2008 YMCA Pool AgreementRESOLUTION NO. 2008 - 12
COUNCILMEMBER ABBOTT INTRODUCED THE FOLLOWING RESOLUTION:
WHEREAS, an Agreement between the City of Blair, Nebraska, and Blair Area Young
Men's Christian Association ( "YMCA ") has been prepared and presented to the City Council
providing for the terms and provisions for operation of the Blair Swimming Pool for the 2008
season, a copy of which Agreement is attached hereto, marked Exhibit "A" and by this reference
made a part hereof, and
WHEREAS, the terms and conditions thereof are acceptable to the municipality.
NOW, THEREFORE, BE IT RESOLVED that said Agreement referred to hereinabove is
hereby adopted and accepted by the City of Blair and the Mayor and City Clerk are hereby authorized
and directed to execute same on behalf of the municipality.
COUNCIL MEMBER ABBOTT MOVED THAT THE RESOLUTION BE ADOPTED AS READ,
WHICH SAID MOTION WAS SECONDED BY COUNCIL MEMBER WOLFF. UPON ROLL
CALL, COUNCIL MEMBERS VOTING "AYE" SHOTWELL, SCHEVE, STEWART, FANOELE,
ABBOTT, WOLFF, BIFFAR AND CHRISTIANSEN. COUNCIL MEMBERS NONE VOTING
"NAY ", THE MAYOR DECLARED THE FOREGOING RESOLUTION PASSED AND
ADOPTED THIS 11TH DAY OF MARCH, 2008.
ATTEST:
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Gv+
(SEAL)
BRENDA R. WHEELER, CITY CLERK
CITY OF BLAIR, NEBRASKA
S REALPH, MAYOR
) :ss:
WASHINGTON COUNTY )
STATE OF NEBRASKA
BRENDA R. WHEELER hereby certifies that she is the duly appointed, qualified and acting
City Clerk of the City of Blair, Nebraska, and that the above and foregoing Resolution was passed
and adopted at a regular meeting of the Mayor and City Council of said city held on the 1 lth day of
March, 2008.
/ / bW
BRENDA R. WHEELER, CITY CLERK
AGREEMENT
THIS AGREEMENT is made and entered into this 11th day of March, 2008, by and
between the City of Blair, a municipal corporation in Washington County, Nebraska, organized
and existing under the laws of the State of Nebraska, hereinafter referred to as "City ", and Blair
Family YMCA, hereinafter referred to as "Operator ".
WITNESSETH:
WHEREAS, the City owns a public swimming pool located at 16 & Butler Streets in Blair,
Nebraska, hereinafter referred to as "Pool "; and,
WHEREAS, the Operator has proposed operation of the Pool; and
WHEREAS, the Operator has determined that Operator can successfully manage the Pool;
and,
WHEREAS, the parties hereto desire to enter into an Agreement for the operation of the
Pool in accordance with the terms, provisions, and conditions set forth herein below.
NOW, THEREFORE, for and in consideration of the mutual covenants and agreements
herein contained, the City and Operator do hereby mutually undertake, promise, agree, and
contract for itself and its successors and assigns as follows:
ARTICLE I. — TERM OF AGREEMENT
Subject to the terms, provisions, covenants and conditions set forth hereinafter below and,
unless earlier terminated in accordance therewith, the term of this Agreement shall be for the
swimming season commencing on May 24, 2008, and ending August 10, 2008; provided, however,
that Operator shall operate the Pool from and after August 10, 2007, as may be directed by the
City Council for City, said direction to include the days and hours of operation, and, if so
directed by the City Council, Operator shall receive compensation at the rate of $75.00 per hour
during such period of operation.
ARTICLE II. — RIGHT TO OPERATE POOL
A. The City hereby grants to the Operator the exclusive right and privilege to operate,
manage, and maintain the public swimming pool located at 16 and Butler Streets in the City of
Blair, Nebraska, during the term of this Agreement, subject to and expressly conditioned upon the
terms, provisions, covenants, and conditions as set forth in this Agreement and the timely
performance by the Operator in strict compliance therewith.
B. This Agreement constitutes neither a conveyance nor a lease, but is a management
agreement to manage, operate, and maintain the Pool for the purpose of providing a public
swimming pool. Nothing in this Agreement shall be construed to provide Operator with any
ownership, right, or interest in the Pool.
C. Nothing in this Agreement shall be construed to provide authority for control by
Operator over any portion of Steyer Park, its parking areas, grounds, improvements, or other
facilities.
