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HomeMy WebLinkAboutR-2003-065 Yakima YMCA AgreementRESOLUTION NO. R-2003-65 A RESOLUTION authorizing the City Manager of the City of Yakima to execute an agreement between the City of Yakima and the Young Men's Christian Association for the operation and maintenance of the public swimming pool at Miller Park during the summer of 2003. WHEREAS, the City needs assistance in operating and maintaining the public swimming pool at Miller Park; and WHEREAS, the YMCA has the experience and expertise necessary to provide said services, and YMCA is willing to operate and maintain Miller swimming pool between June 23 through August 9, 2003, in accordance with the terms and conditions of the attached agreement; and WHEREAS, the City Council deems it to be in the best interest of the City of Yakima to authorize execution of the attached agreement with the Young Men's Christian Association for the operation and maintenance of the swimming pool at Miller Park during the summer of 2003, now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager is hereby authorized and directed to execute the attached and incorporated "Miller Park Pool Agreement" between the City of Yakima and the Young Men's Christian Association for the operation and maintenance of the swimming pool at Miller Park during the summer of 2003. ADOPTED BY THE CITY COUNCIL this 6th day of May, 2003. ATTEST: City Clerk (1k)res/Parks Miller Pool YMCA 2003.pm MILLER PARK POOL AGREEMENT BETWEEN THE CITY OF YAKIMA AND THE YAKIMA FAMILY YMCA This POOL OPERATION AND MAINTENANCE AGREEMENT, hereinafter "Agreement," is made and entered into this day of May, 2003, by and between the City of Yakima, a Washington State municipal corporation, hereinafter the "City," and the Yakima Family YMCA, a non-profit organization, hereinafter "YMCA." WHEREAS, the City needs assistance in operating and maintaining the public swimming pool at Miller Park during calendar year 2003. WHEREAS, YMCA is willing to operate and maintain said swimming pool between June 23 through August 9, 2003, in accordance with the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the mutual covenants, promises, and agreements set forth herein, it is agreed by and between the City and YMCA as follows: 1. Scope of Services. a. City of Yakima. The City shall: i. Prepare the Miller Park pool and corresponding facilities for initial opening 011 June 23, 2003. This preparation shall include painting the pool. ii. Have a Parks and Recreation employee visit said pool each day prior to opening between June 23 through August 9, 2003, in order to check the water quality and perform necessary water quality tests. iii. Provide rescue equipment in good working order necessary for the operation of the pool. iv. Supply an operating cash register and register tape for the pool facilities. v. Except as otherwise specified herein, provide pool and building maintenance. vi. Except as otherwise specified herein, be responsible for all costs associated with the daily maintenance and operation of the pool and corresponding facilities, including but not limited to pool chemicals, toilet paper, paper towels, soap for soap dispensers, cleaning supplies, and utilities (i.e., phone, water and electricity). Page 1 (Ik)agr/parks ymca miller pool 03.pm vii. Be responsible for all necessary repairs and improvements to said pool and facilities except to the extent that such repairs and improvements are necessary due to the negligence of YMCA, its officers, employees, agents, or volunteers. viii. Prepare pool and corresponding facilities for closure at the end of the season. ix. Maintain open communication with YMCA representatives. b. YMCA. YMCA shall: Operate in a safe and legal manner and generally maintain the public swimming pool and corresponding facilities at Millers-3ot Yakima, Washington, from June 23 through August 9, 2003. Such maintenance shall include, but not be limited to, daily cleaning and disinfecting of the restrooms and locker rooms, daily cleaning and chemical treatment (if necessary) of the pool, daily clean up of litter at the pool and facilities, taking chemical readings at least four times a day, vacuuming the facilities at least once a week with a vacuum provided by the City. ii. Immediately report any pool and building problems to City representatives. iii. Document all accidents and incidents following YMCA documentation procedures. iv. Determine the days and hours that the facilities and pool shall be open to the public between June 23 through August 9, 2003. v. Provide all necessary personnel to operate and maintain the pool and facilities during said time period, including, but not limited to, providing at least one (1) lifeguard at the facility during all times that the pool is open and available for use by the public. vi. Collect all required fees from users of the pool facilities; provided, however, that as part of the consideration for operating the pool, YMCA members may participate in "open swims" free of charge. The rate of the pool use fees shall be maintained at the same level as was set forth by the City Council as adopted within the 2002 Parks and Recreation fee ordinance. All monies collected for "open swims" shall be provided to the City by September 1, 2003. vii. At the conclusion of this Agreement but no later than October 1, 2003, the Yakima Family YMCA will provide to the Aquatic Supervisor a season report to include attendance information and expenditures and revenues for operation of Miller Pool Page 2 (1k)agr/parks ymca miller poo103.pm viii. At the termination of this Agreement, YMCA shall leave the City's pool facility and general pool area in the same condition as it was when YMCA initiated its operation and maintenance of the pool on June 23, 2003. At the time of termination and upon vacation of the premises by YMCA, YMCA shall be responsible for the costs of any repairs, improvements or cleaning that the City determines is necessary due to the negligence of YMCA, its officers, employees, agents, or volunteers. ix. Maintain open communications with City representatives. 