Travis County Commissioners Court
May 24, 2005
Item 17
17. Consider and take appropriate action on a ymca lease agreement for east metropolitan park pool complex.
>> this is the lease agreement to be considered for adoption tomorrow by the ymca board. We've had this draft being discussed among the attorneys about -- about 30 days now. One of the major issues with as worked out this last week. That had to do with the liability of -- of the assignment of liability under the contract. Originally, drafted by the county attorney, assigned all of the risk to the ymca. This is a lease agreement. The ymca would not accept that provision. The way it's currently written, Travis County would accept the responsibility for any liabilities of its own negligence with regard to the pool. Ymca would accept full responsibility for its own negligence with regard to operation. And then the ymca would take full responsibility for liability under the agreement for the operations and maintenance of the pool. And probably [indiscernible] or tom could probably explain what all of that means. What's down here. In addition the -- the ymca has a -- quite an extensive insurance policy that has Travis County as another insured. It basically not only -- damages for an event, but also omissions, liabilities from their professionals which would include their life guards. And then a general commercial liability policy. So each one of those component pieces of the insurance policy has its own limits, coverage.
>> the allocation of potential liability that you described seems fair to me. We are responsible for acts that we cause, basically.
>> that's what it amounts to.
>> that's what the bottom line is.
>> the ymca assumes the responsibility for incidents resulting from the operation of the pool and anything they cause.
>> I believe that's correct. And here's tom nuckols to probably give it the -- [multiple voices] -- legal interpretation.
>> legal interpretation.
>> I知 sorry, judge, I didn't hear the question.
>> of the language.
>> we are talking about the liability provision, what that means in terms of assignment of the risk. We take responsibility for our own, they take responsibility for theirs.
>> right. The key there is we've included recitals in the lease to reflect a situation which is by leasing this property, we give over possession and control to ymca and don't have any responsibility or control over how the pool is managed, operated or run. So -- so any liability that arises out of operation of the pool is going to be the ymca's and not Travis County's.
>> that would even include like life guards and presence or non-presence of --
>> absolutely.
>> -- of non-trained personnel which is not going to be an issue, but giving that scenario there.
>> any issues about which we need to receive special advice in executive session or that pretty much says it?
>> concerning liability, I think that pretty much says it.
>> okay. That was the only issue last time, right?
>> there was one more issue that is the revenue for operations and maintenance. We have along with this agreement the ymca submitted their budget for the fy '05 season, which begins June 1, goes through the first week of September. They are projecting they are going to need about $55,030 to cover life guard operating expenses, electricity, everything to deal with the operations of the pool. Under our agreement with the Briarcliff homeowners association, they are obliged to pay the county for $75 per developed lot and there are about 413 developed lots. I sent them an invoice or a -- basically a request for payment for that amount. The chairman of the homeowners association, dick rathgaber asked if he and d.r. Horton could pay us in monthly installments as opposed to lump sum 30,000. Our agreement with the home owner says pay it all on June 1st. On the other hand we pay the ymca, we reimburse the ymca on a monthly basis. So we are not having the entire lump sum up front doesn't cause a cash flow problem with the ymca since we're being invoiced and paying on a monthly basis. But I must say that -- that is not the way the contract is written with the Briarcliff homeowners association.
>> joe, I looked at that, knowing the relationship that we have had with the d.r. Horton, also with rathgaber, richard, I didn't see any problem with that, especially looking at it on the installment basis especially on a monthly type of situation, since we are going to have to do that anyway. Again, I just think that it's something that we could go ahead and go forward with on this particular lease. Now, that first payment would be due in June; is that correct?
>> that's correct. And I have payment for the first month, actually it's not an equal share because the ymca's budget was broken down by month. The payments get less July, August, then September payment is just for a couple of days in September. So basically the check that I have pays the pro rata share for the month of June. That is about $9,900.
>> right.
