R-07-05-10-8F2 - 5/10/2007 r
RESOLUTION NO. R-07-05-10-8F2
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 an agreement
for the joint use and access by the City and YMCA, and management and
operation by YMCA of the community 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 a Community Pool Joint Use, Access and Management
Agreement with the YMCA of Greater Williamson County, 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, 2 07 .
LL, Mayor
C' y of Round Rock, Texas
A TEST: n- --
CHRISTINE R. MARTINEZ, City Sec tary
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coply
COMMUNITY POOL
JOINT USE AND ACCESS AGREEMENT
BY AND BETWEEN
THE CITY OF ROUND ROCK, TEXAS
("City")
AND
YMCA OF GREATER WILLIAMSON COUNTY
("YMCA")
May 10,2007
O:\WDOX\\ \gn CAPOOL\00115420.DOC
TABLE OF CONTENTS
ARTICLE 1
DEFINITIONS
Section 1.1 Definitions .................................................. 1
ARTICLE 2
MANAGEMENT OF COMMUNITY POOL
Section 2.1 Management of the Property ............................... 3
ARTICLE 3
TERM
Section3.1 Term ........................................................ 3
ARTICLE 4
GENERAL RESPONSIBILITIES OF YMCA
Section 4.1 Operation of Community Pool........................... 4
Section4.2 Commencement Date....................................... 4
Section 4.3 Annual Operations Budget................................ 4
Section 4.4 Annual Capital Budget................................... 4
Section 4.5 Status Reports and Meetings........................... 4
Section 4.6 Community Pool Maintenance Standards........... 4
Section4.7 Tax Covenant.............................................. 5
Section 4.8 Representations and Warranties as to
Tax-Exempt Status of YMCA.......................... 5
ARTICLE 5
UTILITIES AND SERVICES
Section 5.1 Utilities and Services........................................ 6
ARTICLE 6
CITY'S JOINT USE AND ACCESS RIGHTS
Section6.1 Community Access................................... 6
Section6.2 Fees.......................................................... 7
Section 6.3 Competitive Swim Teams................................. 7
Section6.4 Exclusive Use............................................... 7
Section 6.5 Annual Calendar............................................ 7
ARTICLE 7
INDEMNITY AND INSURANCE
Section 7.1 YMCA's Indemnification ................................ 7
Section 7.2 City's Indemnification .................................. 8
Section 7.3 YMCA's Insurance ...................................... 8
Section7.4 Subrogation ................................................ 9
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ARTICLE 8
DESTRUCTION BY FIRE OR OTHER CASUALTY
Section 8.1 Total Destruction ......................................... 9
Section 8.2 Partial Destruction ....................................... 9
ARTICLE 9
CONDEMNATION
Section 9.1 Notice of Taking ........................................... 10
Section 9.2 Effect of Entire Taking ................................... 10
Section 9.3 Effect of Partial Taking .................................. 10
Section 9.4 YMCA's Award ........................................... 10
ARTICLE 10
RIGHT TO CURE
Section 10.1 City's Performance ...................................... 10
Section 10.2 YMCA's Performance .................................... 11
Section10.3 Reimbursement ............................................ 11
ARTICLE 11
INSPECTION
Section 11.1 Inspection and Maintenance of Property ............. 11
ARTICLE 12
SALE AND ASSIGNMENT
Section 12.1 YMCA's Sale or Assignment ......... ................ 11
Section 12.2 Effect of Assignment ...................................... 11
Section12.3 Replacement Pool .......................................... 12
ARTICLE 13
EVENTS OF DEFAULT
Section 13.1 YMCA's Default .......................................... 12
Section 13.2 City's Default .............................................. 12
ARTICLE 14
REMEDIES
Section 14.1 City's Remedies ........................................... 13
Section 14.2 Liquidated Damages...................................... 13
Section 14.3 Deed of Trust Securing Performance................. 13
Section 14.4 YMCA'S Remedies....................................... 14
Section14.5 Attorneys' Fees ........................................... 14
ARTICLE 15
TERMINATION
Section15.1 Termination ................................................. 14
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ARTICLE 16
NOTICES
Section16.1 Notices ......................................................... 14
ARTICLE 17
GENERAL PROVISIONS
Section17.1 Entire Agreement............................................ 16
Section17.2 Counterparts ................................................. 16
Section17.3 Successors and Assigns ..................................... 16
Section17.4 Time ............................................................ 16
Section17.5 Severability ................................................... 16
Section 17.6 Applicable Law .............................................. 16
Section 17.7 Amendment and Waiver ................................... 17
Section17.8 No Joint Venture ............................................ 17
Section 17.9 Exhibits ....................................................... 17
Section17.10 Caption ....................................................... 17
Section17.11 Survival ....................................................... 17
Section 17.12 Governing Document ...................................... 17
EXHIBIT A Property Description
EXHIBIT B Schedule of City's Current Day Use Fees
EXHIBIT C Schedule of Liquidated Damages
EXHIBIT D Deed of Trust
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COMMUNITY POOL
JOINT USE,ACCESS AND MANAGEMENT AGREEMENT
THIS COMMUNITY POOL JOINT USE, ACCESS AND MANAGEMENT
AGREEMENT ("Agreement"), dated the 10TH day of May, 2007, by and between the
CITY OF ROUND ROCK, TEXAS, a home rule city (hereinafter referred to as "City"),
and YMCA OF GREATER WILLIAMSON COUNTY, a Texas 501(c)(3) corporation
(hereinafter referred to as "YMCA") is as follows:
RECITALS
WHEREAS, YMCA is the Owner of the Property, as hereinafter defined, upon
which there is a recreation facility, ("Recreation Center"); and
WHEREAS, pursuant to that one certain Agreement Regarding Construction of a
Community Pool Addition to the YMCA of Greater Williamson County Recreation Center
dated May 10`b, 2007, City has agreed to contribute $2,000,000 towards the construction of
improvements and additions to the Recreation Center for a community pool, ("Community
Pool"); and
WHEREAS, the consideration to the City for the aforesaid $2,000,000 is the access
and joint use rights provided for in this Agreement; and
WHEREAS, both City and YMCA are desirous of entering into this Agreement for
the joint use and access by the City and YMCA and management, and operation by YMCA
of the Community Pool;
NOW, THEREFORE, for and in consideration of the mutual promises and
covenants contained herein, City and YMCA agree as follows:
ARTICLE 1.
DEFINITIONS
1.1 Definitions. For the purposes of this Agreement, the following terms shall
have the meanings indicated:
Agreement Regarding. Construction. The term "Agreement Regarding
Construction" shall mean the Agreement Regarding Construction of a Community Pool
Addition to the YMCA of Greater Williamson County Recreation Center dated as of May
10, 2007, executed by and between the City and the YMCA.
