject to any limitations thereon set forth in this Agreement and the Subordination Agreement, without any notice or demand whatsoever, other than any notice expressly provided in this Agreement. Section 11.4 Cumulative Remedies. Subject to the provisions of Section 11.5, each right or remedy of YMCA and the City provided for in this Agreement shall be cumulative of and shall be in addition to every other right or remedy of YMCA or the City provided for in this Agreement, and the exercise or the beginning of the exercise by YMCA or the City of any one or more of the rights or remedies provided for in this Agreement shall not preclude the simultaneous or later exercise by YMCA or the City of any or all other rights or remedies provided for in this Agreement or any other Project Document or hereafter existing at law or in equity,by statute or otherwise. 10 Section 11.5 No Indirect Damages. IN NO EVENT SHALL YMCA OR THE CITY BE LIABLE UNDER ANY PROVISION OF THIS AGREEMENT OR OTHERWISE FOR LOST PROFITS, INCLUDING LOST OR PROSPECTIVE PROFITS, OR FOR ANY OTHER SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, IN CONTRACT, TORT OR OTHERWISE, WHETHER OR NOT CAUSED BY OR RESULTING FROM THE SOLE OR CONCURRENT NEGLIGENCE OF YMCA OR THE CITY OR ANY OF THEIR AFFILIATES OR RELATED PARTIES; PROVIDED, HOWEVER, THAT THE FOREGOING SHALL NOT AFFECT ANY LIABILITY THAT THE City MAY OTHERWISE HAVE UNDER THIS AGREEMENT IN RESPECT TO LIQUIDATED DAMAGES. WITHOUT LIMITING THE FOREGOING, THIS LIMITATION OF LIABILITY SHALL APPLY TO CLAIMS OF YMCA OR THE CITY ARISING OUT OF THIRD PARTY CLAIMS AGAINST YMCA OR THE CITY FOR ANY OF THE FOREGOING. Section 11.6 Declaratory or Iniunctive Relief. In addition to the remedies set forth in this Article 11 and subject to the provisions of Article 13, the Parties shall be entitled, in any circumstances they may deem appropriate, to seek injunctive relief prohibiting (rather than mandating) action by the other Party for any Event of Default of the other Party or declaratory relief with respect to any matter under this Agreement. ARTICLE 12 ASSIGNMENT Section 12.1 Assienments of YMCA's Interest. YMCA shall not sell, assign or transfer its rights under this Agreement (each, a "Transfer") without the prior written consent of the City, which consent shall not be unreasonably withheld, delayed or conditioned. Notwithstanding the foregoing, City hereby consents to the YMCA's assignment of its rights under this Agreement to Lender pursuant to the Loan Documents(hereinafter defined). Section 12.2 Transfers by the Citv. The City shall not sell, assign or otherwise transfer this Agreement or any of its rights, obligations or duties under this Agreement , without first obtaining the prior written consent of YMCA pursuant to this Article 12, which consent shall not be unreasonably withheld, delayed or conditioned. ARTICLE 13 DISPUTE RESOLUTION Section 13.1 Dispute Resolution. In the event any dispute, controversy or claim between or among the Parties arises under this Agreement or any right, duty or obligation arising therefrom or the relationship of the Parties thereunder (a "Dispute or Controversy"), including, but not limited to, a Dispute or Controversy relating to the effectiveness, validity, interpretation, implementation, termination, cancellation or enforcement of this Agreement, the Parties shall first attempt in good faith to settle and resolve such Dispute or Controversy by mutual agreement in accordance with the terms of this Article 13. In the event a Dispute or Controversy arises, either Party shall have the right to notify the other that it has elected to implement the procedures set forth in this Article 13. Within fifteen(15) days after delivery of any such notice by one Party 11 to the other regarding a Dispute or Controversy, the City Representatives and YMCA Representative shall meet at a mutually agreed time and place to attempt, with diligence and good faith,to resolve and settle such Dispute or Controversy. ARTICLE 14 GENERAL PROVISIONS Section 14.1 Relationship of the Parties. The relationship of YMCA and the City under this Agreement is that of independent parties, each acting in its own best interests, and notwithstanding anything in this Agreement to the contrary, no partnership,joint venture or other or additional business relationship is established or intended hereby between YMCA and the City. Section 14.2 Certificates Regarding Proiect Documents. Each Party agrees, at any time and from time to time upon not less than thirty(30) days prior written notice from the other Party, to execute, acknowledge and deliver to such other Party, or to any Person designated by the other Party, a statement certifying that this Agreement is unmodified and in full force and effect (or, if there have been modifications, that the Agreement are in full force and effect as modified and stating the modifications), and stating whether or not,to the knowledge of the Party making the statement, the other Party is in default hereunder or thereunder in keeping, observing or performing any of the terms, covenants or conditions contained in this Agreement to be kept, observed or performed by the other Party (or whether there is a potential YMCA Default or a potential City Default) and, if in default, specifying each such default of which the Party making the statement is aware, it being intended that any such statement delivered pursuant to this Section 14.2 shall be relied upon by the other Party or any Person designated by such other Party. Section 14.3 Aaarovals and Consents, Standards for Review. 14.3.1 Review and Approvals or Consent Rights. The provisions of this Section 14.3 shall be applicable with respect to all instances in which it is provided under this Agreement that the City or YMCA exercises Review and Approval or Consent Rights; provided, however, that if the provisions of this Section 14.3 specifying time periods for exercise of Review and Approval or Consent Rights shall conflict with other express provisions of this Agreement providing for time periods for exercise of designated Review and Approval or Consent Rights, then the provisions of such other provisions of this Agreement shall control. As used herein, the term "Review and Approval or Consent Ri ts" shall include, without limiting the generality of that term, all instances in which one Party(the"Submitting Party") is permitted or required to submit to the other Party or to the representative of that other Party any document, notice or determination of the Submitting Party and with respect to which the other Party or its representative (the "Reviewing Party") has a right or duty hereunder to review, comment, consent, approve, disapprove, dispute or challenge the submission or determination of the Submitting Party. Unless this Agreement specifically provides that the Review and Approval or Consent Rights may be exercised in the sole and absolute discretion(or a similar standard)of the Reviewing Party, in connection with exercising its Review and Approval or Consents rights under any provision of this Agreement and whether or not specifically provided in any such provision, the Reviewing Party covenants and agrees to act in good faith, with due diligence, and in a commercially reasonable manner with regard to each and all of such Review and Approval 12 or Consent Rights and to not unreasonably withhold, condition or delay its approval of or consent to any submission. 14.3.2 Standard for Review. The Submitting Party shall use reasonable efforts to cause any matter submitted to the Reviewing Party by the Submitting Party and with respect to which the Reviewing Party has Review and Approval or Consent Rights under this Agreement to be submitted under cover of a request which (i) contains the heading or caption "TIME SENSITIVE - REQUEST FOR REVIEW/APPROVAL OR CONSENT" (or similar phrase), and (ii) states the date by which a response is required under the terms of this Agreement. 14.3.3 Deemed Approval or Consent. If no response from the Reviewing Party is delivered to the Submitting Party within thirty (30) days after the submission, or such shorter time as may be required approval is thereby deemed to have occurred. Section 14.4 Incorporation of Appendices, and Exhibits. All Appendices, and Exhibits attached to this Agreement are incorporated herein by this reference in their entirety and made a part hereof for all purposes. Section 14.5 Interest on Overdue Obligations. If any sum due hereunder is not paid on the due date thereof, the Party hereto owing such obligation to the other Party shall pay to the other Party interest thereon at the Default Rate, concurrently with the payment of the amount from the date such amount was due until paid. Any payment of interest at the Default Rate pursuant to this Agreement shall not excuse or cure any default hereunder. Section 14.6 Definitions. Except as otherwise expressly provided in the Agreement, capitalized terms used in the Agreement and all appendices, schedules and exhibits thereto shall have the respective meanings given in Appendix A to the Agreement. Section 14.7 Survival. Except as otherwise expressly provided in the Agreement or in any other Project Document, the representations, warranties, covenants and agreements of the Parties contained or provided for in such instruments and the Parties' obligations under any and all thereof shall survive the execution and delivery of such instruments. Section 14.8 Notices. All notices, consents, directions, approvals, instructions, requests and other communications given to a Party under the Agreement shall be given in writing to such Party at the address set forth in AApendix B to the Agreement or at such other address as such Party shall designate by written notice to each of the other Party to the Agreement and may be delivered personally(including delivery by private courier services) or by telecopy(with a copy of such notice sent by private courier service for overnight delivery or by registered or certified mail) to the Party entitled thereto, and shall be deemed to be duly given or made when delivered by hand unless such day is not a Business Day, in which case such delivery shall be deemed to be made as of the next succeeding Business Day or in the case of telecopy (with a copy of such notice sent by private courier service for overnight delivery or by registered or certified mail), when sent, so long as it was received during normal business hours of the receiving Party on a Business Day and otherwise such delivery shall be deemed to be made as of the next succeeding Business Day. 13 Section 14.9 Severability. If any term or provision of the Agreement, or the application thereof to any Person or circumstances, shall to any extent be invalid or unenforceable in any jurisdiction, as to such jurisdiction, the remainder of the Agreement, or the application of such term or provision to the Persons or circumstances other than those as to which such term or provision is held invalid or unenforceable in such jurisdiction, shall not be affected thereby, and each term and provision of the Agreement shall be valid and enforceable to the fullest extent permitted by applicable law and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. To the extent permitted by applicable law, the Parties to the Agreement hereby waive any provision of law that renders any provision thereof prohibited or unenforceable in any respect. Section 14.10 Entire Agreement; Amendment and Waiver. The Agreement constitutes the entire agreement of the Parties thereto with respect to the subject matter thereof and supersedes all prior written and oral agreements and understandings with respect to such subject matter. Neither the Agreement nor any of the terms thereof may be terminated, amended, supplemented, waived or modified orally, but only by an instrument in writing signed by the Party against which the enforcement of the termination, amendment, supplement, waiver or modification shall be sought. Section 14.11 Table of Contents; Headings. The table of contents and headings of the various articles, sections and other subdivisions of the Agreement are for convenience of reference only and shall not modify, define or limit any of the terms or provisions hereof. Section 14.12 Parties in Interest; Limitation on Rights of Others. The terms of the Agreement shall be binding upon, and inure to the benefit of, the Parties and their permitted successors and assigns. Nothing in the Agreement, whether express or implied, shall be construed to give any Person (other than the Parties and their permitted successors and assigns and as expressly provided therein) any legal or equitable right, remedy or claim under or in respect of such instrument or any covenants, conditions or provisions contained therein or any standing or authority to enforce the terms and provisions of such instrument. Section 14.13 Method of Payment. All amounts required to be paid by any Parry to the other Party or any Person, either under the Agreement or under any other Project Document, shall be paid in such freely transferable coin or currency of the United States as at the time of payment shall be legal tender for the payment of public and private debts, by wire transfer, or other acceptable method of payment. If any payment under this Agreement is required to be made on a day other than a Business Day, the date of payment shall be extended to the next Business Day. Section 14.14 Counterparts. The Agreement may be executed by the Parties in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute but one and the same Agreement. All signatures need not be on the same counterpart. Section 14.15 Governing Law. The Agreement and the actions of the parties hereunder shall in all respects be governed by, and construed in accordance with, the laws of the State of Texas(excluding principles of conflict of laws). 