>> now, the difference, that does not pay for the full operations. Understand that the -- if we get -- if we hadn't gotten full payment for the 413 lots, that only represents about 30,000. If we had gotten it. The budget is $55,000. So it's about a $25,000 difference there. We understood that going in, ramping, we would probably have to make up the shortfall while that subdivision was being developed out. It doesn't mean that Travis County would have to pay the entire 25,000. We expect the ymca will market the pool, get additional memberships outside the Briarcliff subdivision. This pool is a public pool. Membership is open to everyone and we hope that there's a much larger population out there that will want to come. And then become members ever the pool. So each month, depending on what that shortfall is, it may be less and less as the ymca garners more memberships. But there will have to be an effort on the part of the ymca to get the word out and start soliciting memberships in the pool. If we got no additional memberships for the entire season, other than Briarcliff, it would mean an obligation on the part of Travis County of about $25,000 by executing this agreement with the ymca. That money was budgeted by the Commissioners court and it is in reserve. So it is available to make payment.
>> I understand. But there are other subdivisions that are really interested this that cost sharing opportunity for the membership, annual membership for -- for the use of the pool. So I知 looking forward to this and with that I would like to move approval of item 17. I know there may be still other questions.
>> I have one more comment before we go to vote. There is a -- because of the timing of the contract with the Briarcliff homeowners association and the way it was administered by d.r. Horton, there were a certain number of homeowners who already were in Briarcliff before the agreement was reached on the pool. The d.r. Horton gave them the opportunity to become members. If they did not want to become members, d.r. Horton and dick rathgaber has offered to pay the difference. Their intent is to provide scholarships to -- to low income families within the manor independent school district. So since -- since their own homeowners within Briarcliff did not want them, they are basically making these pool memberships available to others. We do not currently have a provision in the ymca contract to administer scholarships. Although the ymca does do this on their general memberships. They have a way of basically administering to -- to the people that cannot afford their full membership. So I would have -- if breabl to the court and to the ymca, have some provision in here that would allow the ymca to administer those scholarships, no matter where they make come from.
>> when will the pool actually open?
>> the pool will be completed by the end of this month. We expect that we will have a grand opening and ribbon cutting, on Saturday, June 11th. That's when -- that's when we are fixing to after this meeting, if this goes okay, we will send out a press release and --
>> June 11th is the date we are looking at, the 20th anniversary of star flight celebration of Austin city hall because we are taking that date to the court, remember, Gerald? Because of these very kinds of conflicts.
>> well, we tried to work around that as closely as we possibly could.
>> I don't remember getting asked about June 11th.
>> June 11th is basically the date we set forth. It first was the 4th, if we looked at the 4th of June it would be cutting it pretty close after reviewing and looking at the park setting, things like that, it would really be cutting it close after going out there and taking a view with the staff. It just appears that maybe one more week on that would be appropriate because give a little time for us to play with as far as this opening.
>> well, there's a difference between getting it open, in terms of soft opening -- hang on a second. There's a difference between getting it open for purposes of a soft opening and having an actual celebration. Having gone through yet again on this thing not one person asked us whether June 4th or 11th would work on the official celebration of the expenditure of county taxpayer dollars at that particular facility. And we do have an item on for next Tuesday to get clearance on June 11th for the 20th anniversary of star flight for that very same day. We are -- we have got an e-mail out to all of the court members shopping that date and we have got an item on the agenda to lock down that date with the permission of the court to proceed with that date and no one else has asked about June 11th.
>> well, what --
>> what time.
>> it's at 10:30 in the morning. We have a whole lot of things going on.
>> 11:00 is ours.
>> 10:30.
>> I think we will avoid a train wreck to see if we can't get our times coordinated.
>> is star flight out at the hangar.
>> no, at Austin city hall from 11:00 until 1:00.
>> all right.
>> we also have --
>> 12:30. A you. -mail 11:00 to 12:30.
>> with pel parties, let me see if we can work out something that avoids a conflict between the two events. We can maybe move up the pool opening to 9:00, give you time to get back down to the other opening.
>> several things going on.
>> or the afternoon either one.
