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HomeMy WebLinkAbout11828As Amended: March 8 2010 RESOLUTION NO. 11828 A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND THE YOUNG MEN'S CHRISTIAN ASSOCIATION OF PUEBLO, COLORADO (YMCA) RELATING TO CAPITAL CONSTRUCTION OF THE YMCA AQUATICS CENTER AND ITS AVAILABILITY TO THE PUBLIC, AND AUTHORIZING THE PRESIDENT OF CITY COUNCIL TO EXECUTE SAME WHEREAS, YMCA has constructed an Aquatics Center which will be open to all members of the public on either a membership basis or a non - membership reasonable and non- discriminatory fee basis; and WHEREAS, YMCA has agreed to establish an outreach program and activities to promote and encourage use of the Aquatics Center by residents of low income areas of the City; and WHEREAS, YMCA and City are desirous of terminating YMCA's operation and maintenance of the City's four outdoor swimming pools pursuant to the Management Agreement dated July 23, 2007, as amended by Addendum No. 1 thereto dated May 11, 2009; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1 The City Council does hereby find and determine that (a) there is a public need for aquatic and other recreational facilities, activities, programs and opportunities for the citizens of Pueblo, especially for those citizens who are residents of low income areas of the City; (b) the Agreement attached hereto, including the capital contribution to the YMCA for the aquatics center, will assist in fulfilling such public need; and (c) the Agreement, including the capital contribution to the YMCA for the aquatics center, serves a public and municipal purpose, is in the public interest, and will promote the public health, safety and welfare of the City and its citizens. SECTION 2. The Agreement dated March 8, 2010 between the YMCA and the City, a copy of which is attached hereto, having been approved as to form by the City Attorney, is hereby approved with such minor amendments as the President of City Council and the City Attorney may agree. The President of the City Council is authorized to execute and deliver the Agreement 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. INTRODUCED: March 8, 2010 BY: Ray A¢uilera COUNCILPERSON APPROVED: RESIDENT CF CITY CC) UNCIL ATTESTED BY: CrrY CLERK DEPARTMENT: LAW DEPARTMENT TOMAS J. FLORCZAK, INTERIM CITY ATTORNEY TITLE A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND THE YOUNG MEN'S CHRISTIAN ASSOCIATION OF PUEBLO, COLORADO (YMCA) RELATING TO CAPITAL CONSTRUCTION OF THE YMCA AQUATICS CENTER AND ITS AVAILABILITY TO THE PUBLIC, AND AUTHORIZING THE PRESIDENT OF CITY COUNCIL TO EXECUTE SAME ISSUE Should City Council approve an Agreement with the YMCA which eliminates YMCA management of City pools? RECOMMENDATION This Agreement was negotiated by staff at the direction of City Council. BACKGROUND In 2007, the City entered into a Management Agreement with the YMCA under which (a) the YMCA would manage, operate and promote the City's four outdoor public swimming pools, and (b) the YMCA would allow public use of its Aquatics Center at the YMCA Community Campus Under the 2007 Management Agreement, the YMCA retained all fees for the City pools and the City paid any deficit in the operation of the City pools. The City also paid the YMCA $200,000 per year toward the capital construction cost of the Aquatics Center and as compensation for the authorized public use. City Council has determined that management of the City pools should be returned to the City Parke & Recreation Department, and the new Agreement implements that decision, but does provide City with an option for return to YMCA management in 2012 and subsequent years if the City elects to do so. Under the Agreement before Council, the $200,000 payment to YMCA will continue and the YMCA will continue to make the Aquatics Center available to the public on a membership and on a non- discriminatory fee basis. Additionally, the YMCA will establish a Community Outreach Task Force to formulate an Outreach Program designated to serve the low income neighborhoods in Pueblo. The President of the City Council may appoint a representative of the City to serve on the Task Force. The Agreement also requires the YMCA to submit an annual written report to Council concerning its outreach efforts and to submit to Council a copy of the then current Outreach Plan. FINANCIAL IMPACT Subject to annual appropriations, the City will continue to pay the YMCA $200,000 per year for calendar years 2010 through 2017. AGREEMENT THIS AGREEMENT ( "Agreement ") entered into as of March 8, 2010 by and between the Young Men's Christian Association of Pueblo, Colorado, a Colorado nonprofit corporation ( "YMCA ") and the City of Pueblo, a Municipal Corporation ( "City ") (each of which