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Current Council Agenda and Past Meeting Information

 

CITY COUNCIL AGENDA ITEM NO. 3

Meeting Date: March 14, 2006

Subject/Title: Adopt a Resolution approving, and authorizing the City Manager to sign a Consulting Agreement for Professional Aquatic Safety and Risk Management services with Jeff Ellis & Associates, Inc. for calendar year 2006.

Prepared by: Mac Kaiser, Recreation Supervisor

Submitted by: Craig D. Bronzan, Director of Parks and Recreation

RECOMMENDATION
It is recommended that the City Council adopt a Resolution approving and authorizing the City Manager to sign the annual Agreement for Professional Aquatic Safety and Risk Management Services agreement with Jeff Ellis and Associates, Inc. for the calendar year 2006.

PREVIOUS ACTION
The City of Brentwood, Parks and Recreation Department has been associated with Jeff Ellis & Associates, Inc. for Aquatic Risk Management services since operations began at the Brentwood Family Aquatic Complex in September 2000.

BACKGROUND
The City of Brentwood, Parks and Recreation Department has been associated with Jeff Ellis & Associates, Inc. as the license provider for the operation of the Brentwood Family Aquatic Center since the aquatic operations began in September, 2000. Ellis & Associates, Inc. is an international aquatic safety and risk management consultant used by hundreds of municipal agencies throughout the United States. Ellis & Associates, Inc. is dedicated to the elimination of aquatic catastrophic and drowning accidents by developing state-of-the-art technological solutions for aquatic safety and risk management problems. Ellis & Associates, Inc. provides a national standard of policies and procedures as well as extensive leadership training. Ellis & Associates, Inc. in addition provides regular quarterly unannounced audits of our pools which include video tapings as well as physical audit performance measures.

FISCAL IMPACT
The payment of an annual license of $600 will be paid out of the Parks and Recreation Brentwood Family Aquatic Complex budget.

Attachments:
Resolution
Client Status Notification
License Agreement – Consulting Agreement for Professional Aquatic Safety and Risk Management Services with Jeff Ellis & Associates, Inc.

RESOLUTION NO.

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD APPROVING AND AUTHORIZING THE CITY MANAGER TO SIGN, A CONSULTING AGREEMENT WITH JEFF ELLIS & ASSOCIATES, INC. FOR PROFESSIONAL AQUATIC SAFETY AND RISK MANAGEMENT SERVICES.

WHEREAS, the City of Brentwood has been associated with Jeff Ellis & Associates, Inc., for the past five years;

WHEREAS, the City wishes to continue this relationship for the operations of the Brentwood Family Aquatic Complex and the Heritage High School Pool, by entering into a consulting agreement with Jeff Ellis & Associates, Inc. for the provision of Aquatic Risk Management services; and

WHEREAS, the consulting agreement shall be for an initial term of one year, commencing January 1, 2006 through December 31, 2006; and

NOW, THEREFORE BE IT RESOLVED, that the City Council of the City of Brentwood hereby approves, and authorizes the City Manager to sign the agreement with Jeff Ellis & Associates, Inc., for calendar year 2006.

PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at a regular meeting held on the 14th day of March 2006, by the following vote:

AYES: Council Members
NOES:
ABSENT:
_____________________________
Brian Swisher
Mayor

ATTEST:
__________________________________
Margaret Wimberly, CMC
City Clerk

CONSULTING AGREEMENT FOR PROFESSIONAL AQUATIC SAFETY
AND RISK MANAGEMENT SERVICES

THIS CONSULTING AGREEMENT FOR PROFESSIONAL AQUATIC SAFETY AND RISK MANAGEMENT SERVICES ("Agreement") made and entered into as of the day and year last written herein below, by and between the client named in the Client Status Notification, located at the address stated on the Client Status Notification ("Client"), and JEFF ELLIS & ASSOCIATES, INC., a Texas corporation, with corporate offices located at 3506 Spruce Park Circle Kingwood, Harris County, Texas 77345-3033 (“Consultant”).

RECITALS:

A. Client owns and operates facilities that provide, amongst other things, aquatic activities.
B. Consultant is in the business of providing a Lifeguard Training Program, Comprehensive Aquatic Safety Program and Services related to aquatic activities.
C. Client desires Consultant to provide the aforementioned services to Client.

NOW, THEREFORE, for and in consideration of the premises, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, each intending to be legally bound, do hereby represent, warrant, covenant and agree as follows:

1. RECITALS: The foregoing recitals and Client Status Notification are reaffirmed and made an integral part of this Agreement.