>> several things going on that day. We have the celebration at the satellite -- at the precinct 1 building over on springdale road, of course, from 10:00 to 2:00. I知 going to try to make as many of these as I can. Every once in a while you have to run into situations where you have to bounce from one place to the other. We try to be as conveniently as accommodating as possible, but sometimes you do run into things that the series of events that are going on one day. We have to do earlier that's fine. If we can look to that in other words again bouncing to different spots in different locations as we do have things scheduled. So if we have to again make it earlier, 9:30 in the morning, 10:00, somewhere around there, we still I think touch base with all of these particular things that are going on as we possibly can. That's basically the direction that I知 going and of course we would have preferred the 4th of June for the ribbon cutting at the pool. But it may be cutting it a little too close, so the level -- the day was -- the 11th for the day was basically looked at. Again hopefully everybody can look at.
>> you are right, cutting it close, 10 days, the Commissioners court has not even be officially invited to either event. So i've said my piece on this one. You would have thought from the last time we discussed this like a week and a half ago that we would not be dealing with this kind of situation. Especially coming along on a park --
>> it's just a pool opening. Not -- judge, this is --
>> expenditure of public funds.
>> basically won't be complete until later, but this is just the -- the outreach for the pool and the community is really behind it and excited and ready to go. Precinct 1. They are ready to shake, rattle and roll and we are kind of told them that we are going to -- we have been trying to work around it as best we can. Sometimes we can't accommodate everybody.
>> taxpayers of precincts 2, 3, 4 are also extremely proud of that facility and would have appreciated an invitation.
>> well -- Commissioner, it's not that you are not invited.
>> well, I think it's pretty clear it is.
>> you are always invited to anything going on in the county.
>> I知 just hearing about this on may 24th. We just got invited to something we didn't even know about.
>> the thing is, Commissioner, we have been trying to work ours to where we could accommodate the 4th would have been better as I stated.
>> hasn't been run by the court.
>> different rules for different people.
>> no. That's -- same rule for everybody.
>> no, sir, it is not.
>> you are Commissioner in your park in northeast, I don't think nobody argued that point when you had it.
>> I got fussed at and we -- we established a procedure.
>> judge Biscoe did [laughter]
>> did I fuss at you. Judge Biscoe did, every since -- ever since then --
>> we are be there with our speedos on whenever [multiple voices]
>> if you want to come, be sure and bring your swimming trunks so we can throw everybody in the pool.
>> I don't think we are quite ready for that one, Gerald.
>> you just assured that nobody shows up. [laughter]
>> I didn't fuss at you on that. But I知 going to stay on course and folks excited ready to go with this.
>> without regard to anybody's projects, can we all just say that we are going to check with each other's offices before it makes it into a public setting like this to say does that date work for you? Because Commissioner you have been extraordinarily good about other kinds of events about saying does this date work when she say it's not going to work for goodness sakes don't stop on my account. We never got that kind of courtesy with this particular one and the pool is a way big deal. That's all that I知 saying.
>> ms. Aldridge.
>> I have one comint. That is because -- one comment. Because this regard the lease, because the lease does require that the court approve the budget prior to the pool opening, I would just like to add some language before this is executed. Stating that the budget for the 2005 summer swim season constitutes approval -- I mean, approval of this lease constitutes approval of the budget for this year.
>> okay.
>> make it clear because the posting we think might not have been broad enough, if we amend the lease to that effect, then that would work.
>> okay. I do have one other question. Related to the legal mechanism to assure us that this money that is expected does come in, we have seen this issue happen with home owner association dues. In terms of people deciding, well, I just choose not to do it, even though they are supposed to. What legal mechanism is there in terms of whose -- mr. Rath gaber and dr horton are going to cover people who didn't have it in a deed thing. What about people who do and who choose for whatever reason, remember they had some pretty high water rates out there, there's some folks that may choose not to pay it after the first year or second year or third year, what's the legal mechanism to make sure that somebody pays that bill? Because that's what we are predicating this contract on.
