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HomeMy WebLinkAboutR-2013-078 YMCA Services Agreement for Fitness Classes RESOLUTION NO. R- 2013- 078 A RESOLUTION AUTHORIZING THE CITY OF RIVERSIDE TO ENTER INTO A SERVICES AGREEMENT FOR THE OPERATION OF FITNESS CLASSES WITH THE YMCA OF GREATER KANSAS CITY WHEREAS, the City of Riverside wishes to provide fitness classes and to retain a qualified independent contractor to provide such services at the Riverside Community Center; and WHEREAS, the primary purpose of the YMCA of Greater Kansas City is to promote the spiritual, intellectual, social and physical welfare of all persons and to further promote the YMCA's primary purpose in the Kansas City Metropolitan Area, the YMCA, among other activities, provides fitness classes in the metropolitan area; and WHEREAS, the YMCA, in furtherance of its primary purpose, desires to assist the City of Riverside in the management and operation of fitness classes at the Community Center; and WHEREAS, the City's Board of Aldermen believes that the City's best interests are promoted and aided by entering into an agreement with the YMCA for the provision of the operation of fitness classes in substantially the same form as set forth in Exhibit "A" attached hereto; NOW, THEREFORE, BE IT RESOLVED, BY THE BOARD OF ALDERMEN OF RIVERSIDE, MISSOURI, AS FOLLOWS: THAT the City finds that the provision of the services by the YMCA to provide fitness classes at the Riverside Community Center contributes to the welfare of the City as well as the economic and social potential of the City and its residents; FURTHER THAT the Fitness Class Services Agreement between the YMCA and the City of Riverside in substantially the same form as set forth in Exhibit "A" attached hereto is hereby authorized and approved; FURTHER THAT the Mayor or City Administrator are authorized and directed to execute the Fitness Class Services Agreement in substantially the same form as set forth in Exhibit "A" attached hereto together with any and all documents necessary or incidental to the performance thereof, and the City Clerk is authorized to attest to the same; FURTHER THAT city staff is authorized and directed to perform all acts necessary or desirable to effectuate the intent of this Resolution. PASSED AND ADOPTED by the Board of Aldermen and APPROVED by the Mayor of the City of PA day Missouri, the day of August, 2013. #ii&A,3066-1-1.-/ Y Kn L. Rose Mayor ATTEST: Robin Littrell, C y Clerk SERVICES AGREEMENT BETWEEN THE CITY AND YMCA FOR THE OPERATION OF FITNESS CLASSES AT THE RIVERSIDE COMMUNITY CENTER THIS SERVI ES AGREEMENT (the "Agreement "), is made and entered into as of the 7� day of , 2013, by and between YOUNG MEN'S CHRISTIAN ASSOCIATION OF GREA R KANSAS CITY ( "YMCA "), a not - for - profit corporation of the State of Missouri and the CITY OF RIVERSIDE, MISSOURI ( "City "): RECITALS WHEREAS, City wishes to provide for the operation and programming of fitness classes and to retain a qualified independent contractor to provide such services at the Riverside Community Center located at 4498 NW High Drive, Riverside, Missouri 64150 (the "Community Center "); and WHEREAS, the primary purpose of the YMCA is to promote the spiritual, intellectual, social and physical welfare of all persons. To further promote the YMCA's primary purpose in the Kansas City Metropolitan Areas, the YMCA, among other activities, provides fitness class operation and programming to the community; and WHEREAS, the YMCA, in furtherance of its primary purpose, desires to assist the City in the management, operation and programming of fitness classes at the Community Center; NOW, THEREFORE, in consideration of the mutual undertakings herein contained and other good and valuable consideration, the parties covenant and agree as follows: ARTICLE I FITNESS PROGRAM MANAGEMENT AND STAFFING 1. In General. During the Term of this Agreement, YMCA shall provide general management, operation and programming for the fitness classes at the Community Center. YMCA's rights pursuant to this Agreement are non - exclusive, and the City reserves the right for itself or others to provide fitness classes. Fitness classes are defined as classes which promote the overall health and wellbeing of those participating. The management, operation and programming responsibilities shall include the following: a. Staffing. YMCA will provide on -site staff from YMCA as required for each fitness class. Such staff shall be assigned as hours of operation and activities require. b. No Unauthorized Aliens. YMCA agrees to comply with, and provide any necessary affidavits under Section 285.530, RSMo. to confirm that it will not knowingly employ any person who is an unauthorized alien in connection with the services to be provided hereunder. 