Annual Calendar. The term "Annual Calendar" shall mean the calendar developed
by the YMCA and City pursuant to Section 6.5.
Commencement Date. The term "Commencement Date" shall mean the date that
the City issues a Certificate of Occupancy for the Community Pool.
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Community Pool. The term "Community Pool" shall mean the recreational and
competitive pool, including dressing rooms and common area necessary to access the
pools, constructed with contributions from the City and YMCA which is an improvement
and addition to the Recreation Center.
Default. The term "Default" shall have the meaning as defined in Article 13
hereof.
Operating Expenses. The term "Operating Expenses" shall mean those necessary or
reasonable operating expenses of the Community Pool incurred or paid during or after the
Commencement Date hereof in connection with the normal course of conducting and
operating the business affairs of the Community Pool, including, but not limited to, the
following items:
1. Salaries, wages, employee benefits and payroll expenses, including, but not
limited to, standard pension and/or profit sharing plans, payroll taxes, profit
sharing programs and insurance of all employees employed on-site in the direct
operation of the Community Pool;
2. Marketing, advertising and promotional expenses;
3. Replacement of inventories of maintenance parts and supplies, food stores
and supplies;
4. Replacement of broken, lost or damaged equipment;
5. Office supplies, postage, printing, routine office expenses and accounting
services incurred in the on-site operation of the Community Pool;
6. Insurance premiums;
7. Auditing, accounting costs, computer fees and legal fees performed by a
non-affiliate of YMCA and incurred in respect of the operation of the Community
Pool, including any financial management and accounting fees paid for services
rendered by any non-affiliate of YMCA;
8. Costs incurred for utilities, including, but not limited to, all electric, gas,
and water costs and any other private utility charges incurred in connection with
the operation of the Community Pool;
9. Ordinary maintenance and repairs, as well as the cost of any capital
improvements or capital replacements;
10. All lease payments on any item of furniture, fixtures or equipment utilized
in the operation of the Community Pool, except as set forth below;
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11. Principal or interest payments on indebtedness of YMCA in providing the
services (excluding principal or interest payments on any indebtedness incurred by
the YMCA to finance the YMCA's Contribution to the Project Costs as provided in
the Agreement Regarding Construction)under the terms of this Agreement;
12. Rental or lease payments for items of furniture, fixtures or equipment
incurred by YMCA in providing the services under the terms of this Agreement;
and.
13. All other customary and reasonable expenses incurred in the operation of
the Community Pool.
Property. The term "Property" shall mean that certain parcel or parcels of land
described in Exhibit"A" attached hereto.
Recreation Center. The term "Recreation Center" shall mean the recreation center
located on the Property.
Term. The term "Term" of this Agreement shall mean the period of time set forth
in Article 3, unless sooner terminated as provided herein.
ARTICLE 2.
MANAGEMENT OF COMMUNITY POOL
2_1. Management of the Property. YMCA shall have the sole responsibility to
supervise, manage, direct and operate the Community Pool and the Property during the
Term of this Agreement, and YMCA hereby accepts said responsibility upon and subject
to the terms, conditions, covenants and provisions set forth herein. Subject to the
conditions set forth herein, City hereby delegates to YMCA the sole responsibility,
discretion and authority to determine operating policies and procedures, standards of
operation, house rules, standards of service and maintenance, pricing, and other policies,
rules and regulations affecting the Community Pool or the operation thereof, to implement
all such policies and procedures for the operations and maintenance of the Community
Pool.
ARTICLE 3.
TERM
3_1. Term. The Term of this Agreement shall be for a period of forty (40) years
beginning on the Commencement Date unless sooner terminated in accordance with the
provisions of this Agreement (subject to YMCA's receipt of all consents and approvals
required under the Loan Documents [hereinafter defined]).
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ARTICLE 4.
GENERAL RESPONSIBILITIES OF YMCA
4.1. Operation of Community Pool. YMCA shall operate, maintain and manage
at its sole cost the Community Pool in a manner which YMCA deems in its sole discretion
to be necessary to operate a public recreation center and pool; provided, however, the
Community Pool shall be maintained by YMCA in a good and attractive condition and in
compliance with the requirements of state law, including Health and Safety Code §
341.064. YMCA shall have the authority and duty to exercise all prerogatives of
management with respect to the Community Pool, including implementing all policies and
procedures established by YMCA.
4.2. Commencement Date. From and after the Commencement Date, YMCA
shall, maintain, preserve and keep the Property in good repair, working order and
condition, and shall from time to time make all repairs, replacements and improvements
necessary to keep the Property in such condition. City shall have no responsibility,
financial or otherwise, for such maintenance or for any of these repairs, replacements or
improvements.
4.3. Annual Operations Budget. No later than each December 1 st prior to the
commencement of the next calendar year, YMCA shall prepare, and provide to City, an
annual operations budget for such calendar year (hereinafter referred to as the "Annual
Operations Budget") setting forth the projected gross receipts and Operating Expenses for
such calendar year associated with the operation of the Community Pool. YMCA agrees to
budget sufficient sums to maintain, preserve and keep the Community Pool and the
Property in good repair, working order and condition, and to make all repairs, replacements
and improvements necessary to keep the Community Pool and the Property in such
condition, as provided by Section 4.1 above.
4.4 Annual Capital Budget. No later than each September 1St prior to the
commencement of the next calendar year, YMCA shall prepare and provide to City an
annual capital repair and replacement budget for such calendar year for the Community
Pool. The Parties agree that the source of funding for such capital repair and replacements
shall be the YMCA.
4.5. Status Reports and Meetings. A representative of YMCA and a
representative of City shall hold annual meetings for the purpose of having the
representative of the YMCA update the City on the general operations of the Community
Pool and review the financial performance of the Community Pool. On or before
December 15th of each year, YMCA shall provide City with an annual status report setting
forth the general condition of the Community Pool and a general outline of all planned
improvements and needed changes for the forthcoming operating year.
4.6 Community Pool Maintenance Standards. During the Term of this
Agreement, YMCA agrees to keep the Community Pool maintained in accordance with the
standards set forth in 4.1 above.
