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HomeMy WebLinkAbout12354RESOLUTION NO. 12354 A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND THE PUEBLO YOUNG WOMEN’S CHRISTIAN ASSOCIATION (YWCA) FOR THE USE, MANAGEMENT AND OPERATION OF THE YWCA SWIMMING POOL FACILITY WHEREAS, The YWCA owns certain property located at 801 N. Santa Fe Avenue, Pueblo, Colorado, which includes an indoor swimming pool facility; and WHEREAS, the City desires to use, manage and operate the YWCA swimming pool facility for use by the public at large, NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Agreement between the City and the Pueblo Young Women’s Christian Association dated May 1, 2012, a true copy of which is attached hereto, having been approved as to form by the City Attorney, is hereby approved. SECTION 2. The President of City Council is hereby authorized and directed to execute the Agreement on behalf of the City, and the City Clerk is directed to attest same. This Resolution shall become effective upon final passage and approval. INTRODUCED: April 9, 2012 BY: Leroy Garcia COUNCIL PERSON Background Paper for Proposed RESOLUTION DATE: April 9, 2012 AGENDA ITEM # M-3 DEPARTMENT: PARKS AND RECREATION CREIGHTON WRIGHT, DIRECTOR TITLE: A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION, AND THE PUEBLO YOUNG WOMEN’S CHRISTIAN ASSOCIATION (YWCA) FOR THE USE, MANAGEMENT AND OPERATION OF THE YWCA SWIMMING POOL FACILITY ISSUE: Should City Council approve an agreement for the City to use, manage and operate the indoor pool owned by the YWCA? RECOMMENDATION: Approval of the Resolution. BACKGROUND: Brandi Moore, Executive Director of the YWCA of Pueblo made a presentation to the Parks and Recreation Advisory Commission meeting on January 25, 2012 concerning a potential agreement between the Parks and Recreation Department and the YWCA for use, management and operation of the YWCA indoor pool. Ms. Moore reported that the pool does not fit directly into the mission of the YWCA as a domestic violence shelter. The YWCA does, however recognize the value of the pool, which is in good condition, as a community asset, a source of revenue and for its historical value. The pool was a gift from the Thatcher family in 1934. The proposed agreement provides that the City will pay YWCA $2,000 per month for the use of the indoor swimming pool facility. According to the Parks and Recreation Director, Creighton Wright, the pool currently generates revenue in excess of the $2,000 monthly fee making the payment of $2,000 per month to the YWCA feasible. Parks and Recreation intends to increase the programs and use of the swimming pool facilities and thereby increase the overall revenue realized from the site. Because the YWCA swimming facilities are indoor facilities, the proposed agreement will allow the City to offer year round swim lessons, year round swimming to community members in general, year round private swim parties, and to give competitive swimmers a venue for stroke clinics. The City will have exclusive control and use of the YWCA swimming pool, deck areas, locker rooms, changing areas, showers, restrooms, and reception areas. The City will have the sole and absolute discretion to determine operating hours, admission charges, and class and user fees for the facility. The Parks and Recreation Advisory Commission has endorsed the concept and would like to see the agreement approved. FINANCIAL IMPACT: Pursuant to the agreement, the YWCA will be responsible for any and all building expenses related to the swimming pool facility, including but not limited to rent, utilities, water, pest control, telephone, internet, and trash removal. The YWCA will be responsible for all repair and maintenance expenses relating to the swimming pool facility, including but not limited to drains, filters, safety equipment, diving boards, slides, and railings, except that the City shall be responsible for all daily cleaning of the swimming pool facility. The YWCA will be responsible for the purchase of all necessary pool chemicals and provide those to the City for use in the swimming pool. Pursuant to the agreement, the City will pay to the YWCA $2,000 per month for the initial term of the agreement, which will be initially through December 31, 2012. The Agreement will then automatically renew for succeeding one year terms. The City will also be responsible for providing all staff and wages associated with managing and operating the swimming pool facility. The City will manage and accept all registrations for pool memberships and programs. The City will retain any and all revenue received through the