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HomeMy WebLinkAbout11605RESOLUTION NO. 11605 A RESOLUTION APPROVING AGREEMENTS BETWEEN THE CITY OF PUEBLO AND YOUNG MEN'S CHRISTIAN ASSOCIATION OF PUEBLO, COLORADO AND BETWEEN THE CITY OF PUEBLO AND PUEBLO SWIM CLUB, INC. RELATING TO THE USE OF THE MINERAL PALACE PARK SWIMMING POOL AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1 The following Agreements dated as of May 11, 2009 relating to the use of the Mineral Palace Park swimming pool, copies of which are attached hereto, having been approved as to form by the City Attorney, are hereby approved: (a) Agreement between the City of Pueblo and Young Men's Christian Association, of Pueblo, Colorado. (b) Agreement between the City of Pueblo and Pueblo Swim Club, Inc. SECTION 2 The President of the City Council is authorized to execute the Agreements in the name of the City and the City Clerk is directed to affix the seal of the City thereto and attest same. SECTION 3 This Resolution shall become effective upon final approval and passage. A77TSTDD SY: CITY CLERK INTRODUCED: May 11, 2009 BY: Judy Weaver } Councilperson APPR D' } �- PRESIDENTaf Cfty Council [ D E ED Background Paper for Proposed RESOLUTION AGENDA ITEM # 3 DATE: May 11, 2009 DEPARTMENT: Law Department TITLE A RESOLUTION APPROVING AGREEMENTS BETWEEN THE CITY OF PUEBLO AND YOUNG MEN'S CHRISTIAN ASSOCIATION OF PUEBLO, COLORADO AND BETWEEN THE CITY OF PUEBLO AND PUEBLO SWIM CLUB, INC. RELATING TO THE USE OF THE MINERAL PALACE PARK SWIMMING POOL AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME ISSUE Should City Council approve agreements relating to the use of the Mineral Palace swimming Pool. RECOMMENDATION City staff recommends approval of the Agreements. BACKGROUND Pursuant to the Agreement between the City and YMCA, the YMCA will return the Mineral Palace Park swimming pool ( "Mineral Palace Pool ") to the City during specified dates and hours during calendar year 2009; no dates and hours are specified during subsequent calendar years ( "City Pool Operation dates and hours "). City is responsible for the Mineral Palace Pool during the City Pool Operation dates and hours and the YMCA is released and discharged from all obligations imposed by the Management Agreement during City Pool Operation dates and hours. City is responsible to return the Mineral Palace Pool to the YMCA after each City Pool Operation date and time in the same condition as it was received by the City. Under the Agreement between the City and Pueblo Swim Club, Inc. ( "Swim Club "), the Swim Club will use the Mineral Palace Pool during the times and dates described as City Pool Operation dates and hours in the YMCA Agreement but referred to as "Swim Dates" in the Swim Club Agreement. During the Swim Dates, the Swim Club will be responsible for the maintenance and operation of the Mineral Palace Pool, return the Mineral Palace Pool to the YMCA in the condition it was received by the Swim Club, indemnify and save harmless City and YMCA, and maintain and keep in force commercial general liability insurance and workers' compensation insurance. Both Agreements may be terminated by either party thereto upon 30 days prior written notice. FINANCIAL IMPACT None. AGREEMENT THIS AGREEMENT entere&into as of May 11, 2009 by and between the City of Pueblo, a municipal corporation ( "City ") and Pueblo Swim Club, Inc.; ,a Colorado nonprofit corporation ( "Swim Club "), WITNESSETH: WHEREAS, Swim Club sponsors a swimming program which includes competitive swimming meets, and WHEREAS, Swim Club desires to use the City's Mineral Palace Park swimming pool ( "Mineral Palace Pool ") for its swim practices and competitive swim meet, and WHEREAS, City is willing to permit Swim Club to use the Mineral Palace Pool for its swim practices and competitive swim meet upon the terms and conditions hereinafter set forth. NOW, THEREFORE, in consideration of the foregoing and mutual covenants contained herein, City and Swim Club agree as follows: 1. Swim Club understands and agrees that the Mineral Palace Pool is under the management of the Young Men's Christian Association of Pueblo, Colorado ( "YMCA ") pursuant to a management agreement with the City. Therefore, this Agreement is subject to and contingent upon the YMCA returning the Mineral Palace Pool to the City to permit Swim Club to use the Mineral Palace Pool as hereinafter provided: 2. The initial term;. o this Agreement shall end on December 31, 2009 and shall automatically renew for succeeding one (1) year terms, unless sooner terminated as herein provided. Either party may terminate this Agreement at any time for any reason, without liability, by giving to the other party thirty (30) days' prior written notice specifying the date of termination. 