2. CONSULTANT SERVICES: The following services shall be performed by Consultant:
(A) NATIONAL POOL & WATERPARK LIFEGUARD TRAINING PROGRAM (NPWLTP™). Consultant shall provide authorization to Client for purposes of training lifeguards in the National Pool and Waterpark Lifeguard Training Program on an “as needed” basis which shall include the following:
(i) Aquatic rescue technology;
(ii) Victim identification training;
(iii) Spinal injury management and extrication training for aquatic environments;
(iv) Prevention/Scanning technology training;
(v) Professional Lifeguard Development training;
(vi) Intentionally blank;
(vii) Consultant/Nationally Recognized Professional Rescuer CPR Training;
(viii) Consultant/Nationally Recognized Lifeguard First Aid Training; and
(ix) NPWLTPTM lifeguard licensing to be provided upon successful completion of training course for lifeguards employed at Client’s facility.

(B) NATIONAL POOL & WATERPARK LIFEGUARD INSTRUCTOR TRAINING PROGRAM. Consultant shall provide Instructor level training programs for the National Pool and Waterpark Lifeguard Instructor Training Program on an “as needed” basis for Client’s employees which shall include the following:
(i) Teaching methodology which includes communication and presentation techniques;
(ii) Rescue skills enhancement training to develop “Instructor level” quality for NPWLTPTM course demonstrations;
(iii) NPWLTPTM course philosophy;
(iv) Course management and administrative procedures; and
(v) Testing and evaluation procedures.
(C) CONSULTANT AQUATIC SAFETY OPERATIONAL AUDITS. Consultant shall perform its aquatic safety operational audits regarding each of the aquatic facilities operated by Client. Each year Consultant shall perform the number of audits stated in the Client Status Notification for the fees specified in the Client Status Notification. These audits shall include videotape and written documentation in support of evaluations rendered to Client regarding aquatic risk management issues and same shall be delivered to Client upon completion of the grading process.
3. INDEMNITY. Claims for Professional Liability – Consultant shall, with respect to all Services performed in connection with this Agreement, defend, indemnify, and hold the City of Brentwood, its elected and appointed officers, employees, and volunteers harmless from and against any and all claims, liability, loss, damage, costs, or expenses, including reasonable attorneys' fees, awards, fines, or judgments (collectively, "Claims"), arising from or relating to negligent acts, errors, or omissions in the performance of professional services by Consultant, its subconsultants, agents or employees. Consultant shall not be obligated under this Agreement to indemnify City to the extent that the damage is caused by the sole or active negligence or willful misconduct of City, its agents or employees.

(A) Claims for Other Liability – Consultant shall, with respect to all Services performed in connection with this Agreement, defend, indemnify, and hold the City of Brentwood, its elected and appointed officers, employees, and volunteers harmless from and against any and all liens and Claims by firms or individuals claiming through Consultant, and all Claims for compensation, the death or bodily injury to persons, injury to property, or other loss, damage, or expense arising from or related to the Services of Consultant , its subcontractors, agents or employees. Consultant shall not be obligated under this Agreement to indemnify City to the extent that the damage is caused by the sole or active negligence or willful misconduct of City, its agents or employees.

(B) Claims involving intellectual property - In addition to the obligations set forth in 3. and (A) above, Consultant shall indemnify, defend, and hold the City of Brentwood, its elected and appointed officers, employees, and volunteers, harmless against any Claim is alleged in which a violation of intellectual property rights, including but not limited to copyright or patent rights, that arises out of or relates to the Services of Consultant, its subcontractors, agents or employees. Consultant shall not be obligated under this Agreement to indemnify City to the extent that the damage is caused by the sole or active negligence or willful misconduct of City, its agents or employees.

(C) CONSULTANT’S INSURANCE. Consultant shall carry professional liability insurance coverage in the amount of at least one million dollars ($1,000,000.00) and Workers Compensation coverage.


