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HomeMy WebLinkAboutReso - CC - 071-2014RESOLUTION NO. 71 —2014 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF 13URLINGAME AUTHORIZING THE CITY MANAGER TO EXECUTE THE RENWED AND REVISED AGREEMENT BETWEEN THE CITY OF BURLINGAME AND THE BURLINGAME AQUATIC CLUB, INC. FOR THE MANAGEMENT AND OPERATION OF, AND FOR THE PROVISION OF AQUATIC PROGRAMS AT THE BURLINGAME AQUATIC CENTER WHEREAS, the Burlingame Aquatic Club (BAC) and the City entered into an agreement dated March 21, 2005, whereby the City of Burlingame contracted with BAC to provide certain community youth and adult aquatic program offerings on a year-round basis at the Burlingame Aquatic Center; and WHEREAS, the City of Burlingame and the Burlingame Aquatic Club entered into a subsequent agreement on June 6, 2011 calling for expanded programming and for the BAC to provide management and operation of the aquatic programs at the Burlingame Aquatic Center on behalf of the City; and WHEREAS, BAC has cooperated with the City in the operation of the aquatic facility and in the provision of aquatic activities; and WHEREAS, BAC is an independent non-profit aquatics organization; and WHEREAS, BAC has increased community involvement in aquatics programs in Burlingame and the existing 2011 Agreement needs to be updated to reflect current practices and the direct control exercised by the City over BAC's activities; and WHEREAS, on behalf of the City, BAC will provide a full range of community aquatic activities, under the direction and subject to the approval of the City, encompassing both competitive and non-competitive programs. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF BURLINGAME DOES HEREBY RESOLVE AND ORDER AS FOLLOWS: 1. The City Council finds that all of the facts recited above and stated in the staff report are true and correct. 2. The City Council approves the renewed and revised Agreement between the City of Burlingame and the Burlingame Aquatic Club, Inc. and authorizes the City Manager to execute the Agreement, in the form of Exhibit "A", attached hereto. /lav vta/Y i V) Michael Br o 9g, Mayor I, Mary Ellen Kearney, City Clerk of the City of Burlingame, do hereby certify that the foregoing Resolution was introduced at a regular meeting of the Burlingame City Council held on the 18th day of August 2014, and was adopted thereafter by the following vote: AYES: NOES: ABSENT: Councibnembers: BROWNRIGG, Councihnembers: NONE Councihnembers: NONE knu- DEAL,KEIGHRAN,NAGEL,ORTIZ RENEWED AND REVISED AGREEMENT BETWEEN THE CITY OF BURLINGAME AND THE BURLINGAME AQUATIC CLUB, INC. FOR THE MANAGEMENT AND OPERATION OF, AND FOR THE PROVISION OF AQUATIC PROGRAMS AT, THE BURLINGAME AQUATIC CENTER THIS AGREEMENT (the Agreement') renewed and revised and entered into as of this day of August, 2014, was originally entered into on June _, 2011 and was effective as of May 9, 2011 (the "Effective Date"), by and between the CITY OF BURLINGAME, a municipal corporation (the "City') and The Burlingame Aquatic Club Incorporated, a Califomia non-profit, public benefit corporation (hereinafter `BAC"), together the "Parties". WHEREAS, the San Mateo Union High School District (hereinafter the District") owns an aquatic facility existing on the campus of Burlingame High School (hereinafter "BHS"), located at One Mangini Way, Burlingame, California, including two swimming pools, locker/shower facilities, offices and a concession stand (the "Aquatic Facility"); and WHEREAS, the City contributed substantial funds for the construction of the Aquatic Facility and, consequently, the City and the District entered into an agreement that grants to the City rights to public use of the Aquatic Facility and requires the City to provide recreational, instructional and competitive aquatics programs at the Aquatic Facility (attached as Exhibit the "District Agreement'); and WHEREAS, BAC and the City have worked together to provide community youth and adult aquatic program offerings on a year-round basis; and BAC has cooperated with the City in the operation of the aquatic facility and in the provision of aquatic activities; and WHEREAS, BAC is an independent non-profit aquatics organization; and NOW, THEREFORE, in consideration of the mutual agreements contained herein, the Parties agree as follows: 1. Services 1.1 Objectives. The objectives of this Agreement are: (a) To allow the City to provide quality aquatic programming through the BAC to the community, herein after referred to as "Community Aquatic Activities"; (b) For BAC to increase revenue, manage costs and provide Community Aquatic Activities and access to the Aquatic Facility for citizens of the City and surrounding community in a businesslike, efficient, courteous, and accommodating manner consistent with the quality of comparable public swim facilities in the San Francisco Peninsula area; (c) To reduce the City subsidy for operation deficit of the Community Aquatic Activities programs to zero; (d) For the Parties to establish a new (distinct) set of accounts to identify, manage and report the costs associated with the operation of the Aquatic Facility and the delivery of Community Aquatic Activities; BAC Agreement Page 1 of 15 (e) For BAC to provide the services under this Agreement on an open -book break-even basis, with City support as necessary, maintaining the goal of program self-sufficiency as stated in Section 1.1(c); and (f) For BAC to provide a diverse range of Community Aquatic Activities, under the direction and subject to the approval of the City, encompassing both competitive and non-competitive programs. 