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HomeMy WebLinkAboutStaff Report 3.A 04/20/2009&A CITY OF PETALUMA, CALIFORNIA April 20, 2009 AGENDA BiLL Agenda Title: Resolution Approving Professional Services Agreement Meeting Date: April 20, 2009 between the City of Petaluma and Thomas Evers and Liz Evers, dba Forevers Aquatics, for Operation and Programming of the Petaluma Swim Meeting Time: 7:00 PM Center and Cavanagh Pool and Authorizing City Manager to Execute Said Agreement. Category: ❑ Presentation ❑ Appointments ❑ Consent ❑ Public Hearing ❑ Unfinished Business N New Business Devartment: Director: Contact Person: Phone Number: Parks & Recreation Scott Brodhun Scott Brodhun 778-4380 Total Cost of Proposal or Proieet: timated Net General Name of Fund: Aquatics Programs Fund Savings of Approximately $85,000 Annually Amount Budgeted: n/a Account Number: 14700 Current Fund Balance: Recommendation: It is recommended that the City Council take the following action: Adopt the Resolution Approving Professional Services Agreement between the City of Petaluma and Thomas Evers and Liz Evers, dba Forevers Aquatics, for Operation and Programming of the Petaluma Swim Center and Cavanagh Pool and Authorizing City Manager to Execute Said Agreement. 1. ❑ First reading of Ordinance approved unanimously, or with unanimous vote to allow posting prior to second reading 2. ❑ First reading of Ordinance approved without unanimous vote: Ordinance has been published/posted prior to second reading; see Attachment 3. ❑ Other action requiring special notice: Notice has been given, see Attachment Summary Statement: Due to the significance of the necessary 2008-2009 budget reductions, the Petaluma Swim Center season was reduced from 34 weeks to 17 weeks. Because 15 weeks of season were implemented between July I and October 12, the budget supports a 2009 opening of mid-June, with a likely season close following Labor Day. Note that the 2008 Swim Center season began March 3, and that openings have fluctuated over the years between March and May. The projected 08-09 savings is realized through the reduction in part-time staffing and savings in utilities expense, as a result of the abbreviated season. A contributing factor to the 2008-2009 cost cutting initiative was a proposal to privatize the Swim instruction portion of the aquatic program, through development of an Independent Contractor Agreement for swim lessons. However, due to significant and continuing projected budget deficits, among 2009-2010 budget/service reduction initiatives is a proposal to develop a management contract that goes beyond the instructional program, and includes all pool operations. The goals of the proposed contract include preservation of the swim center season, cost savings, and development of a management program that would support consistently offered, improved and affordable aquatics programming. In order to reduce expenses, remove the pools/aquatic programs from annual budget reduction discussions, potentially lengthen the season, and improve the program, staff, the Recreation, Music and Parks Commission and the Aquatics Advisory Board subcominittee recommend the proposed contract Attachments to Agenda Packet Item: 1. Resolution 2. Proposed professional services agreement Reviewed by Finance Director: Reviewed by City Attornev: �46. �IV�hI4 9 - Date: Rev. # I -h 14 'x,.,. I Date Last lt6yised:I! I File: Approved by City Manager: Date: / = y CITE' OF PETALUMA, CALIFORNIA APRiL 20, 2009 AGENDA REPORT FOR RESOLUTION APPROVING PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF PETALUMA AND THOMAS EVERS AND LIZ EVERS, DBA FOREVERs AQUATICS, FOR OPERA`T'ION AND PROGRAMMING OF THE PETALUMA SWIM CENTER AND CAVANAGH POOL AND AUTHORIZING CITY MANAGER To EXECUTE SAID AGREEMENT RECOMMENDATION: Approve Resolution. 2. BACKGROUND: As a result of 2008-2009 budget reductions, the swim season was reduced from 34 to 17 weeks. As initially proposed, the season was recommended as Memorial Day through Labor Day. Due to the timing and complexity involved with preparation of the budget, the implementation could not be completed as conceptualized because 15 weeks of season budget had already been utilized. Thus, to achieve the necessary savings, a 2009 opening cannot occur until mid-June. Such a reduction impacts swimmers who use the facility as an integral part of their fitness program. The most impacted user groups are the various swim clubs and teams that make use of the facility Monday through Saturday during most open times of the year. To provide some mitigation to the impact, and to provide a season that seemingly can be reasonably expected by the community, efforts have been underway to identify sufficient funding for a City provided opening by the weekend of Memorial Day (May 23). The competitive swim community worked with staff to examine the feasibility of an earlier opening (April), in order to provide space for teams and clubs. The ability to provide such an opening was based on the premise of guaranteed revenue, generated through contracted use of space (swim teams and swim clubs). The parties to the discussion included each of the two local swim clubs, who took on a leadership role in development of early open options. City staff provided cost to operate estimates, including estimated operation costs for utilities, maintenance and staffing. It became evident that the projected costs exceeded expected revenue, especially when City staffing costs (City staff is required for a pool opening) were included. Thus, in response to a request to operate without staff, the possibility of joint operation by the City and Iocal swim clubs was examined, whereby staffing would be provided by the clubs, under contract with the City. Staff assembled an outline of a potential agreement (including scope of service, insurance requirements, etc.) and the club representatives met with the various potential users, including the area schools. The schools did not have resources to sufficiently augment revenue needed to meet operational costs, which made such an effort unfeasible. A contributing component to the shortened season cost cutting initiative was a proposal to privatize the swim instruction program, through development of an independent contractor agreement. Under the agreement, all swim instruction would be provided by a private contractor. In discussions with a private lesson provider, the potential to expand services became apparent, and thus a new budget reduction proposal involves a management contract for overall pool operations. In addition to significant savings, the potential exists to improve programs, enhance use and potentially expand this and future seasons. 