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HomeMy WebLinkAboutR-2018-044 Approving 2018 YMCA/ Riverside Management Services Contract RESOLUTION NO. R-2018-044 A RESOLUTION APPROVING THE 2018 YMCA/RIVERSIDE MANAGEMENT AND SERVICES AGREEMENT BE IT RESOLVED BY THE BOARD OF ALDERMEN OF THE CITY OF RIVERSIDE, MISSOURI AS FOLLOWS: THAT the Board of Aldermen hereby approves the 2018 YMCA/Riverside Management and Services Agreement between the City and YMCA, attached hereto in its substantial form, and authorizes the Mayor to execute the agreement on behalf of the City; and FURTHER THAT the Mayor, the City Administrator, and other appropriate City officials are hereby authorized to take all actions as may be deemed necessary or convenient to carry out and comply with the intent of the agreement and to execute and deliver for and on behalf of the City all certificates, instruments, agreements and other documents, as may be necessary or convenient to perform all matters herein authorized. PASSED AND ADOPTED by the Board of Aldermen of the City of Riverside, Missouri,the *--� day of 5�_. 2018. a Kathleen L. Rose IATTESt: Robin' Kincaid;City Clerk 2018 YMCA/RIVERSIDE MANAGEMENT AND SERVICES AGREEMENT THIS 2018 YMCA/RIVERSIDE MANAGEMENT AND SERVICES AGREEMENT (the "Agreement"), is made and entered into as of the S- day of St&n 0 2018 by and between YOUNG MEN'S CHRISTIAN ASSOCIATION OF GREATER KANSAS CITY ("YMCA"), a not-for-profit corporation of the State of Missouri and the CITY OF RIVERSIDE, Missouri ("CITY OF RIVERSIDE"), a political subdivision of the State of Missouri: RECITALS WHEREAS, CITY OF RIVERSIDE and the YMCA have previously entered into agreements whereby the YMCA as a qualified independent contractor has been retained to oversee and manage certain operations of CITY OF RIVERSIDE's Riverside Community Center located at 4498 N.W. High Drive, Riverside, Missouri 64150 (the "Community Center"), including an outdoor swimming pool a part thereof(the "City Pool"), and which services have included providing fitness classes and a Summer Camp Program(the "Summer Camp"); 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 Area, the YMCA, among other activities, manages community center and swimming pool operations, including season start-up and close-down of facilities and equipment, provision of lifeguard services and coordination of instructional and competitive swimming programs and runs summer camp programs; and WHEREAS, the YMCA, in furtherance of its primary purpose, desires to continue to assist CITY OF RIVERSIDE in the management and operation of its Community Center and City Pool and its swimming and Fitness Classes and Summer Camp Program at such facilities. 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 SWIMMING POOL MANAGEMENT, STAFFING,MAINTENANCE AND DAYS/HOURS OF OPERATION 1.1 Pool, in General. During the Term applicable to the City Pool set out below, the YMCA shall provide general management, direction, operating policy coordination and maintenance for the City Pool. Those YMCA responsibilities shall include the following: 1.1.1 Pool Staffing: No Unauthorized Aliens. The YMCA will provide on-site staff from the YMCA which shall include a Head Lifeguard, Lifeguard Staff and a City Pool Manager. Such staff shall be assigned as hours of operation and activities require including all admission activities with either the Head Lifeguard or the City Pool Manager being on duty at all times. All Pool on-site YMCA staff shall be fully-certified lifeguards, with a current Lifeguard Training qualification, who have received C.P.R. training and certification as required for other YMCA pools in the Kansas City Metropolitan Area. The YMCA agrees to comply with, and 2 provide any necessary affidavits under, R.S.Mo. Section 285.530 to confirm that it will not knowingly employ any person who is an unauthorized alien in connection with the services to be provided hereunder. 1.1.2 Payroll/Administrative Functions. The 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 YMCA personnel staffing of the City Pool. 1.1.3 Admission to City Pool. The YMCA will provide qualified supervision staff trained for access control, as agreed by CITY OF RIVERSIDE and YMCA,during all hours of operation and for all activities located at the City Pool. 1.1.4 Rules and Regulations. All users of the City Pool will be required to follow the YMCA Pool Rules and Protocols set out in Attachment 1 attached hereto and made a part hereof, as the same may be reasonably supplemented or amended by the YMCA. The YMCA will also use its reasonable best efforts to enforce all reasonable rules and regulations for the City Pool as may be established by CITY OF RIVERSIDE. 1.1.5 Pool Maintenance in General. During the Term applicable to the City Pool, the YMCA shall provide limited maintenance services for the City Pool as follows: 1.1.6 Equipment and Supplies. The YMCA will assist CITY OF RIVERSIDE from time to time with determining specifications for necessary equipment and supplies for the City Pool's operation. 