1 c. Payroll /Administrative Functions. YMCA will manage and be solely responsible for all staffing and duties related to payroll preparation, payroll processing, staffing issues and such other administrative duties reasonably stemming from proper and professional staffing for the fitness classes. d. Rules and Regulations. YMCA will use its reasonable best efforts to enforce all reasonable rules and regulations for the Community Center use as may be established by the City. 2. Access to Facilities. YMCA may use the Community Center when not programmed for use by the City. ARTICLE II COMMUNITY CENTER MAINTENANCE 1. In General. During the Term of this Agreement, YMCA shall provide limited maintenance services for the Community Center as follows: a. Maintenance and Cleaning. YMCA will provide general cleaning of the Community Center rooms it utilizes relating to the fitness classes. YMCA will not be responsible for adverse conditions of the Community Center caused by the action of the City. b. Certain City Obligations. If the Community Center needs maintenance or repair, YMCA will contact the City's Community Center staff. Said Public Works Department, as soon as reasonably possible, will provide the necessary maintenance services. c. Damage to Community Center Facilities. Any damage to the Community Center building and its facilities by City residents or other authorized users of the Community Center, or any damage caused by persons other than YMCA employees or agents, shall be the responsibility of City. Any structural or wear and tear repairs or maintenance and replacements required for the Community Center building facilities are related equipment shall be the responsibility of City unless caused by YMCA, or its employees' or agents' negligence or willful misconduct. ARTICLE III COMPENSATION City shall provide the Community Center meeting rooms and other facilities at no charge to YMCA, and City will not receive any compensation from YMCA. 2 ARTICLE IV SCHEDULE AND DAYS OF OPERATION 1. Schedule. YMCA shall operate its fitness classes from 5:00 a.m. — 10:00 p.m. Monday - Sunday, except on holidays. Reasonable access to the building shall be provided by the City to provide an opportunity for YMCA to set up for the fitness classes. 2. Days of Operation. YMCA shall conduct fitness classes daily Monday through Sunday, with the exception of holidays when the Community Center is closed. ARTICLE V INSURANCE AND INDEMNIFICATION; RELATIONSHIP 1. Insurance. The parties shall maintain insurance as follows: a. YMCA. During the Term of this Agreement, YMCA shall maintain Commercial Liability insurance to protect against any liability arising out of the performance of the YMCA's obligations under this Agreement. Such insurance shall be in amounts at least equal to the limits of liability of $1,000,000 each occurrence, $2,000,000 aggregate, and City shall be named as an additional named insured on all such policies. YMCA shall also maintain such Worker's Compensation insurance as is required by Missouri law, covering its employees and agents. b. City. During the Term of this Agreement, City shall maintain Commercial Liability insurance, or by such other public entity risk management insurance pool, company or agency authorized to insure governmental entities in the State of Missouri, to protect against liability for existence of hazards of the Community Center facility and premise. 2. Relationship: Indemnity by YMCA. The parties agree that YMCA is an independent contractor, with full authority and control within the constraints of this Agreement to manage and operate the fitness classes, and that neither the YMCA nor any employee or agent of YMCA is an employee of the City. YMCA shall indemnify and hold harmless City from any and all liability, and all liability and claims, including reasonable attorneys' fees, arising out of or in any way connected with the negligent or willful misconduct performance by YMCA, its employees or agents of YMCA's obligations under this Agreement. ARTICLE VI OVERALL STANDARD OF CARE AND PERFORMANCE BY YMCA Notwithstanding any other provision of this Agreement, YMCA is providing management, programming, and operational services for all fitness classes at the Community 3 Center and shall not be required to do more, and shall not do less, than YMCA generally does at YMCA owned and operated facilities in the Kansas City Metropolitan Area which are similar to the Community Center. ARTICLE VII TERM YMCA services under this Agreement shall be provided for a one (1) year period from July 1, 2013 through June 30, 2014 (the initial "Term ") and may be renewed automatically for two additional one -year Terms under these same terms and conditions unless a party is in breach or default under Article IX. Further, if either party chooses not to renew the Agreement, said party must provide the other party written notice not less than 60 days prior to the expiration of the Term of its intent not to renew the Agreement. ARTICLE VIII FURTHER ACTIONS; REASONABLENESS AND AUTHORIZED REPRESENTATIVES 1. Actions; Reasonableness and Cooperation. Each party agrees to take such further actions and to execute such additional documents or instruments as may be reasonably requested by the other party to carry out the purpose and intent of this Agreement. Except where expressly stated to be in a party's sole discretion, or where it is stated that a party has the ability to act in its sole judgment or for its own uses or purposes, wherever it is provided or contemplated in this Agreement that a party must give its consent or approval to actions or inactions by the other party or a third party in connection with the transactions contemplated hereby, such consent or approval will not be unreasonably withheld or delayed nor will any other determination which must be made by a party in the course of performing and administering this Agreement be unreasonably made. YMCA and City each also agree to cooperate with and reasonably assist each other in good faith in carrying out the purpose and intent of this Agreement. If no time period is set hereunder for a party to approve or consent to an action or inaction by the other party or a third party, such approval shall be given or affirmatively withheld in writing within ten (10) days after it is requested in writing or it shall be deemed given. 