3. DISCUssION: Public pools that are seasonal/outdoor facilities lacking signature structures or features (water -slide, spray -ground, etc.) are seldom able to operate on a cost recovery basis. As well, for a variety of reasons (including antiquated mechanical equipment and size/configuration), the existing pools are expensive to operate. Expenses to operate the facilities have exceeded revenue and the tax burden to cover these costs has been borne by all taxpayers. Accordingly, the aquatic program and budget are seemingly reduced whenever the City's budget is under stress. As previously noted, the 2009 swim season length was reduced by 50%. While a standard Agreement for Recreation Program Independent Contractor Services, to provide aquatic exercise and instructional programs has been issued to Forevers Swim America, an expansion of those services, to include all pool operations, is a viable way to preserve a swim center season, and generate a cost savings to the City. Forevers Aquatics is a licensed operator of the SwimAmerica swim schools program, who have operated a highly successful swim school in Marin County since 2003. SwimAmerica operates hundreds of professional learn to swim programs in the United States and around the world. The SwimAmerica program is operated by certified swim coaches who have achieved a minimum of American Swim Coaches Association Level 11 Coaching Certification, and is the only swim program endorsed by the American Swimming Coaches Association. Forevers Aquatics operates programs at the Indian Valley College Pool and College of Marin, providing the SwimAmerica program, and otherwise providing for pool operations. Forevers Aquatics is willing to enter into a management contract consistent with the City's standard professional services agreement to provide for operation of the Cavanagh Pool and Petaluma Swim Center. A copy of the proposed agreement is included as Attachment 2. The agreement is structured to allow the City to retain control over pricing and policy decisions such as determining the program mix, yet the Contractor is given the freedom to operate the facility in a way that maximizes aquatic programming opportunities. Note that under the agreement, the Contractor accepts the risk of covering a good portion of the operating costs. The general parameters of the agreement are as follows: • The Contractor will have the responsibility to plan, advertise, implement staff and supervise aquatic programs at the Cavanagh Pool and Petaluma Swim Center. The Cavanagh Pool season would be May 1 to September 25, and Petaluma Swim Center, May 23 - September 25. These seasons are to be considered minimums, and extending the season is encouraged subject to analysis and agreement for allocation of any increased costs. o Programming at the Cavanagh Pool is to include, at minimum, Swim Lessons, Exercise Classes and Recreation Swim. o Programming at the Petaluma Swim Center is to include, at minimum, Swim Lessons, Lap Swim with long course opportunity, Recreation Swim, swim club and swim team time with priority for local groups, and other programming and special interests that can fill out the schedule. • The Contractor will be responsible to issue and otherwise provide a preliminary schedule of activities to all users in advance of the beginning of the season or session, including communication to all users with respect to revisions and alterations to the schedule. Communication will also include informing users of hours of operation, availability of space, use of assigned space, and all other communication pertinent to aquatics programs. The Contractor will provide response to community requests, concerns and complaints in a timely manner, and will document such responses for City review. + The Contractor will develop, issue, coordinate and collect facility use forms, liability forms, rental agreements, and all such agreements for use of the pool for special activities by clubs, organizations or entities. Such agreements shall be subject to review and approval by the City's division of Risk Management. + The Contractor will be obligated to provide an operating/program schedule covering each session of the season, at least 2 weeks prior to the beginning of the session. The City's review shall assure all program elements identified as required are scheduled and implemented, and will also assure that priority scheduling is provided to local teams and clubs. + The Contractor will be responsible for all staffing, including certified instructors and lifeguards, as well as office and supervisory personnel. Staffing levels must be sufficient to meet daily programming and operational needs, including custodial and minor pool maintenance needs, and must meet or exceed generally accepted industry standards for safe pool operations. Sufficient, certified and uninterrupted lifeguarding services must be provided at all times, and certified supervisory personnel must be present and available at all open times. + The Contractor is required to provide a listing of personnel, including identification of current certifications and acknowledgement of background checks. Contractor must provide insurance that is acceptable to the City, including naming the City as Additional Insured, and must execute a hold harmless agreement. • The City will provide or pay utilities costs associated with all pool operations, maintenance of the mechanical, electrical, plumbing and building fixtures and systems, and will provide supplies necessary for maintenance and treatment of pool water. All paper products and custodial cleaning supplies will also be provided by the City. The City would provide access to department marketing materials, such as the department web -site and activity brochure. o In considering options for lengthening of seasons, the estimated cost and payment of utilities will be negotiated between the City and Contractor as part of season extension discussions. + The Contractor agrees to implement the City's existing schedule of pool fees, with the exception of Swim Lesson fees, which would be increased from $50 to $140 per session, with a shorter Cavanagh session offered for $70. The ratio of participants to instructor decreases from an average of 6-8:1, to 3:1, providing more actual practice time and allowing each student approximately twice as much individual time with the instructor. The lessons remain less expensive than the City's private lesson offering, and again, dramatically reduce the swimmer to instructor ratio. It is anticipated that participants can become more proficient in fewer lessons, thereby providing some mitigation to the increase. Discounts are offered for additional family members, and as well, the Contractor is required to create and make available Swim Lesson scholarship, fee reduction or fee waiver opportunities for prospective participants wishing to enroll, but who are unable to afford the cost of lessons. The parameters of the scholarship program must be provided to the City prior to commencement of operations. Contractor also agrees to provide discounted rates for City of Petaluma sponsored camps between June 15 and August 21, and agrees to accept all previously issued