D. In the event the Pool is substantially destroyed by fire, explosion, the elements, the
public enemy or other casualty or so damaged, the City shall be under no obligation to repair,
rebuild, or reconstruct the premises
E. No alterations, additions, improvements, or physical changes to the Pool shall be
erected, installed, or permitted by Operator or any person at its request without the prior express
written consent and approval of the Director of Public Works.
ARTICLE III. — ACTIVITIES AND USES OF POOL
A. This Agreement grants the exclusive privilege of operating, managing, and maintaining
the Pool as a public swimming facility for and on behalf of the City. Operator covenants and
agrees that the premises shall be used exclusively for the operation of a public swimming pool and
the provision of services and merchandise attendant to such an operation.
B. The Operator acknowledges and agrees that the City has the right to adopt and enforce
reasonable park rules and regulations and that it and all of its employees, agents, and servants will
faithfully observe and comply with all rules and regulations as may from time to time be
promulgated by the City Council.
C. The Operator will not suffer or permit to be maintained upon the premises or upon the
exterior of any improvements or appurtenances thereto any billboards, signs, or other advertising
media except those which have prior written approval of the Director of Public Works; nor will the
Operator suffer or permit to be maintained within any structure situated upon or within the
premises any signs or other advertising media which concerns goods or services other than those
furnished or offered for sale by the Operator in connection with the operation of the pool.
ARTICLE IV. — DUTIES AND OBLIGATIONS OF OPERATOR AND CITY
A. Utilities. The City shall be responsible for all electrical, water, and sewage charges
applicable to the Pool during the term of this Agreement including all utility charges incurred by
the City in the process of providing the pool start up and close down operations.
B. Chemicals and Other Supplies. The Operator shall have the responsibility for the order,
purchase, and delivery of all chemicals for water treatment and other purposes as required for the
proper and lawful operation of the Pool. The City agrees to reimburse Operator for the cost of all
chemicals for water treatment and other purposes as required for the proper and lawful
operation of the Pool up to a maximum amount of $7,500.00; provided further, that City agrees
to remit such reimbursement to Operator within thirty (30) days of receipt of invoices or other
documentation establishing the chemical expense.
The Operator shall provide all supplies, equipment, hardware, and other items necessary
for the proper and lawful operation of the pools, bath houses, and related functions. Additionally,
the Operator shall provide all equipment repair, and maintenance expenses up to $250.00.
C. Maintenance. The City shall be responsible for all maintenance and repairs for all pool
and bath house related items including, but not limited to, all mechanical systems and associated
water and electrical supply lines between the pools and their meters and all improvements located
within and including the pool fence.
D. Trash Disposal. The Operator shall provide adequate sanitary handling and disposal of
all trash, garbage, and other refuse located within the pool area and within 100 feet of the pool's
fence /bath house perimeter. The Operator shall deposit all waste materials in trash receptacles
which shall be provided and serviced by the City. Piling of boxes, cartons, barrels, or other similar
items in an unsightly or unsafe manner on or about the premises is forbidden.
E. Personnel. All recruitment, hiring, training, supervision, and payment of pool staff for
the Pool shall be the responsibility of the Operator. Operator shall comply with all laws,
ordinances, rules, and regulations regarding training, licensing, and certification of pool staff,
including lifeguards, managerial personnel, and pool operators. Operator shall be solely
responsible for payment of all taxes, workers compensation, or other expenses of employment.
F. Concessions. The Operator may provide concessions to the swimming public which, in
the Operator's opinion, meets the public demand. Operator shall comply with Nebraska State
Health Department rules and regulations pertaining to food and beverages in the pool area.
ARTICLE V. — POOL START UP — CLOSE DOWN — MAINTENANCE
A. Start Up. The City agrees to use its best diligence to perform all pool start up functions
on or before May 24, 2008, in preparation for a May 24, 2008 opening of the contract year and
provide the pool to the Operator in an operational condition.
B. Consultation. The City agrees to be available to provide advice and consultation
regarding pool operation as requested by the Operator.
C. Close Down. The City agrees to perform all close down functions for the end of season
pool closing. The City and the Operator shall coordinate to insure efficient and timely close down
procedures. In the event the City is unable to perform such procedures due to the acts of the
Operator or its employees or agents and incurs costs, injuries, or damage, Operator agrees to
reimburse City therefore.
D. Maintenance of Grounds. The City agrees to maintain the park grounds around the pool
to City standards. Such maintenance shall include the mowing of grass, provision of trash
receptacles and providing for the removal of such trash.
E. Pool Pumps. The City will provide, in proper working condition, both a chlorine and
acid pump and will replace or repair these pumps as necessary during the season. The City will
provide a vacuum pump in an operational condition.
