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2005 YMCA/Fritz Burn Pool OperationsOPERATION AND MAINTENANCE AGREEMENT FOR THE FRITZ BURNS POOL THIS OPERATION AND MAINTENANCE AGREEMENT FOR THE FRITZ BURNS POOL (the "AGREEMENT") is made and executed this 15th day of February 2005 ("Effective Date"), by and between the CITY OF LA QUINTA, a municipal corporation, hereinafter referred to as the "City," and the Family YMCA of the Desert, a non-profit organization, hereinafter referred to as the "YMCA." WITNESSETH WHEREAS, the City owns a municipal swimming pool in the Fritz Burns Park located within the City of La Quinta ("Fritz Burns Pool"), and WHEREAS, YMCA desires and agrees to assume the supervision, control, maintenance, and operation of the Fritz Burns Pool for the purposes of providing recreational activities for the community under the terms of this Agreement. AGREEMENT NOW, THEREFORE, in consideration of the foregoing and the mutual promises and covenants set forth herein, YMCA and City agree as follows: 1. General Operation. YMCA shall operate and maintain the Fritz Burns Pool as a public swimming pool facility commencing on the Effective Date. YMCA and City shall determine the dates and hours that the Fritz Burns Pool shall be open to the public ("Pool Season"). The Fritz Burns Pool shall be open to the public every day during the Pool Season. Attachment "A" provides City recommended dates and hours for the Pool Season. The City and YMCA shall mutually agree upon the Pool Season no later than January 15 of each year. If the parties cannot agree upon the Pool Season by the January 15th deadline, this Agreement shall terminate effective the following day (January 16th). Notwithstanding the foregoing, upon written consent from both parties, the established Pool Season may be modified to reflect the actual use of the Fritz Burns Pool or for any other reason deemed appropriate by the parties. 2. Term. This Agreement shall automatically renew each year on the Effective Date unless either party terminates the Agreement subject to Section 3 of the Agreement. 3. Termination. Either party has the right to terminate this Agreement with or without good cause. For terminations without good cause, six months written notice of a decision to terminate shall be given by the terminating party to the non - terminating party prior to the effective date of the termination. 4. Definition of Fritz Burns Pool. a. It is understood and agreed that the pool area is part of and within a City owned and operated park and that the responsibility of YMCA under this Agreement extends only to that portion within the area outlined in red in Attachment "B" attached hereto and made a part hereof, which said area includes the Fritz Burns Pool, wading pool, pool equipment, associated pool buildings, maintenance equipment, and related personal property. When used in this Agreement, the term "Fritz Burns Pool" shall include the entire pool facility described in this Section, as shown on Attachment "B." b. YMCA and City staff shall coordinate maintenance of the Fritz Burns Park and the Fritz Burns Pool to ensure smooth operation of the overall facility. 5. Recreation Services. YMCA shall provide recreation services to the public at the Fritz Burns Pool during the Pool Season. Such services shall include adult and youth swimming activities, open swimming, and such additional recreation services as YMCA, in its discretion, may determine are desirable. 6. Major Repair and Replacement Work. The City shall be solely responsible for causing the completion of all major repairs and replacement of equipment such as plumbing, electrical, filter system, pumps, beaters and chlorinators, as well as structural repair and replacement of the facilities and equipment ("Major Repairs") within the Fritz Burns Pool premises; provided, however, that YMCA shall be solely responsible for the cost of any Major Repairs necessitated by the failure of YMCA to properly maintain and supervise the premises. The City and YMCA shall mutually agree on necessary Major Repairs of the Fritz Burns Pool and related equipment and the maximum allowable monies to be expended on such repairs in advance of the repair being performed. For non -emergency repairs, City staff shall meet and prepare a proposed budget which shall be submitted to the City Council and YMCA Board for approval no later than March 15 of each year. 7. Fritz Burns Pool Maintenance Services. The City shall be responsible