2. Consideration. As consideration for operating and maintaining the pool and corresponding facilities in accordance with the terms and conditions of this Agreement, the City shall pay the YMCA the sum of Sixteen Thousand Dollars ($16,000.00) upon full execution of this Agreement, and the YMCA shall also be entitled to retain all revenues received for swim lessons and rental groups at the pool between June 23 through August 9, 2003. In the event that this Agreement is terminated by either party prior to August 9, 2003, YMCA shall return/remit to the City the pro rata portion of the Sixteen Thousand ($16,000.00) reflecting the number of days the pool would have been open and operational but for the termination. 3. Concessions. As additional consideration for the services provided under this Agreement, the YMCA shall also be allowed to operate concessions at the pool facilities under the following conditions: a. Any vending machine operated by the City shall remain fully operational (no "out of order" signs shall be placed on them by YMCA). b. The location of the concession shall be in an area approved by the City Aquatic Supervisor. c. For food concessions, proper food handling permits shall be posted. d. No glass containers are permitted. 4. Term. The term of this Agreement shall commence upon execution hereof and terminate at midnight of October 1, 2003, unless sooner terminated by either party in accordance with Section 17 of this Agreement. 5. Independent Contractor Status of YMCA. YMCA and the City understand and expressly agree that YMCA is an independent contractor in the performance of each and every part of this Agreement. YMCA, as an independent contractor, assumes the entire responsibility for carrying out and accomplishing the services required under this Agreement. Additionally, and as an independent contractor, YMCA and its employees shall make no claim of City employment nor shall claim against the City any related employment benefits, compensation, social security, and/or retirement benefits. Nothing contained herein shall be interpreted as creating a relationship of servant, employee, partnership or agency between YMCA or any officer, employee or agent of YMCA and the City. Page 3 (Ik)agr/parks ymca miller pool 03.pm 6. Taxes and Assessments. YMCA shall be solely responsible for compensating its employees and for paying all related taxes, deductions, and assessments, including but not limited to, federal income tax, FICA, social security tax, assessments for unemployment and industrial insurance, and other deductions from income which may be required by law or assessed against either party as a result of this Agreement. In the event the City is assessed a tax or assessment as a result of this Agreement, YMCA shall pay the same before it before it becomes due. 7. Nondiscrimination Provision. During the performance of this Agreement, YMCA shall not discriminate in violation of any federal, state, and/or local law and/or regulation on the basis of race, age, color, sex, religion, national origin, creed, marital status, political affiliation, or the presence of any sensory, mental or physical handicap. This provision shall include but not be limited to the following: employment, upgrading, demotion, transfer, recruitment, advertising, layoff, or termination, rates of pay or other forms of compensation, selection for training, and operation of the pool under this Agreement. 8. The Americans With Disabilities Act. YMCA agrees to comply with the Americans With Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (ADA), and its implementing regulations, and Washington State's anti -discrimination law as contained in RCW Chapter 49.60 and its implementing regulations. The ADA provides comprehensive civil rights to individuals with disabilities in the area of employment, public accommodations, state and local government services, and telecommunications. 9. Compliance With Law. YMCA agrees to perform all services under and pursuant to this Agreement in full compliance with any and all applicable laws, rules, and regulations adopted or promulgated by any governmental agency or regulatory body, whether federal, state, local, or otherwise. 10. No Insurance. It is understood the City does not maintain liability insurance for YMCA, its directors, officers, employees, representatives, agents, or volunteers. 11. Indemnification and Hold Harmless. a. YMCA agrees to protect, defend, indemnify, and hold harmless the City, its officers, elected officials, agents, and employees from any and all claims, demands, losses, liens, liabilities, penalties, fines, lawsuits, and other proceedings and all judgments, awards, costs and expenses (including attorneys' fees and disbursements) caused by or occurring by reason of any negligent act and/or omission of YMCA, its directors, officers, employees, agents, and/or volunteers arising out of or in connection with the performance or nonperformance of the services, duties, and obligations required under this Agreement. b. In the event both the City and YMCA are negligent, YMCA's liability for indemnification of the City shall be limited to its contributory negligence for any resulting suits, actions, claims, liability, damages, judgments, costs, and expenses that can be apportioned to YMCA, its directors, officers, employees, agents, and/or volunteers. Page 4 (Ik)agr/parks ymca miller pool 03.pm c. Nothing contained in this Section or this agreement shall be construed to create a liability or a right of indemnification in any third party. 