1.2 Competitive Aquatic Activities. Under the direct control of the City, BAC will organize competitive swimming and water polo at the Aquatic Facility at both the youth and adult levels (e.g., U.S. Masters Swimming, a U.S. Age Group Club Swim Team, Masters U.S. Water Polo, and Age Group U.S. Water Polo) on behalf of the City (collectively, "Competitive Aquatic Activities"). Programs or teams sponsored by the District or any of the District's schools are not Competitive Aquatic Activities for purposes of this Agreement. Participants in Competitive Aquatic Activities pay BAC for enrollment or participation and must be members in an organization that oversees a particular activity (e.g., USA Swimming, US Masters Swimming, USA Water Polo). Participation shall be open to any member of the public who complies with the requirements for participation in Competitive Aquatic Activities. 1.3 Non -Competitive Aquatic Activities. Under the direct control of the City, BAC will organize, administer, manage, supervise and offer all aquatic activities such as those that, prior to the 2011 Effective Date of the original agreement, were listed in the Parks and Recreation Activity Guide (e.g., youth swim lessons, adult swim camps and water exercise) that are not BHS or District swim activities (collectively, "Non -Competitive Aquatic Activities"). BAC may, from time to time and following the City's direction and policies for public use of the Aquatic Facility, adjust the offering and pricing of Non -Competitive Aquatic Activities to achieve the Objectives listed in Section 1.1. 1.4 Scope of Facility Management Services. (a) The Parties' responsibilities with respect to management and maintenance of the Aquatic Facility and equipment related to the activities and services described in this Agreement (collectively, the "Facility Management Services") are described in this Section and in Exhibit B (Facility Management Roles and Responsibilities). (b) Maintenance at the Aquatic Facility is divided into two primary categories as described below. (i) "Minor Maintenance" means such tasks as minor repairs that can be performed without specific training (e.g., bathroom stall lock repair, shower head repair, replacing light bulbs, etc.), sweeping and cleaning of the pool deck, water cleaning (i.e., vacuuming and skimming), monitoring appropriate chemical levels in water, and parts and labor expenditures that cost no more than $1,500 per item. As of the Effective Date, BAC will have operational responsibility for Minor Maintenance. BAC will cooperate with the City to bill the District for appropriate Minor Maintenance, pursuant to any then -current agreement between the City and the District. Should maintenance responsibilities as allocated under the master City -District agreement shift, the provision of maintenance under this Agreement shall conform to the City -District terms then in effect. BAC Agreement Page 2 of 15 (ii) "Major Maintenance" means such tasks as structural repairs to all buildings, care and repair of all boiler/pump equipment, proper maintenance of water treatment equipment, repair of the pool deck, exterior light replacement, fencing repair, and related parts and labor expenditures, and any minor repairs that cost $1,500 or more per item. The City and District shall at all times retain full operational and financial responsibility for Major Maintenance, and BAC shall have no responsibility therefor. (c) To the extent required by the District Agreement, and to the extent remedial action is not required of BAC under this Agreement, the City or District will maintain the Aquatic Facility in a manner consistent with standards in the industry. BAC will inform the City promptly if BAC becomes aware of any condition necessitating maintenance or repair of the Facility Plant and Equipment (as defined in Section 3.2 below). The City or District, consistent with and as required by District Agreement will undertake maintenance or repairs in a timely manner. (d) BAC shall have limited access to the pump room for the purpose of testing water chemistry. In the event that maintenance roles and requirements are modified, additional access to the pump room may be granted only by agreement in writing from both the City and District. (e) Aside from ordinary maintenance and emergency maintenance, BAC shall not refurbish or alter the Aquatic Facility, in whole or in part, nor construct any improvements at the Aquatic Facility without the City's prior written approval (which may be provided via email). Title to any improvements to the Aquatic Facility shall immediately vest and be vested in the City or the District (as agreed between the City and the District). (f) BAC shall not execute any chattel mortgage, conditional bill of sale, financing statement, lease, security agreement or lien of any kind, pertaining to any improvements, furniture, fixtures, fittings, or equipment at the Aquatic Facility. 1.5 Pricing. Sales and Promotion. (a) Pricing for Non -Competitive Aquatic Activities. After review and approval by the City, BAC will set the prices charged for Non -Competitive Aquatic Activities. All prices will be published or displayed at the Aquatic Facility and/or published on the BAC website. There will be no hidden or preferential discounts not reflected in the City -approved prices. If the City determines that the agreed-upon fee schedule negatively impacts the ability of the local community to participate in Community Aquatic Activities, BAC shall be required to meet with the City and to adjust the fee schedule to address the negative impacts. (b) Pricing for Competitive Aquatic Activities. After review and approval by the City, BAC will set prices for Competitive Aquatic Activities. These prices will be determined based on market research of like programs in the local area and any requirements of affiliated organizations, and shall be set so as to promote the vitality of the Competitive Aquatic Activities program. (c) Merchandise Sales. BAC may display and sell aquatics -related merchandise and BAC apparel at the Aquatic Facility. BAC shall not allow any other vendors to sell merchandise or apparel at the Aquatic Facility without prior approval from the City. BAC Agreement Page 3 of 15 BAC may not place vending machines in the Aquatic Facility without the District's prior approval. (d) Snack Shack Sales. BAC may operate the concessions stand at the Aquatic Facility (the "Snack Shack") during Community Aquatic Activities, subject to the following: (i) BAC will restrict the sale of any item if there is a health, safety or maintenance issue with respect to the item (e.g., glass containers, alcoholic beverages, gum, sunflower seeds, marshmallows and peanuts). BAC shall comply with any applicable state, federal and local laws regarding the sale of such items, and shall restrict the sale of such items upon request by the City. (ii) BAC's right to operate the Snack Shack is subject to the rights of other groups (e.g., BHS Boosters) to operate the Snack Shack during events and activities that are concurrent with Community Aquatic Activities. (iii) BAC is required to maintain all necessary permits and licenses to operate the concession stand. 