for the end of the day janitorial service of the pool house and paper products for the pool house. the YMCA shall be responsible for policing the pool house and pool deck on a regular basis during use. The city shall contract with a pool service to have the pools cleaned twice weekly including all chemicals with the filters being cleaned once per quarter. the city will provide the YMCA with a portable pool vacuum which the YMCA will use daily to keep the. pool clean and sanitary for use. the YMCA will ensure the pool complies with Riverside County Health Department standards. The Fritz Burns Pool and the equipment related thereto shall be maintained in,a good and workmanlike manner, and the Fritz Burns Pool shall be maintained in good operating condition. 8. Personnel. In providing recreation services under this Agreement, YMCA shall employ only personnel who have been properly trained, certified (if appropriate for the position at issue), and screened by YMCA in accordance with YMCA's personnel policy rules, as amended from time to time. In carrying out this Agreement, YMCA shall not discriminate against any employee or applicant for employment because of sex, marital status, race, color, religion, ancestry, age, or national origin. 9. Fees. YMCA shall ha) public for use of the Fritz Burns P( programs and activities provided b, YMCA shall mutually agree on the sole discretion, shall establish fees activities. fe the right to charge and collect fees from the )ol facility and for participation in the recreation i YMCA at the Fritz Burns Pool. The City and use fees for the Fritz Burns Pool. YMCA, in its for participation in its recreation programs and 10. Payment for Operation and Maintenance. The City agrees to reimburse YMCA fifty percent (50%) of the actual operating costs incurred by YMCA over the first $5,000 with a limit of $15,000 on the part of the YMCA. The City will then share the operating costs on a 50% basis of the Pool up to a total of $15,000 on the part of the YMCA. The City shall be responsible for reimbursing the YMCA for operating costs over the $15,000 limit established by the YMCA. 11. Compliance. The operation of the Fritz Burns Pool and the recreation services shall be performed in accordance with all local, state and federal laws, and without discrimination as to marital status, religion, race, color, age, ancestry, sex, or national origin. 12. Reporting Requirements. YMCA agrees to submit to the City annual reports covering such areas as operation, maintenance, training, attendance, revenue, and expenditures of the Fritz Burns Pool. Annual reports shall be submitted to the City by November 1 of every year. 13. Insurance. YMCA represents that as of the Effective Date it carries, and shall maintain to carry during the full term of this Agreement, public liability insurance in the amount of $1,000,000.00. YMCA further agrees to name the City of La Quinta as an additional insured on said insurance in connection with the operation of the Fritz Burns Pool. YMCA shall provide the City with a Certificate of Insurance evidencing coverage for personal injury, property damage, and bodily injury. The insurance required by this Section shall not be canceled, limited or modified by YMCA or its insurer until thirty (30) days after receipt by the City of a written notice of such cancellation, limitation or modification of coverage. 14. Indemnification. Each party ("Indemnifying Party") agrees to indemnify, defend and hold the other party and other party's officers and employees ("Indemnified Parties") harmless from and against any and all losses, claims, actions, fines, penalties, demands, damages, liabilities and expenses, including attorney's fees ("Claims"), arising out of the operation and maintenance of the pool and the provision of recreation services hereunder, occasioned wholly or in part by any act or failure to act by the Indemnifying Party, its officers, agents, contractors, employees or servants. In the event the Indemnified Parties are made a party to any action, lawsuit, or other adversarial proceeding in any way involving such Claims, Indemnifying Party shall provide a defense to the Indemnified Parties and shall be obligated to promptly pay any final judgment or portion thereof rendered against the Indemnified Parties. 