>> well, it would be the contract. Automatically there's an issue, contrary to what was the contract, a certain number of lots were basically let out of that requirement.
>> uh-huh.
>> while d.r. Horton and mr. Rathgabeer are agreeing to make good for those folk at least this year. Some point all of the lots will be sold there will be no more d.r. Horton or dick rathgaber the homeowners association will be the lot owners. I see a potential problem between the homeowners association being divided into two camps, fee owner, fee payers, non-fee pairs, that in and of itself may bring an issue in the out years. Not this year, maybe not next year, but somewhere down the road there's a real risk that, you know, the homeowners association is not going to want to pay Travis County for the lots that were allowed to opt out up front. And my suggestion would be while we do still have d.r. Horton and ed rathgaber involved that we restructureture the deal. I mean, joe is correct in that you are going to have other subdivisions coming online, that's going to relieve some of the appreciate. I think it would be advisable to basically restructure the deal to reflect what happened and to try to mitigate, you know, the risk that the association won't always be willing to pay for all of those lots.
>> is it always going to be in there in terms of where it is? Is it leased in the recorded deed that when somebody does a title search, that that's going to be part of the -- no one is going to be able to dump it when they sell the property to the next person or the next person or the next person. It stays there forever with the land?
>> it -- I知 still unclear as to whether it's been recorded. We have looked in the deed records and don't see it. I think, joe, they have told you it has been recorded.
>> this is not --
>> this is the trigger.
>> if it has been recorded there was language in there that basically says it can't ever be changed without Travis County's permission. So that should hold. But again --
>> if a title company is not going to find it when they are going through and doing this thing --
>> if it's in the deed record, they will find it. We have actually yet to confirm that it's in the deed records. Notwithstanding that fact, once the control of the homeowners association shifts over to the actual lot owners, it's hard to predict exactly how they will look at that contract and whether they will feel as bound as we think they are.
>> I want to just make sure that we have entrepreneur forcible -- that we have an enforceable contract. There are huge irs in the king wood area of houston, people choose not to pay their home owner association things, they are starting to get really cranky about taking people to court, foreclosing on houses for all of not paying 80 bucks. It's the same amount of trouble that makes me want, I am willing during this ramp up period for Travis County to step in and fill the gap until the regular process can come through here. But we have to have some legal mechanisms here to be able to say we can count on this commitment and that people do not have a way to say oh, that doesn't impact me, have a nice day, I知 not paying for the pool. I知 not paying for something that I知 not using.
>> why didn't we talk about this up front.
>> we did.
>> if there are issues --
>> I知 surprised it's not recorded.
>> [multiple voices]
>> did they ever send us a record copy?
>> they sent me the signed document that it had been recorded.
>> it had the stamp of the county clerk's office on it?
>> no. They sent me the signed document and said, the fact -- saying this document has been recorded.
>> we had better make sure.
>> do we have another week to sign this?
>> this is -- these are some pretty serious issues here y'all.
>> this is not -- well, this is really a side issue. In -- this is our agreement with the ymca to operate certainly the revenue is a key component of that. But aside from this agreement, it's --
>> there are -- the other matter if there are legal issues here, we need to deal with them, a confirmation in recording, if they sent us in writing that it had been recorded, legally what we authorize to rely upon that representation, see what I知 saying? So if they said it's been -- it has been been recorded but in fact it has not then legally where does that leave us. If it hadn't been recorded already, it's just a matter of going and recording it. Otherwise the problems keep compounding there with each day. But I don't know that -- whether the agreement with ymca really is impacted by those considerations anyway.
>> no.
>> can we get those other items judge brought back for next week or something? We have to get this stuff locked down.
>> yeah.
>> so it affects.
>> [indiscernible] points out there is a funding out clause in this lease, if there is a problem with the revenue, we are not necessarily --
>> we are kind of left with a swimming pool there, though, unfortunately. We are left with a pool, if nobody is using it because we have a not open sign on it, it's a new pool, I don't know if that's good government.
