HomeMy WebLinkAboutR-2020-093 YMCA/Riverside Management and Services Agreement RESOLUTION NO. R-2020-093
A RESOLUTION APPROVING THE 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 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.
tj PASSED ND ADOPTED by the Board of Aldermen of the City of Riverside, Missouri,
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the day of k-— 2020.
Mayor Kathleen L. Rose
ATTEST:
Robin Kincaid, City Clerk
YMCA/RIVERSIDE MANAGEMENT
AND SERVICES AGREEMENT
THIS YMCA/RIVERSIDE MANAGEMENT AND SERVICES AGREEMENT (the
"Agreement"),is made and entered into as of the day of ,2020 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
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
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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 times, 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.
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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.
1.1.1 l 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, tornado 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 Program 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 has agreed to
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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. In the event that the YMCA determines it to be feasible and 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. Steed 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
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• 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 the first Friday after Memorial Day, through the first Monday in August,
provided that the City Administrator is authorized to approve modifications to these dates based
on programming needs and Community Center meeting room availability. 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 and Lunch Program. The YMCA will provide a healthy snack every day in
connection with the Summer Camp Program the YMCA's Healthy Eating and Physical Activity
Standards of serving fruits or vegetables with water as the primary beverage. In addition, the
YMCA will provide a healthy lunch for campers each day.
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.
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3.4.2 Maintenance and Cleaning. 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 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 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 as
determined by their program schedule with the exception of July 4t'.
ARTICLE IV
COMPENSATION
4.1 Swimming Pool Services. CITY OF RIVERSIDE shall compensate YMCA for
oversight and management of the City Pool for the 2020 season for a fee of$81,997.65 for the
entire swimming season, to be billed in four equal monthly installments of$20,449.41 each at the
beginning of each month from June through September. The YMCA will increase the fee 5%
annually after the 2020 season to account for increased personnel costs.
The regular hourly schedule in Section 1.1.1 l anticipates 778 hours of public swim time per
swimming season. In the event that,by mutual agreement, the hours of operation are reduced,the
annual fee will be calculated as follows:
The Swimming Pool Services fee set in this Section will be divided by the 778 anticipated hours
of public operation to determine a per-hour rate. The per-hour rate will then be multiplied by the
number of hours in the reduced schedule and then increased by a fixed percentage to compensate
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for staff training and recruitment costs. For the 2020 season, the increase to compensate for staff
training and recruitment costs will be twenty (20) percent and for all subsequent seasons, the
increase to compensate for staff training and recruitment costs will be ten (10) percent. In the
event that the calculated payment exceeds the entire swimming season fee set forth in this section,
the fee set forth in this section will be the maximum paid to the YMCA.
In the event that the hours are increased beyond those set in Section 1.1.11, the per-hour rate as
calculated above will be multiplied by the number of hours in the increased schedule with no
additional percentage related to staff training and recruitment 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. In the event that the YMCA determines a summer camp
program to be feasible in accordance with this agreement,the 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%or 50%based on YMCA eligibility standards. Program fees for non-Riverside residents
shall be $140 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
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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 Employee(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
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 2020 (the Term"):
City Pool: May 15 to September 10;
Fitness Classes at the Community Center: January 1 to December 31; and
Summer Camp Program: May 29 to August 3;
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provided that this Agreement will automatically renew on January 1 of each year for an additional
calendar year unless one party gives notice of termination to the other party on or before November
1 of the respective calendar year, and provided further that if this Agreement does renew,the City
Administrator is authorized to approve modifications to the dates listed herein based on how dates
fall on the calendar,programming demand, and facility availability
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.
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
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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 PoMent/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.
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: Brian Koral, City
Administrator
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.
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ARTICLE XI
MISCELLANEOUS
11.1 Entire Agreement, 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 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 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.
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.
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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
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]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year
first written above.
ATTEST:
Name .... -
,
Title; City Clerk
YOUNG MEN'S CHRISTIAN
ASSOCIATION OF GREATER
NSAS CITY
By.
Name:
Title:
Date:
elli McClur
ief I iniicaI Officer
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CITY OF RIVERSIDE, MISSOURI
Name: Kathleen L. Rose
Title: of
Date: C -Te -
Attach: Attachment 1 — YMCA Pool Rules and Protocols
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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.
23961058v2
Green Wrist Bands:
- Children with a green wrist band on may swim anywhere in the pool.
- Children 8 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 8 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
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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
During 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
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