may also be referred to herein as a "party" or collectively as the "Parties "), WITNESSETH, WHEREAS, City and YMCA entered into a Management Agreement dated as of July 23, 2007 which was amended by Addendum No. 1 dated as of May 11, 2009 (as amended, "Management Agreement ") relating to (a) the operation of City's four outdoor swimming pools located in City Park, Mineral Palace Park, Bessemer Park and Mitchell Park ( "Swimming Pools "), and (b) City's contribution for construction of the aquatics center of the YMCA Community Campus in Pueblo, Colorado ( "Aquatics Center "), and WHEREAS, YMCA has completed construction of the aquatics center of the YMCA Community Campus in Pueblo and is open to the public in accordance with the terms and conditions of the Management Agreement; and WHEREAS, YMCA has used the funds previously provided by City to construct the aquatics center and has borrowed money to complete the aquatics center and secured its loan with a lien against the aquatics center and other facilities of the YMCA; and WHEREAS, as a direct result of the commitment of the City as set for in the Management Agreement YMCA has received in excess of $4,500,000.00 in grants to build the YMCA Community Campus, which grants were from foundations outside of Pueblo County; and WHEREAS, City and YMCA are desirous of terminating YMCA's operation and maintenance of the Swimming Pools but continue City's capital contribution for the Aquatics Center. NOW, THEREFORE, in consideration of the foregoing and mutual covenants contained here, City and YMCA agree as follows: 1. The Management Agreement shall terminate and cancel effective December 31, 2009 ( "Effective Date") and except for accrued rights and liabilities, City and YMCA shall be released from all future obligations thereunder. 2. Within 60 days of the Effective Date, YMCA shall: (a) deliver possession of the Swimming Pools and all associated swimming pool and safety equipment and supplies, either delivered to the YMCA by the City or acquired by the YMCA during the period of the Management Agreement, to City in good, clean and operating condition. (b) return to the City all City Swimming Pool records delivered to the YMCA pursuant to the Management Agreement together with all Swimming Pool records established or developed by the YMCA during the period of the Management Agreement, including, without limitation, all financial records, income and expense statements and supporting invoices and documents, but excluding personnel records. 3. Subject to the terms and conditions of this Agreement, City will pay to the YMCA funds in the amount of $200,000.00 per year (Annual Payment) for eight (8) consecutive calendar years starting with the calendar year 2010 as and for capital construction of the aquatics center of the YMCA Community Campus in Pueblo, Colorado "(Aquatics Center "). Annual Payments will be made on or before January 15 of each calendar year. The Parties acknowledge that the payment for 2010 has already been made. YMCA covenants and agrees that the Aquatics Center and other recreational facilities in the YMCA Community Campus will be open to all members of the public on either a membership basis or a non - membership reasonable and non - discriminatory fee basis and that the YMCA will through outreach programs and activities including transportation promote and encourage the use of the Aquatics Center and other recreational facilities in the YMCA Community Campus by residents of low income areas of the City 4. The YMCA has established a YMCA Community Outreach Task Force ( "Task Force ") to formulate and revise, from time to time, an Outreach Program Plan designed to serve the low income neighborhoods in our community and comply with the requirements set forth in Paragraph 3, above. The Task Force shall consist of approximately twelve members. The Board of the YMCA shall appoint members as follows: a member of the YMCA Board as Chair, the YMCA Outreach Coordinator, a representative of the Migrant Worker's Youth, a Community Advocate from School District 60, a representative from School District 70, a representative of the Pueblo Area Neighborhoods (PAN), a representative of the Department of Corrections, a representative of the 10 "' Judicial District, a representative of SRDA and such other interested individuals who want to find good solutions to the problem. The Task Force will conduct regularly scheduled meetings for the purpose of conducting its business effectively. The President of City Council of City shall appoint a representative of the City of Pueblo who is interested in being part of the problem solving team and who commits to attending regularly scheduled meetings of the Task Force. Task Force members who miss two consecutive meetings will be replaced. 