3. Swim Club is authorized to use the Mineral Palace Pool for swim practices and swim meet during the following dates and hours (herein collectively the "Swim Dates "): (a) 12:00 noon to 8:00 p.m., Friday, June 19, 2009 and 6:00 a.m. to 7:00 p.m. on Saturday and Sunday, June 20 and 21, 2009. (b) 5:30 a.m. to 8:30 a.m., Monday through Friday, starting June 1, 2009 and ending August 14, 2009. 4. During the Swim Dates, Swim Club will (a) be responsible for the maintenance and operation of the Mineral Palace Pool. (b) provide all routine maintenance and custodial services required to keep Mineral Palace Pool and associated grounds clean, operational and in a safe condition. (c) conduct all activities at the Mineral Palace Pool, including Swim Dates, in compliance with all applicable laws, standards, rules and regulations, and in a safe and ordinary manner. (d) employ or otherwise make sufficient personnel, volunteers and lifeguards available to perform its duties, functions and responsibilities under this Agreement. (e) after each Swim Date, return the Mineral Palace Pool to the YMCA in the same condition as it was received by the Swim Club before each Swim Date. 5. During any use, occupancy or possession of Mineral Palace Pool, Swim Club shall, at its expense, maintain and keep in force: (a) commercial general liability insurance against claims for personal injury, death, property damage, and participant legal liability occurring in connection with the use and occupancy of Mineral Palace Pool and activities conducted thereon by Swim Club with limits not less than $2,000,000.00 each occurrence and not less than $4,000,000.00 aggregate with excess umbrella coverage of $3,000,000.00 each occurrence and $6,000,000.00 aggregate. The commercial general liability insurance policy and excess umbrella policy shall (i) contain an endorsement or clause naming the City and YMCA as additional insureds, (ii) include coverage to insure Swim Club's indemnity as provided in paragraph 7 below, (iii) be written as primary, and not contributing with or in excess of the coverage carried by the City on YMCA, their agents, officers and employees, (iv) contain a cross liability of severability of interest clause or endorsement, and (v) contain provisions not to cancel the policy or policies, or to change the coverage without giving thirty (30) days' prior written notice to City and YMCA. . (b) Workers' compensation insurance meeting the requirements of Colorado law containing a waiver of subrogation clause. (c) Swim Club and all parties claiming under it, hereby release and discharge City and YMCA and their officers, agents and employees from all claims and liabilities, whether for negligence or otherwise, in connection with any loss covered by the above insurance policies described in (a) and (b) above. (d) At least twenty (20) days prior to any use or occupancy of the Mineral Palace Pool by Swim Club, Swim' Club shall deliver to City and YMCA a certificate or certificates evidencing the issuance of such insurance policies, together with evidence of the payment of premiums. 6. If Swim Club defaults in the performance of any provisions of this Agreement, City may terminate this Agreement upon five (5) days' prior written notice to Swim Club. 7. Swim Club shall indemnify, defend and hold City and YMCA and their officers, 2 employees and agents harmless from and against all liabilities, losses, damages, costs and expense (including reasonable attorney fees), causes of action, suits, claims and judgments of whatsoever kind or nature arising out of or resulting, directly or indirectly, in any manner from the following: (a) the negligent acts or omissions of Swim Club or its officers, employees, agents or contractors, (b) the use or occupancy of the Mineral Palace Pool or activities conducted thereon by Swim Club, or (c) Swim Club's violation of any law, ordinance, regulation or court order affecting the Mineral Palace Pool or the use and occupancy thereof. 