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2011-15 Family YMCA - Fritz Burns 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 1,61 Ito 1011 ("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 ("Fritz Burns Pool"), and WHEREAS, the 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 15 deadline, this Agreement shall terminate effective the following day. 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 Page 1 of 10 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, adult water aerobic classes, open swimming, lap swimming, and such additional recreation services as YMCA, in its discretion, may determine are desirable. The YMCA shall then provide the City with a pool schedule for the summer season no later than January of each year, so that the City may assist with marketing by providing information in the City's Spring/Summer Activities Guide. Thereafter, the YMCA shall provide the City with copies of all marketing and promotional materials such as brochures and fliers that advertise the open swim schedule, swim lessons, and all aquatic special events. YMCA shall provide updated promotional materials to the City if changes or additions to pool schedule occur. 6. All Repair and Replacement Work. The City shall be solely responsible for causing the completion of all repairs and replacement of equipment such as plumbing, electrical, filter system, pumps, heaters and chlorinators, as well as structural repair and replacement of the facilities and equipment ("Repairs") within the Fritz Burns Pool premises; provided, however, that YMCA shall be solely responsible for reporting any repair needs to the City as soon as they are identified. 7. YMCA Pool Maintenance Responsibilities. The YMCA shall be responsible for maintaining the Fritz Burns Pool and the equipment related thereto in a good and workmanlike manner, and in good operating condition. In order to uphold accountability for pool maintenance and operating conditions, the City and YMCA have developed and agreed upon a written evaluation checklist, attached hereto as Attachment "C." This checklist includes the evaluation of such issues as water quality; safety signs and lifesaving equipment; pool equipment and operation; decking and pool condition; pool house condition; and pool personnel duties. The YMCA shall be responsible for policing the pool house and pool deck on a regular basis during use (required conditions to be checked are stated within Attachment "C"). The YMCA will test the water on an hourly basis during use and add chlorine tablets to the chlorination system as needed. The YMCA will use a City -provided pool test kit and portable pool vacuum on not less than a daily basis to keep the pool clean and sanitary for use. The YMCA will ensure the pool complies with the most current Riverside County Health Department standards. The City recreation supervisor and the YMCA aquatics director, or their approved designees, shall meet weekly or on an as needed basis during the season to review and complete the checklist. Completed checklist evaluations will be kept on file with the City. 8. City Maintenance Responsibilities. 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 City shall contract with a pool service to have the pools cleaned six times weekly during the summer season and three times weekly during the off season including all chemicals with the filters being cleaned once per quarter. The City will provide the YMCA with a pool test kit, portable pool vacuum, and training on how to operate the chlorination system. Page 2 of 10 9. 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. Neither City nor any of its employees shall have any control over the manner, mode or means by which the YMCA, its agents or employees, perform the operational, recreational, and maintenance responsibilities required herein, except as otherwise set forth. YMCA shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. 10. Fees. YMCA shall have the right to charge and collect fees from the public for use of the Fritz Burns Pool facility and for participation in the recreation programs and activities provided by YMCA at the Fritz Burns Pool. The City and YMCA shall mutually agree on the use fees for the Fritz Burns Pool. YMCA, in its sole discretion, shall establish fees for participation in its recreation programs and activities. 11. Payment for Operation and Maintenance. The City agrees to reimburse the YMCA fifty percent (50%) of the net operating costs incurred by the YMCA; up to a maximum reimbursement of $15,000. Should the net operating costs exceed the $15,000 maximum allowable reimbursement, the YMCA must provide the City with justification in advance to support the additional costs. The City will not be responsible to the costs beyond the $15,000 until the City approves the justification in writing. 12. 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. 13. 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. 