5. As conditions precedent to City's payment of each Annual Payment subsequent to the 2011 Annual Payment, YMCA shall in the month of November of each year, commencing with the year 2010, submit a written report to the City Council on a) the membership of the Task Force, b) the goals of the Task Force, c) the progress made by the Task Force in accomplishing its goals, d) recommendations of the Task Force for furthering the objectives set forth in Paragraph 3, above and e) furnish a copy of the then current Outreach Plan. At the request and invitation of the City Council, the Task Force shall also make its report orally before the City Council. 6. The obligation of the City to make Annual Payments under this Agreement (City's Financial Obligation) shall be from year to year. The City Manager of the City (or other officer at any time charged with the responsibility of formulating budget proposals) is hereby directed to 2 include in the budget proposals submitted for fiscal year 2010, and for each fiscal year thereafter through fiscal year 2017, an item for payment of the City's Financial Obligation required to be paid under this Agreement during each fiscal year. The decision whether to budget and appropriate the moneys in full or in part for the payment of City's Financial Obligation shall be made solely by the City Council of the City in its absolute discretion. Failure of the City Council, for any reason, to budget and appropriate, specifically with respect to this Agreement, moneys sufficient to pay City's Financial Obligation, shall not constitute an event or default by City under this Agreement nor give rise to any liability or claim against the City. 7. No provision of this Agreement shall be construed or interpreted as creating a general obligation or other indebtedness of the City within the meaning of any constitutional, statutory or Charter debt limitation. No provision of this Agreement shall be construed or interpreted as a delegation of governmental powers nor as a donation by or a lending of the credit of the City, or as creating a multiple -fiscal year direct or indirect debt or other financial obligation whatsoever of the City or a general obligation or other indebtedness of the City within the meaning of any constitutional Charter or statutory debt limitation, including without limitation, Article X, Section 20 or Sections 1, 2 or 6 of Article XI of the constitution of the State. The Agreement shall not, directly or indirectly, obligate the City to make any payments beyond those appropriated for any fiscal year. No provision of this Agreement shall be construed to pledge or to create a lien on any class or source of City moneys. 8. It is mutually understood that nothing in this Agreement is intended or shall be construed as in any way creating or establishing a partnership or joint venture relationship between the parties, or as constituting the YMCA as an agent or representative of the City for any purpose or in any matter whatsoever. The relationship between the parties is purely contractual and the YMCA in performance of its obligations under this Agreement is at all times acting as an independent contractor. Neither YMCA nor any of its employees, officers, agents or contractors are employees of the City nor entitled to City payroll, insurance, unemployment, workers' compensation or any other City benefit whatsoever. YMCA shall be solely responsible for payment of salaries, wages, payroll taxes, unemployment benefits, workers' compensation benefits and any other form of benefits or compensation for personnel performing service for YMCA and shall indemnify and save harmless City there from. 9. YMCA covenants and agrees to comply with all local, state and federal laws prohibiting discrimination in (a) the use of the Aquatics Center and other recreational facilities in the YMCA Community Campus, or (b) the furnishing of services at the Aquatics Center and other recreational facilities in the YMCA Community Campus. This covenant shall remain in effect during the useful life of the Aquatics Center and other recreational facilities in the YMCA Community Campus and shall survive the termination of this Agreement. 10. No recourse shall be had for any Annual Payment or for any claim based thereon or upon any obligation, covenant or contractual provision contained in this Agreement against any past, present or future officer, employee or agent of the City as such, either directly or through the City, under any rule of law or equity, statute or constitution or by the enforcement of any assessment or penalty or otherwise, and all such liability of any such officers, employees or agents as such is hereby 3 expressly waived and released as a condition of and consideration for the execution of this Agreement. 