1.1.7 Maintenance and Cleaning. The YMCA will provide necessary maintenance and cleaning of pools, decks, restrooms, locker rooms and showers, storage facilities and other areas of the City Pool prior to season opening and daily thereafter such that the pools and related facilities are maintained in a clean, uncluttered condition at all rimes, all consistent with those activities contained in Attachment A. The YMCA will be responsible for maintaining the condition of the City Pool in conformity with the standards, rules and regulations set by the local health authority. The YMCA shall not be responsible for the condition of the City Pool, equipment and related buildings and facilities prior to the YMCA's signing of the Pool Agreement. The YMCA will not be responsible for adverse conditions of the City Pool or surrounding areas caused by the action of CITY OF RIVERSIDE. 1.1.8 Chemical Testing. The YMCA shall maintain accurate chemical tests and usage records on a daily basis and maintain appropriate first aid kit(s) in compliance with local health standards and American Red Cross guidelines. 1.1.9 Certain City Obligations. If the City Pool needs chemical adjustment or its facilities need maintenance or repair, the YMCA will contact the Public Works Department of CITY OF RIVERSIDE. Said Public Works Department, as soon as reasonably possible, will provide the YMCA with the necessary chemicals to apply, or apply them, or will provide the necessary maintenance services, as the case may be. CITY OF RIVERSIDE will supply the YMCA with a cell phone for contacting its Public Works Department. 3 1.1.10 Damage to City Pool Facilities. Any damage to the City Pool and its facilities by CITY OF RIVERSIDE residents or other authorized users of the City Pool, or any damage caused by persons other than YMCA employees or agents, shall be the responsibility of CITY OF RIVERSIDE. Any structural or wear and tear repairs or maintenance and replacements required for the City Pool and related equipment and to the building facilities related to the City Pool shall be the responsibility of CITY OF RIVERSIDE unless caused by the YMCA's, or its employees' or agents' negligence or willful misconduct. 1.1.11 Regular Hours. The YMCA shall be responsible to open and operate the City Pool for open swim to the public from the Saturday prior to Memorial Day through Labor Day, during the following hours of operation: Monday through Saturday: 12 p.m. to 8 p.m. Sunday: 12 p.m. to 6 p.m. 1.1.12 Special Hours, Staffing Costs. City Pool availability at times other than regularly scheduled hours of operation and arrangements for use, shall be agreed upon in advance between the YMCA and CITY OF RIVERSIDE. In addition to the regular season sum set out in Section 4.1 below, CITY OF RIVERSIDE shall be responsible for payment to the YMCA for the hourly fee for lifeguards and other staff. The rate is $15.00 per hour per lifeguard including 1/2 hour for cleanup. CITY OF RIVERSIDE agrees to use its reasonable best efforts to give the YMCA no less than three (3) weeks' notice of such events and the YMCA agrees to bill the City separately for these events. 1.1.13 Pool Closures. The YMCA reserves the right to close the City Pool during inclement weather at the reasonable discretion of the Head Lifeguard on duty. Conditions warranting closure include lightning, thunder(even if no lightning has been seen), extreme wind, rain, threatening clouds, tomado warnings and/or if the temperature drops below 65 degrees (Health Department recommendation). The City Pool will reopen when the Head Lifeguard on duty deems it safe for persons to return to the water. YMCA shall contact Riverside City Hall and Riverside Public Works Department prior to closing and reopening. ARTICLE II FITNESS PROGRAM MANAGEMENT AND STAFFING 2.1 Fitness Proaram in General. During the Term of this Agreement applicable to the Fitness Classes at the Community Center, the 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 of the YMCA shall include the following: 2.1.1 Staffing. The YMCA will provide on-site staff from the YMCA as required for each Fitness Class. Such staff shall be assigned as hours of operation and activities require. The YMCA has hired a program director to work at the Community Center on or about March 1, 2014. Once this program director was hired and the programs launched, the YMCA 4 has agreed to provide up to twenty (20) hours of additional group exercise classes and conduct a community survey (both on-line and through direct mail) to help determine what new classes might be implemented at the Community Center. 2.1.2 No Unauthorized Aliens. The YMCA agrees to comply with, and provide any necessary affidavits under Section 285.530, R.S.Mo. to confirm that it will not knowingly employ any person who is an unauthorized alien in connection with the Fitness Classes services to be provided hereunder. 2.1.3 Payroll/Administrative Functions. The 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. 2.1.4 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 OF RIVERSIDE. 