swim passes for the duration identified on such pass, and to accept punch cards to the extent that use remains on the card. • In consideration of the services provided, the Contractor will receive all proceeds from program fees. At the conclusion of the term of 2009 operations, the Contractor will provide the City season ending revenue and expense reports. If revenue exceeds cost to operate, including a 25% profit margin, excess revenue will be evenly split between the City and Contractor. • The term of the agreement is contemplated to be for the upcoming season, with options of 1 year renewals, at the agreement of both parties. Oftentimes, seasonal community pools begin a spring season that coincides with high school and club seasons and programs. The Petaluma Swim Center closure from March to May dramatically impacts those programs. It is hoped that the proposed management arrangement will allow future reconsideration of scheduled openings. By virtue of the structure of the contract, the Contractor is provided significant incentive to provide as many aquatic opportunities as possible. Potentially, this model is one which will well lend itself to future opportunities for increased season durations, will improve the delivery of service and variety of programming, while decreasing the tax burden and reliance on a general fund subsidy. Finally, it is important to note that in discussions with the contractor, they have been very clear that their intention would be to recruit, train and employ reliable, creative and enthusiastic local aquatic staff. The swim center has provided countless employment opportunities, and it is the Contractor's intention to continue to offer such opportunities. 4. FINANCIAL IMPACTS: Among many advantages of this proposal is the opportunity to reduce expenses. Under proposed terms of the contract, the City would only be responsible for the provision of utilities, building/structure maintenance and some supplies, thereby significantly reducing expenses. There is a corresponding decrease in revenue; however there remains a net savings, estimated to be $85,000. Attachment 1 Resolution Approving Professional Services Agreement between the City of Petaluma and Thomas Evers and Liz Evers, dba Forevers Aquatics, for Operation and Programming of the Petaluma Swim Center and Cavanagh Pool and Authorizing City Manager to Execute Said Agreement WHEREAS, the City of Petaluma owns and has operated the Petaluma Swim Center and Cavanagh Pool; and, WHEREAS, the current economic crisis faced by this City and many others across the country creates extreme difficulty sustaining prior levels of aquatic and pool programming, and, WHEREAS, the City must look for creative ways to provide reasonable and responsible levels of service, including development of partnership efforts for recreation and park programs and projects, and, WHEREAS, as part of the 2008-2009 budget reduction process, the City of Petaluma dramatically reduced the aquatics season and began planning for the privatization of the swim instruction program; and, WHEREAS, Thomas Evers and Liz Evers, dba Forevers Aquatics, a private operator providing aquatic programming, instruction and supervision, is willing to enter into a management contract consistent with the City's standard professional services agreement that includes all aspects of Swim Center and Cavanagh Pool operations; and, WHEREAS, a proposed professional services agreement for management of the Swim Center and Cavanagh Pool is attached as Exhibit A to this resolution and incorporated by reference herein; and, WHEREAS, the Recreation, Music and Parks Commission, and the Aquatics Advisory Board sub -committee support the proposal and recommend that the City Council approve the proposed Agreement; NOW, THEREFORE BE IT RESOLVED that the City Council of the City of Petaluma hereby: 1. Approves the Professional Services Agreement between the City of Petaluma and Thomas Evers and Liz Evers, dba Forevers Aquatics, for Operation and Programming of the Petaluma Swim Center and Cavanagh Pool substantially in the form attached as Exhibit A hereto and incorporated herein by reference. 2. Authorizes the City Manager to execute said Agreement. 1217006.1 PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF PETALUMA AND THOMAS EVERS, AND LIZ EVERS, dba FOREVERS AQUATICS, FOR OPERATION AND PROGRAMMING OF THE PETALUMA SWIM CENTER AND CAVANAGH POOL FY Fund # Exp. Acct. # Project # Amount $ For multi-year contracts or contracts with multiple accounts: FY Fund # Exp. Acct. # Project # Amount $ FY Fund # Exp. Acct. # Project # Amount $ FY Fund # Exp. Acct. # Project # Amount $ FY Fund # Exp. Acct. # Project # Amount $ FY Fund # Exp. Aect. # Project # Amount $ FY Fund # Exp. Acct. # Project # Amount $ THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is entered into and effective as of , 2009 ("Effective Date"), by and between the City of Petaluma, a municipal corporation and a charter city ("City"), Thomas Evers and Liz Evers, individuals doing business as Forever Aquatics (collectively, the "Parties"). Thomas Evers and Liz Evers, dba Forever Aquatics, are hereafter referred to as "Contractor." WHEREAS, the Parties enter into this Agreement for the purpose of Contractor providing professional services to City under the terms and conditions set forth herein. THEREFORE, in consideration of the mutual covenants contained in this Agreement, the Parties agree as follows: 1. Services. Contractor shall provide the services as described in and in accordance with the schedule and terms set forth in Exhibit "A" attached hereto and incorporated herein ("Services"). The Petaluma Swim Center and Cavanagh Pool are sometimes referred to jointly hereafter as "the Facilities." 2. Compensation; Business Tax Certificate. A. For the full performance of the Services, Contractor shall receive all proceeds from program fees and charges paid by users of the Facilities. Within thirty days of the conclusion of annual seasonal operations as specified herein, Contractor shall provide the City with written ending revenue and expense reports prepared in accordance with standard accounting practices showing Contractor's costs paid or incurred for the provision of all services provided by Contractor pursuant to this Agreement and all revenue received by Contractor from program fees, charges paid by users of the Facilities and/or any other income received related to the provision of services by Contractor pursuant to this Agreement. City shall have 14 days to review and approve said reports and request any additional information, including but not limited to additional cost and/or revenue detail, if City determines such information is necessary to evaluate annual operations and/or Contractor's performance. Within 14 days of Contractor's submission of 1 SWIM CENTER PROFE5510NAI. SERVICES AGREEMENT the cost and revenue reports or within 14 days City approval of the cost and expense report, whichever is later, Contractor shall pay to City 50% of any revenue which exceeds the sum of Contractor's cost of operations plus 25%. B. Contractor shall be compensated for services in addition to those described in Exhibit A only if Contractor and City execute a written amendment to this Agreement describing the additional services to be performed and the compensation to be paid for such services. C. Notwithstanding any provision herein, Contractor shall not be paid any compensation until such time as Contractor has on file with the City Finance Department current information requested on the "Vendor Information" form available from City, and has obtained a currently valid Petaluma business tax certificate. D. City's obligation to pay compensation to Contractor as provided herein is contingent upon Contractor's performance of the Services pursuant to the terms and conditions of this Agreement and any amendments thereto. 