11. Nothing contained in this Agreement shall constitute or be construed to constitute a waiver by the City of the protections, defenses and immunities afforded the City and its officers and employees under the Colorado Governmental Immunity Act or any other statute or law. 12. YMCA shall indemnify, defend and hold City and its officers, employees and agents harmless from and against all liabilities, losses, damages, costs and expense (including reasonable attorney fees), causes of action, suits, claims and judgment of whatsoever kind and nature arising out of or resulting, directly or indirectly, in any manner from the following, except when caused by the willful misconduct or sole negligence of the City or its officers, employees or agents acting in their official capacity (and not as patrons of the Aquatics Center), (a) the negligent acts or omissions of the YMCA or its officers, employees, agents or contractors, (b) the use or occupancy by the YMCA of the Aquatics Center, and (c) YMCA's violation of any law, ordinance, regulation or court order affecting the Aquatics Center or the use and occupancy thereof. 13. 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 YMCA and their successors. Neither the City nor the YMCA 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 YMCA, provided no amendment or modification of this Agreement shall be binding on City until approved by the City Council of City by resolution. 14. Article XXVIII of the Colorado Constitution was amended by vote of the people on November 4, 2008 ( "Amendment 54 ") to provide certain limitations on holders of "sole source" government contracts entered into by government entities. On August 12, 2009, Denver District Court Judge Catherine Lemon issued an order granting a preliminary injunction against enforcement of Amendment 54, holding that it violated rights of free speech and association guaranteed by the First Amendment. The parties agree that if, at any time during the term of this Agreement, a court of appropriate jurisdiction determines that (a) Amendment 54 is constitutional or otherwise lawful under applicable law; or (b) Amendment 54, if lawful, applies to agreements such as this Agreement and must be included in such agreements, then City and YMCA agree to negotiate the inclusion of complying Amendment 54 language in this Agreement. 15. 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. 16. This Agreement is for the sole benefit of YMCA and City and no third party shall have any right, remedy or benefit hereunder. 17. 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, 13 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. 18. This Agreement is the entire agreement between the parties relating to the subject matter hereof, and this Agreement supersedes and cancels all prior agreements, proposals, representations and commitments relating to the subject matter hereof. 19. 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. 20. From January 1, 2012 through December 31, 2017, the YMCA agrees that should the City desire to have the YMCA take back the Swimming Pools for management, the YMCA will do so under the following conditions: (a) The City has made its Annual Payments pursuant to paragraph 3 hereof; (b) The City gives the YMCA notice of its desire for the YMCA to manage the Swimming Pools no later than September 30' of the year before the YMCA is to take over the management. As an example of the foregoing, if the City wanted the YMCA to take over management of the Swimming Pools in 2012 year, it would have to give notice to the YMCA by September 30,2011; (c) The City would pay to the YMCA an amount equal to the amount spent by the City for the Swimming Pools management for the swim year preceding the year the City desires the YMCA to take over the management of the Swimming Pools; (d) The pools are in good operating condition as determined by mutual agreement of the parties, and any extraordinary capital expenses for repair of the pools is the responsibility of the City; (e) The City would in a manner acceptable to both parties make provision for the conversion of the Swimming Pools sanitation system from chlorine gas to some other safe form of sanitation as agreed on by the parties and the City would make provision for recycling the water at the Bessemer Spray Park. (f) City and YMCA would enter into an agreement with respect to management of the Swimming Pools Executed in Pueblo, Colorado as of the day and year first above written. [SEAL]:__ CITY OF PUEBLO Attest: By (,�Eaieticee L"), City Cl b - k President of the City Council Approved as to form: City AttorneyU [SEAL] Attest: �QL�'-Jk-- Secretary YOUNG MENS CHRISTIAN ASSOCIATION OF PUEBLO,, COLORADO By — /-C L �+