1.6 Aquatic Facility Scheduling. On behalf of the City, BAC will maintain the schedule for use of the Aquatic Facility, and may revise the schedule, with approval from the City, for programs offered pursuant to this Agreement as deemed appropriate by BAC to maximize the use of the Aquatic Facility and meet the needs of the local community. BAC understands that it must fairly allocate time in the schedule to accommodate both Competitive Aquatic Activities and Non - Competitive Aquatic Activities. If the City determines that the schedule has a detrimental impact, BAC shall be required to meet with the City and to adjust the schedule to address the negative impacts. Scheduling shall be in conformance with the District Agreement, or any such provision in a City -District Agreement that may supersede the District Agreement. 1.7 City Inspection and Review of Services: Changes to Services. The City shall inspect and review the method and manner of BAC's performance of duties under this Agreement in order to ensure the quality and character of the services offered by BAC to the public under this Agreement. Such review shall occur on at least an annual basis, although the City is entitled to review such services at any time and on a more frequent basis as it deems necessary. Moreover, the City will monitor BAC activities on an informal and ongoing basis and will make good faith efforts to identify any perceived deficiencies or problems to the BAC in order to promote timely resolution of such issues. BAC shall discontinue, revise or remedy any practice that the City reasonably determines is inconsistent with the City's operating objectives and with the standards of practice in similar public aquatic facilities. 2. BAC Personnel 2.1 General. BAC shall provide an adequate number of personnel to conduct the activities and perform the services described in this Agreement in a manner that strives to meet public demand for prompt, courteous, and efficient service and consistent with all legal requirements and standards for the operation of public swim facilities 2.2 Executive Director. BAC will assign one person to oversee the services provided by BAC under this Agreement (the "Executive Director"), BAC Agreement Page 4 of 15 2.3 Background Checks. BAC shall require all personnel who perform services under this Agreement that bring them into contact with any patron(s) seventeen (17) years of age or younger to be fingerprinted and cleared by a background check with the State Department of Justice. This is consistent with State law. BAC shall certify in writing to the City that each employee has been cleared. BAC agrees to comply with any additional or modified background or security requirements as may be imposed by State or local law during the term of this Agreement. 2.4 Lifeguard, Coaches, and Certifications. (a) BAC will provide at least the following personnel during Non -Competitive Aquatic Activities: (i) one certified lifeguard on the pool deck who is assigned only to watch the pool with no other duties; and (ii) a second certified lifeguard within the Aquatic Facility who is in a position to respond and assist in any emergency situation. (b) BAC will provide at least two (2) rescuers during Competitive Aquatic Activities, as follows: (i) a certified lifeguard on the pool deck who is assigned only to watch the pool with no other duties, and a coach on the pool deck who is fully certified to coach through the appropriate governing swimming or water polo organization; or (ii) two (2) lifeguard - certified coaches on the pool deck. When no Non -Competitive Aquatic Activities are taking place, the second rescuer may be away from the pool deck, provided that the rescuer is in a position to respond and assist in any emergency situation, and all participants in the Competitive Aquatic Activities remain under the direct supervision of the certified lifeguard or coach who is on the pool deck. (c) BAC will provide at least two (2) rescuers when both Competitive Aquatic Activities and Non -Competitive Aquatic Activities are taking place, as follows: (i) a certified lifeguard on the pool deck who is assigned only to watch the pool with no other duties, and a second certified lifeguard within the Aquatic Facility who is in a position to respond and assist in any emergency situation; or (ii) a certified lifeguard on the pool deck who is assigned only to watch the pool with no other duties, and a coach on the pool deck who is a certified lifeguard coach. (d) During operations of programs that have especially high levels of participation or special needs participants, BAC will increase lifeguard staffing in alignment with the industry standard and good safety practices. (e) BAC shall require each coach and lifeguard working at the Aquatic Facility to maintain current certifications. BAC will maintain current copies of each certification in the Aquatic Facility office, and make such certifications available to the City for review upon request at any time. 2.5 Behavior. BAC's personnel, while in the Aquatic Facility or related premises, shall at all times conduct themselves in a businesslike, professional manner without rudeness, discourtesy or use of profanity. 