8. This Agreement shall be governed exclusively by and construed in accordance with the laws of the State of Colorado and shall be binding upon and inure to the benefit of the City and Swim Club and their successors. Neither the City nor the Swim Club may assign this Agreement or any part hereof. This Agreement may be amended in writing at any time upon the mutual agreement of the City and Swim Club, provided no amendment or modification of this Agreement shall be binding on City until approved by the City Council of City by resolution. 9. If any provision of this Agreement be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof. 10. This Agreement is for the sole benefit of Swim Club and City and no third party (except YMCA) shall have any right, remedy or benefit hereunder. 11. All notices hereunder shall be deemed given when personally delivered or mailed by certified mail, postage prepaid, addressed as follows: if to Swim Club, 2 Reservoir Drive, Pueblo, CO, 81005, Attention: President, and if to City, 1 City Hall Place, Pueblo, CO, 81003, Attention: City Manager, or such other address as either party may specify in written notice given to the other party. 12. No term or provision of this Agreement shall be construed or interpreted as a waiver, express or implied, by the City of the immunities, rights, protections or any other provision of the Colorado Governmental Immunity Act, as amended. 13. This Agreement is the entire agreement between the parties relating to the subject matter hereof, and this Agreement supercedes and cancels all prior agreements, proposals, representations and commitments relating to the subject matter hereof. 14. No delay or omission on the part of either party in exercising any right hereunder shall operate as a waiver of such right or any other right under this Agreement. Executed in Pueblo, Colorado as of the day and year first above written. [ S E A L ] CITY OF PUEBLO Attest _ By City erk President of the City Council 3 City Attorne [SEAL] PUEBLO SWIM CLUB, INC. te.s�• ' By cretary President 21 ADDITIONAL NAMED INSUREDS: 1. United States Swimming, Inc. Member Clubs for Insured Activities. (Please Note: Member Clubs must be in good standing, which means that all athletes and all coaches must be United States Swimming members.) 2. Any Member of United States Swimming, Inc., or volunteer, while acting on behalf of and with the approval of the Board of Directors of United States Swimming, Inc. DEFINITIONS: 1. United States Swimming, Inc. Member Clubs are clubs that are members in good standing with United States Swimming, Inc. and whose athletes and coaches are members of United States Swimming, Inc. 2. Sanction as defined by United States Swimming, Inc. Rules and Regulations. 3. Approved Meet as defined by United States Swimming, Inc. Rules and Regulations. INSURED ACTIVITIES: A. Swimming events where a United States Swimming, Inc. Sanction has been issued. B. United States Swimming, Inc. Approved Meets. c. Swimming practices where all participating athletes and coaches are members of United States Swimming. Must be held under the sole and direct supervision of United States Swimming, Inc. Member Coaches. (including dry land training such as weightlifting.) D. Swimming tryouts under the sole and direct supervision of United States Swimming, Inc. Member Club Coaches. May not last for a period of more than thirty (30) consecutive calendar days in a 12 -month period, for any individual. E. Learn to Swim Program where all participating athletes and coaches are members of United States Swimming, Inc. Must be held under the sole and direct supervision of United States Swimming, Inc. Member Coaches. F. United States Swimming, Inc. contracted Swim -A- Thons. G. United States Swimming, Inc. approved social events where alcoholic beverages are not sold. H. United States Swimming, Inc. approved fund raising activities. POLICY NUMBER: 011 -2834 COMMERCIAL GENERAL LIABILITY THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSUREDS - BLANKET OWNERS AND /OR LESSORS OF PREMISES This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE FORM