>> well, this is a new concept, okay, and there's -- there are things that have to be worked out. We have advertised from the very beginning this is an enterprise totally supported by membership and the agreement with the homeowners association was the engine. But it wasn't the only engine. We were looking for membership generally from the community and they understood that's the way this pool was going to be administered. So I think as in any new business enterprise, there is a ramp-up period. There are some risks here that we are taking, we didn't pay for the pool so we didn't -- that's not our risk. Our risk is having a pool that can't be open because we don't have the paid memberships. But that is something that you know, as any new business we are having to move into.
>> we didn't pay for the pool, but we paid for the land that the pool is on, right?
>> that's true. And we paid for the infrastructure that supports the pool.
>> if you are not a member, every time you use the pool you have to pay a fee like any other --
>> that's correct.
>> we are going to take risks, but we are also trying to in as many ways as possible limit our risks, limit our exposures hence the reason we wanted to go with the ymca established record in terms of safety operations for pools. I didn't intend for us to leave ourselves out there, our back sides uncovered related to having the financial ability to get the moneys that this whole deal is predicated on. Swimming pools are very expensive.
>> five or six legal questions and law related questions that we probably ought to put on an appropriate item for next week. What we may want to do, as you mull over this between now and say Friday, if you come up with specific questions, get those to tom. Monday is a holiday. Get them to tom, to at least have the weekend to do this research.
>> for me Friday is a holiday.
>> tom, you have already heard my questions. It has to do with the enforcibility of what is out there, what if people refuse to pay.
>> by 5 tomorrow.
>> by 5:00 tomorrow if possible. Can we at least check on the recording and if you record it, normally you have an index number. If you just ask what's the index number for the filing of so and so --
>> the county clerk's office has marvelous, new, online technology where you can sit at your computer and search for the document. Which is what we've been doing, haven't been able to find it.
>> hopefully this does not -- whatever we are doing here today, I知 -- I知 still going to stay with the date of the 11th. I think we still have enough time, we have another date that -- that we can meet as far as the Commissioners court is commerce before the 11th, to June 111th is date that we looked at hopefully all of these other questions can be answered by then. Joe, you already have the money in hand for the first month installment on the -- on the four-month setting. Of course the other legal question that came up, along with the recording of the documents that you have in your possession. I think it's probably something that needs to be contained. So hopefully those things will be in place when we do -- when this does come back up. So any -- anything that I can do to help you acquire any of this information, please don't hesitate to let me know. I think that's something real feasible and attainable.
>> and an item about setting the e.m.s. Thing on the 11th.
>> joe, take at least one full swimming season probably to know what the daily admission receipts might be. So we'll have a good indication of the fiscal impact, better read on the fiscal impact at the end of this swimming season, probably?
>> I would think so. And -- and just perhaps to allay some of your fears here. In our analysis of this, we estimated that we needed about 600 memberships to break even to -- to afford the annual operation and maintenance. So it's -- you have the 400 some odd paid memberships from d.r. Horton and rathgaber, you are really talking about 200 memberships difference that we will seek general public admissions, other subdivisions. But every member that we have over 600 with that much to the safety margin of being able to -- is thated to the legal --
>> in addition to the legal issue, can we get a reminder of the financial analysis we saw up front. Just kind of be reminded. Anything related to this item, anybody else? The ymca lease agreement? On the pool? Commissioner Davis? Well, I move approval of the lease agreement and -- as it stands. Pending -- we still have legal issues that we need to bring forth also that we would like to still have the opening of the pool as far as the celebration ribbon cut -- cutting of the pool on June 11th. And if we can come back with that, I would appreciate that.
>> okay. Second motion to approve the lease agreement. Joe, you can work on those times.
>> I will.
>> okay. Any more discussion of this motion? All in favor? That passes by unanimous vote. Wleets have an appropriate worded item -- let's have an appropriate worded item for this next week.
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Last Modified:
Wednesday, May 25, 2005 7:48 AM