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4_7 Tax Covenant.It is the understanding of the YMCA that the City has
financed the Community Pool with the proceeds of the Certificates of Obligation (the
"Tax-Exempt Bonds"). In connection with the issuance of the Tax-Exempt Bonds, the
City has given covenants (the "Bond Covenants") to the holders of the Tax-Exempt Bonds
that the Community Pool will be used in a manner that assures that the Tax-Exempt Bonds
continue to qualify as obligations within the meaning of section 103 of the Internal
Revenue Code (the "Code"). The YMCA agrees not to use or permit the use of the
Community Pool in a manner which it knows or should know would result in a violation of
the Bond Covenants or which would otherwise adversely affect the federal income tax
status of the Tax-Exempt Bonds under section 103 of the Code. Moreover, in furtherance
thereof, if the YMCA is notified by the City that the Tax-Exempt Bonds have been
selected for audit by the Internal Revenue Service, then the YMCA agrees to provide to
City such information in its possession with respect to the Community Pool in order that
City may timely respond to any questions posed to it by the Internal Revenue Service.
4_8 Representations and Warranties as to Tax-Exempt Status of YMCA The
YMCA hereby represents and warrants as follows:
(a) the YMCA is an organization exempt from federal income taxation under
Section 501(a) of the Code by virtue of being described in Section 501(c)(3) of the
Code;
(b) the purposes, character, activities and methods of operation of the YMCA
have not changed materially since its organization and are not materially different
from the purposes, character, activities and methods of operation at the time of its
receipt of a determination by the Internal Revenue Service that it was an
organization described in Section 501 (c)(3) of the Code(the"Determination");
(c) the YMCA has not diverted a substantial part of its corpus or income for a
purpose or purposes other than for which it is organized or operated and disclosed
to the Internal Revenue Service in connection with the Determination;
(d) the YMCA has not operated since its organization in a manner that would
result in it being classified as an "action" organization within the meaning of
section 1.501(c)(3)-(1)(c)(3) of the Regulations including, but not limited to, by
promoting or attempting to influence legislation by means of propaganda or
otherwise;
(e) with the exception of the payment of compensation (and the payment or
reimbursement of expenses) which is not excessive and is for personal services
which are reasonable and necessary to carrying out the purposes of the YMCA, no
person controlled by any such individual or individuals nor any person having a
personal or private interest in the activities of the YMCA has acquired or received,
directly or indirectly, any income or assets, regardless of form, of the YMCA
during the current Fiscal Year and the period, if any, preceding the current Fiscal
Year, other than as reported to the Internal Revenue Service by the YMCA;
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(f) the YMCA is not a "private foundation" within the meaning of Section
509(a) of the Code;
(g) the YMCA has not received any indication or notice whatsoever to the
effect that its exemption under Section 501(c)(3) of the Code has been revoked or
modified, or that the Internal Revenue Service is considering revoking or
modifying such exemption, and such exemption is still in full force and effect;
(h) the YMCA has filed with the Internal Revenue Service all requests for
determination, reports and returns required to be filed by it and such requests for
determination, reports and returns have not omitted or misstated any material fact
and has notified the Internal Revenue Service of any changes in its organization
and operation since the date of the application for the Determination; and
(i) the YMCA has not devoted more than an insubstantial part of its activities
in furtherance of a purpose other than an exempt purpose within the meaning of
Section 501(c)(3) of the Code.
0) The YMCA agrees that it will not use the Community Pool or any part
thereof, or permit the Community Pool or any part thereof to be used in a manner
which would violate the Establishment of Religion Clause of the First Amendment
to the Constitution of the United States of America, including the decisions of the
United States Supreme Court interpreting the same or any comparable provisions
of the Constitution of the State, including the decisions in the Supreme Court of the
State interpreting the same."
ARTICLE 5.
UTILITIES AND SERVICES
5_1 Utilities and Services. YMCA agrees to pay all charges for utilities and
services used by it for the Community Pool, including, but not limited to, gas, electricity,
telephone, sanitary sewer, water, and trash collection.
ARTICLE 6
CITY'S JOINT USE AND ACCESS RIGHTS
6_1 Community Access. The community's access to the Community Pool shall
be given top priority. The residents of the City shall be given equal access to the
Community Pool that YMCA members have. However, at a minimum, the residents of the
City shall have access to the Community Pool at least eight hours per day between the
hours of 8:00 a.m. and 8:00 p.m. on all days the facility is open. The Community Pool will
be open every day with the exception of the 10 days reserved by the City and 11 days for
normal national holidays. The YMCA reserves the right to cancel/close programs, services
and operations due to unforeseen circumstances or events which are beyond its control.
YMCA agrees to post notices at all entrances to the Recreation Center, Community Pool
and other appropriate places stating that the Community Pool is partly funded by the City
and that it is open to the general public.
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6_2 Fees. The fees charged by the YMCA to residents of the City shall be no
more than day use fees charged to the members of the YMCA and shall not exceed the
greater of either the current or the future day use fees charged by the City for its similar
recreational facilities. The current day use fees are shown in Exhibit `B," which is
attached hereto and incorporated herein.
6_3 Competitive Swim Teams. The YMCA agrees to make every effort to
accommodate the needs of local competitive swim teams. The annual calendar will include
pool rental times available for swim team rental. The annual calendar will schedule the
pool rental times during the typical times of the day/week utilized for these type functions:
weekdays for practice (am/pm) not less than 4 hours per day; and, certain weekends for
competitive events that are scheduled appropriately with other community activities. The
pool rental fees charged to swim teams shall be limited to the operating cost of providing
such access and will be adjusted for shared or total community pool usage.
6_4 Exclusive Use. City shall have exclusive use of the Community Pool for
community special events not to exceed (10) days per year, and the City shall be
responsible for the prorated cost allocation on an hourly basis for the following: aquatic
coordinator and life guard for their salary and FICA, and custodial and maintenance costs
associated with such use. The YMCA agrees to coordinate with the City such that
YMCA's use of the facility does not conflict with the community special events.
6_5 Annual Calendar. Prior to October 1 of each calendar year the City shall
submit to the YMCA for the following calendar year the City requested dates for
scheduling not to exceed ten (10) days for use of the Community Pool, such as swim
meets, other competitive events, and other dates for the reservation of the Community
Pool. In the event that the City does not schedule all of its allotted 10 days on the Annual
Calendar, nevertheless the City and YMCA agree to work together in good faith to
schedule such days as they become necessary during the year.
The YMCA shall take into account the City's submitted information in preparing a
schedule (the "Program Schedule") and by December 15 of each year submit such
schedule to the City. Such proposed Annual Calendar use of the allotted ten (10) days shall
be subject to the approval of City, such approval not to be unreasonably withheld,
conditioned or delayed. In the event City has not disapproved the same in writing to
YMCA within thirty days after YMCA's submission of the same, the proposed Annual
Calendar shall be deemed approved.
ARTICLE 7.