2. Authorized Representatives. Until such time as either party shall appoint an alternative representative or representatives, the following named persons shall be deemed an authorized representative for such party with respect to this Agreement and the operation and management of the fitness classes at the Community Center and the other party shall be entitled to rely on the actions and communications of said person(s) to be those of such party so long as the same are within the scope of this Agreement: City: Meredith Hauck 4 YMCA: Garry Llnn and David Byrd ARTICLE IX DEFAULT AND REMEDIES 1. Breach or Default. If either party fails to discharge any of its obligations under this Agreement, the party failing to perform shall be in breach or default hereof. 2. Notice and Cure Rights. Notwithstanding anything to the contrary herein, neither party shall be considered to be in breach or default hereunder until the other party shall have notified the party failing to perform in writing describing such breach or default and such party shall have failed to reasonably cure the breach or default within ten (10) days after receipt of such notice, or if more than ten (10) days shall be reasonably required for such cure because of the nature of the breach or default, such party shall fail to proceed diligently to cure the same or complete such cure within a reasonable time. The party failing to perform shall, nevertheless, remain liable to the other party for any damages or loss caused prior to the cure of a breach or default, including, without limitation all reasonable fees and expenses (including attorneys' fees) incurred by the other party in obtaining such party's cure of a breach or default. 3. Remedies. In the event that a party fails to cure any breach or default within the time prescribed in Article IX, Subsection 2, the other party may, without further notice or demand, terminate this Agreement and /or pursue such rights and remedies as provided by law and equity generally with respect to the type of breach or default in question. 4. Payments /Performance "Under Protest ". If at any time a dispute shall arise as to any amount or sum of money to be paid by one party to the other party, or into any fund, or escrow, under the provisions hereof, the party against whom the obligation to pay the money is asserted shall have the right to make payment "under protest" and such payment shall not be regarded as a voluntary payment and there shall survive the right on the part of said party to institute permitted actions for the recovery of such protested sum, and if it shall be finally determined that there was no legal obligation on the part of said party to pay such sum or any part thereof, said party shall be entitled to recover such sum or so much thereof as it was not legally required to pay under the provisions of this Agreement, together with interest thereon at the then "legal" or "judgment" interest rate under Missouri law if paid to the other party. If at any time a dispute shall arise between the parties hereto as to any work to be performed by either of them under the provisions hereof, the party against whom the obligation to perform the work is asserted may perform such work and pay the cost thereof "under protest" and the performance of such work shall in no event be regarded as a voluntary performance and there shall survive the right on the part of said party to institute permitted actions for the recovery of the cost of such work, and if it shall be finally determined that there was no legal obligation on the party of said party to perform the same or any part thereof, said party shall be entitled to recover the cost of such work or 5 the cost of so much thereof as said party was not legally required to perform under the provisions of this Agreement, together with interest thereon at the then "legal" or "judgment" interest rate under Missouri law. ARTICLE X NOTICES All notices required or desired to be given hereunder, except for normal day -to -day communication, shall be in writing, and all such notices and other written documents required or desired to be given hereunder shall be hand delivered, or sent by registered or certified mail, or by a recognized overnight delivery service, such as FedEx, as follows: If to the City: City of Riverside, Missouri 2950 N.W. Vivion Road Riverside, MO 64150 Attention: Meredith Hauck If to YMCA: YMCA 3100 Broadway, Suite 1020 Kansas City, MO 64111 Attention: Mark Hulet With a copy to YMCA's Counsel: Lathrop & Gage, LLP 2345 Grand Boulevard, Suite 2200 Kansas City, MO 64108 Attention: Alfred R. Hupp, Esq. or YMCA Responsible Attorney Notice shall be deemed duly given upon hand delivery, or upon mailing, first class postage or overnight delivery charge prepaid, addressed as above indicated. A party may change its address for notices by written notice to the other party. ARTICLE XI MISCELLANEOUS 1. Entire Agreement; Modifications. All understandings and agreements heretofore between the parties relating to the operation and management of the fitness classes are merged in this Agreement, which alone fully and completely expresses their agreement. This Agreement may not be modified, changed or supplemented, nor may any obligations hereunder be waived, except by written instrument signed by the party to be charged or by its agent duly authorized in writing or as otherwise expressly permitted herein. 