management and operation of the swimming pool facility and its programs. The City will also provide, at its cost, any and all office and/or program supplies and equipment necessary for the operation of the swimming pool facility. The following budget was determined using YWCA existing revenue sources and adding a swim lesson program. This does not assume any increase in punch passes sold or monthly memberships – which could be a significant source of additional revenue to the City. EQUIPMENT / PROGRAM ANTICIPATED EXPENSES ($29,320.00)* *(Expenses include the $2,000/mo payment) PERSONNEL ANTICIPATED EXPENSES ($91,450.42) TOTAL ANTICIPATED REVENUES $121,000.00 TOTAL ANTICIPATED EXPENSES ($120,770.42) TOTALS + $229.58 AGREEMENT THIS AGREEMENT entered into as of May 1, 2012 by and between the City of Pueblo, a municipal corporation ( "City ") and the Pueblo Young Women's Christian Association ( "YWCA "): WHEREAS, YWCA's mission is to empower women and provide a domestic violence shelter for women; WHEREAS, YWCA owns certain property located at 801 N. Santa Fe Ave., Pueblo, Colorado, which includes an indoor swimming pool facility, the operation of which does not fit well within its mission; WHEREAS, the City desires to use, manage and operate YWCA swimming pool facility for use by the public at large; NOW, THEREFORE, in consideration of the foregoing and mutual covenants contained herein, City and YWCA agree as follows: 1. The "Swimming Pool Facilities" referenced herein shall include the swimming pool, deck areas, locker rooms, changing rooms, showers, rest rooms, reception areas, and any other areas adjacent thereto located at 801 N. Santa Fe Ave., Pueblo, Colorado which are reasonably necessary to operate the facilities as a public swimming pool. 2. YWCA Duties and Obligations: a. YWCA hereby grants the City exclusive control and use of the Swimming Pool Facilities for public programs, including but not limited to open swim sessions, swim lessons aerobic classes, lifeguard classes, lap swim and private parties, which shall be determined at the sole at absolute discretion of the City. The City shall have the sole and absolute discretion to determine the operating hours, admission charges, and class and use fees for the Swimming Pool Facilities. b. YWCA shall pay for any and all building expenses related to the Swimming Pool Facilities, including but not limited to rent, utilities, water, pest control, telephone, internet, and trash removal. c. YWCA shall pay for any and all repair or maintenance expenses relating to the Swimming Pool Facilities, including but not limited to drains, filters, safety equipment, diving boards, slides, and railings, except that the City shall be responsible for all daily cleaning of the Swimming Pool Facilities. d. YWCA shall be responsible for maintaining the water temperature between 90 -92 degrees and air temperature in the Swimming Pool Facilities at no less than 85 degrees during operating hours. YWCA shall not deviate from these parameters without written authority from the City. 1 e. YWCA shall purchase, at its sole expense, any and all necessary pool chemicals and provide those to the City for use in the swimming pool. 3. City Duties and Obligations: a. In consideration for the facilities and services provided by YWCA pursuant to this Agreement, the City agrees to pay YWCA two thousand dollars ($2,000.00) each month for the term of this Agreement. This Agreement is expressly made subject to the limitations of the Colorado Constitution. Nothing herein shall constitute, nor deemed to constitute, the creation of a debt or multi -year fiscal obligation or an obligation of future appropriations by the City Council of Pueblo, contrary to Article X, § 20 Colorado Constitution or any other constitutional, statutory or charter debt limitation. Notwithstanding any other provision of this Agreement, with respect to any financial obligation of the City which may arise under this Agreement in any fiscal year after 2012, in the event the budget or other means of appropriations for any such year fails to provide funds in sufficient amounts to discharge such obligation, such failure shall not constitute a default or breach of this Agreement by the City and the City may terminate this Agreement without liability. b. The City agrees to provide, and pay all wages or salary for such staff to manage and operate the Swimming Pool Facilities as it deems necessary within its sole and absolute discretion. c. The City will manage and accept all registrations for pool memberships and programs. The City will collect all admissions, fees, monthly dues, and/or charges associated