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2011-09RESOLUTION NO. 2011- 9 COUNCILMEMBER STEWART 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 2011 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 STEWART MOVED THAT THE RESOLUTION BE ADOPTED AS READ, WHICH SAID MOTION WAS SECONDED BY COUNCIL MEMBER SHEPARD. UPON ROLL CALL, COUNCIL MEMBERS VOTING "AYE" SHEPARD, STEWART, KEPHART, RYAN, JENSEN, CHRISTIANSEN AND WOLFF. COUNCIL MEMBERS HALLVOTING "NAY ", THE MAYOR DECLARED THE FOREGOING RESOLUTION PASSED AND ADOPTED THIS 22ND DAY OF MARCH, 2011. CITY OF BLAIR, NEBRASKA BY J MES REALPFI, MAYO ATTEST: (SEAL) STATE OF NEBRASKA ) ) :ss: WASHINGTON COUNTY ) 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 22nd day of March, 2011. BRENDA CIT CLERK AGREEMENT THIS AGREEMENT is made and entered into this day of March, 2011, 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 ". WITNES SETH: 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 agreed to 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 2011 swimming season commencing on May 31, 2011, and ending August 14,2011; provided, however, that Operator may operate the Pool from and after August 14, 2011, as may be agreed upon in writing by the Operator and the City, said agreement to include the days and hours of operation, weather and staffing permitting. 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 City of Blair Pool Agreement Page 1 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 City. 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 City; 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 -frnshed 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 have all invoices for chemicals and City of Blair Pool Agreement Page 2 supplies directly billed to the City. All purchases of chemicals and supplies in excess of $7,500.00 must be preapproved by the City. The Operator shall provide all miscellaneous supplies, equipment, hardware, and other minor items necessary for the proper and lawful operation of the pools and related functions, and shall retain ownership and possession of such items following the expiration of this Agreement. 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 / Vending Machines. The Operator may provide concessions or vending machines 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 20, 2011, in preparation for a May 31, 2011 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. City of Blair Pool Agreement Page 3 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. City further agrees to: 1. Perform the necessary daily cleaning of the pools and pool deck on weekdays (Monday through Friday) during the swimming season, cleaning to be completed by 7:45 a.m. Monday through Thursday and by 10:00 a.m. on Friday. 2. Perform the necessary back flushing and filter maintenance of the pool, such work to be performed in coordination with of the pool manager. When emergency situations arise with the pool filters, chemical pumps, or other equipment owned by the City, pool staff should contact the appointed pool contact person from the City immediately. 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 31, 2011, submit for approval_ by the City 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. City of Blair Pool Agreement Page 4 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. 4. Perform the necessary daily cleaning of the pools and pool deck on weekends (Saturday and Sunday) during the swimming season, cleaning to be completed by l 0:00a.m. 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 March 2009 Swimming Pool Operators Manual published by the Nebraska Department of Health and Human Services. ARTICLE VII. — POOL CHARGES The rates to be charged for pool use for the 2011 season are as follows: Youth Membership Adult Membership Family Membership Youth Daily Adult Daily (18 and older) Swimming Lessons per Session Baby Pool Pool Party $35.00 $52.50 $99.50 $ 3.25 $ 4.25 $36.50 Free Admittance $105.00 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 City of Blair Pool Agreement Page 5 charged for admittance if they do not use the main pool. Each parent shall wear a wrist band designating them as such. All fees and charges shall be received and retained by the Operator. ARTICLE VIII. — MANAGEMENT FEE The City shall pay the Operator a Management Fee of $14,000 for the operation of the Pool payable in four monthly installments on the first of each month from May through August inclusive. If this Agreement is terminated according to the provisions of Article X prior to August 14, 2011, a prorated amount of the Management Fee, based upon the actual number of days the pool was operated from May 31, 2011 until August 14, 2011, will be paid. Any extension of the 2011 swimming season according to Article I will not increase the Management Fee due the Operator. ARTICLE IX. — POOL IMPROVEMENT AND MAINTENANCE ITEM EXCEEDING $1,000 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 X. — 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. City of Blair Pool Agreement Page 6 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 14, 2011, 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 14, 2011. 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. City of Blair Pool Agreement Page 7 ARTICLE XI. — 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. Operator will provide to the City daily attendance numbers, daily staffing figures and daily income figures for every month or partial month during the 2011 swimming season. This report should be submitted to the City in a timely manner, but no later than 15 days following the end of the month or the swimming season. D. On or before the 30"' day of October, 2011, 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. E. Operator shall comply with Nebraska Department of Health and Human Services rules, regulations, and statutes pertaining to record keeping including but not limited to reporting of pool operation and accident. ARTICLE XII. — 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 $100,000 for property damage. City of Blair Pool Agreement Page 8 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 City 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 XIII. — 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 XIV. —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 XV. — 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. ARTICLE XVI. — GENERAL PROVISIONS A. Notice to the City provided for in this Agreement shall be sufficient if sent by certified or registered mail, postage prepaid, addressed to: City of Blair Pool Agreement Page 9 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: Sandy Christiansen 1278 Wilbur Street Blair, NE 68008 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 permit 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, City of Blair Pool Agreement Page 10 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 XVII. — 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. (SEAL) ATTEST,- S:"c etary BLAIR FAMILY YMCA, INC. By �` President City of Blair Pool Agreement Page 11