3. Term. The term of this Agreement commences on the Effective Date and terminates on November 1, 2009, unless sooner terminated in accordance with Section 4. This Agreement may be renewed for up to three (3) consecutive one-year periods, with dates of Facilities operation equal to or more extensive than the seasonal period specified in Exhibit A hereto and/or any extension period agreed on in writing through an amendment to this Agreement, as specified in Exhibit A hereto. This Agreement may be renewed by Contractor giving notice to City of Contractor's desire to renew at least 30 days and no sooner than 60 days prior to the expiration date, requesting renewal for one additional one-year term. It shall be within the City's sole discretion whether the existing term shall be renewed. Upon termination, any and all of City's documents or materials provided to Independent Contractor and any and all of the documents or materials prepared for City or relating to the performance of the Services, except for medical records and personally identifiable health information of City employees or prospective employees (unless the employee or prospective employee has authorized the delivery), shall be delivered to the City as soon as possible, but not later than fourteen (14) days after termination of the Agreement. 4. Termination. City may terminate this Agreement without cause upon ten (10) days' written notice. City may immediately terminate or suspend this Agreement for cause. Cause for immediate termination or suspension shall include Contractor's bankruptcy or insolvency and/or any breach of this Agreement by Contractor, including but not limited to failure to provide adequate staffing, failure to ensure safe pool operations and/or failure to provide any item of service as specified in Exhibit A to this Agreement. Upon receipt of notice of termination or suspension for cause, Contractor shall immediately stop all work in progress under this Agreement, leave the Facilities premises and surrender all Facilities, keys and City -owned equipment to the City. In the event of early termination of this Agreement by City, Contractor shall be entitled to payment for all Services performed to the date of termination to the extent such Services were performed to the satisfaction of City in accordance with the terms and conditions of this Agreement. 2 SWIM CENTER PROr1:5SI0I+lAL SERVICES AGREEMENT If City terminates this Agreement for cause, Contractor shall be liable to City for any excess cost City incurs for completion of the Services. 5. Contractor's Representation; Independent Contractor. Contractor represents that Contractor possesses distinct professional skills in performing the Services. City has relied upon said representation as a material inducement to enter into this Agreement. Contractor shall, therefore, provide properly skilled professional and technical personnel to perform all Services under this Agreement. It is expressly understood that Contractor and its agents and employees, shall act in an independent capacity and as an independent contractor and not as officers, employees or agents of City. This Agreement shall not be construed as an agreement for employment. G. Facilities and Equipment. A. Contractor shall, at its sole cost and expense, furnish all facilities and equipment that may be required for furnishing the Services pursuant to this Agreement. City shall furnish to Contractor no facilities or equipment other than as set forth in this Agreement, unless the City otherwise agrees in writing to provide the same. B. City agrees to provide to Contractor contact information from prior year regular and priority renters to facilitate continued rentals and priority scheduling for local teams and clubs. City further agrees to provide or pay: (i) Utilities costs associated with all pool operations, including pre -season heating charges. The estimated cost and payment of utilities for season extensions, if any, shall be negotiated between the parties as part of season extension discussions and shall be contained in a written amendment to this Agreement, as specified in Exhibit A hereto. (ii) Maintenance of the mechanical, electrical, plumbing and building fixtures and systems. (iii) Supplies necessary for maintenance and treatment of pool water. (iv) All paper products, including paper towels, toilet paper, soap and custodial cleaning products including floor and tile cleaner and sink and toilet products. (v) Inclusion of aquatic program information in City marketing materials, including Parks and Recreation activity guide and Department Web site. (vi) Use of any pool equipment, program materials or teaching aids currently in the City's possession. (vii) Re -keying of swim facilities and safe combinations and transfer of locks, keys and safe combinations to Contractor. 3 SWIM CENTER PROFESSIONAL SERVICES AGREEMENT I 0 7. Damage To Existing Property. Contractor will be held responsible for any damage to existing City real property, work, materials or equipment, as a result of performance of the Services, and shall repair or replace any damaged real property, work, materials or equipment to the satisfaction of, and at no additional cost to, the City. If the City finds that repairs or changes are required in connection with this Agreement, which, in the opinion of the City are rendered necessary as the result of damage by Contractor, the Contractor shall, within five (5) days upon receipt of notice from the City, place in satisfactory condition all of such work, correct all defects therein, and make good on all damages. If Contractor fails to correct any such damage at Contractor's expense, the City may effect such repair as necessary, and require Contractor to pay for the cost of such repair within 14 days of presentation of a demand for payment from City. Failure to pay any such amount on demand shall constitute breach of this Agreement. 