2.6 Service Standard. BAC shall at all times maintain a high standard of service to the public and to the reasonable satisfaction of the City Manager of the City of Burlingame and any of the City Manager's authorized representatives (the "City Manager"). Upon written notice by the City Manager that the conduct of any BAC personnel at the Aquatic Facility is detrimental to the best interests of the public or the City, BAC shall take appropriate action and demonstrate to the City Manager how BAC has addressed the issue. The City reserves the right, which shall not be BAC Agreement Page 5 of 15 unreasonably exercised, to require exclusion from the Aquatic Facility of any BAC personnel or affiliated persons whom the City deems to present a threat of danger, liability, or inappropriate and disruptive conduct that could interfere with the enjoyment and use of the Aquatic Facility by members of the public or which may create a hostile or threatening environment for City or District employees. 2.7 Payroll & Benefits. BAC is responsible for all wages, salaries and other amounts due BAC personnel and for all tax withholdings and other employer obligations with respect to BAC personnel. 2.8 Equal Opportunity EIDDloyment. BAC warrants that it is an equal opportunity employer and shall comply with all applicable regulations and law governing equal employment opportunity. BAC does not and shall not discriminate against persons employed or seeking employment on the basis of age, sex, color, race, marital status, sexual orientation, ancestry, physical or mental disability, national origin, religion or medical condition, unless based upon a bona fide occupational qualification pursuant to the California Fair Employment & Housing Act. In performing services under this Agreement, BAC shall not discriminate against any person on the basis of age, sex, color, race, marital status, sexual orientation, ancestry, physical or mental disability, national origin, religion or medical condition, unless based upon a bona fide safety limitation founded on manufacturer, Consumer Product Safety, and Department of Justice guidelines or other applicable regulations and guidelines. BAC shall ensure that its subcontractors and employees conform to the requirements of this Section. 3. Compliance with Laws; Permits and Licenses 3.1 During the term of this Agreement, BAC at its cost will obtain and maintain the permits identified in Exhibit C (BAC Permits) and the City or District, consistent with and as required by any then - current District Agreement, will obtain and maintain all other permits relevant to the Aquatic Facility or the activities or services provided in connection with this Agreement. 3.2 At its cost and consistent with and as required by the District Agreement, the City or District will obtain and maintain all permits, certifications and approvals required for installation, operation and maintenance of the Aquatic Facility and the plant and equipment contained therein (other than equipment owned by BAC) (the "Facility Plant and Equlpment'�. 4. Use of Aquatic Facility 4.1 Rights of Use. Under the direct control of the City, the City grants BAC the exclusive right and license to operate the Aquatic Facility and provide swim -related activities at the Aquatic Facility. This Agreement is not intended to, and does not, convey to or vest in BAC any real property interest in the Aquatic Facility; this Agreement pertains solely to the use and operation of such facility. 4.2 Care in Use of Aguatic Facility. Subject to the City's and District's compliance with their responsibilities as described in Exhibit A (Facility Management Roles and Responsibilities) BAC will operate the Aquatic Facility in a clean, safe, wholesome, and sanitary manner, free of trash, garbage, or obstructions of any kind, and in compliance with any and all applicable present and future laws, general rules and regulations of any governmental authority in force now or at any time during the term of this Agreement relating to sanitation, public health, safety, or welfare. BAC Agreement Page 6 of 15 4.3 Emergency Suspension of Services. If conditions arise in the Aquatic Facility that threaten the safety of employees, program participants or the public, BAC shall immediately suspend all activities and services at the Aquatic Facility, notify the City, the District and any appropriate authorities of the condition and, if necessary, organize the immediate evacuation of the Aquatic Facility. 4.4 Emergency Contacts. The Parties shall provide each other with the names and telephone numbers of at least two (2) qualified persons who can be called in the event of an emergency or if immediate maintenance is required. 4.5 Remedy and Notification. With respect to defects and dangerous or unsanitary conditions, BAC will promptly respond to and remedy the condition consistent with its obligations under this Agreement and, if unable to do so, BAC will inform the City. The City or District, consistent with and as required by the District Agreement, will undertake maintenance or repairs in a timely manner. 4.6 Policies and Procedures. BAC shall operate the Aquatic Facility in accordance with the Burlingame Aquatic Center Policies and Procedures Manual (the "Procedures Mannar'). The current version of the Procedures Manual is attached hereto and incorporated herein as Exhibit D. In the event of a conflict between the Procedures Manual and this Agreement, the provisions, terms and conditions of this Agreement shall prevail. The Procedures Manual will be reviewed annually and may be amended as agreed by the City and the BAC. In the event that new laws, regulations, or standards come into effect that would impact the Procedures Manual during the term of this Agreement, the Procedures Manual shall be amended accordingly. 4.7 The City shall coordinate meetings and communications between the City, the District and BAC. At a minimum, the City and BAC will meet quarterly to review and discuss programming, maintenance, procedures, budget, and related issues. 