2.2 YMCA Use of Facilities. Through coordination with the CITY OF RIVERSIDE from time to time, during the Term of this Agreement, YMCA for no rent or fees, but at the YMCA's cost for supplies and consumables, may reasonably use the Community Center for usual and customary YMCA purposes when not programmed for use by the CITY OF RIVERSIDE. The YMCA shall be responsible to reimburse the CITY OF RIVERSIDE for any loss or damage resulting from such YMCA use of the Community Center and the YMCA shall defend, indemnify and hold the CITY OF RIVERSIDE harmless with respect to any claims or litigation arising out of such YMCA use of the Community Center. ARTICLE III SUMMER CAMP PROGRAM MANAGEMENT, STAFFING AND SCHEDULE 3.1 In General. During the Term of this Agreement applicable to the Summer Camp Program, the YMCA shall provide general management, direction and operating policy coordination for the Riverside Community Center Summer Camp Program. Those responsibilities shall include the following: 3.1.1 Staffing. The YMCA will provide on-site staff from the YMCA which shall include a staff-to-camper ratio of 1:15 for 5 to 12 year olds. The number of campers allowed to participate at any one time shall be limited to a maximum of 40. Staffing shall include , one (1) full time Camp Director, one (1) full time assistant camp director, and such other part time Camp Associates to ensure proper staff-to-camper ratio. Camp staff will be closely supervised by District Program Director and Sr. Director of Program Operations. Sieh Camp staff shall be assigned as hours of operation and activities require. All on-site YMCA staff shall be trained as follows: • First Aid/CPR required for all Camp Directors and Program Leads • Epi Pen/Medication — required for all Camp Directors and Program Leads 5 • Risk Management Online Training Series — required for all Camp Associates • All Summer Associate Training required for all Camp Associates 3.1.2 No Unauthorized Aliens. The YMCA agrees to comply with, and provide any necessary affidavits under, R.S.Mo. Section 285.530 to confirm that it will not knowingly employ any person who is an unauthorized alien in connection with the Summer Camp Program services to be provided hereunder. 3.1.3 Payroll/Administrative Functions. The 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 of the Summer Camp Program. 3.1.4 Transportation and Admission to Program Activities. The YMCA will provide qualified supervision staff trained for transportation and access control, as reasonably agreed by CITY OF RIVERSIDE and YMCA, during all program hours of operation and for all on-site or off-site program activities. 3.1.5 Rules and Regulations. The YMCA will use its reasonable best efforts to enforce all reasonable rules and regulations for the Community Center use as may be established by CITY OF RIVERSIDE. 3.2 Access to Facilities. The YMCA shall have exclusive use of the Community Center meeting rooms from May 29, 2018, through August3, 2018. In addition to the Community Center meeting rooms, the YMCA will have access to the City Pool during regular pool hours when certified lifeguards are on duty and the gymnasium when it is not otherwise programmed for use by the CITY OF RIVERSIDE. 3.3 Snack Program. The YMCA will provide a healthy snack every day in connection with the Summer Camp Program that adheres to the YMCA's Healthy Eating and Physical Activity Standards of serving fruits or vegetables with water as the primary beverage. 3.4 Community Center Maintenance, in General. During the Term applicable to the Summer Camp Program, the YMCA shall provide limited maintenance services for the Community Center as follows: 3.4.1 Equipment and Supplies. The YMCA will provide all equipment and supplies as deemed necessary for the Summer Camp Program operation, including, but not limited to refrigerator, storage cabinets, shelving, tables, and chairs. CITY OF RIVERSIDE will provide all equipment and supplies as deemed necessary for cleaning and maintenance of the Community Center building. 3.4.2 Maintenance and Cleanine. The YMCA will provide necessary maintenance and cleaning of the Community Center meeting rooms utilized for the Summer Camp Program such that the meeting rooms are maintained in a clean, uncluttered condition at all times. CITY OF RIVERSIDE staff will clean the meeting room floors according to its 6 regular cleaning schedule. On a daily basis, the YMCA will be responsible for maintaining the condition of the meeting rooms in conformity with the standards, rules and regulations set by the Missouri Department of Health and Senior Services. The YMCA shall not be responsible for the condition of the Community Center meeting rooms prior to commencement of the Summer Camp Program. The YMCA will not be responsible for adverse conditions of the Community Center meeting rooms or surrounding areas caused by the action of CITY OF RIVERSIDE. 3.4.3 Certain City Obligations. If the Community Center meeting rooms need maintenance or repair, the YMCA will contact the Public Works Department of CITY OF RIVERSIDE. Said Public Works Department, as soon as reasonably possible, will provide the necessary maintenance services. 