8. Licenses, Permits, Fingerprinting, Background Checks. Contractor shall at Contractor's sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits or other such approvals which are legally required for performing the Services. All Contractor personnel working at the Facilities during the term of tivs Agreement are subject to California Department of Justice fingerprinting requirements. Such individual's assignment is contingent upon the submission of fingerprints to the California Department of Justice and the possession of a criminal history that satisfies state requirements in accordance with applicable code. Criminal history reports for Contractor and Contractor's personnel shall be made available at the City's request. Each person in Contactor's employ working at the Facilities must be a United States citizen or be an individual who has a legal right to work in the United States. The Contractor must verify citizenship or legal right to work in the United States and retain an 1-9 form for all Contractor personnel working at the Facilities. On the I-9 form, the Contractor must verify the employment eligibility and identity documents presented by the employee and record the document information on the Form I-9 prior to said personnel beginning any work at the Facilities. No person designated by Contractor to work at the Facilities shall have been convicted of any felony or a crime relating to theft, violence, sexual misconduct or a violation of the California Health and Safety Code. Any violation of this provision shall constitute grounds for termination of this contract. 9. Time. Contractor shall devote such time to the performance of the Services as may be reasonably necessary for satisfactory performance of Contractor's obligations pursuant to this Agreement. 10. Inspection. Contractor shall provide the City every reasonable opportunity to ascertain that the Services are being perforined in accordance with the requirements and intentions of this Agreement. All work done and materials furnished, if any, shall be subject to inspection and approval by the City. The inspection of such work shall not relieve Contractor of any of its obligations pursuant to this Agreement. 11. Progress Reports. Upon the City's request, Contractor shall provide, in a form acceptable to City, written progress reports of all oral and written observations, opinions, SWIM CENTER PRQFESSIpNAL SERVICES AGREEMENT 1( recommendations, analyses, progress and conclusions related to Contractor's performance of the Services. 12. Confidentiality. In the course of Contractor's employment, Contractor may have access to trade secrets and confidential information, disclosure of which is protected or limited by law. Contractor shall not directly or indirectly disclose or use any such confidential information, except as required for the performance of the Services. 13. Conflict of Interest. Contractor represents that it presently has no interest, and covenants that it shall not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of the Services hereunder. Contractor further covenants that, in the performance of this Agreement, it shall not employ any subcontractor or person having such a conflict of interest. Contractor represents that no one who has or will have any financial interest under the Agreement is an officer or employee of City. If such conflict of interest arises during this Agreement or any extension, Contractor will immediately advise City and City may, at its sole discretion, immediately terminate this Agreement. 14. Contractor No Asent. Except as City may specify in writing, Contractor shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Contractor shall have no authority, express or implied, pursuant to this Agreement to bind City to any obligation whatsoever. 15. Standard of Performance. Contractor shall perform all the Services in a manner consistent with the standards of Contractor's profession and any applicable regulatory or statutory provisions. All instruments of service of whatsoever nature, which Contractor delivers to City pursuant to this Agreement, shall be prepared in a substantial, first class and workmanlike manner and conform to the standards of Contractor's profession. All such instruments of service shall become the sole and exclusive property of City upon delivery of the same. 16. Assienment/Transfer. No assignment or transfer in whole or in part of this Agreement shall be made without the prior written consent of City. 17. Subcontractors. Contractor shall directly perform all Services, and shall not subcontract any portion of performance of the Services without the prior written consent of City. Any such subcontractors shall be required to comply, to the full extent applicable, with the terms and conditions of this Agreement, including but not limited to, procuring and maintaining insurance coverage as required herein and which shall name City as an additional insured. 18. Compliance With All Laws. Contractor shall fully comply with all applicable local, state and federal rules, laws, regulations and ordinances pertaining to the performance of the Services required hereunder, including the provisions of the City's Living Wage Ordinance, Petaluma Municipal Code Chapter 8.36, to the extent it applies to some or all of Contractor's employees performing work at the Facilities. To the extent that any other 5 SWIM CENTER PROFESSIONAL SERVICES AGREEMENT government agency or entity provides compensation for any Services, Contractor shall comply with all rules and regulations applicable to such fiscal assistance. 19. ADA. It is the intent of the City and Contractor to fully comply with the Americans with Disabilities Act of 1990. Every attempt will be made to hold meetings, hearings, conferences, classes, and other events in accessible locations, and auxiliary aides will be provided, if possible, upon request, to participants with disabilities. Complaints regarding Contractor's compliance with the ADA should be directed to the City Manager, 11 English Street, Post Office Box 61, Petaluma, California 94953, phone 778-4345. 