with the public's use of the Swimming Pool Facilities. The City will retain any and all money received through the management and operation of the Swimming Pool Facilities and/or its programs. d. The City will provide, at its sole expense, any and all office and/or program supplies necessary for the operation of the Swimming Pool Facilities. e. The City will maintain liability insurance for the Swimming Pool Facilities during the term of this Agreement. The City will maintain workers compensation coverage for all of its employees during the term of this Agreement pursuant to state and federal law. f. To the extent permitted by law, the City will pay for any and all damage to the Swimming Pool Facilities that occurs during the City's hours of operation and as a direct result of the City's use and operation of the Swimming Pool Facilities, except that the City will not pay for damage caused by criminal acts. 4. The initial term of this Agreement shall end on December 31, 2012 but will thereafter, 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. 2 5. The City is exempt from taxes. Any real or personal property owed on real or personal property owned by YWCA shall be the responsibility of, and paid by YWCA. 6. City and YWCA acknowledge and agree that they are not joint venturers, partners, or joint owners with respect to the Swimming Pool Facilities, and nothing contained in this Agreement shall be construed as creating a partnership, joint venture or similar relationship between City and YWCA. 7. This Agreement is for the sole benefit of YWCA and City and no third party shall have any right, remedy or benefit hereunder. 8. YWCA 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 judgments of whatsoever kind or nature arising out of or resulting, directly or indirectly, in any manner from the following: the negligent acts or omissions of YWCA or its officers, employees, agents or contractors, or YWCA's violation of any law, ordinance, regulation or court order affecting the Swimming Pool Facilities or the use and occupancy thereof. 9. Neither party shall be liable or responsible to the other party for any delay, loss, damage, failure or inability to perform under this Agreement due to an Event of Force Majeure, provided that the party claiming failure or inability to perform provides written notice to the other party within thirty (30) days of the date on which such party gains actual knowledge of such Event of Force Majeure. In the event of damage or destruction to a material portion of the Swimming Pool Facilities by reason of fire, storm or other casualty loss that renders the Swimming Pool Facilities (or a material portion thereof) untenantable, YWCA shall use reasonable efforts to remedy such situation. If notwithstanding such efforts, such damage or destruction is expected to render the Swimming Pool Facilities (or a material portion thereof) untenantable for a period estimated by an engineer or architect selected by YWCA at the City's request, of at least ninety (90) days from the date of such fire, storm or other casualty loss, either party may terminate this Agreement without any liability, upon written notice to the other. 10. Nothing in this Agreement is intended, nor should it be construed, to create or extend any rights, claims or benefits or assume any liability for or on behalf of any third party, or to waive any immunities or limitations otherwise conferred upon City under or by virtue of federal or state law, including but not limited to the Colorado Governmental Immunity Act, C.R.S. §24 -10 -101, et. seq. 11. All notices hereunder shall be deemed given when personally delivered or mailed by certified mail, postage prepaid, addressed as follows: if to YWCA, 801 N. Santa Fe Ave., Pueblo, CO 81003, Attention: President, and if to City, 200 S. Main St., Pueblo, CO, 81003, Attention: City Manager, or such other address as either party may specify in written notice given to the other party. 12. 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. 3 13. Neither the City nor YWCA 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 YWCA, provided no amendment or modification of this Agreement shall be binding on City until approved by the City Council of City by resolution. 14. 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 YWCA and their successors. 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. 15. 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 /� /, /L /� City erk 1 re id- t ' the /ty Council Approved as to form: City Attorney Y [SEAL] THE PUEBLO YOUNG WOMENS CHRISTIAN ASSOCIATION Attest: By G( dl,dL ni ", Secretary President 4