12. Liability Insurance. On or before the date this Agreement is fully executed by the parties, YMCA shall provide the City with a certificate of insurance as proof of liability insurance with a minimum liability limit of One Million Dollars ($1,000,000.00) combined single limit bodily injury and property damage. The certificate shall clearly state who the provider is, the amount of coverage, the policy number, and when the policy and provisions provided are in effect (any statement in the certificate to the effect of "this certificate is issued as a matter of information only and confers no right upon the certificate holder" shall be deleted). Said policy shall be in effect for the duration of this Agreement. The policy shall name the City, its officers, elected officials, agents, and employees as additional insureds, and shall contain a clause that the insurer will not cancel or change the insurance without first giving the City thirty (30) calendar days prior written notice (any language in the clause to the effect of "but failure to mail such notice shall impose no obligation or liability of any kind upon the company" shall be crossed out and initialed by the insurance agent). The insurance shall be with an insurance company or companies rated A -VII or higher in Best's Guide and admitted in the State of Washington. 13. Assignment. This Agreement, or any interest herein, or claim hereunder, shall not be assigned or transferred in whole or in part by YMCA to any other person or entity without the prior written consent of the City. In the event that such prior written consent to an assignment is granted, then the assignee shall assume all duties, obligations, and liabilities of YMCA stated herein. 14. Severability. a. If a court of competent jurisdiction holds any part, term or provision of this Agreement to be illegal, or invalid in whole or in part, the validity of the remaining provisions shall not be affected, and the parties' rights and obligations shall be construed and enforced as if the Agreement did not contain the particular provision held to be invalid. b. If any provision of this Agreement is in direct conflict with any statutory provision of the State of Washington, that provision which may conflict shall be deemed inoperative and null and void insofar as it may conflict, and shall be deemed modified to conform to such statutory provision. c. Should the City determine that the severed portions substantially alter this Agreement so that the original intent and purpose of the Agreement no longer exists, the City may, in its sole discretion, terminate this Agreement. 15. Non -Waiver. The waiver by the City or YMCA of the breach of any provision of this Agreement by the other party shall not operate or be construed as a waiver of any subsequent breach by either party or prevent either party from thereafter enforcing any such provision. 16. Drafting of Agreement. Both the YMCA and the City have participated in the drafting of this Agreement. As such, it is agreed by the parties that the general contract rule of law that ambiguities in the contract language shall be construed against the drafter of a contract shall Page 5 (1k)age/parks ymca miller pool 03.pm have no application to any legal proceeding, arbitration and/or action in which this Agreement and its terms and conditions are being interpreted and/or enforced. 17. Termination. Either the City or YMCA may terminate this Agreement, with or without cause, by giving the other party ten (10) days written notice of termination. 18. Notices. Unless stated otherwise herein, all notices and demands shall be in writing and sent or hand delivered to the parties to their addresses as follows: TO CITY: TO YMCA: Denise Nichols, Manager, Parks & Recreation Division City of Yakima Public Works 2301 Fruitvale Boulevard Yakima, WA 98902 i 7 U tit- Gf( AJact,. yet G41,4- 9890/ or to such other addresses as the parties may hereafter designate in writing. Notices and/or demands shall be sent by registered or certified mail, postage prepaid or hand delivered. Such notices shall be deemed effective when mailed or hand delivered at the addresses specified above. 19. Integration. This written document constitutes the entire agreement between the City and YMCA. There are no other oral or written Agreements between the parties as to the subjects covered herein. No changes or additions to this Agreement shall be valid or binding upon either party unless such change or addition be in writing and executed by both parties. 20. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. 21. Venue. The venue for any action to enforce or interpret this Agreement shall lie in the Superior Court of Washington for Yakima County, Washington. CITY OF YAKIMA YAKIMA FAMILY YMCA By: By: Dick Zais, City Manager Its: ATTEST: City Clerk City Contract No. „MO A — 4,16, Page 6 (Ik)agr/parks ymca miller pool 03,pm BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. /.3 For Meeting of May 6, 2003 ITEM TITLE: A Resolution Authorizing an Agreement with the Yakima YMCA to Operate Miller Pool for the 2003 Season SUBMITTED BY: Chris Waarvick, Director of Public Works Denise Nichols, Parks 8v Recreation Manager CONTACT PERSON/TELEPHONE: Denise Nichols, 576-6416 SUMMARY EXPLANATION: City Council is respectfully requested to consider the attached resolution authorizing an agreement with Yakima YMCA to operate Miller Pool for the 2003 season. The YMCA provided these services last summer and staff appreciates the sentiment and willingness the YMCA provides through its experience and expertise assisting the City with operation and maintenance of this public swimming pool at Miller Park. Resolution X Ordinance Other (Specify) Agreement Contract X Mail to (name and address): Please Provide documents to Parks & Recreation for execution. Phone: Funding Source: Parks & Recreation Budget -- $16,000 APPROVED FOR SUBMITTAL: C City Manager STAFF RECOMMENDATION: Staff respectfully requests Council to adopt the attached resolution authorizing the YMCA to operate Miller Pool for the 2003 summer season. BOARD/COMMISSION RECOMMENDATION: The Parks and Recreation Commission, has discussed the Miller Pool opportunity and supports the YMCA providing this service to the public. COUNCIL ACTION: Resolution adppted. RESOLUTION NO. R-2003-65