14 Section 14.16 Court Proceedings. Subject to the agreement of the Parties regarding arbitration and other alternative procedures for dispute resolution, any suit, action or proceeding against any Party to such instrument arising out of or relating to the Agreement, any transaction contemplated thereby or any judgment entered by any court in respect of any thereof may be brought in state court located in the City of Georgetown, Texas, and each Party hereby submits to the nonexclusive jurisdiction of such courts for the purpose of any such suit, action or proceeding. Section 14.17 Time. Times set forth in such instrument for the performance of obligations shall be strictly construed, time being of the essence of such instrument. However, in the event the date specified or computed under such instrument for the performance, delivery, completion or observance of a covenant, agreement, obligation or notice by either Parry, hereto or for the occurrence of any event provided for therein, shall be a Saturday, Sunday or Legal Holiday, then the date for such performance, delivery, completion, observance or occurrence shall automatically be extended to the next calendar day that is not a Saturday, Sunday or Legal Holiday. Section 14.18 Interpretation and Reliance. No presumption will apply in favor of any Party in the interpretation of the Agreement or in the resolution of any ambiguity of any provision thereof. Section 14.19 Attorneys' Fees. If Party defaults in the performance of any covenants, obligations or agreements of such party contained herein and the other Party places the enforcement of such instrument, or any part thereof, or the exercise of any other remedy therein provided for such default, in the hands of an attorney who files suit or institutes an action or proceeding upon the same(either by direct action or counterclaim), the non-prevailing Party shall pay to the prevailing Party its reasonable and necessary attorneys' fees and costs of court , as provided by Tex Loc. Gov't Code § 271.159.. In addition to the foregoing award of attorneys' fees to the prevailing Party, the prevailing Party shall be entitled to its attorneys' fees incurred in any post judgment proceedings to collect or enforce the judgment. This provision is separate and several and shall survive the merger of the Agreement into any judgment on such instrument. IN WITNESS WHEREOF, this Agreement has been executed and effective on May 10, 2007. CITY OF ROUND ROCK,TEXAS By: Nyle Maxwell,Mayor YMCA OF GREATER WILLIAMSON COUNTY By: its 15 APPENDIX A TO AGREEMENT RULES AS TO USAGE AND GLOSSARY OF DEFINED TERMS Rules as to Usaee 1. The terms defined below have the meanings set forth below for all purposes, and such meanings are equally applicable to both the singular and plural forms of the terms defined. 2. "Include,""includes"and"including" shall be deemed to be followed by"without limitation"whether or not they are in fact followed by such words or words of like import. 3. "Writing,""written"and comparable terms refer to printing,typing, lithography and other means of reproducing in a visible form. 4. Any agreement, instrument or Governmental Rule defined or referred to below or in any agreement or instrument that is governed by this Appendix means such agreement or instrument or Governmental Rule as from time to time amended,modified or supplemented, including(in the case of agreements or instruments)by waiver or consent and(in the case of Governmental Rules)by succession of comparable successor Governmental Rules and includes (in the case of agreements or instruments)references to all attachments thereto and instruments incorporated therein. 5. References to a Person are also to its permitted successors and assigns. 6. Any term defined below by reference to any agreement, instrument or Governmental Rule has such meaning whether or not such agreement,instrument or Governmental Rule is in effect. 7. "Hereof,""herein,""hereunder" and comparable terms refer to the entire agreement or instrument in which such terms are used and not to any particular article, section or other subdivision thereof or attachment thereto. References in an instrument to"Article," "Section,""Subsection"or another subdivision or to an attachment are,unless the context otherwise requires, to an article, section, subsection or subdivision of or an attachment to such agreement or instrument. All references to schedules, exhibits or appendices in any agreement or instrument that is governed by this Appendix are to schedules, exhibits or appendices attached to such instrument or agreement. 8. Pronouns, whenever used in any agreement or instrument that is governed by this Appendix and of whatever gender, shall include natural persons, corporations, limited liability companies,partnerships, and associations of every kind and character. 16 9. References to any gender include,unless the context otherwise requires, references to all genders. 10. The word"or"will have the inclusive meaning represented by the phrase "and/or." 11. The phrase"and/or"when used in a conjunctive phrase, shall mean any one or more of the Persons specified in or the existence or occurrence of any one or more of the events, conditions or circumstances set forth in that phrase; provided,however, that, when used to describe the obligation of one or more Persons to do any act, it shall mean that the obligation is the obligation of each of the Persons but that it may be satisfied by performance by any one or more of them. 12. "Shall" and"will"have equal force and effect. 13. Unless otherwise specified, all references to a specific time of day in any agreement or instrument that is governed by this Appendix shall be based upon Central Standard Time or Central Daylight Savings Time, as applicable on the date in question in Houston, Texas. 14. References to "$" or to "dollars" shall mean the lawful currency of the United States of America. Glossary of Defined Terms "Agreement" means the Agreement Regarding Construction of a Community Pool Addition to the YMCA of Greater Williamson County Recreation Center dated as of the Effective Date between the City and YMCA, as the same may be amended, supplemented, modified,renewed or extended from time to time with the consent of the City and YMCA. "Architect"means K.A. Hickman. "Architect's Contract" means the services contract(s) between YMCA and the Architect for, among other things, the design of the Project Improvements, the preparation of the Project Plans, and construction administration services, as the same may be amended, supplemented, modified, renewed, extended or replaced from time to time with the consent of the City and YMCA. "Business Day" shall mean a day of the year that is not a Saturday, Sunday, or Legal Holiday. "Certificate of Occupancy" shall mean a certificate or document issued by the City stating that the Project may be legally occupied. "Ci' shall mean the City of Round Rock, Texas, a Texas municipal corporation and home rule city. "City's Contribution" shall mean the sum of$2,000,000 as set forth in Article 6. 17 "City Representatives" shall have the meaning given to it in Section 2_1 of the Agreement. "Communi , Pool" shall mean the Improvements and addition to the Recreation Center as described in Exhibit B of this Agreement. "Component" means any item that is incorporated into the Project Improvements, or any portion thereof, including,by way of illustration and not limitation, all ancillary systems included in the Project Improvements, the structure and all structural members, concrete, controls, instrumentation, engines and motors, dynamos, cabling, wheels, transformers, capacitors, load centers, fuses, circuit breakers, gears, bearings, valves, pipes,joints, covers, seats, electronic and mechanical parts, subcomponents, and other equipment. "Deadline for Substantial Completion' shall have the meaning given to it in Section7.2 of the Agreement. "Default Rate"means the lesser of(i)the Prime Rate, or(ii)the maximum rate of interest permitted to be charged by applicable law. "Dispute or Controversy" shall have the meaning given to it in Article 13 of the Agreement. "Effective Date" shall be May 10, 2007. "Event of Default" shall have the meaning given to it in Sections 11.1.1 and 11.1.2 of the Agreement. "Final Completion"means, when used with respect to the work to be performed under the Project Construction Contract, "final completion" as defined in the Project Construction Contract, and with respect to the balance of the Project Improvements Work or any Component of the balance of the Project Improvements Work (such as the Development Work), the final completion of all aspects of such work and improvements in accordance with all Governmental Rules and in accordance with the requirements for the same contained in the Agreement and Project Construction Documents, including, but not limited to, the completion of the punch-list type items referred to in the definition of the term "Substantial Completion". Substantial Completion of such work and improvements is a prerequisite to Final Completion of the same. "Fiscal Year" means the twelve (12) month period from time to time established by the City as its fiscal year, which is currently the twelve (12) month period from October 1 through September 30 of each calendar year. "Force Majeure" means Acts of God, strikes, lockouts or other industrial disturbances, acts of the public enemy, orders of any kind of the government of the United States of America, or of any state thereof, or any civil or military authority, insurrections, riots, epidemics, landslides, lightning, earthquakes, fires, hurricanes, tornadoes, storms, floods, washouts, droughts, arrests, restraining of government and people, civil disturbances, explosions, nuclear accidents, wars, part or entire failure of utilities, shortages of labor, material, supplies or 18 transportation, or any other cause not reasonably within the control of the party claiming inability to perform due to such cause. "Force majeure" shall not,however, include economic hardship. "Governmental Authority" means any federal, state, local , court, tribunal, regulatory commission or other body, whether legislative, judicial or executive (or a combination or permutation thereof), and any arbitrator to whom a dispute has been presented under Governmental Rule or by agreement of the parties with an interest in such dispute. "Governmental Rule" means any statute, law, treaty, rule, code, ordinance, regulation, permit, interpretation, certificate or order of any Governmental Authority, or any judgment, decision, decree, injunction, writ, order or like action of any court, arbitrator or other Governmental Authority. "Guaranteed Maximum Price" or "GMP" means the guaranteed maximum price for the Project Improvements established in the Project Construction Contract, as amended from time to time in accordance with such Contract. "Joint Use and Access Agreement" means the Community Pool Joint Use and Access Agreement dated May 10, 2007, executed by and between the City and YMCA and recorded as Document Number of the Official Public Records of Williamson County, Texas, relating to the Project Improvements, the form of which is attached hereto and incorporated herein by reference as Exhibit "C." "Legal Holiday" means the day, other than a Saturday or Sunday, on which the City's administrative offices are closed for business. "Operating Expenses" shall mean the costs to operate, repair, and maintain the Project Improvements. "Parties" shall have the meaning given to it in the first paragraph of the Agreement. "Person" shall mean any individual, corporation, partnership, joint venture, association, joint stock company,trust, limited liability company, unincorporated organization, Governmental Authority or any other form of entity. "Prime Rate" means the rate of interest from time to time published by the Wall Street Journal as the"prime rate". "Project Budget" shall mean the total project budget, as from time to time amended, for all Project Costs, broken down in reasonable detail by "hard" and "soft" cost categories, including, but not limited to, the amount payable under each of the Project Construction Documents, allowances, contingencies, and pre-opening expenses. "Project Completion Date"means the later of(i)the date of Final Completion of all of the Project Improvements Work in accordance with all of the requirements of the Agreement and other transaction documents, and(ii)payment in full of all Project Costs. 