ARTICLE VI. — POOL OPERATIONS
A. It is the City's objective to provide the highest quality of service to the public. To
accomplish this objective the Operator agrees to manage and operate the Pool with energy, fidelity,
diligence, and dedication and in full compliance with all of the provisions of this Agreement.
Operator further agrees to:
1. Operate the Pool as authorized herein during days and hours which offers the
maximum convenience to the public; provided, however, that the pool shall be open
until 8:00 p.m. The Operator shall, on or before May 24, 2008, submit for approval
by the Director of Public Works a schedule of days and hours of operation and shall
submit to the Director for approval any changes to such schedule a minimum of 10
days prior to the proposed change.
2. Employ persons who are clean, courteous, efficient, and neat in appearance. The
Operator shall not employ any person or persons in or about the premises who shall
use improper language or act in a loud or boisterous or otherwise improper or
unsafe manner.
3. Eject or direct the removal of patrons who are boisterous, loud, using improper
language or acting in an unsafe manner. The City expressly grants the Operator and
its employees such authority.
B. Operator may offer any and all public swim related programs which can be conducted
safely and within regulatory requirements at the Pool. These programs may include, but are not
limited to, open swim lessons, swim teams, and pool rentals.
In the event of inclement weather, Operator may, at its option, use the YMCA indoor pool
for swimming lessons and swim team practice or functions on a temporary basis; provided
however, such temporary usage of the YMCA pool shall be at no additional cost or expense to the
City.
C. Operator, its employees, agents or servants, shall at all times during the term of this
Agreement comply with the laws and regulations of the United States of America, the State of
Nebraska, Washington County, and all applicable ordinances, codes, and regulations of the City of
Blair including, but not limited to, requirements governing the operation of the public swimming
pool. Violations thereof by Operator, its agents or employees or revocation of permits or licenses
required for lawful and proper pool operation or for the performance of this Agreement shall be
cause for termination of this Agreement at the sole option of the City. In addition, Operator shall
be thoroughly familiar with and knowledgeable about the provisions of the Nebraska Swimming
Pool Handbook published by the Nebraska State Department of Health.
ARTICLE VII. — POOL CHARGES
The rates to be charged for pool use for the 2008 season are as follows:
Youth Membership $33.50
Adult Membership $50.00
Family Membership $95.00
Youth Daily $ 3.00
Adult Daily (18 and older) $ 4.00
Swimming Lessons per Session $35.00
Baby Pool Free Admittance
Pool Party $75.00 per hour
All fees and charges shall be consistently applied and no special or reduced fees shall be
offered to any group or individual except for parents of children using the baby pool shall not be
charged for admittance if they do not use the main pool. Each parent shall wear a wrist band
designating them as such.
ARTICLE VIII. — POOL IMPROVEMENT AND MAINTENANCE
ITEM EXCEEDING $250.00
Nothing in this Agreement shall require or obligate the City to provide any repair,
maintenance, or improvement to the Pool except as specifically defined herein. The City may
individually evaluate any repairs and determine whether it will accept financial responsibility for
such repair, maintenance, or improvement.
In the event both parties decline to make repairs essential to the proper and lawful operation
of the pool, this Agreement will terminate as further described in Article IX.
Notwithstanding the foregoing, the Operator agrees to repair or pay for all damage to the
City's property caused by the wrongful or negligent acts or omissions of the Operator, its agents,
servants, employees, contractors, invitees, guests, patrons, and suppliers arising out of, whether
directly or indirectly, the Operator's operation of the pool.
ARTICLE IX. — TERMINATION
A. In addition to all other remedies available to the City, this Agreement shall be subject to
cancellation by the City should any one or more of the following events occur:
1. If the Operator shall file a petition of bankruptcy; or if proceedings in bankruptcy
shall be instituted against it and it is thereafter adjudicated a bankrupt pursuant to
proceedings; or if a court shall take jurisdiction of the Operator and its assets pursuant to
proceedings brought under the provisions of any Federal reorganization act; or if a
Receiver for the Operator's assets is appointed; or if the Operator shall be divested of its
rights, power, and privileges under this Agreement by other operation of law.
2. If the Operator shall abandon and discontinue the conduct of the Pool operation.
3. If the Operator shall fail to perform, keep, and observe any of the terms,
provisions, covenants, and conditions contained in this Agreement to be performed, kept,
and observed by it.
4. If the Operator shall fail to abide by all applicable laws, ordinances, rules, and
regulations of the United States, State of Nebraska, Washington County, or the City of
Blair.
