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HomeMy WebLinkAbout12588 RESOLUTION NO. 12588 A RESOLUTION APPROVING A RENEWED, SHORT- TERM 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 from February 11 to May 31, 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 February 11, 2013, 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: February 11, 2013 BY: Ami Nawrocki Background Paper for Proposed RESOLUTION DATE: February 11, 2013 AGENDA ITEM # Q-3 DEPARTMENT: PARKS AND RECREATION STEVEN MEIER, INTERIM DIRECTOR TITLE: A RESOLUTION APPROVING A RENEWED, SHORT-TERM 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 a short-term agreement for the City to use, manage and operate the indoor pool owned by the YWCA from February to the end of May 2013? RECOMMENDATION: Approval of the Resolution. BACKGROUND: In April 2012, City Council approved an agreement with the YWCA for the Parks and Recreation Department to manage, program and operate the Thatcher Family Pool. The term of the agreement expired December 31, 2012. Because the City did not renew the agreement at the end of the term, a financial decision was made by the YWCA Board and staff to indefinitely cease operation. On Tuesday, January 8, 2013, by request of City staff, the YWCA Executive Board met and discussed if there would be any flexibility with the City/YWCA agreement in order to keep the facility open in 2013. The Board decided that the $2,000/month lease payment would be firm due to the YWCA’s existing costs of keeping the pool open. The Board did request that the City operate the pool in accordance with the agreement for the period of four months while they try to obtain a grant with a Health Foundation. This grant would allow the YWCA to partner with the City/County Health Department to fully operate the pool without the City’s involvement. The City has agreed to operate the pool from mid-February to the end of May. FINANCIAL IMPACT: Pursuant to the agreement, the YWCA will still be responsible for any and all building expenses related to the swimming pool facility, including but not limited to utilities, water, pest control, telephone, internet, and trash removal. The YWCA will also 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. 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. Pursuant to the agreement, the City will pay to the YWCA $2,000 per month for the term of the agreement, which will be through May 31, 2013. A fee increase for adult use will go into effect with the new agreement as follows: Current Proposed Daily Pass – Adult $5.00 $10.00 Daily Pass – Child $2.00 $2.00 Daily Pass – Couple $8.00 $15.00 Punch Card (10 punches) $40.00 $50.00 Family Punch Card (20 punches) $65.00 $80.00 Monthly Unlimited Use $45.00 Not Offered Monthly Couples Unlimited Use $70.00 Not Offered Monthly Family Unlimited Use $75.00 Not Offered The following is the new hours of operation through May 31, 2013: Pool Operating Hours - 20 hours per week Tuesday, Thursday and Saturday, 8 am to 12 noon Wednesday and Friday, 4 pm to 8 pm Closed Sunday and Monday The estimated “Operation Expenses” – mid-February through May 2013 are as follows: Personnel: ($12,000) Equipment: ($1,600) Lease Payment: ($8,000) Total Expenses ($21,600) Total Revenue $8,000 Total Estimated Cost to the City will be $13,600 AGREEMENT THIS AGREEMENT entered into as of February 11, 2013 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. 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 2013, 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. 2 4. The term of this Agreement shall be from February 11, 2013 through May 31, 2013. The term of this Agreement may be extended by written agreement of the parties. 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. 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. seg. 3 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. 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. [SEAL] CITY OF' sL0 Attest: L —r" City erk Press' of the City Counci Approved as to form: '62 /) w"t G , City Attorney THE PUEBLO YOUNG WOMENS CHRISTIAN ASSOCIATION Attest: A !. A 16,211 VA BY � k Secre ary President 4