19 "Project Construction Con"act means the construction contract(s) approved by YMCA and the City between the YMCA and the Project Contractor for the construction of the Project Improvements, as the same may be amended, supplemented, modified, renewed, extended or replaced from time to time with the consent of the City and YMCA. "Project Contract Sum" shall mean and refer to the "Contract Sum," as said term is used and defined in the Project Construction Contract. "Project Contractor"means the general contractor approved by the YMCA and the City. "Project Construction Documents" means any and all contracts, documents or other instruments entered into by or on behalf of the City or YMCA for the performance of the Project Improvements Work, including, but not limited to, the construction contracts and the Architect's Contract,but excluding the Project Documents. "Project Costs" means Project Design Costs plus all of the following costs incurred or to be incurred by the YMCA in order for the YMCA to fulfill its obligations under the Agreement, the Project Construction Documents, and cause Final Completion of the Project Improvements Work: (a) acquisition costs; (b) all amounts payable under any of the Project Construction Documents; (c) costs to obtain necessary easements or rights of way; (d) the following City development costs and fees: structural steel inspection fee, oversize fee, regional detention fee, and water meter fee; (e) legal costs; (f) costs for project management services; (g) all other costs incurred by the YMCA and paid to third parties in accordance with the Agreement and Project Construction Documents to develop, construct, or furnish the Project including management fees and fees and expenses of architects, engineers, testing firms, accountants, attorneys, and other consultants necessary to complete the design, development, construction, and furnishing of the Project Improvements; and (h) all insurance premiums on all policies of insurance required to be carried by the YMCA; provided however, that other costs incurred by the YMCA in order to fulfill its aforesaid obligations, but not specifically enumerated herein shall be Project Costs subject to the approval of City, which approval shall not be unreasonably withheld, delayed or conditioned. "Project Fund" means the amount of money equal to the Project Contract Sum to complete the Project Improvements. "Project Improvements" means the Community Pool addition and improvements described more fully in the Project Construction Contract and Exhibit B. "Project Improvements Work" means the design, development, construction, furnishing, and placement in service and Final Completion of the Project Improvements at and within the Property in accordance with the Agreement, the Project Submission Matters, all applicable Governmental Rules and the Project Plans. "Project Plans" means individually and collectively, the concept drawings, schematic drawings, design development drawings and detailed working drawings and specifications for the Project Improvements prepared by the Architect in the form approved by YMCA and the City. 20 "Project Scope" means the description of the Community Pool and its components as described in detail in Exhibit`B". "Project Submission Matters" means each and all of the following, the issuance or completion thereof, and any changes to, or modifications of, any of the following: (a) The Project Budget; (b) The Project Improvements Construction Schedule; (c) The Project Plans; (d) The Project Construction Contract; (e) Any of the following under the Project Construction Documents: (i) Changes in scope or systems; (ii) Changes in quantity, kind, brand, manufacturer or quality of materials, finishes or equipment; (iii) Changes in schedule; (iv) Selection of, and/or changes in, allowance items; and (v) Changes in overall appearance or amenities (f) Equipment Leases; (g) Service Contracts; and (h) Any contract or agreement for inspection of the Project Improvements or other agreement the cost of which would constitute a Project Cost. "Project Term" shall have the meaning given to it in Section 3.1 of the Agreement. "Property" shall mean the real property described on Exhibit A of the Agreement. "Recreation Center" shall mean the recreation facility currently owned and operated by the YMCA located on the Property. "Review and Approval or Consent Rights" shall have the meaning given to it in Section 14.3.1 of the Agreement. "Reviewing Party"shall have the meaning given to it in Section 14.3.1 of the Agreement. "Submitting Party" shall have the meaning given to it in Section 14.3.1 of the Agreement. "Substantial Completion" shall occur when the Project is ready for occupancy as evidenced by the issuance of a Certificate of Occupancy by the City. 21 "Substantial Completion Date" shall mean the date on which a Certificate of Occupancy is issued by the City. "Transfer" shall have the meaning given to it in Section 12.1 of the Agreement. "Warranty Claim" shall have the meaning given to it in Section 7.4 of the Agreement. "YMCA"means YMCA of Greater Williamson County, a 501(c)(3) corporation. "YMCA Default"shall have the meaning given to it in Section 11.1.1 of the Agreement. "YMCA Representatives" shall have the meaning given to it in Section 2.2 of the Agreement. 22 APPENDIX B TO AGREEMENT ADDRESSES FOR NOTICES (1) All notices to the City shall be sent to: City of Round Rock 221 E. Main St. Round Rock, Texas 78664 Attention: James R. Nuse, City Manager Facsimile Number: 512-218-7097 with copies being sent to: Stephan L. Sheets City Attorney 309 E. Main St. Round Rock, Texas 78664 Facsimile Number: 512-255-8986 (2) All notices to YMCA shall be sent to: YMCA of Greater Williamson County 1812 N. Mays Street Round Rock, Texas 78664 Attention: Jeff Andresen Fax: (__) With copy to: R. Mark Dietz Dietz&Jarrard,P.C. 106 Fannin Ave. E. Round Rock, Texas 78664 Fax: (512)244-3766 With copy to: Ki Allen JPMorgan Chase Bank,National Association Commercial Banking 221 W. Sixth St.,Floor 2 Austin, TX 78701-3400 (512)479-2258 Fax: (512)473-2239 23 EXHIBIT "A" TO AGREEMENT FOR A 4.092-ACRE TRACT OF LAND SITUATED IN THE DAVID CURRY SURVEY, ABSTRACT NO. 130,IN WILLIAMSON COUNTY,TEXAS,BEING ALL OF THAT CALLED 4.097-ACRE TRACT OF LAND IN DEED TO YOUNG MEN'S CHRISTIAN ASSOCIATION OF ROUND ROCK IN VOLUME 2115,PAGE 130 OF THE OFFICIAL RECORDS OF WILLIAMSON COUNTY,TEXAS, SAID 4.097-ACRE TRACT BEING COMPRISED OF FOUR(4) TRACTS: TRACT I,A CALLED 0.883-ACRE TRACT, BEING ALL OF THAT CERTAIN"CLEARWATER",A SUBDIVISION ACCORDING TO THE PLAT OF RECORD IN CABINET C, SLIDES 373 OF THE PLAT RECORDS OF SAID COUNTY,TRACT II,A CALLED 2.783-ACRE TRACT,TRACT III,A CALLED 0.121-ACRE TRACT AND TRACT IV,A CALLED 0.31-ACRE TRACT, SAID 4.092 TRACT. 24 EXHIBIT "B" TO AGREEMENT A NEW COMMUNITY POOL & DRESSING ROOMS A Partnership Between The City of Round Rock ''tROtiNR ROCK TEXAS & anew ws5K aaos Rtt: YMCA of Greater Williamson County Scope of Work & Lot Description COMMUNITY POOL The new Community pool is located immediately in front of the existing YMCA located at 1812 North Mays Street, Round Rock, Texas. The new facility will be attached to the existing metal & stone building. Parking will be provided immediately in front of the new Community pool and behind the existing facility. The new Community pool will be constructed with a concrete slab with either glu-laminated wood columns and beams or steel columns & joists. Height will vary from approximately 16' to 301 . Interior walls to be CMU. Ceiling will be wood or tectum. Roof to be metal roof, color to match existing roof. Competitive Pool will be constructed with concrete (gunite) and steel reinforcing. Pool to have perimeter drains, steps, and materials necessary for holding competitive swim events. Pool equipment to be located within outdoor pool equipment enclosure. The Community pool will NOT be air conditioned. Heat will be provided in the form of area heaters. Ventilation will be accomplished by various operable louvers, windows and doors (overhead) . Following is a space description breakdown: 1) COMMUNITY POOL a) Pools i) Eight Lane x 25 yard Heated Competitive Swimming Pool (1)4, 665 square feet (2) 6 foot deep at deep end and 4.5 feet deep at shallow end ii)Heated Lazy River Pool (1)Lazy River (2)Whirlpool (3)2,300 square feet (4)Slide 25 iii) Splashdown (1) 6" to 12" Deep (2) 600 square feet (3)Tumble Barrel (4)Miscellaneous Splash & Spray Toys iv)Splashpad (1) Zero Water Level (2)700 square feet (3)Miscellaneous Splash & Spray Toys b) Competitive Swimming Seating i) Aluminum Bleachers - 100 Capacity c) Warm Water Hot Tub d) Family Dressing Rooms & Toilets (2) e) TOTAL GROSS SQUARE FOOTAGE OF COMMUNITY POOL - 14,025 sq.ft. DRESSING ROOMS The new Dressing Rooms are located immediately in front of the existing YMCA located at 1812 North Mays Street, Round Rock, Texas. The new facility will be attached to the existing metal & stone building and new Community pool. Parking will be provided immediately in front of the new Community pool and behind the existing facility. The new Dressing Rooms will be constructed with a concrete slab with load bearing CMU exterior walls & steel joists. Roof to be low slope modified bitumen roofing. Locker Rooms to be provided with toilets, sinks, showers and lockers for both Men and Women. The Dressing Rooms will be air conditioned. Heat will be provided in the form of area heaters. Ventilation will be accomplished by various operable louvers, windows and doors (overhead) . Following is a space description breakdown: 2 ) DRESSING ROOMS i) Main Entry with Vestibule (1)Concrete Slab (sealed) Flooring (2) Painted CMU walls (3) Painted Gypsum Board ceiling (4)Check-In Desk ii)Locker Rooms (1)Toilets with Toilet Partitions (2)Urinals (where applicable) (3)Sinks 26 (4)Showers (5)Lockers - Approx. 60 (6)Men & Women Separate Dressing Rooms iii) Exterior (1) Painted CMU Walls (2)Low Slope Roof (1/4" per foot slope) - Modified Bitumen Roofing iv)TOTAL GROSS SQUARE FOOTAGE OF DRESSING ROOMS - 2, 100 sq.ft. TOTAL GROSS SQUARE FOOTAGE - 16, 125 square feet 27 EXHIBIT"C" JOINT USE AND ACCESS AGREEMENT 28 DATE: May 2, 2007 SUBJECT: City Council Meeting - May 10, 2007 ITEM: 8.F.1. Consider a resolution authorizing the Mayor to execute an Agreement Regarding Construction of a Community Pool Addition to the YMCA of Greater Williamson County Recreation Center. Department: Administration Staff Person: Jim Nuse, City Manager Justification: Pursuant to a Memorandum of Understanding approved by the Council on March 8, the City and the YMCA have developed a Community Pool Construction Agreement and a Joint Use Access Agreement. Funding• Cost: $2,000,000 (plus any applicable costs of financing) Source of funds: Certificates of Obligation to be issued Outside Resources: N/A Background Information: The construction agreement details the scope of the project that generally includes an indoor eight lane by 25 yard competitive pool, a recreation fun pool, dressing rooms, adequate parking and other features. The project is expected to cost between $5.5 million and $6 million with the City contributing $2 million toward the total project cost in accordance with the construction agreement. The construction agreement details responsibilities of the parties. The YMCA will own and operate the facility. Public Comment: N/A EXECUTED DOCUMENT FOLLOWS AGREEMENT REGARDING CONSTRUCTION OF A COMMUNITY POOL ADDITION TO THE YMCA OF GREATER WILLIAMSON COUNTY RECREATION CENTER Dated as of May 10, 2007 between CITY OF ROUND ROCK, TEXAS as the City and YMCA OF GREATER WILLIAMSON COUNTY as the YMCA O:\WDOX\CORK\gnl\YMCAPOOL\00115424.DOC TABLE OF CONTENTS Page ARTICLE1 GENERAL TERMS...............................................................................................4 Section 1.1 Definitions and Usage.......................................................................................4 ARTICLE 2 REPRESENTATIVES OF THE PARTIES......................................................... 4 Section 2.1 The City Representatives. ................................................................................4 Section 2.2 YMCA Representatives...................................................................................4 ARTICLE3 TERM......................................................................................................................4 Section3.1 Term...................................................................................................................4 ARTICLE 4 PROJECT DESIGN............................................................................................... 4 Section4.1 Design.................................................................................................................4 ARTICLE5 CONDITIONS ........................................................................................................ 