ORDER N0.29455 AUTHORIZE A MEMORANDUM OF UNDERSTANDING BETWEEN KERB COUNTY AND OWNERS OF 219 AND 221 SH 480, CENTER POINT, TO CONSTRUCT SKATEBOARD FACILITY Came to be heard this the 14th day of November, 2005, with a motion made by Commissioner Williams, seconded by Commissioner Letz. The Court unanimously approved by vote of 4-0-0 to: Give conditional approval, based on the factors noted, to authorize a Memorandum of Understanding between Kerr County and owners of property at 219 and 221 SH 480 (San Antonio Street), Center Point, to construct a skateboard facility at the Kerr County Park located on the Guadalupe River at Skyline Drive. ~,5 agys~ COMMISSIONERS' COURT AGENDA REQUEST PLEASE FURNISH ONE ORIGINAL AND NINE COPIES OF THIS REQUEST AND DOCUMENTS TO BE REVIEWED BY THE COURT. MADE BY: Commissioner Williams OFFICE: Precinct 2 MEETING DATE: November 14, 2005 TIME PREFERRED: SUBJECT: (Please be specific). Consider, discuss and take appropriate action to Authorize a Memorandum of Understanding between Kerr County and owners of property at 219 and 221 SH 480 (San Antonio Street), Center Point, to construct a skateboazd facility at the Kerr County Park located on the Guadalupe River at Skyline Drive. EXECUTIVE SESSION REQUESTED: NAME OF PERSON(S) ADDRESSING THE COURT: Commissioner Williams & Donald Shirkey of Center Point. ESTIMATED LENGTH OF PRESENTATION: 10 minutes. tF PERSONNEL MATTER-NAME OF EMPLOYEE: Time for submitting this request for Court to assure that the matter is posted in accordance with Title 5, Chapter 551 and 552, Government Code, is as follows: Meeting scheduled for Mondays: 5:00 P.M. previous Tuesday THIS REQUEST RECEIVED BY: THIS REQUEST RECEIVED ON: All Agenda Requests will be screened by the County Judge's Office to determine if adequate information has been prepared for the Court's formal consideration and action at time of Court meetings. Your cooperation is appreciated and contributes toward your request being addressed at the earliest opportunity. See Agenda Request Rule adopted by Commissioners Court. Page 1 of 2 Center Point Skate Boarders Problem: Several young boys in Center Point have started using the sidewalk in front of the buildings at 219 and 221 Highway 48~ as a skate boazd rink. They are damaging private property and this is a poor place for the boys to play as it is next to very busy Highway 480. Several drive to this spot and park next to the area where they are skateboarding. Then they dart in and out between the vehicles. In addition to all this they leave trash. The cause of this problem is the lack of a proper place for the boys to participate in this populaz sport. I am requesting Kerr Counties help in solving this problem. I propose that we build a concrete pad in the pazk by the lake next to the basketball court for the boys to use as a skate board azea. This requires the approval of the administrators of Kerr County. If given approval I would do the following. 1. Determine the place for the pad. The pad would be placed parallel to but twenty feet to the south of the basketball court. 2. Design for the pad. The pad would be eight feet wide and sixty feet long. Other additions such as ramps or things to jump on or over. The obstacles, ramps and other devices would be planned with the help of the young boys who wish to use it 4. Who will build it. I will draw up the plans and submit them to some local people to determine what they would charge to build the pad. I will work with the young users to build the obstacles and ramps. 5. Who will maintain it. Maintenance will be the responsibility of the families of those who want to use it. 6. How can we eliminate the potential problems of a law suite brought by the families of injured skate boazders. We could do any of the following. A. Require that anyone less than eighteen years of age, who wants to use it must have a release, (Hold Harmless) agreement signed their parents. A sign would be placed at one end of the skating pad stating this. A weather proof box which would hold blank agreements, would be attached to the sign. From time to time a Deputy Sherif or Constable would be asked to check out the users and take names and address. Then they would call on a few of the parents to verify that they had indeed signed the document. Page 2 of 2 Center Point Skate Boarders B. Anyone eighteen years of age or older must have a hold harmless agreement signed by themselves. C. As a practical matter most of the skateboarder's drive vehicles and could go to many other places where they might get injured. So it becomes somewhat moot at to the need for any specific hold harmless agreements. D. If Kerr County refuses this request they will implicitly be responsible for any damage to property and for any accidents or deaths on Highway 480 caused by or associated with the skateboazders. Donald Shirkey a resident of Center Point. ~,:~_ K ~i ~~. ~'4 ~r _: J ;y~~ 11 ~ +`~~~ ri~ ~. ^~ ~::' ~ ~~ Y :1 .., .. }~. `' v1, .n L' .. ~.Y r ~° 1 r4 ~S • b >~ N:. .. . , 4..a M9~ v ,~..g ,~ , -. ` k y d' i t ~. v u,. hf f.a „~ t~ R 4 ~ w ... ~ ti~ ~ i. 11 s, ~ • _-..a 1 k ~~ ~ f ~~ ~ .. '' ~t ~ 4 tt r i ~ F ~ ~ ~.eq . ~ 4F try ~ ~ V P 4 ~L~ t `~,~ .T ~. ... . u4 v j -r - ._.. ae 'r."