5. Provided that, upon the happening of any of the contingencies recited in
subparagraphs 2, 3, and 4 above, the City shall give written notice to the Operator to correct
or cure same and if, within seven (7) days from the date of such notice, the default to
perform or breach complained of shall not have been corrected in a manner satisfactory to
the City, then the City shall have the right to terminate this Agreement, without further
notice, to enter upon and take full possession of the premises and facilities and to operate
or close the Pool. Upon such happening, this Agreement shall automatically be deemed to
have been irrevocably breached by the Operator and shall terminate.
6. In the event this contract is terminated prior to August 12, 2008, the Operator
shall remit to the City the prorata share of membership and season fees collected by the
Operator. Said proration shall be based upon the number of days of operation of the Pool
by the Operator and the remaining number of days until August 12, 2008.
7. This Agreement will terminate and the pool shall close in the event that both the
Operator and City decline to provide repairs necessary for the proper and lawful operation
of the pool.
B. Operator acknowledges and agrees that all rights that it may have under this Agreement
shall terminate and does hereby expressly release and waive any rights, claims, or causes of action
it may have against the City or its successors in interest which may or could arise, either directly
or indirectly as a result of any such action.
C. Without prejudice to any other remedy which otherwise might be used for any breach
of this Agreement, if the City is required or elects to pay any sum or incurs any obligation or
expense by reason of the failure, neglect, or refusal of the Operator to perform any one or more of
the terms, conditions, or covenants of this Agreement or as a result of any act or omission of
Operator contrary to said terms, conditions, or covenants, the sum so paid or the expense so
incurred, including all interest, costs, damages, and penalties shall become a financial obligation
of the Operator, thereafter due hereunder and each and every part of the same shall be and become
revenue recoverable by the City.
ARTICLE X. — RECORDS AND REPORTS
A. Operator shall at all times during the term of this Agreement keep or cause to be kept
true and complete books, records, and accounts of all fees, charges, and expenses associated with
this Agreement.
B. The City shall have the right to conduct audit examinations and to examine the books
and records of Operator in connection with the operation of the pool facility and attendant sales and
services.
C. On or before the 30 day of October, 2008 Operator shall submit to the Office of the City
Administrator a statement showing "Gross Receipts" received by the Operator from the operation
of said facility for that swimming season. The term "Gross Receipts" includes fees received from
passes, pool memberships, daily swim fees, lessons, pool rentals, swim team charges, and any and
all other fees charged at the pool, and revenues from food and beverage sales of any and all other
sundry items.
D. Operator shall comply with Nebraska State Health Department rules, regulations, and
statutes pertaining to record keeping including but not limited to reporting of pool operation and
accident.
ARTICLE XI. — INDEMNIFICATION AND INSURANCE
A. The Operator covenants and agrees to indemnify and hold harmless the City of Blair, its
officers, agents, and employees, their successors and assigns, individually or collectively, from and
against all liability for any fines, claims, suits, demands, actions or causes of action of any kind and
nature for personal injury or death, or property damage in any way arising out of or resulting from
any activity or operation of the Operator on the premises or in connection with its use of the
premises or facilities and the Operator further agrees to pay all expenses in defending against any
claims made against the City; provided, however, that the Operator shall not be liable for any injury,
damage or loss occasioned by the sole negligence or willful misconduct of the City, its agents, or
employees. The Operator and the City shall give prompt and timely notice of any claim made or
suit instituted which in any way, directly or indirectly, contingently or otherwise, affects or might
affect either party.
B. The Operator shall procure and maintain in effect during the term of this Agreement,
with companies licensed to do business in the State of Nebraska, public liability insurance with, at
minimum, policy limits of $1,000,000 for bodily injury or death and $50,000 for property damage.
Said policy shall expressly include the City of Blair as an additional named insured.
A certified copy of the policy or a certificate evidencing the existence thereof shall be
delivered to the Director of Public Works within ten (10) days after the execution of this
Agreement. Each such copy shall contain a valid provision or endorsement that the policy may not
be canceled, terminated, or materially changed or modified without giving thirty (30) days written
advance notice thereof to the City. Each such policy shall contain an additional endorsement
providing that the insured's carrier shall not, without obtaining express advance permission from
the City, raise any defense involving in any way the immunity of the City of Blair, officers, agents
or employees, the governmental nature of the City, or the provisions of any statutes respecting suits
against the City.
C. The Operator shall furnish to the City satisfactory evidence that it carries Workers
Compensation Insurance in accordance with the laws of the State of Nebraska.