5 Section 5.1 Conditions to City's Obligations to Perform.................................................. 5 Section 5.2 Conditions to YMCA's Obligations to Perform............................................. 5 Section 5.3 Termination for Failure of Conditions ........................................................... 5 ARTICLE 6 PROJECT COSTS ................................................................................................. 5 Section6.1 Project Costs...................................................................................................... 5 Section 6.2 City's Contribution to Project Costs............................................................... 5 Section 6.3 YMCA's Contribution to Project Costs.......................................................... 6 ARTICLE 7 SCOPE OF DEVELOPMENT.............................................................................. 6 Section 7.1 Project Improvements ...................................................................................... 6 Section7.2................................................................................................................................... 6 CompletionDates....................................................................................................................... 6 Section 7.3 Record Drawings and Other Documents........................................................ 7 Section 7AContract Requirements and Warranty Claims.................................................... 7 Section 7.5 Access to the Project......................................................................................... 7 Section 7.6 Construction Cooperation/Coordination........................................................ 7 ARTICLE 8 YMCA OBLIGATIONS ........................................................................................ 8 Section8.1 Project Costs...................................................................................................... 8 Section 8.2 Joint Use and Access Agreement..................................................................... 8 ARTICLE 9 CITY'S CONTRIBUTION.................................................................................... 8 Section 9.1 City's Contribution........................................................................................... 8 ARTICLE 10 APPROVALS AND RELATED MATTERS..................................................... 9 Section 10.1 Items and Matters to be Reviewed and Confirmed and/or Approved by City.................................................................................................................... 9 ARTICLE 11 DEFAUTLS AND REMEDIES........................................................................... 9 Section11.1 Events of Default............................................................................................... 9 11.1.1 YMCA Default.............................................................................................................. 9 11.1.2 CITY Default.............................................................................................................. 10 Section 11.2 YMCA's Remedies......................................................................................... 10 Section 11.3 The City's Remedies....................................................................................... 10 Section 11.4 Cumulative Remedies..................................................................................... 10 Section 11.5 No Indirect Damages ...................................................................................... 11 Section 11.6 Declaratory or Injunctive Relief.................................................................... 11 ARTICLE 12 ASSIGNMENT ................................................................................................... 11 1 Section 12.1 Assignments of YMCA's Interest.................................................................. 11 Section 12.2 Transfers by the City...................................................................................... 11 ARTICLE 13 DISPUTE RESOLUTION................................................................................. 11 Section 13.1 Dispute Resolution ............................................................................................. 11 ARTICLE 14 GENERAL PROVISIONS................................................................................. 12 Section 14.1 Relationship of the Parties............................................................................. 12 Section 14.2 Certificates Regarding Project Documents .................................................. 12 Section 14.3 Approvals and Consents; Standards for Review......................................... 12 14.3.1 Review and Approvals or Consent Rights............................................................ 12 14.3.2 Standard for Review............................................................................................... 13 14.3.3 Deemed Approval or Consent................................................................................ 13 Section 14.4 Incorporation of Appendices, and Exhibits.................................................. 13 Section 14.5 Interest on Overdue Obligations................................................................... 13 Section14.6 Definitions........................................................................................................ 13 Section14.7 Survival............................................................................................................ 13 Section14.8 Notices.............................................................................................................. 13 Section14.9 Severability...................................................................................................... 14 Section 14.10 Entire Agreement; Amendment and Waiver ............................................... 14 Section 14.11 Table of Contents; Headings.......................................................................... 14 Section 14.12 Parties in Interest; Limitation on Rights of Others..................................... 14 Section 14.13 Method of Payment......................................................................................... 14 Section14.14 Counterparts ................................................................................................... 14 Section14.15 Governing Law................................................................................................ 14 Section 14.16 Court Proceedings........................................................................................... 15 Section14.17 Time.................................................................................................................. 15 Section 14.18 Interpretation and Reliance........................................................................... 15 Section14.19 Attorneys' Fees................................................................................................ 15 APPENDICES AND EXHIBITS PAGE APPENDICES: APPENDIX A RULES OF USAGE AND GLOSSARY OF DEFINED TERMS ..........................................16 APPENDIX B ADDRESSES FOR NOTICES ......................................................................................23 EXHIBITS: EXHIBIT"A" DESCRIPTION OF PROPERTY....................................................................................24 EXHIBIT«B„ PROJECT SCOPE......................................................................................................25 EXHIBIT"C" JOINT USE AND ACCESS AGREEMENT.....................................................................28 2 1 AGREEMENT REGARDING CONSTRUCTION OF A COMMUNITY POOL ADDITION TO THE YMCA OF GREATER WILLIAMSON COUNTY RECREATION CENTER THIS AGREEMENT REGARDING CONSTRUCTION OF A COMMUNITY POOL ADDITION TO THE YMCA OF GREATER WILLIAMSON COUNTY RECREATIONAL CENTER (this " Agreement") is made and entered into effective as of the 10`h day of May, 2007, (the "Effective Date") by and between the CITY OF ROUND ROCK, TEXAS, a Texas home rule municipal corporation (the "Ciff") and the YMCA OF GREATER WILLIAMSON COUNTY, a Texas corporation ("YMCA"). The City and YMCA collectively are referred to herein as the"Parties." RECITALS A. The YMCA is the owner of a certain parcel of real property located at 1812 N. Mays Street, Round Rock, Williamson County, Texas as described in Exhibit "A", attached hereto and incorporated herein, (the"Pro ert '). B. The YMCA currently owns and operates a recreational center (the "Recreation Center") on the Property. C. The YMCA is in the process of designing certain improvements to the Recreation Center to include a year-round indoor competitive and recreation pool. D. The City has identified a need for a public facility that will allow year-round indoor competitive and recreational swimming for the citizens of Round Rock. E. The YMCA and the City have determined that by combining their resources they can provide one larger facility that will better serve the needs of the community and the citizens than two separate facilities. F. The YMCA has committed $4,000,000 and the City is willing to commit $2,000,000 to design and construct improvements to the Recreation Center to include a year- round indoor recreation and competitive pool, boys and girls locker rooms and spectator seating, The detailed scope of the aforesaid improvements is described in Exhibit "B" and is hereinafter referred to as the"Project." G. The City and YMCA are executing and entering into this Agreement to set forth certain agreements of the City and YMCA with respect to the Project, including the terms, conditions and provisions pursuant to which YMCA and the City shall design, develop and construct the Project. H. In consideration of the $2,000,000 to be paid by the City for the construction of the Project, the City will receive joint use and access rights to the Recreation Center for the benefit of the residents of the City. 3 AGREEMENTS For and in consideration of the respective covenants and agreements of the Parties herein set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the Parties, the City and YMCA do hereby agree as follows: ARTICLE 1 GENERAL TERMS Section 1.1 Definitions and Usate. Unless the context shall otherwise require, capitalized terms used in this Agreement shall have the meanings assigned to them in the Glossary of Defined Terms attached hereto as Appendix A, which also contains rules as to usage that shall be applicable herein. ARTICLE 2 REPRESENTATIVES OF THE PARTIES Section 2.1 The City Representatives. City hereby designates James R. Nuse, P.E., its City Manager and David Kautz, its Chief Financial Officer, or their replacements to be the City Representatives (the "City Representatives.") Any consent, approval, decision or determination hereunder by either of the City Representatives shall be binding on City; provided, however, the City Representatives shall not have any right to modify, amend or terminate this Agreement. Section 2.2 YMCA Representatives. YMCA hereby designates its CEO Jeff Andresen and its Chairman of Board Roy Beard or their replacements to serve as the YMCA Representatives (the "YMCA Representatives.") Any consent, approval, decision or determination hereunder by either of the YMCA Representatives shall be binding on YMCA; provided, however, the YMCA Representatives shall not have any right to modify, amend or terminate this Agreement. ARTICLE 3 TERM Section 3.1 Term. The term of this Agreement shall commence on the Effective Date and except as otherwise expressly provided herein shall expire on the Substantial Completion Date (the"Project Term.") ARTICLE 4 PROJECT DESIGN Section 4.1 De_ siL-n. YMCA has entered into the Architect's Contract with the Architect for the preliminary design of the Project Plans. The Project Plans will be completed in strict accordance with the Project Scope, which is attached hereto and incorporated herein as Exhibit `B". The Project Scope shall not be amended without the express written consent of the City. 4 .._.._..... ...._. .. ARTICLE 5 CONDITIONS Section 5.1 Conditions to City's Obligations to Perform. As provided for in Article 9 below, and satisfaction of the other requirements set forth therein, the City's obligation to contribute to the YMCA the City Contribution which sum is to be used by the YMCA in constructing the Project Improvements shall be expressly subject to: (a) the execution of the Deed of Trust provided for in the Joint Use and Access Agreement and approval thereof by the Lender; (b) the successful sale by the City of Certificates of Obligation in an amount of at least $2,000,000 and (c) actual receipt of the proceeds from such sale. If such sale is unsuccessful within 180 days from the Effective Date, the City agrees to use its best efforts to obtain the funding in some other manner. If despite its best efforts, the City is unable to obtain the funds within one year of the Effective