3.4.4 Damage to Community Center Facilities. Any damage to the Community Center building and its facilities by CITY OF RIVERSIDE 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 OF RIVERSIDE. Any structural or wear and tear repairs or maintenance and replacements required for the Community Center building facilities and related equipment shall be the responsibility of CITY OF RIVERSIDE unless caused by the YMCA's, or its employees' or agents' negligence or willful misconduct. 3.5 Schedule. The YMCA shall operate the Summer Camp Program from 7 a.m.- 6 .m:6 p.m. Monday-Friday. Access to the Community Center shall be provided by the CITY OF RIVERSIDE no earlier than 6:30 a.m. to provide an opportunity for the YMCA to set up for the day's activities. 3.6 Days of Operation. The YMCA shall conduct the Summer Camp Program daily Monday through Friday from May 29, 2018, through August3, 2018, with the exception of July 4th. ARTICLE IV COMPENSATION 4.1 Swimming Pool Services. CITY OF RIVERSIDE shall compensate YMCA for oversight and management of the City Pool for the 2018 season for a fee of$74,374.65 for the entire swimming season, to be billed in four equal monthly installments of$18,593.66 each at the beginning of each month from June through September. The YMCA will increase the fee 5%annually after the 2018 season to account for increase personnel costs. 4.2 Fitness Center Services. CITY OF RIVERSIDE will pay YMCA $3,500.00 per month beginning with the month of March and ending June 30'' of each calendar year during the Term of this Agreement. This monthly compensation amount will be reduced or offset by the monthly value of new YMCA memberships fulfilled by CITY OF RIVERSIDE residents on or after March 1, 2014. The parties agree that the baseline membership number, as of March 1, 2014 (by which to measure offsets), is 250. 4.3 Summer Camp Program. YMCA shall offer its Summer Camp Program to Riverside residents for a weekly fee of$95, with all such payments to be retained by YMCA. In addition, Riverside residents shall be eligible for financial assistance scholarships of 25%, 35% 7 or 50% based on YMCA eligibility standards. Program fees for non-Riverside residents shall be $ 155 per week and $95 per week for families that qualify for the free and reduced lunch program. 4.4 Other Agreements. CITY OF RIVERSIDE shall pay all such YMCA invoices within ten (10) days of receipt. CITY OF RIVERSIDE shall provide the Community Center rooms and other Community Center and City Pool facilities at no charge to YMCA. ARTICLE V INSURANCE AND INDEMNIFICATION, RELATIONSHIP 5.1 Insurance. The parties shall maintain insurance as follows: 5.1.1 YMCA. During the Term of this Agreement, the YMCA shall maintain automobile and commercial liability insurance, including insurance covering the professional liability of its manager and lifeguards and staff, with companies rated "A" or better by Best Insurance Guide, 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 OF RIVERSIDE shall be named as an additional named insured on all such policies. The YMCA shall also maintain such Worker's Compensation insurance as is required by Missouri law, covering its employees and agents. CITY OF RIVERSIDE acknowledges that under the Existing Agreements that the YMCA has delivered to CITY OF RIVERSIDE certificate(s) of insurance evidencing compliance with this Section. 5.1.2 CITY OF RIVERSIDE. During the Term of this Agreement, CITY OF RIVERSIDE shall maintain Commercial Liability insurance with companies rated "A" or better by Best Insurance Guide or by such other public entity risk management income pool, company or agency authorized to insure governmental entities in the State of Missouri, to protect against liability for existence hazards of the Community Center facilities and premises, including the City Pool. The YMCA shall be named as an additional insured on all such policies. The YMCA acknowledges that under the Existing Agreement, CITY OF RIVERSIDE has delivered to the YMCA certificate(s)of insurance evidencing compliance with this Section. 5.2 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 Community Center, including the City Pool and the Summer Camp Program, and that neither the YMCA nor any employee or agent of YMCA is an employee of CITY OF RIVERSIDE. The YMCA shall defend, indemnify and hold harmless CITY OF RIVERSIDE 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. 