INDEMNITY AND INSURANCE
7_1. YMCA's Indemnification. YMCA covenants to defend and to save City
and its officers and employees, while acting within the scope of their duties, harmless and
indemnified from and against any and all actions, suits, proceedings, claims, demands,
costs (including attorneys' fees and court costs), expenses and liability of any kind or
nature whatsoever, for injury to or death of person or damage of property (including
property owned by City), which may be brought, made, filed against, imposed upon or
sustained by City, its officers or employees, based upon or arising out of an act or omission
of YMCA, its officers, agents, or employees. This indemnity shall not include claims
based upon or arising out of the willful misconduct of City, its officers or employees.
Further, this indemnity shall not require payment of a claim by City or its officers or
employees as a condition precedent to City's recovery under this provision.
7_2. City's Indemnification. City covenants and agrees, to the extent permitted
by law, to indemnify and save YMCA, YMCA's affiliates, , and all its respective officers,
directors, legal representatives, and employees (hereinafter referred to as the "Indemnified
Parties") harmless from any and all costs, expenses, penalties, claims, demands, and
liabilities resulting from (i) any action or claim, or otherwise, arising with respect to City's
operation of the Community Pool or the Property, or for its contribution for the
construction of the Improvements, and (ii) any negligent act or omission of City or of its
invitees, agents or employees, but this indemnity shall not extend to costs, expenses,
penalties, claims, demands and liabilities resulting from acts of willful misconduct of
YMCA, its employees or agents. Further, this indemnity shall not require the payment of a
claim by any of the Indemnified Parties as a condition to recovery under this provision.
7_3. YMCA's Insurance. YMCA shall obtain, as Operating Expenses, the
following insurance concerning the Property and cause all contractors to maintain similar
insurance, where appropriate:
(a) Worker's compensation and employer's liability insurance, or equivalent
coverage, as may be required under applicable laws covering all employees of
YMCA included in the operation of the Community Pool, with such deductible
limits as are generally established by YMCA;
(b) Comprehensive general public liability insurance against claims for bodily
injury, death or property damage occurring on, in, or about the Property, and
automobile insurance on vehicles operating in conjunction with the Property, with a
combined single limit of not less than TWO MILLION AND NO/100 DOLLARS
($2,000,000.00) each occurrence for personal injury, death, and property damage,
with such deductible limits as are generally established by YMCA;
(c) Insurance on the Property, including the Improvements and Personal
Property, against loss or damage by fire, lightning, flood, earthquake, and all other
risks covered by the usual standard extended coverage endorsements, in such
amounts and with such deductible limits as established by YMCA and agreed to by
City, all in an amount of not less than ninety percent (90%) of the replacement cost
thereof; and
(d) Such other insurance in amounts as YMCA, in its reasonable judgment,
deems advisable for protection against claims, liabilities and losses arising out of,
or connected with, the operation of the Community Pool.
(e) All insurance provided by YMCA under this Article shall name YMCA and
City as named insureds. YMCA shall deliver to City, at least thirty (30) days prior
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to the Commencement Date, certificates of insurance with respect to all policies so
procured, including existing, additional, and renewal policies, and in the case of
insurance about to expire, shall deliver certificates of insurance with respect to the
renewal policies not less than ten (10) days prior to the respective dates of
expiration. All policies of insurance provided under this Article 11 shall, to the
extent obtainable, have attached thereto an endorsement that such policy shall not
be canceled or materially changed without at least thirty (30) days prior written
notice to City and YMCA.
7_4. Subrogation. Anything in this Agreement to the contrary notwithstanding,
City and YMCA each hereby waive any and all rights of recovery, claims, actions or
causes of action against the other, its agents, officers, and employees for any loss or
damage that may occur to the Property, any personal property therein, or any
improvements made thereto, or any part thereof, or any other real or personal property of
either party by reason of fire, the elements, or any other cause which is insured against
under the term of the policies of casualty insurance that YMCA or City are required to
provide hereunder or may otherwise carry, to the extent and only to the extent of any
proceeds actually received by City or YMCA, respectively, with respect thereto, regardless
of cause or origin, including negligence of either party hereto, it's agents, officers, or
employees, and each party covenants that no insurer shall hold any right of subrogation
against the other.
ARTICLE 8.
DESTRUCTION BY FIRE OR OTHER CASUALTY
8_1. Total Destruction. In the event that the Improvements are totally destroyed
by fire or other casualty to the extent that the damage cannot be materially restored with
due diligence within three hundred sixty (360) days from the date construction
commences, YMCA may, at its option, terminate this Agreement by giving written notice
to the City within sixty (60) days following such damage or destruction. In the event of
termination of this Agreement pursuant to this Section, this Agreement shall cease and
come to an end as of the date of such damage or destruction as though such date were the
date originally fixed for the expiration of the Term of this Agreement. Subject to the terms
and provisions of the Subordination Agreement (hereinafter defined), in the event of total
destruction, City shall be entitled to receive from the insurance proceeds a sum of money
equal to the amount of liquidated damages set forth in Exhibit"C".
8_2. Partial Destruction. In the event the Improvements are damaged by fire or
other casualty and such damage can be materially restored with due diligence within three
hundred sixty (360) days following the date construction commences, YMCA shall have
the obligation to repair the Improvements, as the case may be, as nearly as practicable to
the condition same was in prior to such damage. YMCA shall cause such repair to be
commenced with all reasonable dispatch so as to complete the same at the earliest,
reasonable, possible date.
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ARTICLE 9.
CONDEMNATION
9_1 Notice of Taking. YMCA shall, within ten (10) days of YMCA's receipt of
notice of a proposed and/or actual taking of the Property, or a portion of either, under any
governmental law, ordinance or regulation, or by right of eminent domain, provide City(i)
written notice of such proposed or actual taking, and (ii) a copy of the documents and/or
pleadings received from the governmental authorities.
9_2. Effect of Entire Taking. If, during the Term of this Agreement, the entire
Property shall be appropriated or taken for any public or quasi-public use under any
governmental law, ordinance or regulation, or under the power of eminent domain by any
public or quasi-public authority, then this Agreement and the Term hereof shall cease and
come to an end as though such date were the date originally fixed for the expiration of the
Term of this Agreement.
9_3. Effect of Partial Taking. If, during the Term of this Agreement, a portion of
the Property shall be appropriated or taken for any public or quasi-public use under any
governmental law, ordinance or regulation, or under the power of eminent domain by any
public or quasi-public authority so as to render the Property substantially unusable for the
purposes and in the manner contemplated herein, then, in such event, YMCA shall have
the right to cancel and terminate this Agreement by giving written notice to City within
sixty (60) days after the receipt by YMCA from City of written notice of such
appropriation or taking. In the event of termination of this Agreement pursuant to this
Section, then this Agreement shall cease and come to an end as of the date of such written
notice by YMCA as though such date were the date originally fixed for the expiration of
the Term of this Agreement, and neither party shall have any obligation to the other arising
out of or in any way connected with this Agreement by virtue of such termination.