Date, then this Agreement shall become null and void for all purposes, and the Parties shall have no further rights, obligations or liabilities under this Agreement. Section 5.2 Conditions to YMCA's Obligations to Perform The YMCA's obligation to perform its obligations hereunder shall be expressly subject to the following: (a) payment by the City to YMCA of the City's Contribution; and (b) YMCA's receipt of written consents and approvals required pursuant to the indenture, the loan agreement, the credit facility and the collateral documents securing payment of the tax exempt bonds issued to finance the construction of the Cedar Park Twin Lakes YMCA and reimbursement of the Lender(as defined in the Joint Use Agreement), as well as any consents and approvals required under the Loan Documents (as defined in the Joint Use Agreement). Section 5.3 Termination for Failure of Conditions. If for any reason the conditions set forth in Section 5.1 or 5.2 of this Agreement have not been fully and timely satisfied, this Agreement shall terminate at the option of either Party by written notice to the other Party and upon such termination, notwithstanding anything herein contained to the contrary, the Parties shall have no further rights, obligations or liabilities under this Agreement or otherwise relating to this Agreement. ARTICLE 6 PROJECT COSTS Section 6.1 Proiect Costs. "Project Costs" includes all of the costs to design, construct, and equip the Project Improvements. Section 6.2 City's Contribution to Proiect Costs. The City's sole contribution to all Project Costs is the sum of$2,000,000, (herein referred to as the "City's Contribution.") YMCA agrees and understands that under no circumstances whatsoever shall the City be expected or required to contribute any sum of money in excess of said $2,000,000 for Project Costs; it being the understanding of the Parties that ALL liability for Project Costs in excess of the City's Contribution, including but not limited to, cost overruns, Project Construction Change Orders, unforeseen contingencies, additions, modifications, etc. shall be the sole responsibility of YMCA. Further, it is neither the intent nor desire of the City or YMCA to incur costs or fees 5 under the Project Construction Contract in excess of the Project Contract Sum. The YMCA, subject to Council approval, will receive a waiver of the following permit fees: o Concept Plan and Plat Fees o Building Permit Fees o Landscape Inspection Fee o Wastewater Discharge Permit Fees o Water/Sewer Line Inspection Fees The City and YMCA agree to cooperate with one another in taking actions reasonably necessary to minimize the risks of change orders under the Project Construction Contract. In the event it appears likely that the Project Contractor will be entitled to change orders under the Project Construction Contract increasing the contract sum to be paid thereunder above the original contract sum set forth in such contract, the City and YMCA will prepare and submit to the Project Contractor proposed change orders effecting value engineering as to eliminate, to the extent practicable, such increases. Provided however, the Project Scope will not be amended or decreased without the express written consent of the City, which will not be unreasonably withheld. Section 6.3 YMCA's Contribution to Proiect Costs. YMCA agrees to pay for all Project Costs that exceed the City's Contribution(the "YMCA's Contribution"). ARTICLE 7 SCOPE OF DEVELOPMENT Section 7.1 Proiect Improvements. The Parties anticipate utilizing the Construction Manager-at-Risk method of project delivery in accordance with § 271.118 of the Texas Local Government Code. The YMCA shall enter into a Project Construction Contract with the offeror that submits the proposal that offers the best value based on the published selection criteria and ranking evaluation, for the Project Improvements Work for the Project Improvements The Project Construction Contract shall include a Guaranteed Maximum Price ("GMP"), as provided by § 271.118. The City and YMCA representatives will cooperate together and each participate in developing the selection criteria and in the ranking evaluation of the proposals for Construction Manager-at-Risk. All modifications to the Project prior to the execution of the Project Construction Contract for the Project Improvements must be approved by the City and YMCA. The Project Plans (including detailed plans and specifications) are the responsibility of YMCA and shall be developed and prepared by the Architect in cooperation with the City. Any changes in the Project Plans shall be subject to the prior approval of YMCA and the City. Any termination and replacement of the Project Contractor following a default by the Project Contractor shall be subject to the approval of YMCA and the City. Section 7.2 Completion Dates. Subject to extensions for Force Majeure, the YMCA shall cause Substantial Completion of all of the Project Improvements Work for Project Improvements to occur on or before one year following the City's receipt of the proceeds of the sale of Certificates of Obligation, or otherwise obtains funding as set forth in Section 5.1 above 6 (such date, as so extended, being the "Deadline for Substantial Com letion"). YMCA agrees to cause the Project Construction Contract to include a schedule for project completion. Section 7.3 Record Drawinis and Other Documents. Upon Substantial Completion of the Project Improvements Work for Project Improvements , the YMCA shall furnish to City (i) one (1) copy of the marked drawings that the Project Contractor is obligated to deliver to the YMCA under the Project Construction Contract, together with all applicable permits, authorizations, and licenses necessary for YMCA to use the same fully for purposes of the operation, maintenance, and occupancy of the Project Improvements, (ii) two (2) copies of the operating and maintenance data binders required to be supplied by the Project Contractor under the Project Construction Contract, and (iii) certified true copies of all approvals, permits and certificates which shall then be required by any Governmental Authority in order for YMCA to use and occupy the Project. Section 7.4 Contract Requirements and Warranty Claims. The YMCA shall ensure that the Project Construction Contract for the Project Improvements and all subcontracts for the supply of equipment or systems to the Project Contractor for the Project Improvements shall provide for the assignment of all warranties, maintenance agreements thereunder to YMCA and give YMCA the independent right to enforce the same. The City and YMCA shall cooperate with each other in prosecuting any and all warranty and similar claims under any and all contracts or other agreements with third parties for the design or construction of the Project Improvements Work, including, but not limited to any and all such claims under the Project Construction Contract (each a "Warranty Claim"). All recoveries from any Warranty Claim shall be applied first to the costs and expenses incurred in effecting such recovery and then to the costs and expenses incurred in order to repair, restore, or replace any part of the Project Improvements to which such Warranty Claim relates. Section 7.5 Access to the Proiect. The City and its agents, employees, and contractors, have the right of access, for themselves and their authorized representatives, to the Property and the Project Improvements and all portions thereof, and at normal construction hours during the construction period, provided that such persons take such reasonable protective precautions or measures as the YMCA or the Project Contractor may reasonably request for the purpose of conducting inspections to determine compliance with this Agreement. Section 7.6 Construction Cooperation/Coordination. The YMCA agrees that at all times during the Project Improvements Work for the Project Improvements, the YMCA will do the following: (a) Conduct the Project Improvements Work, and require all of its contractors, subcontractors and agents to conduct the Project Improvements Work, in cooperation with City so that City will be kept reasonably apprized of all aspects of the Project Improvements Work; (b) Make a reasonable effort to deliver to City a copy of all notices and correspondence, including, but not limited to, any notice of default, sent or received by the YMCA under any Project Construction Documents, relating to the Project 7 Improvements Work or the Property, unless directed otherwise by City or any such notice or correspondence received by the YMCA shows that a copy has been delivered to City; (c) Instruct the Project Contractor and all other contractors and consultants engaged by the YMCA with respect to the Project Improvements Work to provide City with a duplicate copy of all notices, correspondence, reports, drawings or specifications, and other documentation delivered or received by either of them simultaneously with their delivery to the YMCA, including, but not limited to, advance notice of weekly progress meetings; and (d) Allow City and its representatives to attend meetings relating to the Project Improvements Work, including, but not limited to, weekly progress meetings and design review meetings. Each party hereto agrees that all Project Construction Contract(s) will contain a provision stating that the City is a third party beneficiary of the agreements with such parties. YMCA agrees to cause the Architect to deliver to the City a copy of all notices, correspondence, reports, drawings, specifications and other documentation received by YMCA from the Architect. ARTICLE 8 YMCA OBLIGATIONS Section 8.1 Proiect Costs. YMCA agrees to pay when due all Project Costs in excess of the City Contribution. The failure of YMCA to pay such costs within thirty (30) days after they are due shall be a YMCA Default. The YMCA reserves all rights granted to dispute improperly calculated costs. Section 8.2 Joint Use and Access Agreement. YMCA agrees that in consideration of City's Contribution, the YMCA will enter into a Joint Use and Access Agreement with the City, a copy of which is attached hereto and incorporated herein as EXHIBIT"C". ARTICLE 9 CITY'S CONTRIBUTION Section 9.1 City's Contribution. Subject to the provisions of Section 5.1, City agrees to deposit with the YMCA its contribution, to be applied to Project Costs, as follows: (a) $1,000,000 within 30 days after the Architect has certified in writing that the construction of the Community Pool is at least fifty percent(50%) complete; (b) $800,000 within 30 days after the Architect has certified in writing that the construction of the Community Pool is 90% complete; and (c) $200,000 within 30 days after a Certificate of Occupancy has been issued for the Community Pool. 8 r i r ARTICLE 10 APPROVALS AND RELATED MATTERS Section 10.1 Items and Matters to be Reviewed and Confirmed and/or Approved by City. The YMCA must obtain the prior approval of City, acting through the City Representative, of the Project Submission Matters and any issuance of or changes to, or modifications of, the Project Submission Matters. ARTICLE 11 DEFAULTS AND REMEDIES Section 11.1 Events of Default. 11.1.1 YMCA Default. The occurrence of any of the following shall be an "Event of Default"by the YMCA or a"YMCA Default": (a) The failure of the YMCA to pay any of its monetary obligations under this Agreement when due and payable under this Agreement if such failure continues for thirty(30) days after City gives notice to the YMCA that such amount was not paid when due; (b) Abandonment of the Project by the YMCA or any termination, in whole or in part, of any of the Project Construction Contract or any of the work thereunder by the YMCA without the consent of City unless pursuant to a right of termination based upon the existence of an event of default under such Project Construction Contract; (c) Any suspension of the Project Improvements Work by the YMCA for longer than sixty(60) consecutive days or one hundred twenty(120) days in any three hundred sixty- five(365) day period for any reason other than Force Majeure; or (d) The failure of the YMCA to substantially perform or substantially observe any of the obligations, covenants or agreements to be performed or observed by YMCA under this Agreement within thirty (30) days after notice from City of such failure; provided, however, that if such performance or observance cannot reasonably be accomplished within such thirty (30) day period, then no Event of Default by the YMCA shall occur unless the YMCA fails to commence such performance or observance within such thirty (30) day period and fails to diligently prosecute such performance or observance to conclusion thereafter; provided further, however, that if such performance or observance has not been accomplished within one hundred twenty (120) days after notice from the City to the YMCA of such failure (notwithstanding the YMCA's diligent prosecution of its curative efforts), then such failure shall constitute an Event of Default by the YMCA hereunder. (e) The (i) filing by YMCA of a voluntary petition in bankruptcy; or (ii) adjudication of YMCA as a bankrupt; or (iii) approval as properly filed by a court of competent jurisdiction of any petition or other pleading in any action seeking reorganization, rearrangement, adjustment, or composition of, or in respect of YMCA under the United 9 States Bankruptcy Code or any other similar state or federal law dealing with creditors' rights generally; or (iv) appointment of a receiver, trustee or other similar official for YMCA or its Property, unless within thirty (30) days after such approval of filing or appointment YMCA causes such proceeding or appointment to be stayed or discharged. 