5.3 Certain City Emplovee(s). The parties recognize and agree that any CITY OF RIVERSIDE employees volunteering or otherwise providing any service to the YMCA with respect to this Agreement shall nevertheless remain on the City's payroll and under the City's worker's compensation and any other City fringe benefit programs. And, such City employees 8 shall not be subject to or covered by the YMCA's worker's compensation nor any such YMCA employee programs or fringe benefits. All employers must ensure that backgrounds screening including current background checks and references are being conducted on their associates. ARTICLE VI OVERALL STANDARD OF CARE AND PERFORMANCE BY YMCA Notwithstanding any other provisions of this Agreement, the YMCA in providing the Community Center and the City Pool and related facilities management and operational services and the Fitness Classes and Summer Camp Program services described in this Agreement, shall not be required to do more, and shall not do less, than the YMCA generally does at YMCA owned and operated community centers and pools and facilities and summer camps in the Kansas City Metropolitan Area which are similar to the Community Center, City Pool, Fitness Classes and the Summer Camp Program. ARTICLE VII TERM The YMCA services under this Agreement shall be provided with respect to the following through the end of 2018 (the"Term"): City Pool: May 26 to September 3;Fitness Classes at the Community Center: January 1 to December 31; and Summer Camp Program: May 29 to August 3; provided that the parties may mutually agree to renew this Agreement for up to five (5) additional one (1) year periods. ARTICLE VIII FURTHER ACTIONS, REASONABLENESS AND AUTHORIZED REPRESENTATIVES 8.1 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, whenever 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 determinations which must be made by a party in the course of performing and administering this Agreement be unreasonably made. The YMCA and CITY OF RIVERSIDE 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. 9 8.2 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 City Pool and related facilities 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 OF RIVERSIDE Lori Boji, Recreation Supervisor YMCA: Garry Linn ARTICLE IX DEFAULT AND REMEDIES 9.1 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. 9.2 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. 9.3 Remedies. In the event that a party fails to cure any breach or default within the time prescribed in Section 9.2, the other party may, without further notice or demand, pursue such rights and remedies as provided by law and equity generally with respect to the type of breach or default in question. 9.4 Payment/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 with respect to one party's performance of an obligation, under the provisions hereof, the party against whom the obligation to pay the money or perform an obligation is asserted shall have the right to make payment or perform such obligation "under protest" and such payment or performance shall not be regarded as a voluntary payment or performance and there shall survive the right on the part of said party to institute permitted actions for the recovery of such protested sum or the cost of such performance and if it shall be finally determined that there was no legal obligation on the part of said party to pay such sum or perform such obligation or any part thereof, said party shall be entitled to recover such sum or the cost of such performance or so much thereof as it was not legally required to pay or perform under the provisions of this Agreement, together with interest thereon at the rate of eight percent(8%)per annum. 10 ARTICLE X NOTICES All notices required or desired to be given hereunder 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 CITY OF RIVERSIDE: CITY OF RIVERSIDE 2950 N.W. Vivion Road Riverside, MO 64150 Attention: City Administrator Brian Koral If to YMCA: YMCA 3100 Broadway, Suite 1020 Kansas City, MO 64111 Attention: Kelli McClure, CFO Notices 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. Notices sent by a party's counsel shall be considered as sent by such party. ARTICLE XI MISCELLANEOUS 11.1 Entire Amement: Modifications. All understandings and agreements heretofore between the parties relating to i) the operation and management of the City Pool, ii) fitness classes, and iii) summer camps 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. 11.2 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 continuance of such inability, 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. 11.3 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 11 obligations or acts shall be deemed an extension of time for performance of any other obligations or acts. 11.4 Binding Effect. This Agreement shall bind and inure to the benefit of the parties and their successors and assigns. 11.5 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. 11.6 Cantons. 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. 11.7 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. 11.8 Governing Law. This 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. 11.9 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. 11.10 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 persons or parties include successors and assigns. 11.11 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 memoranda shall bind either party with respect to the subject matter hereof except this Agreement. 11.12 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. 