Policy 4 1638683 is amended to include as an additional insured any person or organization of the types designated below and as evidence by a Certificate of Insurance issued for you by us or on our behalf, but only with respect to liability arising out of your operations: 1. Owners and /or lessors of the premises leased, rented, or loaned to you, subject to the following additional exclusions: A. This insurance applies only to an occurrence which takes place while you are occupying in the premises; B. This insurance does not apply to Bodily Injury or Property Damage resulting from structural alterations, new construction or demolition operations performed by or on behalf of the owner and /or lessor of the premises; C. This insurance does not apply to any design defect or structural maintenance of the premises by or.on behalf of the owner and /or lessor. D. With respect to any "Additional Insured" included under the policy by this endorsement, this insurance does not apply to the negligence of such Additional Insured. Effective Date: The effective date of this endorsement shall be the issue date of the certificate to which it is attached r Cart ID 5115 CFRTIFIrATF 1x111 f1FR ® TM CERTIFICATE OF LIABILITY INSU NC DATE(MMtDD/YYYY) °'C®l \ 5/19/2009 PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION Risk Management Services, Inc. ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE P.O. Box 32712 Phoenix AZ 85064 -2712 HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. LIMITS AUTHORIZED REPRESENTATIVE (602) 840 -3234 (602) 274 -9138 GENERAL LIABILITY INSURERS AFFORDING COVERAGE NAIC # INSURED INSURER A: Lexington Ins Co Y USA Swimming Inc Incld LSC's and INSURER B: Nationwide Life Insurance Co 1/1/2009 Pueblo Swim Club DAMAGE TO RENTE PREMISES Eaoccurence $ 100,000 2 Reservoir Drive INSURER C: INSURER D: Pueblo CO 81005 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 CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE 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 ADDT INSRO TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE DATE /DD POLICY EXPIRATION E (MMIDDIYYI LIMITS AUTHORIZED REPRESENTATIVE GENERAL LIABILITY EACH OCCURRENCE $ 2,000,000 A Y X COMMERCIAL GENERAL LIABILITY 011 -2834 1/1/2009 1/1/2010 DAMAGE TO RENTE PREMISES Eaoccurence $ 100,000 CLAIMS MADE ❑X OCCUR MED EXP (Any one person) $ EXCLUDED PERSONAL & ADV INJURY $ 1 X Participant Legal X Liability Included GENERAL AGGREGATE $ 4,000,000 GENI AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMP /OP AGG . $ 2,000,000 POLICY PRO LOC AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT ANY AUTO (Ea accident) $ BODILY INJURY ALL OWNED AUTOS SCHEDULED AUTOS (Per person) $ BODILY INJURY $ HIRED AUTOS NON -OWNED AUTOS (Per accident) PROPERTY DAMAGE $ (Per accident) GARAGE LIABILITY AUTO ONLY - EA ACCIDENT $ OTHER THAN EA ACC' $ ANY AUTO $ AUTO ONLY: AGG EXCESS /UMBRELLA LIABILITY EACH OCCURRENCE $ 3,000,000 _ x1 AGGREGATE $ 6,000,000 A Y OCCUR FI CLAIMS MADE 15460173 1/1/2009 1/1/2010 $ $ DEDUCTIBLE $ RETENTION $ WORKERS COMPENSATION AND WC STATU- 0TH- BY LIMITS I I ER EMPLOYERS' LIABILITY ANY PROPRIETOR /PARTNER/EXECUTIVE E.L. EACH ACCIDENT $ E.L. DISEASE - EA EMPLOYE $ OFFICER /MEMBER EXCLUDED? If yes, describe under SPECIAL PROVISIONS below E.L. DISEASE - POLICY LIMIT 1 $ B OTHER XS Medical /Dental T5MPSP35054 1/1/2009 1/1/2010 Maximum Limit $25,000 DESCRIPTION OF OPERATIONS / LOCATIONS ! VEHICLES I EXCLUSIONS ADDED BY ENDORSEMENT / SPECIAL PROVISIONS Verification of General /Excess Liability & Excess Accidental Medical /Dental Insurance. Young Men's Christian Association of Pueblo, their agents, officers and employees are included as Additional Insured per attached ADDITIONAL INSURED ENDORSEMENT EFFECTIVE CERTIFICATE ISSUE DATE. , bill 11 rii=1■-�ZTiTJ At,UKU Z5 (ZUU9 /Uti) U ACORD CORPORATION 1988 Page 1 of 2 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION Young Men's Christian Association of Pueblo DATE THEREOF, THE ISSUING INSURER WILL EQtnBIMBaR= MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, Sai7C=N)HS CK00XXfSzXAMX 3200 Spaulding Ave ![ lBBt K��4 }F1GC>fE�)MffiCIGS}¢4t3FAZ9cA74 RMH§MCClSXXXX Pueblo CO 81003 AUTHORIZED REPRESENTATIVE At,UKU Z5 (ZUU9 /Uti) U ACORD CORPORATION 1988 Page 1 of 2 5/18/2009 