~'~. ~ .r ~. a 'u' " '.~ ~~~~ "'""'S" ~` ~t ~. ~ `,.~c ~~~ ~~~ y k ~$ .^' ,,' ,ilk ~+~ .. ry4 ., yyv ' 'yp ' y ¢ ' f `~ f5. ~~~` ,.. ~_~ ~~;• T ,~ F ~; . ~;;,. ~: ~~ /, ,~' << KERB COUNTY ATTORNEY COUNTY COURTHOUSE, SUITE BA-103 ~ 700 MAIN STREET November 10, 2005 Bill Williams County Commissioner Precinct 2 RE: Skateboard park liability Dear Bill: REX EMERSON KERRVILLE, TEXAS 78028 Texas Civil Practice and Remedies Code Section 75.002( c) limits the county's liability for recreational activities. It appears that we would have no more liability than that owed a trespasser on real property. So long as we did not commit wilful, wanton, or grossly negligent actions our liability is limited. We would need to post danger/at your own risk signs and absolutely make it unsupervised by the County. I would recommend that prior to approval the County call our insurance company and discuss the issue to receive their recommendations. Rex Emerson CPRC 75.002 -attached MAIN NUMBER (830) 792-2220 ~ HOT CHECKS (830) 792-2221 FAX (830) 792-2228 Page 2 of 13 WC'S~~.~1W. Page 1 V.T.C.A., Civil Practice & Remedies Code $ 75.002 C Effective: September Ol, 2005 Vernon's Texas Statutes and Codes Annotated Currentness Civil Practice and Remedies Code (Refs & Annos) Title 4. Liability in Tort 'Sa Chapter 75. Limitation of Landowners' Liability (Refs & Annos) ~§ 75.002. Liability Limited (a) An owner, lessee, or occupant of agricultural land: (1) does not owe a duty of care to a trespasser on the land; and (2) is not liable for any injury to a trespasser on the land, except for wilful or wanton acts or gross negligence by the owner, lessee, or other occupant of agricultwal land. (b) If an owner, lessee, or occupant of agricultural land gives permission to another or invites another to enter the premises for recreation, the owner, lessee, or occupant, by giving the permission, does not: (1) assure that the premises are safe for that purpose; (2) owe to the person to whom permission is granted or to whom [he invitation is extended a greater degree of Gaze than is owed to a trespasser on the premises; or (3) assume responsibility or incw liability for any injury to any individual or property caused by any act of the person to whom permission is granted or to whom the invitation is extended. (c) If an owner, lessee, or occupant of reai property other than agricultural land gives permission to another to enter the premises for recreation, the owner, lessee, or occupant, by giving the permission, does not: (1) assure that the premises aze safe for that purpose; (2) owe to the person to whom permission is granted a greater degree of care than is owed to a trespasser on the premises; or (3) assume responsibility or incur liability for any injury to any individual or property caused by any act of the person to whom permission is granted. (d) Subsections (a), (b), and (c) shall not limit the liability of an owner, lessee, or occupant of real property who has been grossly negligent or has acted with malicious intent or in bad faith. (e) In this section, "recreation" means, in addition to its meaning under Section 75.001, the following activities only if the activities take place on premises owned, operated, or maintained by a governmental unit for the purposes of those activities: ©2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://print.westlaw.corn/delivery.html?dest=atp&format=HTMLE&dataid=B0055 80000... I 1 / 10/2005 Page 3 of 13 Page 2 V.T.C.A., Civil Practice & Remedies Code ¢ 75.002 (I) hockey and in-line hockey; (2) skating, in-line skating, roller-skating, skateboarding, and roller-blading; and (3) soap box derby use. (f) Notwithstanding Subsections (b) and (c), if a person enters premises owned, operated, or maintained by a governmental unit and engages in recreation on those premises, the governmental unit does not owe to the person a greater degree of care than is owed to a trespasser on the premises. (g) Any premises a