4. CLIENT’S RESPONSIBILITIES: Client’s duties and responsibilities under this Agreement are as follows:
(A) Adhere to and comply with the National Pool & Waterpark Lifeguard Training Program standard of care for lifeguarding, CPR, safety and emergency procedures;
(B) Adhere to and comply with the aquatic risk management guidelines provided the Comprehensive Aquatic Risk Management Handbook to Client for the protection of Client’s guests;
(C) Respond in writing and implement auditor recommendations in accordance with the aquatic risk management protocols provided by Consultant;
(D) Make available all emergency action plans and staff certification and training records to Consultant’s auditors within ten (10) days of Client’s receipt of a written request for same from Consultant;
(E) Adhere to and comply with all aspects of the Comprehensive Aquatic Risk Management Program Handbook provided by Consultant. Client hereby agrees that failure to comply with the aquatic risk management requirements of Consultant as stated in the Comprehensive Aquatic Risk Management Program Handbook shall, in the sole judgment of Consultant result in an Event of Default under this Agreement. Client must submit, in writing, any variance request to Consultant to be exempt from any requirements set for the in the Comprehensive Aquatic Risk Management Program Handbook;
(F) Intentionally blank;
(G) Consultant’s Fees. Client shall pay Consultant the fees set forth in the Client Status Notification in addition to the out-of-pocket costs and expenses stated in this Agreement. Client shall pay the Annual Retainer Fee, Audit Fees, Facility Inspection Fee, all remaining billed hourly fees, lifeguard/lifeguard instructor fees, other fees and/or costs and expenses on a NET 30 basis from date of invoice in accordance with the business practices of Consultant. All amounts owed and unpaid shall bear interest at the rate of one and one-half percent (1½%) per month (eighteen percent (18%) per annum) until paid in full.

5. TERM: The Term of this Agreement shall be as stated in the Client Status Notification.

6. DEFAULT AND TERMINATION:
(A) Events of Default. Each of the following shall be an event of default (“Event of Default”) under this Agreement for which the defaulting party shall be liable to the non-defaulting party for damages directly arising out of the default (the defaulting party shall not be liable for consequential or incidental damages of any kind whatsoever):
(i) if Client fails to make any payment due under this Agreement within thirty (30) days from the date said payment is due;
(ii) if either party shall default in the substantial performance of any term, covenant or condition of this Agreement (other than those relating to the payment of monies by Client) and the defaulting party fails to remedy such default within twenty-one (21) days after receipt of written notice from the non-defaulting party of such default, or if such default is of such nature that it cannot be reasonably remedied within said twenty-one (21) days (but is otherwise susceptible to cure), the defaulting party shall not within said twenty-one (21) days advise the non-defaulting party of its intention to institute all steps necessary to remedy such default and thereafter diligently pursue to completion all such steps necessary to remedy such default;
(iii) if, in the sole judgment of Consultant, Client fails to adhere to and comply with the aquatic risk management requirements identified in the Comprehensive Aquatic Risk Management Program Handbook ;
(iv) to the extent permitted by law, if either party admits, in writing, that it is generally unable to pay its debts as such become due;
(v) to the extent permitted by law, if either party makes an assignment for the benefit of creditors; and
(vi) to the extent permitted by law, if either party files a voluntary petition in bankruptcy, voluntarily or involuntarily goes into a liquidation, or a receiver is appointed with respect to substantially all of its assets, and the foregoing are not stayed or dismissed within one hundred and fifty (150) days after such filing or other action.
(B) NOTICE OF EVENT OF DEFAULT. The foregoing events of default shall not become effective and actionable (i.e., become an “Event of Default”) until the non-defaulting party first sends written notice of same with sufficient detail regarding the nature of the default to the defaulting party and the defaulting party fails to cure said default within twenty-one (21) days from its receipt of said notice subject to the provisions of subparagraph 5(A)(ii) herein.
(C) TERMINATION.
(i) In the event this Agreement is terminated by operation of law or otherwise prior to the expiration of its Term (as defined in the Client Status Notification), then, in that event, all finished and/or unfinished documents, manuals, data, studies, surveys, drawings, maps, models, NPWLTPTM lifeguard licenses and aquatic safety auditing reports prepared by Consultant under this Agreement shall remain the property of Consultant and Client; and Consultant shall be entitled to receive equitable compensation for any such finished and/or unfinished work and services provided up to the date of termination.
(ii) At the end of the Term of this Agreement, this Agreement shall terminate and all of the documents, manuals, data, studies, surveys, drawings, maps, models, NPWLTPTM lifeguard licenses and aquatic safety auditing reports prepared by Consultant under this Agreement shall remain the property of Consultant and Client.

7. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION:
(A) CONFIDENTIAL INFORMATION. For purposes of this Agreement, “Confidential Information” shall include all information or material that has or could have commercial value or other utility in the business or prospective business of Consultant. Confidential Information also includes all information of which unauthorized disclosure could be detrimental to the interest of Consultant whether or not such information is identified as Confidential Information by Consultant. By example and without limitation, Confidential Information includes, but is not limited to, any and all information of the following or similar nature, whether or not reduced to writing: the Comprehensive Aquatic Risk Management Program Handbook and documents, client memos, newsletters, manuals, data, studies, surveys, drawings, maps, models, NPWLTPTM lifeguard licenses and aquatic safety auditing reports prepared by Consultant under this Agreement, and any other information or procedures that are treated as or designated secret or confidential by Consultant.
(B) EXCLUSIONS. Confidential Information does not include information that Client can demonstrate: (i) is now, or hereafter becomes, through no act or failure to act on the part of Client, generally known to the public; (ii) is rightfully obtained by Client from a third party, without breach of any obligation to Consultant; or (iii) is independently developed by Client without use of or reference to the Confidential Information.
(C) CONFIDENTIALITY. Client and Client’s representatives shall not disclose any of the Confidential Information in any manner whatsoever, except as provided in paragraphs 6(D) and 6(E) of this Agreement, and shall hold and maintain the Confidential Information in strictest confidence.
(D) PERMITTED DISCLOSURES. Client may disclose Consultant’s Confidential Information to Client’s responsible representatives and employees with a bona fide need to know such Confidential Information to the extent necessary to perform their employment responsibilities.
(E) REQUIRED DISCLOSURES. Client may disclose Consultant’s Confidential Information if and to the extent that such disclosure is required by court order or The California Public Records Act, provided that Client provides Consultant a reasonable opportunity to review the disclosure before it is made and to interpose its own objection to the disclosure.
(F) USE. Client and Client’s representatives shall use the Confidential Information solely for the purpose of operating under this Agreement as it applies to the operation of Client’s business and shall not in any way use the Confidential Information to the detriment of Consultant. Nothing in this Agreement shall be construed as granting any rights to Client, by license or otherwise, to any of Consultant’s Confidential Information.

8. MISCELLANEOUS:
(A) GOVERNING LAW AND VENUE. This Agreement shall be governed by, and construed in accordance with, the laws of the State of California, both substantive and remedial, without regard to principals of conflict of laws. The exclusive venue for any litigation arising out of this Agreement shall be Contra Costa County, California, if in the state court, and the United States District Court, Northern District of California, if in the federal court.
(B) CAPTIONS AND PARAGRAPHS. Captions and paragraph headings in this Agreement are for convenience and reference only and in no way define, describe, extend or limit the scope or intent of this Agreement nor the intent of any provision hereof.
(C) ENTIRE AGREEMENT; AMENDMENT; WAIVER. This Agreement and any attachments hereto, if any, contain the entire agreement between the parties. There are no promises, agreements, conditions, undertakings, warranties, or representations, oral or written, express or implied, between the parties other than as herein set forth. No amendment or modification of this Agreement shall be valid unless the same is in writing and signed by the parties hereto. No waiver of any provision of this Agreement shall be effective unless it is in writing, signed by the party against whom it is asserted and any such written waiver shall only be applicable to the specific instance to which it related and shall not be deemed to be a continuing or future waiver.
(D) SEVERABILITY. If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written and enforced as so limited.
(E) NOTICES. All notices, requests, demands, or other communications hereunder shall be in writing and deemed to have been given only if and when hand delivered or sent by nationally recognized overnight courier service (e.g., Federal Express, UPS) to the parties hereto at their respective addresses set forth at the outset of this Agreement or such other address as either party shall designate by notice pursuant to this paragraph. Copies of all notices, requests, demands or other communications hereunder to Consultant shall also be sent to Consultant’s counsel: Joel N. Minsker, Esq., Bloom & Minsker, P.L., 1110 Brickell Avenue, Suite 700, Miami, Florida 33131-3107.
(F) CLIENT. The term “Client” shall mean the entity named in this Agreement.

IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and year last written hereinbelow.

CLIENT CONSULTANT

The City of Brentwood, JEFF ELLIS & ASSOCIATES, INC.,
a California Municipal corporation a Texas corporation
By:______________________________________ By:
Donna Landeros, City Manager
RICHARD A.CARROLL, Senior Vice President/COO
Date: November 1 , 2005

Date: ___________________________, 200__
 

City Administration
City of Brentwood City Council
150 City Park Way
Brentwood, CA 94513
(925) 516-5440
Fax (925) 516-5441
E-mail allcouncil@brentwoodca.gov