9_4. YMCA's Award. If this Agreement is terminated pursuant to the provisions
of this Article, then subject to the terms and provisions of the Subordination Agreement,
the damage award to be made pursuant to the condemnation proceedings shall be
apportioned between City and YMCA according to the value of their respective interests in
the Property and this Agreement, according to Exhibit"C".
ARTICLE 10.
RIGHT TO CURE
10.1. City's Performance. After the expiration of any permitted grace period
recited in this Agreement, if YMCA shall have failed to cure any Default in the
performance of any covenant or promise on its part to be performed, City may,
immediately, or at any time thereafter, without further notice, perform the same for the
account and at the expense of YMCA. Notwithstanding the above, in the case of an
emergency (being defined as a situation involving the immediate threat of a loss of
property or injury), City may, after notice to YMCA, so perform in YMCA's stead prior to
the expiration of any applicable grace period; provided, however, YMCA shall not be
deemed in default under this Agreement.
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10.2. YMCA's Performance. After the expiration of any permitted grace period,
if City shall have failed to cure any Default in the performance of any covenant or promise
on its part to be performed, YMCA may, immediately, or at any time thereafter, without
further notice, perform the same for the account and at the expense of the City.
Notwithstanding the above, in the case of an emergency, YMCA may, after notice to City,
so perform in City's stead prior to the expiration of any applicable grace period provided,
however, City shall not be deemed in default under this Agreement.
10.3. Reimbursement. If, pursuant to this Article, City or YMCA at any time is
compelled or elects to (i) pay any sum of money, (ii) do any act which will require the
payment of any sum of money, or (iii) incur any expense (including reasonable attorneys'
fees) in instituting, prosecuting and/or defending any action or proceeding instituted by
reason of YMCA's or City's failure to reimburse, as herein provided, the sum or sums so
paid or payable by City or YMCA, as the case may be, with all interest, costs and damages,
shall be immediately due from the other upon receipt of a statement thereof.
ARTICLE 11.
INSPECTION
11.1. Inspection and Maintenance of Pronertt. YMCA agrees that City shall
have the right at all reasonable times to enter upon and to examine and inspect the
Property. YMCA further agrees that City and any representative of City shall have such
rights of access of the Property as may be reasonably necessary to cause the proper
maintenance of the Property in the event of a Default herewith, or to carry out City's
obligations and exercise City's rights under Article 6, or to determine whether YMCA is in
compliance with this Agreement.
ARTICLE 12.
SALE AND ASSIGNMENT OR REPLACEMENT FACILITY
12.1. YMCA's Sale or Assignment. YMCA shall not assign, sublet or permit an
assignment by operation of law of this Agreement or any interest hereunder without the
prior written approval of City, which approval shall not be unreasonably withheld by City.
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).
12.2. Effect of Assigriment. Any person who shall by operation of law or
otherwise become an assignee of this Agreement or become vested with any interest
hereunder, or a portion thereof, shall be bound by and liable upon all covenants and
provisions contained in this Agreement, but YMCA shall not be relieved of liability
hereunder, unless approved by the City, which approval shall not be unreasonably
withheld. In the case of any transfer or vesting of the interest hereunder, or any part
thereof, either through foreclosure proceedings or otherwise by operation of law, it shall be
a condition to the validity of such transfer or vesting of interest that, if so requested by
City, any person or persons claiming the interest hereunder, or any part thereof, so derived
shall promptly execute and deliver to City a written assumption of the obligations of
YMCA hereunder, except for the obligations described in Section 14.2 of this Agreement,
in such form so that such person or persons shall thereupon be bound by and liable upon all
the covenants and provisions of this Agreement to the same extent as was YMCA.
12.3. Replacement Pool. In the event the YMCA provides a replacement pool
within the corporate limits of the City, which is equal to or better than the Community
Pool, all other rights in this Agreement shall transfer to such replacement pool. The
replacement pool shall be subject to City approval, which shall not be unreasonably
withheld.
ARTICLE 13.
EVENTS OF DEFAULT
13.1. YMCA's Default. The occurrence of any of the following events which is
not cured in the time permitted herein shall constitute a default under this Agreement
(hereinafter referred to as a"Default"):
(a) If YMCA shall fail in the performance of or compliance with any of the
covenants, agreements, terms or conditions contained in this Agreement, and such
failure shall continue for a period of thirty (30) days after written notice thereof
from City to YMCA specifying in detail the nature of such failure, or, in case such
failure cannot be cured with due diligence within thirty (30) days. YMCA fails to
proceed promptly and with all due diligence to cure the same and thereafter to
prosecute the curing of such failure with all due diligence (it being intended that in
connection with a failure not susceptible of being cured with due diligence within
thirty [30] days, that the time within which to cure the same shall be extended for
such period as may be reasonably necessary to complete the same with all due
diligence).
13.2. City's Default. The occurrence of any of the following events which is not
cured in the time permitted herein shall constitute a default under this Agreement
(hereinafter referred to as a"Default"):
(a) If City shall fail in the performance of or compliance with any of the
covenants, agreements, terms or conditions contained in this Agreement and such
failure shall continue for a period of thirty (30) days after written notice thereof
from YMCA to City specifying in detail the nature of such failure, or, in the case
such failure cannot, with due diligence, be cured within thirty (30) days, City fails
to proceed promptly and with all due diligence to cure the same and thereafter
prosecute the curing of such failure with all due diligence, it being intended that in
connection with a failure not susceptible to being cured with due diligence within
thirty (30) days, that the time within which to cure the same shall be extended for
such period as may be necessary to complete the same with all due diligence.
12
ARTICLE 14.
REMEDIES
14.1. City's Remedies. Upon the occurrence of a Default by YMCA which is not
cured within the time permitted, and after delivery of the required notice to Lender
(hereinafter defined) and the expiration of the applicable cure period pursuant to the
Subordination Agreement, City shall be entitled to proceed with the following remedies as
set forth below:
(a) Right to Remedy Defaults of YMCA. City may remedy any Default of
YMCA, and in connection with such remedy, City may pay all expenses and
employ counsel, and all sums so expended or obligations incurred by City in
connection therewith shall be paid by YMCA to City,upon demand by City, and on
failure of such reimbursement.
(b) Right to Terminate Agreement. City may terminate this Agreement by
City's written notice to termination to YMCA, and such termination shall
extinguish all obligations in the ancillary documents identified by Exhibits to this
document.