5. Insurance BAC will obtain and maintain during the Term the types and amounts of insurance described below with insurers that are licensed to do business in California and have an A.M. Best rating of A-, Size VII or better. This insurance will be primary and non-contributing with respect to any insurance or self- insurance maintained by the City or District. Any insurance or self-insurance maintained by City, District, their officials, employees, agents or volunteers shall be in excess of BAC's insurance and shall not contribute with it. If the City reasonably decides that the types and amounts of insurance described below do not adequately protect the City, District and the public, BAC will obtain and maintain the types and amounts of insurance reasonably required by the City provided such additional insurance is commercially available. BAC will provide the City with certificates of insurance evidencing the coverages required hereunder with certified copies of the required endorsements or, alternatively, cause its insurers to issue certified copies of each policy with endorsements. BAC will cause its insurers to notify the City in writing at least 30 days prior to any modification, cancellation or non -renewal of an insurance policy required under this Agreement, and at least 10 days prior to any cancellation for non- payment of a premium. BAC will pay the premiums and any deductibles and retentions for the insurance required under this Agreement. In addition, Club shall require each of its agents, licensees, contractors, subcontractors, or suppliers who come onto the Aquatic facility in connection with this Agreement, to provide the same insurance coverage (with the exception of the next sentence). City, District, their officials, employees, agents and volunteers are to be covered as additional insureds under the BAC policies referred to above with respect to: liability arising out of activities performed by or on behalf of BAC; premises owned, occupied or used by BAC; or automobiles owned, leased, hired or borrowed by BAC Agreement Page 7 of 15 BAC. The coverage shall contain no special limitations on the scope of protection afforded to City, District, their officials, employees, agents or volunteers. (a) Directors and officers liability insurance with a limit of $2 million per incident. (b) Employer's liability insurance and workers' compensation insurance, including coverage for bodily injury and disease, in accordance with the laws of the State of California with a limit of S2 million or the minimum amount required by law, whichever is greater. This coverage will be endorsed to name the City, the District their officers, agents, employees and volunteers as additional insureds. (c) Commercial general liability insurance on an occurrence basis with a combined single limit per occurrence of $4 million. This coverage will be endorsed to name the City, the District their officers, agents, employees and volunteers as additional insureds. 6. Reporting, Inspections and Records 6.1 Evaluation. The Parties will jointly develop an evaluation process to assess the overall performance of the Aquatic Facility and the success of Community Aquatic Activities (e.g., assessment of financial performance, operational performance, health and safety issues, maintenance issues and community participation). 6.2 Rem. (a) Once every quarter, BAC will provide a written report to the City regarding its performance of the Community Aquatic Activities; (b) Once every quarter, BAC shall provide the City with financial and/or statistical reports regarding BAC's operation of the Aquatic Facility; and (c) Once a year at tunes agreed upon by BAC and the City, BAC shall present separately to the Parks and Recreation Commission and to the Burlingame City Council a summary report on all Community Aquatic Activities. 6.3 Inspections. (a) Performance Inspections. At its sole cost, the City may inspect (or cause a third party to inspect) the Aquatic Facility and evaluate the methods and manner of BAC's performance under this Agreement in accordance with the agreed evaluation criteria and BAC's conformance to and compliance with all laws, rules, regulations and standards applicable to the operation of a public aquatic facility. BAC may participate in any such inspection and may provide a briefing to the City during each inspection. If the City reasonably determines that BAC's performance does not meet the requirements of this Agreement, BAC will remedy the issue and document its remediation. The City is not required to give notice to BAC of inspections under this Section. (b) Facility Inspections. The City shall conduct (or cause a third party to conduct) regular inspections of the Aquatic Facility. The purpose of these inspections is to assess the condition and quality of the Aquatic Facility and to identify the need for maintenance and repairs. The City is not required to give notice to BAC of inspections under this Section. BAC Agreement Page 8 of 15 6.4 Records. BAC will, in accordance with generally accepted accounting principles, maintain all books and records pertaining to this Agreement and retain those books and records for at least five (5) years following the expiration or termination of the Agreement. These records and books shall include, but not be limited to, records and supporting documentation pertaining to BAC's gross receipts and other income derived from BAC's operations under this Agreement and any deductions therefrom. BAC will make such records available to the City for examination and copying upon request. 