governmental unit owns, operates, or maintains and on which the recreational activities described in Subsections (e)(1) and (2) are conducted shall post and maintain a cleazly readable sign in a cleazly visible location on or neaz the premises. The sign shall contain the following warning language: WARNING TEXAS LAW (CHAPTER 75, CIVIL PRACTICE AND REMEDIES CODE) LIMITS THE LIABILITY OF A GOVERNMENTAL UNIT FOR DAMAGES ARISING DIRECTLY FROM HOCKEY, IN-LINE HOCKEY, SKATING, IN-LINE SKATING, ROLLER-SKATING, SKATEBOARDING, OR ROLLER-BEADING ON PREMISES THAT THE GOVERNMENTAL UNIT OWNS, OPERATES, OR MAINTAINS FOR THAT PURPOSE. (h) An owner, lessee, or occupant of real property in this state is liable for trespass as a result of migration or transport of any air contaminant, as defined in Section 382.003(2), Health and Safety Code, other than odor, only upon a showing of actual and substantial damages by a plaintiff in a civil action. CREDIT(S) Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985. Amended by Acts 1989, 71st Leg., ch. 62, § 2, eff. Sept. 1, 1989; Acts 1997, 75th Leg., ch. 56, § 2, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 734, § 1, eff. Sept. 1, 1999; Acts 2003, 78th Leg., ch. 204, § 21.01, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 739, § 1, eff. Sept. i, 2003; Acts 2005, 79th Leg., ch. 116, § 2, eff. Sept. 1, 2005; Acts 2005, 79th Leg., ch. 932, § 2, eff. Sept. 1, 2005. HISTORICAL AND STATUTORY NOTES 2005 Electronic Pocket Part Update 2005 Legislation Acts 2005, 79th Leg., ch. 116, in subsets. (e) and (g) substituted references to a govemmental unit for references to the state, municipality or the county, and made vazious nonsubstantive changes; and rewrote subset. (f) which prior thereto read: "This section limits the liability of the state or a municipality or county only for those damages arising directly from a recreational activity described in Subsection (e) but does not limit the liability of the state or a municipality or county for gross negligence or acts conducted in bad faith or with malicious intent." Section 3 of Acts 2005, 79th Leg., ch. 116 provides: "This Act applies only to a cause of action that accrues on or after the effective date of this Act. A cause of action that accrues before the effective date of this Act is governed by the law in effect immediately before that date, and ©2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://print.westlaw.tom/delivery.html?dest=atp&format=HTMLE&dataid=B005580000... 11 / 10/2005 Page 4 of 13 Page 3 V.T.C.A., Civil Practice & Remedies Code ¢ 75.002 that law is continued in effect for that purpose." Acts 2005, 79th Leg., ch. 932 substituted "a governtnental unit" for "the state or a municipality or county", in subsea (e); made nonsubstantive changes th subsets. (e)(1) and (e)(2); added subsea (e)(3); and rewrote subsets. (f) and (g). Subsets. (f) and (g) formerly read: "(f) This section limits the liability of the state or a municipality or county only for those damages azising directty from a recreational activity described in Subsection (e) but does not limit the liability of the state or a municipality or county for gross negligence or acts conducted in bad faith or with malicious intent. "(g) Any premises the state or a municipality or county owns, operates, or maintains and on which the recreational activities described in Subsection (e) are conducted shall post and maintain a clearly readable sign in a clearly visible location on or neaz the premises. The sign shall contain the following warning language: "WARNING "TEXAS LAW (CHAPTER 75, CIVIL PRACTICE AND REMEDIES CODE) LIMITS THE LIABILITY OF THE STATE AND A MUNICIPALITY OR COUNTY FOR DAMAGES ARISING DIRECTLY FROM HOCKEY, IN-LINE HOCKEY, SKATING, IN-LINE SKATING, ROLLER-SKATING, SKATEBOARDING, OR ROLLER-BEADING ON PREMISES THAT THE STATE OR THE MUNICIPALITY OR COUNTY OWNS, OPERATES, OR MAINTAINS FOR THAT PURPOSE." Section 3 of Acts 2005, 79th Leg., ch. 932 provides: "This Act applies only to a cause of action that accrues on or after the effective date of this Act. A cause of action that accrues before the effective date of this Act is governed by the law in effect immediately before that date, and that law is continued in effect fot that purpose." 