14.2. Liquidated Damages. In addition to the remedies set forth above,but subject
to the terms and provisions of the Subordination Agreement, YMCA shall be subject to
payment of liquidated damages for its default as set forth below. Upon the default and
termination of the Agreement with YMCA, YMCA shall pay to City the liquidated
damages as set forth in Exhibit "C". (subject to the terms and provisions of the
Subordination Agreement). It is hereby agreed that the liquidated damages to which City
is entitled hereunder are a reasonable forecast of just compensation for the harm that would
be caused by YMCA's failure to comply with the terms of this Agreement. It is agreed that
the harm that would be caused by such failure, which includes loss of expected use of the
Community Pool, provision of alternative facilities and rescheduling of use dates, is one
that is incapable or very difficult of accurate estimation.
14.3 Deed of Trust Securing Performance. Subject to YMCA's receipt of
Lender's consent thereto, YMCA will execute a Deed of Trust granting to the City a junior
and subordinate lien to all liens and security interests now or hereafter held by JPMorgan
Chase Bank, National Association ("Lender") and all existing obligations and liens
associated with costs of construction, in the form attached hereto as Exhibit "D". Such lien
shall be for the City's contribution and diminish according to the attached schedule of
liquidated damages. The Deed of Trust lien shall be for a period of twenty(20) years. The
lien on the Property shall secure YMCA's performance of its covenants, obligations, and
responsibilities undertaken herein, including but not limited to, YMCA's obligation to pay
liquidated damages in the event of YMCA's Default. The form of the Deed of Trust has
been approved by JPMorgan Chase Bank, National Association. Notwithstanding the
foregoing, City shall execute a Subordination Agreement, in form and content satisfactory
to Lender (the "Subordination Agreement"), subordinating the liens and security interests
of the Deed of Trust to any and all liens and security interests covering the Property, the
Recreation Center and the Pool held by Lender, including without limitation, any liens and
13
security interests securing the $7,218,334 letter of credit issued by Lender on behalf of the
YMCA, any liens and security interests securing the ISDA Master Agreement dated June
21, 2004 (the "Swap Agreement"), executed by YMCA and Lender, any liens and security
interests securing a $300,000 revolving line of credit extended by Lender to YMCA, any
liens and security interests securing a $990,000 loan from Lender to YMCA and any liens
and security interests securing a $2,000,000 loan from Lender to YMCA. The documents
evidencing, securing or relating to the $7,218,334 letter of credit, the Swap Agreement, the
$300,000 revolving line of credit, the $990,000 loan, the $2,000,000 loan or any other
loans or extensions of credit by Lender to YMCA are hereinafter collectively referred to as
the "Loan Documents." City's failure to execute the Subordination Agreement shall
constitute a Default by City hereunder, entitling YMCA to exercise any and all rights and
remedies available under this Agreement and available at law or in equity, including
without limitation specific performance, against City.
14.4. YMCA's Remedies. Upon the occurrence of a Default which is not cured
by City within the time permitted, YMCA may terminate this Agreement by YMCA's
written notice of termination to City, and such termination shall extinguish all obligations
in the ancillary documents identified by Exhibits to this document.
14.5. Attorneys' Fees. In the event YMCA or City should Default under any of
the provisions of this Agreement and the non-defaulting party should employ attorneys or
incur other expenses for the enforcement of performance or observance of any obligation
or agreement on the part of the defaulting party, the defaulting party shall, on demand
therefore, pay to the non-defaulting party the reasonable and necessary fees of such
attorneys and such other expenses reasonably incurred, as provided by Tex. Loc. Gov't.
Code § 271.159.
ARTICLE 15.
TERMINATION
15.1. Termination. The Term of this Agreement shall terminate on the
occurrence of any of the events set forth:
(a) A Default by YMCA which is not cured within the time permitted and City
sends to YMCA a written notice of termination for cause;
(b) A Default by City which is not cured within the time permitted and YMCA
sends to City a written notice of termination for cause; and
(c) The expiration of the Term of this Agreement.
ARTICLE 16.
NOTICES
16.1. Notices. Any notices or other communications required or permitted
hereunder shall be sufficiently given if in writing and (i) delivered personally, (ii)
forwarded by prepaid telegram, or (iii) sent by certified mail, return receipt requested,
14
postage prepaid, addressed as shown below, or to such other address as the party concerned
may substitute by written notice to the other. All notices personally delivered shall be
deemed received on the date of delivery. All notices forwarded by prepaid telegram shall
be deemed received two (2) days after the date same are sent. All notices forwarded by
mail shall be deemed received on a date seven (7) days (excluding Sundays and holidays)
immediately following date of deposit in the U.S. mail; provided, however, the return
receipt indicating the date upon which all notices were received shall be pbma facie
evidence that such notices were received on the date on the return receipt.
If to City: CITY OF ROUND ROCK, TEXAS
221 East Main
Round Rock, Texas 78664
Attention: City Manager
With a copy to:
Stephan L. Sheets
309 East Main
Round Rock, Texas 78664
If to YMCA: YMCA OF GREATER WILLIAMSON COUNTY
1812 N. Mays Street
Round Rock, Texas 78664
Attn: Jeff Andresen
With a cop, :
R. Mark Dietz
Dietz & Jarrard, P.C.
106 Fannin Ave. East
Round Rock, Texas 78664
With a copes:
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
The addresses and addressees may be changed by giving notice of such change in
the manner provided herein for giving notice. Unless and until such written notice is
received, the last address and addressee given shall be deemed to continue in effect for all
purposes. No notice of either City or YMCA shall be deemed given or received unless the
entity noted "With a copy to" is simultaneously delivered notice in the same manner as any
notice given to either City or YMCA.
15
ARTICLE 17.
GENERAL PROVISIONS
17.1. Entire Agreement. This Agreement embodies the entire agreement and
understanding of City and YMCA relating to the subject matter hereof and supersedes all
prior representations, agreements and understandings, oral and written, relating to such
subject matter. Neither this Agreement nor any provision hereof may be amended,
enlarged, modified, waived, discharged or terminated orally, but only as expressly
provided herein or by an instrument signed by City and YMCA.
17.2. Counterparts. This Agreement may be executed in any number of
counterparts and all of such counterparts taken together shall be deemed to constitute one
and the same instrument.
17.3. Successors and Assigns. This Agreement and terms and provisions hereof
shall inure to the benefit of and be binding upon the parties hereto and their respective
successors and assigns whenever the context so requires or permits.