11.1.2 CITY Default. The occurrence of the following shall be an "Event of Default"by City or a" City Default": (a) The failure of City to pay any of its monetary obligations to the YMCA under this Agreement when due and payable if such failure continues for thirty (30) days after the YMCA gives notice to City that such amount was not paid when due; (b) The failure of City to substantially perform or substantially observe any of the obligations, covenants or agreements to be performed or observed by City under this Agreement within thirty(30) days after notice from the YMCA of such failure; provided, however, that if such performance or observance cannot reasonably be accomplished within such thirty (30) day period, then no Event of Default by City shall occur unless City fails to commence such performance or observance within such thirty (30) day period and fails to diligently prosecute such performance or observance to conclusion thereafter; provided further, however, that if such performance or observance has not been accomplished within one hundred twenty(120) days after notice from the YMCA to City of such failure (notwithstanding City's diligent prosecution of its curative efforts), then such failure shall constitute an Event of Default by City hereunder. Section 11.2 YMCA's Remedies. Upon the occurrence of any City Default, YMCA may, at its sole discretion, have the option to pursue any and all remedies available to YMCA at law or in equity, but subject to any limitations thereon set forth in this Agreement, without any notice or demand whatsoever, other than any notice expressly provided in this Agreement. Section 11.3 The City's Remedies. Upon the occurrence of any YMCA Default, the City's delivery of the required notice to Lender and the expiration of the applicable cure period pursuant to the Subordination Agreement (as defined in the Joint Use and Access Agreement), the City may, at its sole discretion, have the option to pursue any and all remedies available to the City at law or in equity, but subject to any limitations thereon set forth in this Agreement and the Subordination Agreement, without any notice or demand whatsoever, other than any notice expressly provided in this Agreement. Section 11.4 Cumulative Remedies. Subject to the provisions of Section 11.5, each right or remedy of YMCA and the City provided for in this Agreement shall be cumulative of and shall be in addition to every other right or remedy of YMCA or the City provided for in this Agreement, and the exercise or the beginning of the exercise by YMCA or the City of any one or more of the rights or remedies provided for in this Agreement shall not preclude the simultaneous or later exercise by YMCA or the City of any or all other rights or remedies provided for in this Agreement or any other Project Document or hereafter existing at law or in equity, by statute or otherwise. 10 Section 11.5 No Indirect Damages. IN NO EVENT SHALL YMCA OR THE CITY BE LIABLE UNDER ANY PROVISION OF THIS AGREEMENT OR OTHERWISE FOR LOST PROFITS, INCLUDING LOST OR PROSPECTIVE PROFITS, OR FOR ANY OTHER SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, IN CONTRACT, TORT OR OTHERWISE, WHETHER OR NOT CAUSED BY OR RESULTING FROM THE SOLE OR CONCURRENT NEGLIGENCE OF YMCA OR THE CITY OR ANY OF THEIR AFFILIATES OR RELATED PARTIES; PROVIDED, HOWEVER, THAT THE FOREGOING SHALL NOT AFFECT ANY LIABILITY THAT THE City MAY OTHERWISE HAVE UNDER THIS AGREEMENT IN RESPECT TO LIQUIDATED DAMAGES. WITHOUT LIMITING THE FOREGOING, THIS LIMITATION OF LIABILITY SHALL APPLY TO CLAIMS OF YMCA OR THE CITY ARISING OUT OF THIRD PARTY CLAIMS AGAINST YMCA OR THE CITY FOR ANY OF THE FOREGOING. Section 11.6 Declaratory or Iniunctive Relief. In addition to the remedies set forth in this Article 11 and subject to the provisions of Article 13, the Parties shall be entitled, in any circumstances they may deem appropriate, to seek injunctive relief prohibiting (rather than mandating) action by the other Party for any Event of Default of the other Party or declaratory relief with respect to any matter under this Agreement. ARTICLE 12 ASSIGNMENT Section 12.1 Assignments of YMCA's Interest. YMCA shall not sell, assign or transfer its rights under this Agreement (each, a "Transfer") without the prior written consent of the City, which consent shall not be unreasonably withheld, delayed or conditioned. Notwithstanding the foregoing, City hereby consents to the YMCA's assignment of its rights under this Agreement to Lender pursuant to the Loan Documents (hereinafter defined). Section 12.2 Transfers by the Citv. The City shall not sell, assign or otherwise transfer this Agreement or any of its rights, obligations or duties under this Agreement , without first obtaining the prior written consent of YMCA pursuant to this Article 12, which consent shall not be unreasonably withheld, delayed or conditioned. ARTICLE 13 DISPUTE RESOLUTION Section 13.1 Dispute Resolution. In the event any dispute, controversy or claim between or among the Parties arises under this Agreement or any right, duty or obligation arising therefrom or the relationship of the Parties thereunder (a "Dispute or Controversy"), including, but not limited to, a Dispute or Controversy relating to the effectiveness, validity, interpretation, implementation, termination, cancellation or enforcement of this Agreement, the Parties shall first attempt in good faith to settle and resolve such Dispute or Controversy by mutual agreement in accordance with the terms of this Article 13. In the event a Dispute or Controversy arises, either Party shall have the right to notify the other that it has elected to implement the procedures set forth in this Article 13. Within fifteen (15) days after delivery of any such notice by one Party 11 to the other regarding a Dispute or Controversy, the City Representatives and YMCA Representative shall meet at a mutually agreed time and place to attempt, with diligence and good faith, to resolve and settle such Dispute or Controversy. ARTICLE 14 GENERAL PROVISIONS Section 14.1 Relationship of the Parties. The relationship of YMCA and the City under this Agreement is that of independent parties, each acting in its own best interests, and notwithstanding anything in this Agreement to the contrary, no partnership,joint venture or other or additional business relationship is established or intended hereby between YMCA and the City. Section 14.2 Certificates Regarding Proiect Documents. Each Party agrees, at any time and from time to time upon not less than thirty(30) days prior written notice from the other Party, to execute, acknowledge and deliver to such other Party, or to any Person designated by the other Party, a statement certifying that this Agreement is unmodified and in full force and effect (or, if there have been modifications, that the Agreement are in full force and effect as modified and stating the modifications), and stating whether or not,to the knowledge of the Party making the statement, the other Party is in default hereunder or thereunder in keeping, observing or performing any of the terms, covenants or conditions contained in this Agreement to be kept, observed or performed by the other Party (or whether there is a potential YMCA Default or a potential City Default) and, if in default, specifying each such default of which the Party making the statement is aware, it being intended that any such statement delivered pursuant to this Section 14.2 shall be relied upon by the other Party or any Person designated by such other Party. Section 14.3 Approvals and Consents, Standards for Review. 14.3.1 Review and Approvals or Consent Rights. The provisions of this Section 14.3 shall be applicable with respect to all instances in which it is provided under this Agreement that the City or YMCA exercises Review and Approval or Consent Rights; provided, however, that if the provisions of this Section 14.3 specifying time periods for exercise of Review and Approval or Consent Rights shall conflict with other express provisions of this Agreement providing for time periods for exercise of designated Review and Approval or Consent Rights, then the provisions of such other provisions of this Agreement shall control. As used herein, the term "Review and Approval or Consent Rights" shall include, without limiting the generality of that term, all instances in which one Party(the "Submitting Party") is permitted or required to submit to the other Party or to the representative of that other Party any document, notice or determination of the Submitting Party and with respect to which the other Party or its representative (the "Reviewing Party") has a right or duty hereunder to review, comment, consent, approve, disapprove, dispute or challenge the submission or determination of the Submitting Party. Unless this Agreement specifically provides that the Review and Approval or Consent Rights may be exercised in the sole and absolute discretion (or a similar standard) of the Reviewing Party, in connection with exercising its Review and Approval or Consents rights under any provision of this Agreement and whether or not specifically provided in any such provision, the Reviewing Party covenants and agrees to act in good faith, with due diligence, and in a commercially reasonable manner with regard to each and all of such Review and Approval 12 or Consent Rights and to not unreasonably withhold, condition or delay its approval of or consent to any submission. 14.3.2 Standard for Review. The Submitting Party shall use reasonable efforts to cause any matter submitted to the Reviewing Party by the Submitting Party and with respect to which the Reviewing Party has Review and Approval or Consent Rights under this Agreement to be submitted under cover of a request which (i) contains the heading or caption "TIME SENSITIVE - REQUEST FOR REVIEW/APPROVAL OR CONSENT" (or similar phrase), and (ii) states the date by which a response is required under the terms of this Agreement. 14.3.3 Deemed Approval or Consent. If no response from the Reviewing Party is delivered to the Submitting Party within thirty (30) days after the submission, or such shorter time as may be required approval is thereby deemed to have occurred. Section 14.4 Incorporation of Appendices, and Exhibits. All Appendices, and Exhibits attached to this Agreement are incorporated herein by this reference in their entirety and made a part hereof for all purposes. Section 14.5 Interest on Overdue Obligations. If any sum due hereunder is not paid on the due date thereof, the Party hereto owing such obligation to the other Party shall pay to the other Party interest thereon at the Default Rate, concurrently with the payment of the amount from the date such amount was due until paid. Any payment of interest at the Default Rate pursuant to this Agreement shall not excuse or cure any default hereunder. Section 14.6 Definitions. Except as otherwise expressly provided in the Agreement, capitalized terms used in the Agreement and all appendices, schedules and exhibits thereto shall have the respective meanings given in Appendix A to the Agreement. Section 14.7 Survival. Except as otherwise expressly provided in the Agreement or in any other Project Document, the representations, warranties, covenants and agreements of the Parties contained or provided for in such instruments and the Parties' obligations under any and all thereof shall survive the execution and delivery of such instruments. Section 14.8 Notices. All notices, consents, directions, approvals, instructions, requests and other communications given to a Party under the Agreement shall be given in writing to such Party at the address set forth in Appendix B to the Agreement or at such other address as such Party shall designate by written notice to each of the other Party to the Agreement and may be delivered personally (including delivery by private courier services) or by telecopy (with a copy of such notice sent by private courier service for overnight delivery or by registered or certified mail) to the Party entitled thereto, and shall be deemed to be duly given or made when delivered by hand unless such day is not a Business Day, in which case such delivery shall be deemed to be made as of the next succeeding Business Day or in the case of telecopy (with a copy of such notice sent by private courier service for overnight delivery or by registered or certified