14. Insurance. YMCA represents that as of the Effective Date it carries, and shall maintain to carry during the full term of this Agreement, commercial general liability insurance in the amount of not less than $2,000,000 per occurrence for all covered losses and no less than $4,000,000 general aggregate. YMCA further agrees to name the City 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 and additionally insured endorsement 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. 15. Indemnification by YMCA. YMCA shall indemnify City, its affiliates and their respective officers, directors, employees and agents, against and hold the same harmless from any and all claims, causes of action, obligations, losses, liabilities, damages, actions, judgments, costs and expenses (including attorneys fees and cost of litigation) arising out of and/or in any way relating to the services provided under this Agreement, or the YMCA's acts and/or admission in providing or administering the same. Upon notice from Page 3 of 10 City, YMCA shall resist and defend at its own expense, and by counsel reasonably satisfactory to City, any such claim or action. 16. Indemnification by City. City shall indemnify YMCA, its affiliates and their respective officers, directors, employees and agents, against and hold the same harmless from any and all claims, causes of action, obligations, losses, liabilities, damages, actions, judgments, costs and expenses (including attorneys fees and cost of litigation) arising out of and/or resulting from, directly or indirectly, any alleged negligent or intentional acts or omissions by City or its agents or employees or City's failure to perform any obligation undertaken in this Agreement. Upon notice from YMCA, City shall resist and defend at its own expense, and by counsel reasonably satisfactory to YMCA, any such claim or action. 17. Americans with Disabilities Act. YMCA shall provide reasonable accommodations to qualified individuals with disabilities who are employees or applicants for employment, unless doing so would cause undue hardship, in compliance with Title I of the Americans with Disabilities Act of 1990. Further, YMCA shall, to the extent required by Title II of said Act, make reasonable modifications in its policies, practices, and procedures with respect to its operation of the Fritz Burns Pool so as to permit equal access to persons with disabilities, and shall provide auxiliary aids and services to such persons when necessary to ensure effective communications, unless an undue burden or fundamental alteration of the program or service will result. "Auxiliary aids" include such services or devices as qualified interpreters, assistive listening headsets, telecommunications devices for deaf persons, and large -print materials. 18. 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. Page 4 of 10 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, and provision required to be performed under this Agreement. 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: City of La Quinta P.O. Box 1504 78-495 Calle Tampico La Quinta, CA 92247-1504 Attn: Edie Hylton, 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. Page 5 of 10 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. CITY OF LA QUINTA, a municipal corporation By: �� 'dd ��i2- THOMAS P. GENOVESE City Manager VERONICA.W • City Clerk APRROVED AS TO By: " KATHERINE City Attorney FAMILY YMCA OF THE DESERT, a non-profit organization im ROB BALLEW Executive Director/CEO Page 6 of 10 ATTACHMENT "A" Recommended Pool Season Recommended schedule of operation: Summer schedule officially begins the first weekend in June after school is out. The pool shall close on Labor Day. Swim Lessons: Monday through Friday, 9 a.m. until 1 p.m. Open Swim: Monday through Friday, 2 p.m. until 4:30 p.m. and Saturdays, 10 a.m. until 1 p.m. (Closed on Sundays) Adult Lap Swim: Monday through Friday, 4:30 p.m. until 6:30 p.m. Adult Water Aerobics: Tuesdays and Thursdays, 5:30 p.m. until 6:30 p.m. NOTE: Pool to close after one hour if attendance is less than twelve 0 2) participants. YMCA must notify the City immediately if pool is closed. Page 7 of 10 Today's Date ATTACHMENT"C" Fritz Burns Pool Checklist Time of WATER QUALITY Pool water test kit provided pH maintained between 7.2 and 8.0 Chlorine maintained at a minimum level of 1.5 ppm, but not exceeding 5 ppm. Water is clear; can see the main drain clearly No algae in pool water, on sides or bottom, or on tile SAFETY SIGNS AND LIFE SAVING EQUIPMENT Required signs posted: a) artificial respiration schematic; b) 911; c) # (number) of occupants; d) "No Diving" (if pool is less than 6 feet in depth); and e) children under the age of 14 should not use pool without an adult in attendance. All signs posted in a conspicuous place and maintained in a legible manner. Life ring with attached rope to span width of pool from poolside. Body hook with attached 12 ft. (min.) pole at poolside. Depth markers clearly visible (located at maximum, middle and minimum depth, and at the break in slope; on both sides; and at both ends). Fully stocked first aid kit. Spine board with ties within the pool enclosure. Lifesaving equipment plainly marked "FOR EMERGENCY USE ONLY." Lifeguard