7. Finance 7.1 Intent. (a) The Parties intend to operate this Agreement on an "open book" GAAP accrual accounting basis. For clarity, no revenue and no expenses incurred by BAC for Competitive Aquatic Activities shall be included in the budget for Non -Competitive Aquatic Activities. (b) The Parties intend and agree that BAC will operate the Community Aquatic Activities on a break-even net income basis and that, until such time as the Community Aquatic Activities become self -funding, an annual City subsidy will be necessary in order to achieve that goal. (c) The Parties agree to a chart of accounts used to operate the pool. A copy of the chart of accounts is set forth in Exhibit E (the "Chart of Accounts"). The parties agree that the Chart of Accounts does not include all costs (such as water charges) incurred to operate the Aquatic Facility. The Chart of Accounts will be used as the basis for all annual budgets put forth by BAC to operate the Aquatic Facility. (d) The Parties agree that from time to time new expenses will need to be added to the Chart of Accounts and included in the annual budget to provide more complete and accurate financial accounting. The Parties agree and understand that these additional new expenses will be incorporated into financial reporting promptly, but only to the extent that these additional new expenses shall be paid in full by the City until the next budget year, at which time such expenses shall become part of the budget. (e) BAC shall not be responsible for any financial losses to the extent that they are caused by (i) the City or the District's failure to perform Major Maintenance or to make capital improvements as required by this Agreement, (ii) any other failure by the City or the District to perform any of their respective obligations or responsibilities under this Agreement; (iii) any force majeure event as provided in Section 11.3, including any loss of revenue resulting from a closure of the Aquatic Facility pending the completion of Major Maintenance or other capital improvements by City or District (collectively, "Unplanned Down Time"). During Unplanned Down Time, the City shall bear 100% of all financial losses contemplated under this paragraph. (f) If unplanned downtime occurs for a period of greater than six (6) weeks, then the City shall only be responsible for the cost of key administrative services, including salary for the Executive Director and basic information infrastructure. (g) Dining Unplanned Down Time, BAC shall make all reasonable efforts to minimize any costs that would contribute to the financial loss. All accounting records pertaining to BAC Agreement Page 9 of 15 Unplanned Down Time will be made available to the City to ensure reasonable cost- saving measures were made. (h) In furtherance of the parties' objective to eliminate financial losses, the parties agree to discuss and establish guidelines and benchmarks to assist and measure the reductions of costs, increase in revenues, and increase in facilities use. 7.2 Financial Reporting_ (a) The Parties will jointly develop and agree to a GAAP accrual financial reporting system based on variances from the approved annual budget. BAC assumes responsibility for the collection of fees and payment of expenses. BAC will report to the City Manager (or to a person designated by the City Manager) on a quarterly basis the actual revenue and costs for the preceding quarter. (b) After the City's review of the quarterly statement, if needed, the BAC may request a portion of the City Council approved budgeted City subsidy. After the City receives the subsidy request, the City will pay the BAC the subsidy within 30 business days. 7.3 Annual Operating Budget and Subsidy. (a) The preliminary budget draft for Non -Competitive Aquatics and the BAC request for the annual City subsidy will be submitted to the City no later than February 1 of each year during the Term. This request will be accompanied by a program planning report and preliminary budget. (b) No later than April 1 of each year during the Term, BAC will submit to the City a GAAP -compliant annual budget for both the Non -Competitive Aquatic Activities and Competitive Aquatic Activities for the following fiscal year (beginning July 1) (the `Annual Budgets"). The Annual Budgets will include a budget forecast for each month during the fiscal year, including: (i) revenue from program and registration fees , merchandise sales and other sources under this Agreement; and (ii) costs pertaining to the programs, BAC's cost to maintain the insurance described in Section 5, actual and projected Minor Maintenance costs, Incremental and Allocated Expenses (as described in Section 7.4 below), finance charges to cover any working capital requirements approved by the City, and projected costs for any mutually -agreed projects. 7.4 Incremental and Allocated Expenses. The City and BAC acknowledge that certain expenses incurred by BAC will be shared by Competitive Aquatic Activities and Non -Competitive Aquatic Activities (collectively, Allocated Expenses"). Costs shared between the two programs will be allocated based on the prior year's contribution to total BAC revenue. Allocated Expenses are listed in Exhibit F (Allocated Expenses). Regardless of this internal accounting, an annual review of pool usage by Competitive and Non-competitive programming will be completed in order to ensure equitable allocations of allocated expenses. 7.5 Snack Shack. Any revenue from Snack Shack sales shall be retained by the BAC to assist in covering direct program costs. 7.6 Audits. After providing reasonable notice, the City may inspect, examine and audit the records and accounts of BAC that are used in performing the activities and services described in this Agreement Page 10 Agreement in order to verify the accuracy of BAC's financial reports and reimbursable costs in connection with this Agreement. 8. Term and Termination 8.1 Initial Term and Renewal. The initial term of this Renewed and Revised Agreement shall extend to June 30, 2017 (the "Initial Term"), unless terminated earlier by either parry upon 90 days written notice to the other party. Upon the expiration of the Initial Term, the term of this Agreement shall automatically renew for successive one-year renewal periods (each, a "Renewal Term"), unless a party gives written notice of non -renewal to the other party at least 180 days prior to the expiration of the Initial Term or any Renewal Tenn. The Term may not extend longer than the expiration or termination of the District Agreement or any renewal or amendment thereto, which is currently scheduled to expire in 2023. "Term" refers, collectively, to the Initial Term and any Renewal Term(s). Budget and subsidy approvals are required on an annual basis as described herein during the term of this Agreement. 