mail), when sent, so long as it was received during normal business hours of the receiving Party on a Business Day and otherwise such delivery shall be deemed to be made as of the next succeeding Business Day. 13 Section 14.9 Severability. If any term or provision of the Agreement, or the application thereof to any Person or circumstances, shall to any extent be invalid or unenforceable in any jurisdiction, as to such jurisdiction, the remainder of the Agreement, or the application of such term or provision to the Persons or circumstances other than those as to which such term or provision is held invalid or unenforceable in such jurisdiction, shall not be affected thereby, and each term and provision of the Agreement shall be valid and enforceable to the fullest extent permitted by applicable law and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. To the extent permitted by applicable law, the Parties to the Agreement hereby waive any provision of law that renders any provision thereof prohibited or unenforceable in any respect. Section 14.10 Entire Agreement; Amendment and Waiver. The Agreement constitutes the entire agreement of the Parties thereto with respect to the subject matter thereof and supersedes all prior written and oral agreements and understandings with respect to such subject matter. Neither the Agreement nor any of the terms thereof may be terminated, amended, supplemented, waived or modified orally, but only by an instrument in writing signed by the Party against which the enforcement of the termination, amendment, supplement, waiver or modification shall be sought. Section 14.11 Table of Contents, Headings. The table of contents and headings of the various articles, sections and other subdivisions of the Agreement are for convenience of reference only and shall not modify, define or limit any of the terms or provisions hereof. Section 14.12 Parties in Interest, Limitation on Rights of Others. The terms of the Agreement shall be binding upon, and inure to the benefit of, the Parties and their permitted successors and assigns. Nothing in the Agreement, whether express or implied, shall be construed to give any Person (other than the Parties and their permitted successors and assigns and as expressly provided therein) any legal or equitable right, remedy or claim under or in respect of such instrument or any covenants, conditions or provisions contained therein or any standing or authority to enforce the terms and provisions of such instrument. Section 14.13 Method of Payment. All amounts required to be paid by any Party to the other Party or any Person, either under the Agreement or under any other Project Document, shall be paid in such freely transferable coin or currency of the United States as at the time of payment shall be legal tender for the payment of public and private debts, by wire transfer, or other acceptable method of payment. If any payment under this Agreement is required to be made on a day other than a Business Day, the date of payment shall be extended to the next Business Day. Section 14.14 Counterparts. The Agreement may be executed by the Parties in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute but one and the same Agreement. All signatures need not be on the same counterpart. Section 14.15 Governing Law. The Agreement and the actions of the parties hereunder shall in all respects be governed by, and construed in accordance with, the laws of the State of Texas (excluding principles of conflict of laws). 14 Section 14.16 Court Proceedings. Subject to the agreement of the Parties regarding arbitration and other alternative procedures for dispute resolution, any suit, action or proceeding against any Party to such instrument arising out of or relating to the Agreement, any transaction contemplated thereby or any judgment entered by any court in respect of any thereof may be brought in state court located in the City of Georgetown, Texas, and each Party hereby submits to the nonexclusive jurisdiction of such courts for the purpose of any such suit, action or proceeding. Section 14.17 Time. Times set forth in such instrument for the performance of obligations shall be strictly construed, time being of the essence of such instrument. However, in the event the date specified or computed under such instrument for the performance, delivery, completion or observance of a covenant, agreement, obligation or notice by either Party, hereto or for the occurrence of any event provided for therein, shall be a Saturday, Sunday or Legal Holiday, then the date for such performance, delivery, completion, observance or occurrence shall automatically be extended to the next calendar day that is not a Saturday, Sunday or Legal Holiday. Section 14.18 Interpretation and Reliance. No presumption will apply in favor of any Party in the interpretation of the Agreement or in the resolution of any ambiguity of any provision thereof. Section 14.19 Attorneys' Fees. If Party defaults in the performance of any covenants, obligations or agreements of such party contained herein and the other Party places the enforcement of such instrument, or any part thereof, or the exercise of any other remedy therein provided for such default, in the hands of an attorney who files suit or institutes an action or proceeding upon the same (either by direct action or counterclaim), the non-prevailing Party shall pay to the prevailing Party its reasonable and necessary attorneys' fees and costs of court , as provided by Tex Loc. Gov't Code § 271.159.. In addition to the foregoing award of attorneys' fees to the prevailing Party, the prevailing Party shall be entitled to its attorneys' fees incurred in any post judgment proceedings to collect or enforce the judgment. This provision is separate and several and shall survive the merger of the Agreement into any judgment on such instrument. 2007. IN WITNESS WHEREOF, this Agreement has been executed and effective on May 10, CITY OF ROUND ROC S B yle axwell,MFaiyWor YMCA OF GREATER WILLIAMSON COUNTY By: o �',,�►2 its CN.�1�rZM.9 aJ 15 APPENDIX A TO AGREEMENT RULES AS TO USAGE AND GLOSSARY OF DEFINED TERMS Rules as to Usaae 1. The terms defined below have the meanings set forth below for all purposes, and such meanings are equally applicable to both the singular and plural forms of the terms defined. 2. "Include," "includes" and"including" shall be deemed to be followed by"without limitation"whether or not they are in fact followed by such words or words of like import. 3. "Writing,""written" and comparable terms refer to printing, typing, lithography and other means of reproducing in a visible form. 4. Any agreement, instrument or Governmental Rule defined or referred to below or in any agreement or instrument that is governed by this Appendix means such agreement or instrument or Governmental Rule as from time to time amended,modified or supplemented, including(in the case of agreements or instruments)by waiver or consent and(in the case of Governmental Rules)by succession of comparable successor Governmental Rules and includes (in the case of agreements or instruments)references to all attachments thereto and instruments incorporated therein. 5. References to a Person are also to its permitted successors and assigns. 6. Any term defined below by reference to any agreement, instrument or Governmental Rule has such meaning whether or not such agreement, instrument or Governmental Rule is in effect. 7. "Hereof," "herein," "hereunder" and comparable terms refer to the entire agreement or instrument in which such terms are used and not to any particular article, section or other subdivision thereof or attachment thereto. References in an instrument to "Article," "Section,""Subsection"or another subdivision or to an attachment are,unless the context otherwise requires, to an article, section, subsection or subdivision of or an attachment to such agreement or instrument. All references to schedules, exhibits or appendices in any agreement or instrument that is governed by this Appendix are to schedules, exhibits or appendices attached to such instrument or agreement. 8. Pronouns, whenever used in any agreement or instrument that is governed by this Appendix and of whatever gender, shall include natural persons, corporations, limited liability companies,partnerships, and associations of every kind and character. 16 .. ..... ._........ 9. References to any gender include,unless the context otherwise requires, references to all genders. 10. The word"or" will have the inclusive meaning represented by the phrase "and/or." 11. The phrase"and/or"when used in a conjunctive phrase, shall mean any one or more of the Persons specified in or the existence or occurrence of any one or more of the events, conditions or circumstances set forth in that phrase; provided, however, that, when used to describe the obligation of one or more Persons to do any act, it shall mean that the obligation is the obligation of each of the Persons but that it may be satisfied by performance by any one or more of them. 12. "Shall" and"will"have equal force and effect. 13. Unless otherwise specified, all references to a specific time of day in any agreement or instrument that is governed by this Appendix shall be based upon Central Standard Time or Central Daylight Savings Time, as applicable on the date in question in Houston, Texas. 14. References to "$"or to "dollars" shall mean the lawful currency of the United States of America. Glossary of Defined Terms "Agreement" means the Agreement Regarding Construction of a Community Pool Addition to the YMCA of Greater Williamson County Recreation Center dated as of the Effective Date between the City and YMCA, as the same may be amended, supplemented, modified,renewed or extended from time to time with the consent of the City and YMCA. "Architect"means K.A. Hickman. "Architect's Contract" means the services contract(s) between YMCA and the Architect for, among other things, the design of the Project Improvements, the preparation of the Project Plans, and construction administration services, as the same may be amended, supplemented, modified, renewed, extended or replaced from time to time with the consent of the City and YMCA. "Business Dav" shall mean a day of the year that is not a Saturday, Sunday, or Legal Holiday. "Certificate of OccupancX' shall mean a certificate or document issued by the City stating that the Project may be legally occupied. "City" shall mean the City of Round Rock, Texas, a Texas municipal corporation and home rule city. "City's Contribution" shall mean the sum of$2,000,000 as set forth in Article 6. 17 "City Representatives" shall have the meaning given to it in Section 2_1 of the Agreement. "Community Pool" shall mean the Improvements and addition to the Recreation Center as described in Exhibit B of this Agreement. "Component" means any item that is incorporated into the Project Improvements, or any portion thereof, including, by way of illustration and not limitation, all ancillary systems included in the Project Improvements, the structure and all structural members, concrete, controls, instrumentation, engines and motors, dynamos, cabling, wheels, transformers, capacitors, load centers, fuses, circuit breakers, gears, bearings, valves, pipes,joints, covers, seats, electronic and mechanical parts, subcomponents, and other equipment. "Deadline for Substantial Completion" shall have the meaning given to it in Section7.2 of the Agreement. "Default Rate" means the lesser of(i) the Prime Rate, or(ii) the maximum rate of interest permitted to be charged by applicable law. "Dispute or Controversy" shall have the meaning given to it in Article 13 of the Agreement. "Effective Date" shall be May 10, 2007. "Event of Default" shall have the meaning given to it in Sections 11.1.1 and 11.1.2 of the Agreement. "Final Com letion"means, when used with respect to the work to be performed under the Project Construction Contract, "final completion" as defined in the Project Construction Contract, and with respect to the balance of the Project Improvements Work or any Component of the balance of the Project Improvements Work (such as the Development Work), the final completion of all aspects of such work and improvements in accordance with all Governmental Rules and in accordance with the requirements for the same contained in the Agreement and Project Construction Documents, including, but not limited to, the completion of the punch-list type items referred to in the definition of the term "Substantial Completion". Substantial Completion of such work and improvements is a prerequisite to Final Completion of the same. "Fiscal Year" means the twelve (12) month period from time to time established by the City as its fiscal year, which is currently the twelve (12) month period from October 1 through September 30 of each calendar year. "Force Majeure" means Acts of God, strikes, lockouts or other industrial disturbances, acts of the public enemy, orders of any kind of the government of the United States of America, or of any state thereof, or any civil or