15. Miscellaneous: a. Entire Agreement. This writing constitutes the entire agreement of the parties with respect to the subject matter hereof and may not be modified or amended except by a writing executed by all parties. b. No Waiver. No waiver of any breach or default hereunder shall be considered valid unless in writing, and no such waiver shall be deemed a waiver of any subsequent breach or default of the same or similar nature. C. Assignment. This Agreement is personal to YMCA and any assignment of the rights and obligations set forth hereunder shall require prior written consent from the City. d. Successors. Without waiving any restrictions on transfer or assignment (either voluntary or involuntary) provided herein, this Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto, their respective heirs, personal representatives, successors and assigns. e. Invalidity. If any provision of this Agreement shall be invalid or unenforceable, such invalidity or unenforceability shall attach only to such provision, and shall not in any manner affect or render invalid or unenforceable any other severable provision of this Agreement, and this Agreement shall be carried out as if any such invalid or unenforceable provision were not contained herein. f. Headings. The Section headings contained herein are for the purposes of convenience only and are not intended to define or limit the contents of said sections. g. Counterparts. The Agreement may be executed in one or more counterparts, all of which if taken together shall be deemed one original. h. Time is of the Essence. Time is of the essence with respect to each and every term, condition, Agreement. and provision required to be performed under this i. Litigation and Attorney's Fees. In the event of any dispute between the parties hereto arising out of the terms of this Agreement, the prevailing party in such dispute shall be entitled to recover from the other party all costs and expenses, including reasonable attorney's fees (whether incurred during discovery, at trial or on appeal), court costs, and expert fees incurred by the prevailing party in such dispute, together with all costs of enforcement and/or, collection of any judgment. j. Choice of Law. This Agreement shall be deemed to be a contract under the laws of the State of California. For all purposes, it shall be construed and enforced in accordance with the internal laws of said State, without regard to the principles of conflicts of law. k. Notice. All notices, or demands of any kind, served by either party to this Agreement by the other, shall be in writing and shall be personally delivered, or mailed by registered or certified mail, return receipt requested, addressed as follows: To: The City of La Quinta P.O. Box 1504 78-495 Calle Tampico La Quinta, CA 92253 Attn: Dodie Horvitz, Community Services Director With Copy to: M. Katherine Jensen, Esq. Rutan and Tucker 611 Anton Blvd. 14th Floor Costa Mesa, CA 92626-1998 To: Family YMCA of the Desert 43-930 San Pablo Avenue Palm Desert, CA 92260 (760) 341-9622 Any party may change the address set forth herein, by giving written notice of said change to the other party. I. Amendment. This Agreement may not be modified or amended except by a writing signed by the parties hereto. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. CITY OF LA NTA, a municipal corporation By: r4mi DON ADO PH, or ATTEST: r� . EEK, City Cler FAMILY YMCA OF THE DESERT, a non-profit organization as By: ROB BALLEW, Executive Director/CEO ATTACHMENT "A" Recommended Pool Season Recommended schedule of operation: A. SPRING: Open from the first weekend in April or last weekend in March in order to ensure availability during the Spring break for school. The pool shall close on Adult Lap Swim: Monday through Friday, noon until 1 :30 p.m. and 5:00 p.m. until 6:00 p.m. Open Swim: Monday through Friday, 6:00 p.m. until 8:00 p.m. and Saturday and Sunday noon until 4:00 p.m. NOTE: Pool to close after one hour if attendance is less than twelve (12) participants. B. SUMMER: Summer officially begins the first weekend in June after school is out. The pool shall close on Labor Day. Adult Lap Swim: Monday through Friday, noon until 1 :00 p.m. and 5:00 p.m'. until 6:00 p.m. Open Swim: Monday through Friday, 1 :00 p.m. until 4:00 p.m. and 6:30 p.m. until 8:00 p.m., and Saturday and Sunday noon until 4:00 p.m. Lessons, Monday through Thursday mornings before noon and 5:00 p.m. until 6:30 p.m., and Saturday 1 1 :00 a.m. until 1 1:45 a.m. NOTE: Pool to close after one hour if attendance is less than twelve (12) participants. ATTACHMENT "B" Map of Fritz Burns Pool Facility [See attached map]