8.2 Termination for Cause. Either party may terminate this Agreement upon written notice to the other party if the other party commits a material breach of this Agreement and does not cure such breach within 60 days after receiving written notice of the breach. The Parties agree that the following events constitute material breach for purposes of this Section 8.2: (a) BAC's failure to maintain in full force and effect the insurance required under Section 5; (b) BAC's failure to maintain current permits, certifications (including personnel lifeguard certifications) or licenses required under Sections 2.83; (c) BAC's attempt to assign, transfer or delegate any of its rights or duties under this Agreement in violation of Section 11.2; (d) A material breach of service by BAC (e.g., health or safety violations for which BAC is responsible that cause, or may cause, the Aquatic Facility to close or be subject to fines or other enforcement action); (e) Filing of a bankruptcy petition by BAC; (f) BAC's failure to comply with the Policies and Procedures Manual; (g) BAC's submission to the City of knowingly false lifeguard or coach certifications; (h) City's failure to maintain or have maintained Major Maintenance items; (i) City's failure to maintain or have maintained current permits, certifications or licenses as required under Section 3; and (j) City/District Agreement is amended prior to 2023 to the detrimental effect of the City or BAC in such a manner as to impede performance of either party under this Agreement. 8.3 Continuation of Services. If the City terminates this Agreement, the City may assume responsibility for the Community Aquatic Activities and provide such activities in a manner that benefits the City and the public, without any liability therefor to BAC. 8.4 The City recognizes that, prior to entering into the 2011 Agreement, BAC was providing the competitive swim program at the aquatic facility under contract to the City. Should this agreement be temrinated, the City agrees to enter into good faith negotiations for a possible reversion to the prior status under which the BAC could continue to provide the competitive swim program. BAC Agreement Page 11 of 15 9. Indemnification BAC shall indemnify, defend and hold harmless City, its Council Members, officials, agents, employees and volunteers from and against any damages and liability owed to a third party (including all related costs and reasonable attorneys' fees) resulting from any Claim (as defined below), but only to the extent that one or more of the insurance policies described in Section 5 (Insurance) of this Agreement provides coverage for such Claim, and only to the extent of any insurance proceeds received by BAC under such insurance policies. For the purposes of this Section, "Claim" means any third party claim, demand or action occasioned by, growing out of or arising or resulting from any act or omission on the part of BAC, its officers, agents, subcontractors, employees, representatives, or anyone directly or indirectly acting on behalf of BAC, arising or resulting from the performance or failure of performance of any services required herein to be performed by BAC or arising or resulting from the use, management, supervision and/or operation of Aquatic Facility by BAC, its officers, agents, subcontractors, employees, representatives, or anyone directly or indirectly acting on behalf of BAC, or arising or resulting from use of the pool, buildings or improvements or any other part of Facility by any person or persons, regardless of whether caused in part by a party indemnified hereunder. 10. Liability 10.1 EXCEPT AS PROVIDED IN SECTION 10.3, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT OR SPECULATIVE OR CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF USE, LOSS OF DATA, BUSINESS INTERRUPTIONS, AND LOSS OF INCOME OR PROFITS, IRRESPECTIVE OF WHETHER IT HAD AN ADVANCE NOTICE OF THE POSSIBILITY OF ANY SUCH DAMAGES. 10.2 EXCEPT AS PROVIDED IN SECTION 10.3, EACH PARTY'S TOTAL AGGREGATE LIABILITY TO THE OTHER PARTY UNDER THIS AGREEMENT, WHETHER IN CONTRACT OR IN TORT OR ANY OTHER THEORY OF LAW, WILL BE LIMITED TO $20,000. 10.3 The limitations and exclusions set forth in Sections 10.1 and 10.2 will not apply with respect to: (a) damages attributable to a party's intentional torts; or (b) third party claims that are subject to indemnification pursuant to Section 9. 11. Miscellaneous 11.1 Governing Law and Venue. This Agreement shall be deemed to have been executed in the State of California, and will be interpreted and construed in accordance with the substantive laws of the State of California. For any litigation relating to this Agreement, the Parties irrevocably submit to the exclusive jurisdiction of and venue in the Superior Court of the State of California, San Mateo County. 11.2 Assi nment. BAC may not assign, transfer or delegate any of its rights or duties under this Agreement to any other party without the City's prior written consent. 11.3 Force Majeure. A party's obligations under this Agreement will be excused if an event beyond the reasonable control of that party delays or prevents that party, directly or indirectly, from performing its obligations under this Agreement (e.g., strike, boycott, labor dispute, embargo, shortage of energy or materials, failure of pool -related mechanical equipment, acts of God, acts of BAC Agreement Page 12 of 15 a public enemy, acts of superior governmental authority, weather conditions, riot, rebellion, sabotage). 