17.4. Time. Time is of the essence in this Agreement and each and all of its
provisions. Any extension of time granted for the performance of any duty or obligation
under this Agreement shall not be considered an extension of time for the performance of
any other duty of obligation under this Agreement.
17.5. Severability. Except as expressly provided to the contrary herein, each
section, part, term, or provision of this Agreement shall be considered severable, and if for
any reason any section, part, term, or provision herein is determined to invalid and contrary
to or in conflict with any existing or future law or regulation by a court or agency having
valid jurisdiction, such determination shall not impair the operation of or have any other
effect on other sections, parts, terms, or provisions of this Agreement as may remain
otherwise intelligible, and the latter shall continue to be given full force and effect and bind
the parties hereto, and said invalid sections, parts, terms, or provisions shall be deemed not
to be a part of this Agreement.
17.6. Applicable Law. This Agreement has been executed and delivered in the
State of Texas and shall be construed in accordance with the laws of the State of Texas.
Any action brought to enforce or interpret this Agreement shall be brought in the court of
appropriate jurisdiction in which the Property is located. Should any provision of this
Agreement require judicial interpretation, it is agreed that the court interpreting or
considering same shall not apply the presumption that the terms hereof shall be more
strictly construed against a party by reason of the rule or conclusion that a document
should be construed more strictly against the party who itself or through its agent prepared
the same; it being agreed that all parties hereto have participated in the preparation of this
Agreement and that legal counsel was consulted by each responsible party before the
execution of this Agreement.
16
17.7. Amendment and Waiver. This Agreement may not be amended or
modified in any way except by an instrument in writing executed by all parties hereto (and
approved in writing by Lender to the extent Lender's approval is required under the
Subordination Agreement or to the extent the amendments or modifications will affect the
value of the Property, the Pool or the Recreation Center); provided, however, either City or
YMCA may, in writing, (i) extend the time for performance of any of the obligations of the
other, (ii) waive any inaccuracies and representations by the other contained in this
Agreement, (iii) waive compliance by the other with any of the covenants contained in this
Agreement, and (iv) waive the satisfaction of any condition that is precedent to the
performance by the party so waiving any of its obligations under this Agreement.
17.8. No Joint Venture. Nothing contained herein shall be deemed or construed
by the parties hereto or by any third party as creating the relationship of(i) principal agent,
(ii) a partnership, or(iii) a joint venture between the parties hereto.
17.9. Exhibits. All Exhibits attached hereto are incorporated herein by this
reference as if fully set forth herein; provided, however, in the event that at the time of the
execution of this Agreement any of the Exhibits to be attached are incomplete, the parties
shall use their best efforts to complete such Exhibits at the earliest possible date. To the
extent this Agreement may be rendered unenforceable by the lack of completion of any of
the Exhibits, such defect shall be cured as such incomplete Exhibits are made complete in
accordance with this Section, except to the extent that such Exhibits are deemed and
stipulated by the parties to be complete on the execution of this Agreement by the parties
hereto. If any Exhibits are subsequently changed by the mutual written agreement of the
parties, the Exhibits shall be modified to reflect such change or changes and initialed by
the parties.
17.10. Caption. Captions, title to sections, and paragraph headings used herein are
for convenience or reference and shall not be deemed to limit or alter any provision hereof.
17.11. Survival. All covenants, agreements, representations, and warranties made
herein shall survive the execution and delivery of this Agreement. All other documents
and instruments to be executed and delivered in accordance herewith shall continue in full
force and effect.
17.12. Governing Document. This Agreement shall govern in the event of any
inconsistency between.this Agreement and any of the Exhibits attached hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their proper, duly authorized corporate officers, all as of the day and year first
above set forth.
Attest: CITY-OF O TE S
By: R. By-
ell,�
QJlt, ell, Ms' yF
YMCA OF GREATER WILLIAM9%JUW '
COUNTY:
Attest:
By: By:
Roy Beard, Chairman Board of Directors
ACKNOWLEDGMENTS
y
STATE OF TEXAS O40*'1
COUNTY OF WILLIAMSON jF
This instrument was acknowledged before me on the day of May, 25367,:'
Roy Beard, Chairman of the Board, on behalf of the YMCA of Greater Williamsola
County.
Notary Public, State of Texas
My commission expires:
STATE OF TEXAS
COUNTY OF WILLIAMSON
This instrument was acknowledged before me on the Jb+4 day of May, 2007,by
Nyle Maxwell, Mayor on behalf of the City of Round Rock, Texas.
CHRIONE T.MCAWSTER
MY COMMISSION EXPIRES Notary Public, State of Texas
Apri 15,2011My commission expires: .�5
18
EXHIBIT "A"
PROPERTY DESCRIPTION
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.
19
EXHIBIT "B"
SCHEDULE OF CURRENT DAY USE FEES
Resident Youth $2.00
(17 yrs &under
Resident Adult $3.00
(18 yrs to 54 yrs)
Resident Senior $2.00
(55 yrs & over)
20
EXHIBIT "C"
SCHEDULE OF LIQUIDATED DAMAGES
In the event of the default of YMCA or the total destruction of the Community Pool, City
shall be entitled to liquidated damages as set forth in the following schedule.
If default occurs in ,year: Liquidated Daman
1 $2,000,000
2 $1,950,000
3 $1,900,000
4 $1,850,000
5 $1,800,000
6 $1,750,000
7 $1,700,000
8 $1,650,000
9 $1,600,000
10 $1,550,000
11 $1,500,000
12 $1,450,000
13 $1,400,000
14 $1,350,000
15 $1,300,000
16 $1,250,000
17 $1,200,000
18 $1,150,000
19 $1,100,000
20 $1,050,000
21 $1,000,000
22 $ 950,000
23 $ 900,000
24 $ 850,000
25 $ 800,000
26 $ 750,000
27 $ 700,000
28 $ 650,000
29 $ 600,000
30 $ 550,000
31 $ 500,000
32 $ 450,000
33 $ 400,000
34 $ 350,000
35 $ 300,000
36 $ 250,000
37 $ 200,000
38 $ 150,000
39 $ 100,000
40 $ 50,000
21
EXHIBIT "D"
DEED OF TRUST
Notice of confidentiality rights: If you are a natural person,you may remove or strike
any of the following information from this instrument before it is filed for record in
the public records: your Social Security number or your driver's license number.
Deed of Trust
Terms
Date: May_, 2007
Grantor: YMCA of Greater Williamson County
Grantor's Mailing Address:
Round Rock, Texas 78664
Williamson County
Trustee: Stephan L. Sheets
Trustee's Mailing Address: 309 E. Main St.
Round Rock, Texas 78664
Williamson County
Obligor: City of Round Rock
Obligor's Mailing Address: 221 E. Main St.