military authority, insurrections, riots, epidemics, landslides, lightning, earthquakes, fires, hurricanes, tornadoes, storms, floods, washouts, droughts, arrests, restraining of government and people, civil disturbances, explosions, nuclear accidents, wars, part or entire failure of utilities, shortages of labor, material, supplies or 18 transportation, or any other cause not reasonably within the control of the party claiming inability to perform due to such cause. "Force majeure" shall not, however, include economic hardship. "Governmental Authority" means any federal, state, local , court, tribunal, regulatory commission or other body, whether legislative, judicial or executive (or a combination or permutation thereof), and any arbitrator to whom a dispute has been presented under Governmental Rule or by agreement of the parties with an interest in such dispute. "Governmental Rule" means any statute, law, treaty, rule, code, ordinance, regulation, permit, interpretation, certificate or order of any Governmental Authority, or any judgment, decision, decree, injunction, writ, order or like action of any court, arbitrator or other Governmental Authority. "Guaranteed Maximum Price" or "GMP" means the guaranteed maximum price for the Project Improvements established in the Project Construction Contract, as amended from time to time in accordance with such Contract. "Joint Use and Access Agreement" means the Community Pool Joint Use and Access Agreement dated May 10, 2007, executed by and between the City and YMCA and recorded as Document Number of the Official Public Records of Williamson County, Texas, relating to the Project Improvements, the form of which is attached hereto and incorporated herein by reference as Exhibit "C." "Legal Holiday" means the day, other than a Saturday or Sunday, on which the City's administrative offices are closed for business. "Operating Expenses" shall mean the costs to operate, repair, and maintain the Project Improvements. "Parties" shall have the meaning given to it in the first paragraph of the Agreement. "Person" shall mean any individual, corporation, partnership, joint venture, association, joint stock company, trust, limited liability company, unincorporated organization, Governmental Authority or any other form of entity. "Prime Rate" means the rate of interest from time to time published by the Wall Street Journal as the"prime rate". "Project Budget" shall mean the total project budget, as from time to time amended, for all Project Costs, broken down in reasonable detail by "hard" and "soft" cost categories, including, but not limited to, the amount payable under each of the Project Construction Documents, allowances, contingencies, and pre-opening expenses. "Project Completion Date"means the later of(i)the date of Final Completion of all of the Project Improvements Work in accordance with all of the requirements of the Agreement and other transaction documents, and(ii) payment in full of all Project Costs. 19 "Project Construction Contract(s)" means the construction contract(s) approved by YMCA and the City between the YMCA and the Project Contractor for the construction of the Project Improvements, as the same may be amended, supplemented, modified, renewed, extended or replaced from time to time with the consent of the City and YMCA. "Project Contract Sum" shall mean and refer to the "Contract Sum," as said term is used and defined in the Project Construction Contract. "Project Contractor"means the general contractor approved by the YMCA and the City. "Project Construction Documents" means any and all contracts, documents or other instruments entered into by or on behalf of the City or YMCA for the performance of the Project Improvements Work, including, but not limited to, the construction contracts and the Architect's Contract,but excluding the Project Documents. "Project Costs" means Project Design Costs plus all of the following costs incurred or to be incurred by the YMCA in order for the YMCA to fulfill its obligations under the Agreement, the Project Construction Documents, and cause Final Completion of the Project Improvements Work: (a) acquisition costs; (b) all amounts payable under any of the Project Construction Documents; (c) costs to obtain necessary easements or rights of way; (d) the following City development costs and fees: structural steel inspection fee, oversize fee, regional detention fee, and water meter fee; (e) legal costs; (f) costs for project management services; (g) all other costs incurred by the YMCA and paid to third parties in accordance with the Agreement and Project Construction Documents to develop, construct, or furnish the Project including management fees and fees and expenses of architects, engineers, testing firms, accountants, attorneys, and other consultants necessary to complete the design, development, construction, and furnishing of the Project Improvements; and (h) all insurance premiums on all policies of insurance required to be carried by the YMCA; provided however, that other costs incurred by the YMCA in order to fulfill its aforesaid obligations, but not specifically enumerated herein shall be Project Costs subject to the approval of City, which approval shall not be unreasonably withheld, delayed or conditioned. "Project Fund" means the amount of money equal to the Project Contract Sum to complete the Project Improvements. "Project Improvements" means the Community Pool addition and improvements described more fully in the Project Construction Contract and Exhibit B. "Project Improvements Work" means the design, development, construction, furnishing, and placement in service and Final Completion of the Project Improvements at and within the Property in accordance with the Agreement, the Project Submission Matters, all applicable Governmental Rules and the Project Plans. "Project Plans" means individually and collectively, the concept drawings, schematic drawings, design development drawings and detailed working drawings and specifications for the Project Improvements prepared by the Architect in the form approved by YMCA and the City. 20 "Project Scope" means the description of the Community Pool and its components as described in detail in Exhibit`B". "Project Submission Matters" means each and all of the following, the issuance or completion thereof, and any changes to, or modifications of, any of the following: (a) The Project Budget; (b) The Project Improvements Construction Schedule; (c) The Project Plans; (d) The Project Construction Contract; (e) Any of the following under the Project Construction Documents: (i) Changes in scope or systems; (ii) Changes in quantity, kind, brand, manufacturer or quality of materials, finishes or equipment; (iii) Changes in schedule; (iv) Selection of, and/or changes in, allowance items; and (v) Changes in overall appearance or amenities (f) Equipment Leases; (g) Service Contracts; and (h) Any contract or agreement for inspection of the Project Improvements or other agreement the cost of which would constitute a Project Cost. "Project Term" shall have the meaning given to it in Section 3.1 of the Agreement. "Property" shall mean the real property described on Exhibit A of the Agreement. "Recreation Center" shall mean the recreation facility currently owned and operated by the YMCA located on the Property. "Review and Approval or Consent Rights" shall have the meaning given to it in Section 14.3.1 of the Agreement. "Reviewing Party" shall have the meaning given to it in Section 14.3.1 of the Agreement. "Submitting Party" shall have the meaning given to it in Section 14.3.1 of the Agreement. "Substantial Completion" shall occur .when the Project is ready for occupancy as evidenced by the issuance of a Certificate of Occupancy by the City. 21 r . "Substantial Completion Date" shall mean the date on which a Certificate of Occupancy is issued by the City. "Transfer" shall have the meaning given to it in Section 12.1 of the Agreement. "Warranty Claim" shall have the meaning given to it in Section 7.4 of the Agreement. "YMCA"means YMCA of Greater Williamson County, a 501(c)(3) corporation. "YMCA Default" shall have the meaning given to it in Section 11.1.1 of the Agreement. "YMCA Representatives" shall have the meaning given to it in Section 2.2 of the Agreement. 22 APPENDIX B TO AGREEMENT ADDRESSES FOR NOTICES (1) All notices to the City shall be sent to: City of Round Rock 221 E. Main St. Round Rock, Texas 78664 Attention: James R.Nuse, City Manager Facsimile Number: 512-218-7097 with copies being sent to: Stephan L. Sheets City Attorney 309 E. Main St. Round Rock, Texas 78664 Facsimile Number: 512-255-8986 (2) All notices to YMCA shall be sent to: YMCA of Greater Williamson County 1812 N. Mays Street Round Rock, Texas 78664 Attention: Jeff Andresen Fax: (_ With copy to: R. Mark Dietz Dietz &Jarrard, P.C. 106 Fannin Ave. E. Round Rock, Texas 78664 Fax: (512) 244-3766 With copy to: Ki Allen JPMorgan Chase Bank,National Association Commercial Banking 221 W. Sixth St., Floor 2 Austin, TX 78701-3400 (512) 479-2258 Fax: (512)473-2239 23 EXHIBIT "A" TO AGREEMENT FOR A 4.092-ACRE TRACT OF LAND SITUATED IN THE DAVID CURRY SURVEY, ABSTRACT NO. 130, IN WILLIAMSON COUNTY, TEXAS,BEING ALL OF THAT CALLED 4.097-ACRE TRACT OF LAND IN DEED TO YOUNG MEN'S CHRISTIAN ASSOCIATION OF ROUND ROCK IN VOLUME 2115, PAGE 130 OF THE OFFICIAL RECORDS OF WILLIAMSON COUNTY,TEXAS, SAID 4.097-ACRE TRACT BEING COMPRISED OF FOUR(4) TRACTS: TRACT I,A CALLED 0.883-ACRE TRACT, BEING ALL OF THAT CERTAIN"CLEARWATER",A SUBDIVISION ACCORDING TO THE PLAT OF RECORD IN CABINET C, SLIDES 373 OF THE PLAT RECORDS OF SAID COUNTY,TRACT II,A CALLED 2.783-ACRE TRACT,TRACT III,A CALLED 0.121-ACRE TRACT AND TRACT IV,A CALLED 0.31-ACRE TRACT, SAID 4.092 TRACT. 24 f . EXHIBIT "B" TO AGREEMENT A NEW COMMUNITY POOL & DRESSING ROOMS A Partnership Between The City of Round Rock ROUND ROCK, I'EXAM & YMCA of Greater Williamson County Scope of Work & Lot Description COMMUNITY POOL The new Community pool is located immediately in front of the existing YMCA located at 1812 North Mays Street, Round Rock, Texas. The new facility will be attached to the existing metal & stone building. Parking will be provided immediately in front of the new Community pool and behind the existing facility. The new Community pool will be constructed with a concrete slab with either glu-laminated wood columns and beams or steel columns & joists. Height will vary from approximately 16' to 301 . Interior walls to be CMU. Ceiling will be wood or tectum. Roof to be metal roof, color to match existing roof. Competitive Pool will be constructed with concrete (gunite) and steel reinforcing. Pool to have perimeter drains, steps, and materials necessary for holding competitive swim events. Pool equipment to be located within outdoor pool equipment enclosure. The Community pool will NOT be air conditioned. Heat will be provided in the form of area heaters. Ventilation will be accomplished by various operable louvers, windows and doors (overhead) . Following is a space description breakdown: 1 ) COMMUNITY POOL a) Pools i) Eight Lane x 25 yard Heated Competitive Swimming Pool (1) 4, 665 square feet (2) 6 foot deep at deep end and 4.5 feet deep at shallow end ii)Heated Lazy River Pool (1)Lazy River (2)Whirlpool (3) 2, 300 square feet (4)Slide 25 iii) Splashdown (1) 6" to 12" Deep (2) 600 square feet (3)Tumble Barrel (4)Miscellaneous Splash & Spray Toys iv)Splashpad (1) Zero Water Level (2) 700 square feet (3)Miscellaneous Splash & Spray Toys b) Competitive Swimming Seating i) Aluminum Bleachers - 100 Capacity c) Warm Water Hot Tub d) Family Dressing Rooms & Toilets (2) e) TOTAL GROSS SQUARE FOOTAGE OF COMMUNITY POOL - 14, 025 sq.ft. DRESSING ROOMS The new Dressing Rooms are located immediately in front of the existing YMCA located at 1812 North Mays Street, Round Rock, Texas. The new facility will be attached to the existing metal & stone building and new Community pool. Parking will be provided immediately in front of the new Community pool and behind the existing facility. The new Dressing Rooms will be constructed with a concrete slab with load bearing CMU exterior walls & steel joists. Roof to be low slope modified bitumen roofing. Locker Rooms to be provided with toilets, sinks, showers and lockers for both Men and Women. The Dressing Rooms will be air conditioned. Heat will be provided in the form of area heaters. Ventilation will be accomplished by various operable louvers, windows and doors (overhead) . Following is a space description breakdown: 2 ) DRESSING ROOMS i) Main Entry with Vestibule (1)Concrete Slab (sealed) Flooring (2) Painted CMU walls (3) Painted Gypsum Board ceiling (4)Check-In Desk ii)Locker Rooms (1)Toilets with Toilet Partitions (2)Urinals (where applicable) (3) Sinks 26 (4) Showers (5)Lockers - Approx. 60 (6)Men & Women Separate Dressing Rooms iii) Exterior (1) Painted CMU Walls (2)Low Slope Roof (1/4" per foot slope) - Modified Bitumen Roofing iv)TOTAL GROSS SQUARE FOOTAGE OF DRESSING ROOMS - 2, 100 sq.ft. TOTAL GROSS SQUARE FOOTAGE - 16, 125 square feet 27