If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. CORD 25 (2001108) Page A of 4 ADDENDUM NO. 1 THIS ADDENDUM NO. 1 ( "Addendum ") entered into as of May 11, 2009 by and between the City of Pueblo, a municipal corporation ( "City ") and the Young Men's Christian Association of Pueblo, Colorado, a Colorado nonprofit corporation ( "YMCA "), WITNESSETH: WHEREAS, City and YMCA entered in to a Management Agreement dated as of July 23, 2007 relating to the Management of City's swimming pools ( "Agreement "), and WHEREAS, City and YMCA are desirous of amending the Agreement to allow City to authorize the use of the Municipal Palace Park swimming pool ( "Mineral Palace Pool ") by the City. NOW, THEREFORE, in consideration of the foregoing and mutual covenants contained herein, City and YMCA agree as follows: 1. The YMCA is returning to the City for operation by the City the Mineral Palace Pool during the following dates and hours (herein collectively the "City Pool Operation dates and hours "): (a) 12:00 noon to 8:00 p.m., Friday, June 19, 2009 and 6:00 a.m. to 7:00 p.m. on Saturday and Sunday, June 20 and 21, 2009. (b) 5:30 a.m. to 8:30 a.m., Monday through Friday, starting June 1, 2009 and ending August 14, 2009. 2. During the City Pool Operation dates and hours the City will be responsible for the maintenance and operation of the Mineral Palace Pool, and YMCA shall have no responsibility therefor. City will return the Mineral Palace Pool to the YMCA after each City Pool Operation date and time in the same condition as it was received by the City. YMCA is hereby released and discharged from all obligations and liabilities imposed by the Agreement during the City Pool Operation dates and hours. 3. The City intends to authorize the Pueblo Swim Club, Inc. to use and occupy Mineral Palace Pool during City Pool Operation dates and hours. Therefore, pursuant to a separate agreement between the City and Pueblo Swim Club, Inc., the City will require Pueblo Swim Club, Inc. to: (a) provide and keep in force commercial general liability insurance and such other insurance as the City's insurance agent may recommend naming the City and YMCA as additional insured's and provide a copy of such insurance coverage and binder to both the City and the YMCA; (b) indemnify, defend and save City and YMCA and their officers, employees and agents harmless from and against any and all claims or damages arising or resulting from its use and occupancy of the Mineral Palace Pool. 4. The initial term of this Addendum shall end on December 31, 2009 and shall automatically renew for succeeding one (1) year terms. Either party may terminate this Addendum at any time for any reason, without liability, by giving to the other party thirty (30) days' prior written notice specifying the date of termination. 5. This Addendum shall be governed exclusively by and construed in accordance with the laws of the State of Colorado and shall be binding upon and inure to the benefit of the City and YMCA and their successors. Neither the City nor the YMCA may assign this Addendum or any part hereof. This Addendum may be amended in writing at any time upon the mutual agreement of the City and YMCA, provided no amendment or modification of this Addendum shall be binding on City until approved by the City Council of City by resolution. 6. All notices hereunder shall be deemed given when personally delivered or mailed by certified mail, postage prepaid, addressed as follows: If to YMCA, 3200 Spaulding Avenue, Pueblo, CO, 81008, Attention: President, and if to City, 1 City'Hall Place, Pueblo, CO, 81003, Attention: City Manager, or such other address as either party may specify in written notice given to the other party. 7. No term or provision of this Addendum shall be construed or interpreted as a waiver, express or implied, by the City of any of the immunities, rights, protection or any other provision of the Colorado Governmental Immunity Act, as amended. 8. This Agreement as modified by this Addendum shall remain in full force and effect. Executed, in Pueblo, Colorado as of the day and year first above written. Appr'ovcA.as to form: CITY OF PUEBLO By President of the City Council City Atto e [SEAL] Attest: Gf/1 v Secretary YOUNG MEN'S CHRISTIAN ASSOCIATION O UEBLO, COLORADO By &4W 1�7rj4VVrl Pr sid 2