2005 Main Volume Acts 1989, 71st Leg., ch. 62 designated the text of the section as subset. (c); inserted subsets. (a), (b), and (d); and in subsea (c) inserted "other than agricultural land" following "real property". Section 4 of Acts 1989, 71st Leg., ch. 62 provides: "This Act takes effect September I, 1989, and applies only to a cause of action that accrues on or after that date. An action that accrued before the effective date of this Act is governed by the law in effect at the time the action accrued, and that law is continued in effect for that purpose." Acts 1997, 75th Leg., ch. 56, in the introductory language of subset. (b), inserted"or invites another" following "permission to another", and inserted "or to whom the invitation is extended" in subd. (b)(2) and (3). Acts 1999, 76th Leg., ch. 734 added subsets. (e) to (g). Section 2 of Acts 1999, 76th Leg., ch. 734 provides: "This Act takes effect September 1, 1999, and applies only to a cause of action that accrues on or after that date. An action that accrued before the effective date of this Act is governed by the law applicable to the action immediately before the effective date of this Act, and that law is continued in effect for that purpose." Acts 2003, 78th Leg., ch. 204 added subset. (h) © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://print.westlaw.com/delivery.html?dent=atp&format=HTMLE&dataid=B005580000... 11 /10/2005 Page 5 of 13 Page 4 V.T.C.A, Civil Practice & Remedies Code § 75.002 Acts 2003, 78th Leg., ch. 739 amended subsecs. (e) to (g) which prior thereto read: "(e) In this section, "recreation" means, in addition to its meaning under Section 75.001, the following activities only if the activities take place inside a facility owned, operated, or maintained by a municipality: "(1) hockey and in-line hockey; and "(2) skating, in-line skating, roller-skating, skateboazding, and roller-blading. "(f) Subsection (e) limits the liability of a municipality only for those damages arising directly from a recreational activity described in Subsection (e) but does not limit the liability of a municipality for gross negligence or acts conducted in bad faith or with malicious intent. "(g) Any municipality that owns, operates, or maintains a facility in which the recreational activities described in Subsection (e) aze conducted shall post and maintain a cleazly readable sign in a clearly visible location on or near the building. The sign shall contain the following warning language: "WARNING "TEXAS LAW (CHAPTER 75, CIVIL PRACTICE AND REMEDIES CODE) LIMITS THE LIABILITY OF A MUNICIPALITY THAT OWNS, OPERATES, OR MAINTAINS A FACILITY IN WHICH HOCKEY, IN-LINE HOCKEY, SKATING, IN-LINE SKATING, ROLLER-SKATING, SKATEBOARDING, OR ROLLER-BEADING ARE CONDUCTED FOR DAMAGES ARISING DIRECTLY FROM SUCH RECREATIONAL ACTIVITIES." Section 2 of Acts 2003, 78th Leg., ch. 739 provides: "This Act applies only to a cause of action that accrues on or after the effective date [Sept. 1, 2003) of this Act. A cause of action that accrues before the effective date of this Act is governed by the law in effect immediately before that date, and that law is continued in effect for that purpose." Prior Laws: Acts 1965, 59th Leg., p. 1551, ch. 677, § I. Acts 1981, 67th Leg., p. 934, ch. 349, § 1. Vernon's Ann.Civ.St. art. lb, § 1. LIBRARY REFERENCES 2005 Electronic Pocket Part Update Negligence X1045, 1191 to 1197. Westlaw Topic No. 272. C.J.S. Negligence §§ 399, 404 to 431, 538, 569. RESEARCH REFERENCES 2005 Electronic Pocket Part Update Encyclopedias ~ 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://print.westlaw.corn/delivery.html?dest=atp&format=HTMLE&dataid=B005580000... 11 /10/2005 Revised ]O-OS-OS PUBLIC PARTICIPATION FORM FOR KERR COUNTY CONIMISSIONERS' COURT Instructions: Fill out all appropriate blanks. Please print or write legibly. Present to the County Clerk prior to the time that the Agenda Item (or Items) you wish to address aze discussed. If yon are haudiag out any material or documents to the Court, please make sure you have one extra for the Clerk to ensure that one is put into the record. Name: ~o r..ICF S ~^ 1 w ke..t Address: 2l ~ & 2Zl N~ a ~i/o-ti YID ~.a,~'~7c~" F~tl ~nfi v Telephone: ~~t) 6 3 `f 2 $ rl $ PlaceafEmployment: ~.G~'iY`c¢~ Employment Telephone: Do you represent any particular group or organization? Yes ~ No If you represent a group or organization, please state the name, address and telephone number of such group or organization. Which agenda Item (or Items) do you wish to address? ,S K2 ~t_. ~oa~ ('dn-fit- ~'~t ~ ~'ir lea rx- r In general, aze you for or against such Agenda Item (or Items)? For © Against Sign e NOTE: This Public Participation Form must be presented to the County Clerk prior to the time the agenda item(s) are discussed Once you reach the podium alease state your name and wholwhat you rearesent clearly for the court reporter to accurately record who you are.