20. Discrimination. During the performance of this Agreement, Contractor shall not discriminate against any employee or applicant for employment because of race, religion, creed, color, national origin, ancestry, gender, sexual orientation, age or physical or mental disability in violation of any applicable law. 21. Notice. Except as otherwise specified in this Agreement, all notices to be sent pursuant to this Agreement shall be made in writing, and sent to the Parties at their respective addresses specified below or to such other address as a Party may designate by written notice delivered to the other Party in accordance with this Section. All such notices shall be sent by: (i) personal delivery, in which case notice is effective upon delivery; (ii) certified or registered mail, return receipt requested, in which case notice shall be deemed delivered on receipt if delivery is confirmed by a return receipt; (iii) nationally recognized overnight courier, with charges prepaid or charged to the sender's account, in which case notice is effective on delivery if delivery is confirmed by the delivery service; or (iv) facsimile transmission, in which case notice shall be deemed delivered upon transmittal, provided that (a) a duplicate copy of the notice is promptly delivered by first-class or certified mail or by overnight delivery, or (b) a transmission report is generated reflecting the accurate transmission thereof. Any notice given by facsimile shall be considered to have been received on the next business day if it is received after 5:00 p.m. recipient's time or on a nonbusiness day. City: City Clerk City of Petaluma Post Office Box 61 Petaluma, California 94953 Telephone: (707) 778-4360 Facsimile: (707) 778-4554 And: Director, Parks & Recreation 320 N. McDowell Blvd. Petaluma, CA 94952 Telephone: (707) 778-4380 6 SWIM CENTER PROFESSIONAL_ SERVICES AGREEMENT 1_3 Facsimile: (707) 778-4473 Contractor: Thomas Evers Liz Evers DBA Forevers Aquatics Post Office Box 945 1800 Ignacio Blvd. Novato, CA 94949 Telephone: 415-892-2269 Facsimile: 415-8832211 22. Ownership of Documents. All original papers, documents or computer material on disk or microfilm, and copies thereof, produced as a result of this Agreement, shall be the property of City and may not be used by Contractor without the written consent of City. Copies of such documents or papers shall not be disclosed to others without the written consent of the City Manager or his or her designated representative. 23. Indemnification. Contractor shall indemnify, defend with counsel acceptable to City, and hold harmless City and its officers, officials, employees, agents and volunteers from and against any and all liability, loss, damage, claims, expenses, and costs (including, without limitation, attorney's fees and costs and fees of litigation) (collectively, "Liability") of every nature arising out of or in connection with Contractor's performance of the Services or its failure to comply with any of its obligations contained in this Agreement. In addition, and notwithstanding the foregoing, to the extent that this Agreement is a "construction contract" as defined by California Civil Code section 2783, as may be amended from time to time, such duties of Contractor to indemnify shall not apply when to do so would be prohibited by California Civil Code section 2782. In the event that Contractor or any employee, agent, or subcontractor of Consultant providing services under this Agreement is determined by a court of competent jurisdiction or the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as an employee of the City, Contractor shall indemnify, defend, and hold harmless the City for the payment of any employee and/or employer contributions for PERS benefits on behalf of Contractor or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of the City. 24. Insurance. Contractor shall comply with "Insurance Requirements" in Exhibit B-1, attached hereto and incorporated herein by reference. 25. Amendment. This Agreement may be amended only by a written instrument executed by both Parties. 26. Lineation. If litigation ensues which pertains to the subject matter of Contractor's services hereunder, Contractor, upon request from City, agrees to testify therein. To the extent that Contractor's testimony does not relate to Contractor's status as a percipient SWITYI CENTER PROFESSIONAL SERVICL•S AGREEMENT I L� witness in any matters complained of, City shall pay Contractor a reasonable and customary fee. 27. Construction. This Agreement is the product of negotiation and compromise on the part of both Parties, and the Parties agree that, notwithstanding Civil Code section 1654, any uncertainty in the Agreement shall not be construed against the drafter of the Agreement. 28. Governing Law; Venue. This Agreement shall be enforced and interpreted under the laws of the State of California and the City of Petaluma. Any action arising from or brought in connection with this Agreement shall be venued in a court of competent jurisdiction in the County of Sonoma, State of California. 29. Non -Waiver. The City's failure to enforce any provision of this Agreement or the waiver thereof in a particular instance shall not be construed as a general waiver of any part of such provision. The provision shall remain in full force and effect. 30. Severability'. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 31. No Third Partv Beneficiaries. The Parties do not intend to create, and nothing in this Agreement shall be construed to create any benefit or right in any third party. 32, Mediation. The Parties agree to make a good faith attempt to resolve any dispute arising out of this Agreement through mediation prior to commencing litigation. The Parties shall mutually agree upon the mediator and shall divide the costs of mediation equally. 33. Contractor's Books and Records. A. Contractor shall maintain any and all ledgers, books of accounts, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to costs, expenditures, disbursements and/or revenues relating to provision of the Services or Contractor's performance under this Agreement for a minimum period of three (3) years or for any longer period required by law, from the date of final compensation to Contractor pursuant to this Agreement. B. Contractor shall maintain all documents and records which demonstrate performance under this Agreement for a minimum period of three (3) years or for any longer period required by law, from the date of termination or completion of this Agreement. C. Any records or documents required to be maintained pursuant to this Agreement shall be made available for inspection or audit, at any time during regular business hours, upon written request by the City Manager, City Attorney, City Finance Director, or a designated representative of these officers. Copies of such documents shall be provided to the City for inspection at Petaluma City Hall when it is practical to do so. Otherwise, unless an alternative is mutually agreed S SWIM CENTER PROFESSIONAL SERVICES AGREEMENT �� upon, the records shall be available at Contractor's address indicated for receipt of notices in this Agreement. D. Where City has reason to believe that such records or documents may be lost or discarded due to dissolution, disbandment or termination of Contractor's business, City may, by written request by any of the above-named officers, require that custody of the records be given to the City and that the records and documents be maintained in Petaluma City Hall. Access to such records and documents shall be granted to any party authorized by Contractor, Contractor's representatives, or Contractor's successor in interest. 34. Headings. The headings used in this Agreement are for convenience only and are not intended to affect the interpretation or construction of any provisions herein. 35. Survival. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating liability between City and Contractor shall survive the termination of this Agreement. 36. Entire Agreement. This Agreement, including the exhibits attached hereto and incorporated herein, constitutes the entire agreement between the Parties with respect to the Services, and supersedes all prior agreements or understandings, oral or written, between the Parties in this regard. IN WITNESS WHEREOF, the parties hereto have executed this document the day, month and year first above written. CITY OF PETALUMA CONTRACTOR By City Manager Thomas Evers, dba Forevers Aquatics ATTEST: By Liz Evers, dba Forevers Aquatics City Clerk Street Address U . I1WII0F.MVEI XEG City Attorney APPROVED: Department Director City State Zip Taxpayer I.D. Number Petaluma Business Tax Certificate Number g SWIM CENTER PROFESSIONAL SERVICES AGREEMENTi6 APPROVED: Risk Manager APPROVED: Finance Director Ia !-7 SWIM CENTER PROFESSIONAL SERVICES AGREEMk.N'f EXHIBIT A - SCOPE OF SERVICES Independent Contractor shall perform the following services. All services provided shall be consistent with the following terms and conditions and shall be consistent with all applicable regulatory and generally accepted industry standards for pool operations as recommended or prescribed by the American Red Cross, Sonoma County Health and Safety Code, or other nationally recognized associations or ogranizations. a. Plan, advertise, implement, staff and supervise aquatic programs at the Cavanagh Pool and Petaluma Swim Center for a minimum season program beginning on May 23, 2009, and concluding on September 25, 2009. Season extensions to provide for earlier opening and/or later closing dates ("Extensions") are encouraged, and shall require a written amendment to this Agreement and mutual consent of the Parties. In considering whether to agree to any proposed Extension, the City will analyze the estimated cost of utilities, budget capacity and potential or anticipated off -setting revenue and may require adjustment of City -provided materials and/or payments, including but not limited to utility costs as part of any Extension amendment to this Agreement. b. Provide minimum programming of the Cavanagh Pool to include: i. Lesson/Instruction Program ii. Exercise Classes iii. Recreation Swim c. Provide minimum programming of the Petaluma Swim Center to include: i. Lesson/Instruction Program ii. Morning and Evening Lap Swim iii. Recreation Swim iv. Club/Team Pool Time -- Priority Times Provided to Local Teams v. Regularly Scheduled Opportunities for Long Course Training vi. Other Programs and Rentals (Pool Parties, Water Polo, Kayak, etc.) d. Provide sufficient staffing, including certified personnel to assure staffing levels that meet or exceed industry standards and/or recommendations for safe pool operations. A sufficient number of staff, including those requiring certification, must be available to provide supervision, lifeguarding, instruction, custodial service, water quality testing and monitoring, program registration, and other necessary office functions, and opening and closing of the facility. Opening and closing activities shall include and may not be limited to: i. Checking facility for safety hazards ii. Clearing gutter and pool of any debris iii. Remove and return remote/automated pool vacuum system (MAX) to alternating locations as per instructions provided by City iv. Check and record water chemistry v. Review dressing rooms, conduct necessary cleaning and restocking vi. Secure all deck equipment, serviceable pool covers, land lines, etc., as necessary I SWIM CENTER PROFESSIONAL SERVICES AGREEMENTIS vii. Secure facility upon departure e. Provide sufficient lifeguarding staff, as recommended by American Red Cross, Sonoma County Health and Safety Code, and/or at a level that meets an accepted and recognized industry standard. Said staff to be assigned uninterrupted lifeguarding responsibilities, with no other obligations whatsoever during time assigned. Persons performing such duties must be at least 15.5 years of age, currently certified in lifesaving/lifeguarding, and meet the First Aid for Public Safety Personnel requirements of California Code of Regulations, Title 22, Division 9, Chapter 1.5. Lifeguarding staffing formula must be provided to the City prior to commencement of the contracted operations. £ Provide supervisory staff at all times from opening to closing, who possess Pool Operator Certification, or who possess certifications in Lifeguarding, CPR and First Aid conforming to all applicable standards. g. Prior to commencing operations, provide the City with a matrix listing employees, job responsibilities, current certifications, and confirming that fingerprinting and background checks have been completed on all employees. The matrix shall be kept current and a revised list shall be provided to the City, providing all required information for any new employee hired by Contractor after commencement of operations. h. Prior to commencing operations, provide City with copy of Independent Contractor's emergency response protocol, and schedule of emergency response training, which protocol and schedule shall be adhered to at all times during operations by Contractor. i. Develop, implement and enforce use rules and regulations that assure orderly and safe use of Pool and associated facilities. j. Respond to any instructions or requests for corrective action provided by any City, County or State agency, including the City of Petaluma, with respect to pool operations and facility issues, and implement any corrective actions required by any such agency. k. Issue and otherwise provide a preliminary schedule of activities to all users in advance of the beginning of the season or session, including communication to all users with respect to revisions and alterations to the schedule. Communication will also include informing users of hours of operation, availability of space, use of assigned space, and all other communication pertinent to aquatics programs. Independent Contractor will provide response to community requests and complaints in a timely manner, and will document such responses for City review. 1. Prepare, require, issue, coordinate and collect facility use forms, liability forms, rental agreements, and all such agreements for use of pool by special parties, clubs, organizations or entities. Said agreements shall be subject to review and approval by the City's department of Risk Management. 12 IvIa0 SWIM CENTER PROFESSIONAL SERVICES AGREEMENT9{ m. Assure that no staff or user enters equipment/mechanical room. n.