D. In the event the Operator shall fail to obtain any such insurance or shall permit any such
insurance or other type of indemnity to lapse or become void, the City may terminate this
Agreement.
ARTICLE XII. — INDEPENDENT CONTRACTOR
It is understood and agreed by and between the parties that any and all acts of the Operator
or its employees, agents, or servants performed pursuant to the terms of this Agreement shall be
undertaken as independent contractors and not as employees of the City.
ARTICLE XIII. — ASSIGNMENT
The activities and uses to which the pool property may be put and the privileges, rights, and
obligations authorized herein are personal. The Operator agrees that it will not assign its rights
granted hereunder without the express written consent of the City. Any purported assignment in
violation hereof shall be void.
ARTICLE XIV. — SUCCESSOR AND ASSIGNS BOUND BY COVENANTS
All covenants, stipulations, and agreements in this Agreement shall extend to and bind the
legal representatives, successors, and assigns of the respective parties hereto.
A. Notice to the City provided for in this Agreement shall be sufficient if sent by certified
or registered mail, postage prepaid, addressed to:
Mr. Rodney Storm
City Administrator
218 South 16 Street
Blair, Nebraska 68008
and notices to the Operator, if sent by certified or registered mail, postage prepaid, addressed to:
Blair Family YMCA
Attn: Terry Gilfry
1278 Wilbur Street
Blair, NE 68008
ARTICLE XV. — GENERAL PROVISIONS
or to such other respective address as the parties may designate to each other from time to time in
writing.
B. The Operator represents that it has carefully reviewed the terms and conditions of the
Agreement and is familiar with such terms and conditions and agrees faithfully to comply with the
same to the extent to which said terms and conditions apply to its activities, authorized and
required by this instrument.
C. The term "City" as sued in this Agreement means the City of Blair, Nebraska, and,
where this Agreement speaks of approval and consent by the City, such approval is understood to
be manifested by act of the Mayor or his designated representative, except as otherwise expressly
stated in this Agreement.
D. The Operator covenants that it has not retained or employed any company or person
other than bonafide employees working solely for Operator and has not paid nor agreed to pay any
fee, commission, percentage, brokerage fee, gift, or any other award for making this Agreement.
For breach of this statement, the City of Blair shall have the right to annul this Agreement without
liability.
E. The Operator shall not, in the performance of this Agreement, discriminate or pei nit
discrimination in violation of federal or state laws or local ordinances because of race, color, sex,
age, political or religious opinions, affiliations or national origin.
F. Captions used in this Agreement are for convenience and are not used in the
construction of this Agreement.
G. The parties to this Agreement shall conform with all existing and applicable City
ordinances, resolutions, state laws, federal laws, and all existing and applicable rules and
regulations. Nebraska law will govern the terms and the performance under this Agreement.
H. The Operator covenants that it presently has no interest and shall not acquire any
interest, direct or indirect, which would conflict with the performance of services required to be
performed under this Agreement; it further covenants that, in the performance of this Agreement,
no person having any such interest shall be employed.
I. This Agreement shall not be merged into any other oral or written agreement, lease or
deed of any type. This is the complete and full agreement of the parties.
J. This Agreement contains the entire agreement of the parties. No representations were
made or relied upon by either party other than those that are expressly set forth herein. No agent,
employee, or other representative of either party is empowered to alter any of the terms hereof
unless done in writing and signed by an authorized officer of the respective parties.
K. All provisions of this Agreement and each and every document that shall be attached
shall be strictly complied with as written, and no substitution or change shall be made except upon
written direction from authorized representative.
ARTICLE XVI. — INVALID PROVISION
In the event any covenant, condition, or provision herein contained is held to be invalid by
any court of competent jurisdiction, the invalidity of any such covenant, condition, or provision
herein contained shall not affect the validity of the remainder of the covenants, conditions, or
provisions of this Agreement which shall in all respects remain a legally binding Agreement with
the invalid portion being deleted; provided that the validity of any such covenant, condition, or
provision does not materially prejudice either the City or the Operator in its respective rights and
obligations contained in the valid covenants, conditions, or provisions of this Agreement.
IN WITNESS WHEREOF, the parties have caused these presents to be signed by their duly
authorized officers.
ATTEST:
Dated at Blair, Nebraska, this 1 lth day of March, 2008.
BRENDA R. WHEELER, CITY CLERK
CITY OF BLAIR, NEBRASKA, A
MUNICIPAL CORPORATION,
B
JA' E. REALPTI, MAYOR
(SEAL)
ATTEST: BLAIR FAMILY YMCA, INC.
Secretary