11.13 Authority of Signatories. Any person executing this Agreement in a representative capacity represents and warrants that such person has the authority to do so and, upon request, will furnish proof of such authority in customary form. 11.14 Electronic Transactions. The parties agree that the transactions described herein may be conducted and this Agreement and related documents (including signatures of parties to 12 this Agreement and related documents) may be stored by electronic means. Copies, telecopies, facsimiles, electronic files and other reproductions of original executed documents shall be deemed to be authentic and valid counterparts of such original documents for all purposes, including the filing of any claim, action or suit in the appropriate court of law. 11.15 Optional Evidence of Execution. Each party may enter into this Agreement by sending the other party a facsimile (fax) or PDF e-mail copy of its signature hereon with such party, upon request, to provide the other party with an original executed copy of this Agreement as soon as reasonably possible thereafter. [SIGNATURE PAGE FOLLOWS] 13 IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first written above. YOUNG MEN'S CHRISTIAN ASSOCIATION OF GREATER KANSAS CITY By: Name: Kelli McClure Title:Chief Financial Officer Date: ATTEST: CITY OF RIVERSIDE,MISSOURI By: Name: 6) 1 ��; Nam r� w E. Title: City Clerk Title: s Date: e, Attach: Attachment 1 —YMCA Pool Rules and Protocols 14 i s IN WITNESS WHEREOF, ttte parties have executed this Agreement as of the day and year fust written above. f i YOUNG MEN'S CHRISTIAN ASSOCIATION OF GREATER KANSAS CITY B . C _.__:_- Name: ue. Title: aff Date:. ATTEST: CITY OF RIVERSmE,MISSOURI By: Name: Name: Title: City Clerk Title: Date:. Attach: Attachment 1 —YMCA Pool Rules and Protocols 14 Attachment 1 YMCA Pool Rules and Protocols General Pool Rules - No running or rough play - All infants who have not been potty trained must be in a swim diaper along with a swim suit over the diaper - Shower before entering the pool - Proper swim attire required - Whistle Blows: Stop-Look-Listen to the lifeguard - No prolonged underwater swimming for time and or distance. Competitive and/or repetitive breath holding can be deadly and is not permitted. - The use of personal equipment or pool toys must be approved by the lifeguard - Severe weather may require pool closure for your safety - No diving except in designated areas - Activities that are considered unsafe by the lifeguard are not permitted Diving Rules - Only one person is allowed on the diving apparatus (including ladder) at a time - Divers must dive straight from the front end of the board - Upon surfacing, immediately swim to the nearest ladder - A diver must wait until the preceding diver has surfaced and reached the ladder - No general swimming is permitted in the diving area, unless the diving boards are closed by staff - Diving users must complete a swim test before using the diving boards Swim Test Policy: - Children 14 years of age and under must participate in the evaluation process. o The evaluation process consist of the following: ■ Jump in feet first into the deep end of the pool or submerge using the wall for assistance. ■ Swim the length of the pool on your stomach without assistance. This can be on the surface of the water or underwater. ■ Climb out unassisted. 23%1058v2 Green Wrist Bands: - Children with a green wrist band on may swim anywhere in the pool. - Children 14 and under must be supervised by an adult over the age of 16. The supervising adult must be present on the pool deck at all times. Red Wrist Bands: - Must be in designated area or within arm's reach of an adult over the age of 16. - Children 5 and under with a red band on must be within arm's reach of an adult over the age of 16. This means the adult needs to be in the pool. - Children with a red band may not go down the slide unless an adult over the age of 16 catches them at the bottom. - Children 14 and under must be supervised by an adult over the age of 16. The supervising adult must be present on the pool deck at all times 16 Attachment A CITY OF RIVERSIDE REQUIRED DAILY SWIMMING POOL MAINTENANCE • Skim pool surface • Brush pool sides • Vacuum entire pool • Clean pool gutters • Remove all debris from drain area • Hose off pool deck • Wipe down pool furniture • Clean locker and restroom facilities before opening; check throughout the day and before closing, clean as needed. • Collect and dispose of all trash in dumpster • Collect and deposit all recyclables in recycle container • Clean all pool office areas • Clean drinking fountain • Wipe down all stainless steel features • Check diving board fasteners • Lower all umbrellas at closing and place in storage area • Lower all umbrellas during high wind • Check security of gates and fence • Secure all locks and doors at closing Report all maintenance issues to Riverside Public Works Durina pool open hours, roll up curtain will remain open at check in area and staff will be present to public. This list of maintenance duties are required but not limited to additional requested duties by the City of Riverside along with the maintenance requirements of the YMCA 17