- With the exception of equipment affixed to the facility and equipment provided by City pursuant to paragraph 6 of this Agreement, Contractor shall provide all tools, supplies and equipment for use by Contractor and its employees in the provision of the contracted services at Contractor's sole expense. o. Accept all previously issued swim passes for the duration identified on such pass, and accept punch cards to the extent that use remains on the card. p. Implement the City's existing schedule of pool fees as identified on Exhibit A-1, with the exception of Swim Lesson fees. Swim Lesson and other new fees will be as identified on Exhibit A-2, attached. q. Create and make available Swim Lesson scholarship, fee reduction or fee waiver opportunities for prospective students wishing to enroll, but who are unable to afford the cost of lessons. The parameters of such program will be provided to the City for review and approval prior to commencement of operations. r. Provide discounted rates for City of Petaluma sponsored camps between rune 15 and August 21, 2009, and comparable periods of any renewal periods under this Agreement. s. Provide City with operating/program schedule covering each session of the season, at least 14 days prior to the beginning of the session for City review and approval. The City's review shall assure all program elements identified in Subparagraphs a, b and c hereof are scheduled and implemented, and will also assure that priority scheduling is provided to local teams and clubs. 13 SWIM CENTER PROFESSIONAL SERVICES AGREEMENT �� EXHIBIT A-1 SCHEDULE OF EXISTING POOL FEES TO BE RETAINED City of Petaluma Aquatic Fees RECREATION SWIMMING FITNESS SWIMMING SWIM LESSONS—PUBLIC SWIM LESSONS —PRIVATE PRIVATE PARTY POOL RENTAL SWIM TEAM POOL RENTAL POOL CLASSROOM RENTAL Exceipt fi•ow Resolution No. 2005-152 N. CS. $2.00 Youth; $1.00 Adult Supervision $4.00 Senior; $5.00 Adult $20 for a 12 swim pass — Youth $50 for a 12 swim pass —Adult $50 for a 15 swim pass —Senior $195 Annual Pass — Adult $145 Annual Pass—Youth and Senior Per session - $6.00; $5.00 seniors Water fitness class, $50 for 10 Sessions $50/8 lessons; $25/4 lessons $30 — % hr lesson; $90 /4 lessons 1-50 people $80/hour 51-100 people $90/hour 101-150 people $100/hour 151-200 people $110/hour 201-250 people $120/hour 251-325 people $130/hour 326-425 people $140/hour $10 per lane/hour— min $40/hr to max $80/hr $25 per hour 94 SWIM CENTER PROFESSIONAL SERVICES AGREEMENT P I SCHEDULE OF SWIM[ LESSON AND OTHER MODUND OR NEW FEES Swim America fees for Swim Lessons ® One, two-week lesson session ® Four, Saturday lesson session $140.00 (8, 30 minute classes) $70 (4,30 minute classes) a A $10.00 discount is applied for each additional family member 15 SWIM CENTER PROFESSIONAL SERVICES AGREEMENT INSURANCE REQUIREMENTS Consultant and any subcontractor shall not commence work under this Agreement until Consultant shall have obtained all insurance required under this paragraph and such insurance shall have been approved by the City Attorney as to form and carrier and the City Manager as to sufficiency, nor shall Consultant allow any contractor or subcontractor to commence work on this contract or subcontract until all similar insurance required of the Consultant and/or subcontractor shall have been so obtained and approved. All requirements herein provided shall appear either in the body of the insurance policies or as endorsements and shall specifically bind the insurance carrier. Consultant shall procure and maintain for the duration of the contract all necessary insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Consultant, the Consultant's agents, representatives, employees or subcontractors. A. Minimum Scope of Insurance Coverage shall be at least as broad as: 1. Insurance Services Office Commercial General Liability coverage: a. Personal injury; b. Contractual liability. 2. Insurance Services Office form covering Automobile Liability, code l (any auto). 3. Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. 4. Such other insurance coverages and limits as may be required by the City. D. Minimum Limits of Insurance Consultant shall maintain limits no less than: I. General Liability: $5,000,000 per occurrence for bodily injury, personal injury, properly damage, and contractual completed operations. If Commercial General Liability Insurance or other form with a general aggregate liability is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. 2. Automobile Liability: $1,000,000 per accident for bodily injury and property damage. 3. Employer's Liability: Bodily Injury by Accident - $1,000,000 each accident. Bodily Injury by Disease - $1,000,000 policy limit. Bodily Injury by Disease - $1,000,000 each employee. 4. Such other insurance coverages and limits as may be required by the City. C. Deductibles and Self -Insured Retentions Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either: the insurer shall reduce or eliminate such deductibles or self- insured retentions as respects the City, its officers, officials, employees, and volunteers; or Exhibit B 1 Page I of 2 INSURANCE REQUIREMENTS - CITY (March 2003) the Consultant shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. D. Other Insurance Provisions The required general liability and automobile policies are to contain, or be endorsed to contain the following provisions: 1. The City, its officers, officials, employees, agents and volunteers are to be covered as insureds as respects: liability arising out of activities performed by or on behalf of the Consultant; products and completed operations of the Consultant; premises owned, occupied or used by the Consultant; or automobiles owned, leased, hired or borrowed by the Consultant. The coverage shall contain no special limitations on the scope of protection afforded to the City, its officers, officials, employees, agents or volunteers. 2. For any claims related to this project, the Consultant's insurance coverage shall be primary insurance as respects the City, its officers, officials, employees, agents and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, agents or volunteers shall be excess of the Consultant's insurance and shall not contribute with it. 3. Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the City, its officers, officials, employees, agents or volunteers. 4. The Consultant's insurance shall apply separately to each insured against whom claim is made or suit is brought except, with respect to the limits of the insurer's liability. 5. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City. E. Acceptability of Insurers Insurance is to be placed with insurers with a current A.M. Best's rating of no less than ANIL F. Verification of Coverage Consultant shall furnish the City with original endorsements effecting coverage required by this clause. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. The endorsements are to be on forms provided by the City. All endorsements are to be received and approved by the City before work commences. As an alternative to the City's forms, the Consultant's insurer may provide complete, certified copies of all required insurance policies, including endorsements effecting the coverage required by the City. Exhibit B 1 Page 2 of 2 INSURANCE REQUIREMENTS - CITY (March 2003) 1�q