chairs are in proper locations and in safe condition. POOL AND DECKING Pool walls and bottom in good condition (no flaking paint, cracks, chips, etc.) and clean. All handrails are secure (check all nuts and bolts). Decking and walkways clean and in good condition (no weeds, tripping hazards, large cracks, depressions, etc.). Properly secured anti -vortex covers provided for main drain(s), equalizer lines, and spa suction lines. Fencing painted and in good repair; gates easily close and self -latch. POOL HOUSE All sinks, toilets, urinals, and showers clean and in good repair. Floors, walls, and ceilings clean and in good repair. Hot and cold water provided at all sinks (and showers, if provided). Soap and towels provided in approved dispensers at hand sinks; toilet tissue provided in all stalls. Page 9 of 10 RECORDS & PERSONNEL Current Health Permit posted on site Emergency and important phone numbers are posted for staff Office phone is in working condition Daily records of pool maintenance and operation available for review Pool is under supervision of reliable individual at all times while in operation; all pool staff are certified lifeguards and aware of all YMCA rules and policies A copy of all current staff certifications are on site Lifeguards are stationed around vicinity of pool and in the appropriate positions as required by the placement and number of swimmers in the pool area Computer generated signage stating rules, swim schedules, and special events are posted in front of pool office COMMENTS: Signature: City of La Quinta Recreation Supervisor (or designee) YMCA Pool Supervisor for Fritz Burns Pool (or designee) Page 10 of 10 Client#: 1047 2FAMIYMC d11-«' ivl'1'10 CERTIFICATE OF LIABILITY INSURANCE YYY) -ACORD- 11/03/2010 PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION Desert Empire Insurance Services, Inc. LIC # OF09643 ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. 77-564 Country Club Drive Palm Desert, CA 92211 INSURERS AFFORDING COVERAGE NAIC # INSURED Family YMCA of the Desert 43-930 San Pablo Ave. Palm Desert, CA 92260 INSURERA: Philadelphia Indemnity 18058 INSURER B: Star Insurance Company 18023 INSURER C: INSURER D: INSURER E: COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACTOR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAYBE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR ADD' NSR TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE DATE MM/DO POLICY EXPIRATION DATE MM/DD/YY LIMITS A GENERAL LIABILITY PHPK593377 07/01/10 07/01/11 EACH OCCURRENCE $1000000 X COMMERCIAL GENERAL LIABILITY DAMAGETO RENTED $100000 CLAIMS MADE 51OCCUR MED EXP (Any one person) $5 000 PERSONAL S ADV INJURY $1 OQO 000 GENERALAGGREGATE s3.000.000 GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS-COMP/OP AGO $2000000 POLICY JEC LOC A AUTOMOBILE LIABILITY ANY AUTO PHPK593377 07/01/10 07/01/11 COMBINED SINGLE LIMIT (Ea accident) $1,000,QQQ X BODILY INJURY (Per person) $ ALL OWNED AUTOS SCHEDULED AUTOS X BODILY INJURY (Per accident) $ , HIRED AUTOS NON -OWNED AUTOS X PROPERTY DAMAGE (Per accident] $ GARAGE LIABILITY AUTO ONLY - EA ACCIDENT $ OTHER THAN EA ACC $ ANY AUTO $ AUTO ONLY: AGG A EXCESSIUMBRELLA LIABILITY PHUB314107 07/01/10 07/01/11 EACH OCCURRENCE $1000000 OCCUR CLAIMS MADE _ X AGGREGATE $1 OQO Q0O 8 $ DEDUCTIBLE X $ RETENTION $ 10000 B WORKERS COMPENSATION AND WCMSTR5010463 06/01/10 06/01/11 XI CRYTWC STATU- OTH- E.L. EACH ACCIDENT $1 OOO OOO EMPLOYERS' LIABILITY ANY PROPRIETOP/PARTNER/EXECUTNE OFFICER/MEMBER EXCLUDED? E.L. DISEASE - EA EMPLOYEE $1,000,000 Il yes, 'esadbe antler SPECIAL PROVISIONS below EL. DISEASE -POLICY LIMIT E1,000,000 A OTHER Sexual/Phy PHPK593377 07/01/10 07/01/11 1,000,00011,000,000 Abuse DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES / EXCLUSIONS ADDED BY ENDORSEMENT / SPECIAL PROVISIONS *10 day notice of cancellation for non-payment of premium. City of La Quinta is included as an Additional Insured per the attached endorsement. City of La Quinta Attn: Angela Guereque PO Box 1504 La Quinta, CA 92253 LD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL _3pDAYS WRITTEN '.E TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL IE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR AUTHORIZED REPRESENTATIVEt4W+v/ W ACORD 25 (2001/08) 1 of 2 #S163831/MiSS436 2DNIE W Au VKU wVKrUlr a I IVIY 11100 POLICY NUI,ABER: PHPK593377 COMMERCIAL GENERAL LIABILITY CG 20 26 07 04 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - DESIGNATED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE City of La Quinta Information Section If — Who is An Insured is amended to in- clude as an additional insured the person(s) or or- ganization(s) shown in the Schedule, but only with respect to liability for "bodily injury", "property dam- age" or "personal and advertising injury" caused, in whole or in part, by your acts or omissions or the acts or omissions. those acting on your behalf: A. In the performance of your ongoing operations; or B. In connection with your premises owned by or rented to you. CG 20 26`07:04 © ISO Properties, Inc., 2004 Page 1 of 1 '0 .