6 2. Force Majeure. If, by reason of force majeure, either party is unable in whole or in part to carry out its obligations under this Agreement, such party shall not be deemed in default during the continuation of such in ability, provided reasonably prompt notice thereof is given to the other party. The term "force majeure" as used herein shall mean, without limitation, the following: acts of God; strikes, lockouts or other industrial disturbances; acts of public enemies or military authority; insurrections, riots, terrorist acts; landslides; earthquakes; fires; storms; drought; floods or other severe weather conditions; explosions; breaks or accident to HVAC; utility lines, machinery, or waste disposal systems; or any other cause or event not reasonably within the control of such party and not resulting from its negligence or intentional wrongful acts or omissions. Provided, however, that this Section shall not be applicable to payments of monies due under this Agreement. 3. Waivers. No waiver of any breach of any agreement or provision herein contained shall be deemed a waiver of any preceding or succeeding breach thereof or of any other agreement or provision herein contained. No extension of time for performance of any obligations or acts shall be deemed an extension of time for performance of any other obligations or acts. 4. Binding Effect. This Agreement shall bind and insure to the benefit of the parties and • their successors and assigns. 5. Counterparts. This Agreement may be executed at different times and in two or more counterparts and all counterparts so executed shall for all purposes constitute one agreement, binding on all the parties hereto, notwithstanding that all parties shall not have executed the same counterpart. In proving this Agreement, it shall not be necessary to produce or account for more than one such counterpart executed by the party against whom enforcement is sought. 6. Captions. The captions used in connection with the Articles, Sections and Subsections of this Agreement are for convenience of reference only and shall not be deemed to construe or limit the meaning or language of this Agreement. 7. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions of this Agreement shall remain in full force and effect. 8. Governing Law. The Agreement shall be governed and construed in accordance with the laws of the State of Missouri with respect to contracts to be wholly performed herein. 9. No Third Party Beneficiaries. The parties do not intend to confer any benefit hereunder on any person, firm or other entity other than the parties hereto. 7 10. Interpretation. Unless otherwise specified herein, (a) the singular includes the plural and the plural the singular; (b) words importing any gender include the other genders; (c) references to person or parties include successors and assigns. 11. When Effective. Notwithstanding any provision contained in this Agreement to the contrary, this Agreement shall become effective only after the execution and delivery of this Agreement by each of the parties hereto and no course of conduct, oral agreement or written memorandum shall bind either party with respect to the subject matter hereof except this Agreement. 12. Survival. In addition to any provisions expressly stated to survive termination of this Agreement, all provisions which by their terms provide for or contemplate obligations or duties of a party which are to extend beyond such termination (and the corresponding rights of the other party to enforce or receive the benefit thereof) shall survive such termination. 13. Authority of Signatories. Any person executing this Agreement in a representative capacity represent and warrants that such person has the authority to do so and, upon request, will furnish proof of such authority in customary form. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 8 IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year above written. YOUNG MEN'S CHRISTIAN ASSOCIATION OF GREATER KAN AS CITY By: 4 r /e . /4_2 Print Na e: l(ELA- MCC / «.r e- Title: G c Date: 9 / 2 / c; CITY OF RIVERSIDE, MISSOURI By: Gl�tL� GC/�O` Kathleen L. Rose Title: Mayor / Date: l l ,t,c 5 • � CP , c)- 3 ATTEST: / U — IJ .►i �f : /./ By: ( Robin Littrell, Ci y Clerk ` Gregory P. Mills Title: City Administrator Date: QL( 7, e2043 9 CITY OF < r RIVE MISSOURI Upstream from ordinary. 2950 NW Vivion Road Riverside, Missouri 64150 AGENDA DATE: 2013 - - TO: Mayor and Board of Aldermen FROM: Meredith Hauck, Director of Administration RE: YMCA Fitness Class Services Agreement Overview At the June 4, 2013 Board of Aldermen meeting, the Board agreed to allow the YMCA to begin offering fitness classes at the Riverside Community Center. These classes started on July 8 and are free to YMCA members. This agreement will formalize the arrangement between the City and the YMCA to offer fitness classes at the Riverside Community Center. This is not an exclusive agreement — the City retains the right to continue to offer City fitness classes or contract with another provide to offer additional classes at our discretion. Cost The YMCA does not pay the City to utilize the facility and the City does not receive any revenue from the YMCA for operating the classes. All classes are offered during a time when the Community Center is already open so there is no additional cost impact to the City. Staff Recommendation Staff recommends approving this agreement.