Round Rock, Texas
Williamson County
Obligation: Community Pool Joint Use and Access Agreement,by and between the
YMCA of Greater Williamson County and the City of Round Rock, Texas, Dated May 10,
2007
Property(including any improvements: 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
22
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
Prior Lien: JP MORGAN CHASE BANK,National Association
Other Exceptions to Conveyance and Warranty:
For value received and to secure the obligations, covenants and promises, including
the payment of liquidated damages in the event of default, set forth in the Obligation
described above, Grantor conveys the Property to Trustee in trust. Grantor warrants and
agrees to defend the title to the Property, subject to the Other Exceptions to Conveyance
and Warranty. Upon the earlier of 20 years from date hereof, or the fulfillment of said
obligations, covenants and promises by the Grantor, this deed of trust will have no further
effect, and Obligor will release it at Grantor's expense.
Clauses and Covenants
A. Grantor's Obligations
Grantor agrees to—
t. keep the Property in good repair and condition;
2. pay all taxes and assessments on the Property before delinquency;
3. defend title to the Property subject to the Other Exceptions to Conveyance
and Warranty and preserve the lien's priority as it is established in this deed of trust;
4. obey all laws, ordinances, and restrictive covenants applicable to the
Property;
5. if the lien of this deed of trust is not a first lien,pay or cause to be paid all
prior lien notes and abide by or cause to be abided by all prior lien instruments; and
6. notify Obligor of any change of address.
B. Obligor's Rights
1. Obligor may appoint in writing a substitute trustee, succeeding to all rights
and responsibilities of Trustee.
23
2. If there is a default on the Obligation or if Grantor fails to perform any of
Grantor's obligations and the default continues after any required notice of the default and
the time allowed to cure, Obligor may—
a. declare the amount of liquidated damages set forth in the Obligation
to be immediately due;
b. direct Trustee to foreclose this lien, in which case Obligor or
Obligor's agent will cause notice of the foreclosure sale to be given
as provided by the Texas Property Code as then in effect; and
C. purchase the Property at any foreclosure sale by offering the highest
bid and then have the bid credited on the Obligation.
3. Obligor may remedy any default without waiving it and may waive any
default without waiving any prior or subsequent default.
4. Obligor agrees to a partial release of the property if it deems it is otherwise
secure.
C. Trustee's Rights and Duties
If directed by Obligor to foreclose this lien, Trustee will—
1. either personally or by agent give notice of the foreclosure sale as required
by the Texas Property Code as then in effect;
2. sell and convey all or part of the Property"AS IS" to the highest bidder for
cash with a general warranty binding Grantor, subject to the Prior Lien and to the Other
Exceptions to Conveyance and Warranty and without representation or warranty, express
or implied, by Trustee;
3. from the proceeds of the sale,pay, in this order—
a. expenses of foreclosure, including a reasonable commission to
Trustee;
b. to Obligor, the full amount of liquidated damages, attorney's fees,
and other charges due and unpaid;
C. any amounts required by law to be paid before payment to Grantor;
and
24
d. to Grantor, any balance; and
4. be indemnified, held harmless, and defended by Obligor against all costs,
expenses, and liabilities incurred by Trustee for acting in the execution or enforcement of
the trust created by this deed of trust, which includes all court and other costs, including
attorney's fees, incurred by Trustee in defense of any action or proceeding taken against
Trustee in that capacity.
D. General Provisions
1. If any of the Property is sold under this deed of trust, Grantor must
immediately surrender possession to the purchaser. If Grantor fails to do so, Grantor will
become a tenant at sufferance of the purchaser, subject to an action for forcible detainer.
2. Recitals in any trustee's deed conveying the Property will be presumed to
be true.
3. Proceeding under this deed of trust, filing suit for foreclosure, or pursuing
any other remedy will not constitute an election of remedies.
4. This lien will remain superior to liens later created even if the time of
payment of all or part of the Obligation is extended or part of the Property is released.
5. If any portion of the Obligation cannot be lawfully secured by this deed of
trust, payments will be applied first to discharge that portion.
6. In no event may this deed of trust secure payment of any debt that may not
lawfully be secured by a lien on real estate or create a lien otherwise prohibited by law.
7. When the context requires, singular nouns and pronouns include the plural.
8. The term "Obligation"includes all extensions, amendments,modifications,
and renewals of the Obligation and all amounts secured by this deed of trust. .
9. This deed of trust binds,benefits, and may be enforced by the successors in
interest of all parties.
10. Grantor agrees to pay reasonable attorney's fees, trustee's fees, and court
and other costs of enforcing Obligor's rights under this deed of trust if this deed of trust is
placed in the hands of an attorney for enforcement.
11. If any provision of this deed of trust is determined to be invalid or
unenforceable, the validity or enforceability of any other provision will not be affected.
25
12. Grantor represents that this deed of trust is given for the following
purposes: To secure the obligations, covenants and promises. including the payment of
liquidated damages in the event of default, set forth in tr C t �,�-Ition described above
1ym X.of Gr=:< :lamson County
ACKNOWLEDGMENT
STATE OF TEXAS
COUNTY OF WILLIAMSON y0
This instrument was acknowledged before me on the . : : : u. ��� 2007, by
b . ,t the YMCA
of Greater Williamson County.
Notary Public, State Qf Texas
My commission expires:
PREPARED IN THE OFFICE OF:
Sheets &Crossfield, P.C.
Attorneys at Law
309 E. Main St.
Round Rock, Texas 78664
Tel: (512)255-8877
Fax: (512)255-8986
AFTER RECORDING RETURN TO:
Sheets & Crossfield, P.C.
Attorneys at Law
309 E. Main St.
Round Rock, Texas 78664
26
Austin_1\467107\3
9076-82 5/1/2007
DATE: May 2, 2007
SUBJECT: City Council Meeting - May 10, 2007
ITEM: 8.F.2. Consider a resolution authorizing the Mayor to execute a
Community Pool Joint Use, Access and Management Agreement
with YMCA of Greater Williamson County.
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: $0 operating cost (pursuant to the Construction Agreement, the City
provides $2 million capital investment)
Source of funds: N/A
Outside Resources: N/A
Background Information:
The joint use agreement is for 40 years and provides for access to the facility by City
residents, City sponsored events and swim teams and details the responsibilities of the
parties to the agreement. The agreement also makes provision for repayment of the City's
$2 million investment in the facility on a declining balance basis if the facility is not operated
in accordance with the agreement. Under the agreement, the City has no responsibility for
operations, maintenance, repairs or improvements to the facility.
Public Comment: N/A