11.4 Non -Discrimination. BAC shall not discriminate in the provision of services under this Agreement because of color, race, creed, national origin, religion, sex, sexual orientation, age or physical or mental handicap in accordance with Title VI of the Civil Rights Act of 1964 (42 U.S.C. Section 2000d) American with Disabilities Act (42. U.S.C. Section 12131 et seq.), and all other applicable local, state, and federal laws and regulations requiring "no discrimination". 11.5 Notices. Any notice, demand, request, consent, or approval that either patty may or is required to give the other, shall be in writing and shall be either personally delivered or, sent by prepaid first class mail addressed as follows: For BAC: Executive Director Burlingame Aquatic Club P.O. Box 281 Burlingame, CA 94010 For City: City Manager City of Burlingame 850 Burlingame Avenue Burlingame, CA 94010 11.6 Relationship of the Parties. BAC is acting as an independent contractor. BAC has the sole right and obligation to supervise, manage, contract, direct, procure, perform or cause to be performed all work to be performed by BAC personnel under this Agreement. BAC is not an agent or partner of the City and has no authority to represent or bind the City as to any matters except as expressly authorized in this Agreement. BAC personnel shall not be entitled to any benefits payable or rights granted to City employees. 11.7 Waiver. No failure or delay by a party in exercising any right, power or remedy will operate as a waiver of that right, power or remedy. If a party waives any right, power or remedy, the waiver will not waive any successive or other right, power or remedy that party may have. 11.8 Entire Agreement. This Agreement, together with all Exhibits attached hereto constitute the entire Agreement between the Parties and all other representations or statements heretofore made, verbal or written, are merged herein. This Agreement may be amended only in writing, and executed by duly authorized representatives of the Parties hereto. 11.9 Non -Waiver of Riahts. No waiver of default by either party of any of the terms, covenants, and conditions hereof to be performed, kept, and observed by the other party shall be construed as, or shall operate as, a waiver -of -any subsequent default of any of the terms, covenants, or conditions, herein contained, to be performed, kept, and observed by the other party. 11.10 Headings. The headings of the articles and sections of this Agreement are inserted only as a matter of convenience and for reference and do not define or limit the scope or intent of any provisions of this Agreement, and shall not be construed to affect in any manner the terms and provisions hereof or the interpretation or construction thereof. 11.11 Notice of Third PartCis. Each party shall promptly notify the other party in writing of (a) any personal injury or accident claim by a third party for an amount in excess of ONE BAC Agreement Page 13 of 15 THOUSAND DOLLARS ($1,000.00), and (b) any third -party lawsuit of which the party becomes aware that may reasonably affect the Parties' relationship under this Agreement. The Parties' respective employees will be deemed "third Parties" for purposes of this Section. 11.12 District Aueement. This Agreement is subject to the terms and conditions of the District Agreement, which is hereby incorporated herein and a copy of which is attached as Exhibit A. The District may, in its sole discretion, preempt usage of the Aquatic Facility. The District may alter or adopt rules and regulations governing the Aquatic Facility that may affect the performance of this Agreement. If the District Agreement is terminated, this Agreement shall terminate as of the effective date of termination of the District Agreement. 11.13 Conflict of Interest. (a) General. BAC represents that neither it nor any of its officers, partners or employees have a financial interest (as defined in section 87103 of the Government Code) in the subject -matter of this Agreement, other than the right to receive payment as authorized by the City under this Agreement, for the services performed. (b) Concessions. No director, officer, employee or subcontractor of BAC shall have any interest in any Snack Shack activities at the Aquatic Facility, nor in any contract involving the Aquatic Facility, without the City Manager's prior approval. (c) Giffin . Neither BAC, nor any of its officers, employees, agents or subcontractors, shall offer any gift, entitlement or consideration to any officer, employee or contractor of the City, unless such gift, entitlement or consideration is available to the general public or is part of a written, public agreement between the City and BAC. 12. Dispute Resolution Any dispute among the parties hereto involving any matter arising under this Agreement shall be resolved as follows: (1) first by mediation with a mutually agreed, third -party mediator; (2) in the event that mediation does not fully resolve the dispute, then by binding arbitration held in San Mateo County, California, by a single arbitrator in accordance with the then current rules of Judicial Arbitration and Mediation Services ("JAMS") or such other arbitral body as the parties may mutually agree. The arbitrator shall have authority to fashion such just, equitable and legal relief as the arbitrator, in his or her sole discretion, may determine. The decision of any arbitrator pursuant to this Section shall be made in accordance with the laws of the State of California and shall include the determination of a prevailing party, if any. With respect to any arbitration proceeding covered by this Section, the prevailing party shall be entitled to recover all costs and expenses, including any amounts necessary to enforce the final determination and reasonable attorneys' fees incurred in connection with such proceedings. BAC Agreement Page 14 of 15 IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed by their respective officers as of the date first written above. THE BURLINGAME AQUATIC CLUB, INC. CITY OF BURLINGAME By: By: Name: Name: Title: Title: Attest: Attest: Secretary City Clerk Approved as to form: City Attorney Agreement Page 15 of 15