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Home My WebLink AboutAgreement - Swimming Swan, LLC - Signed 2025-12-30City of Gilroy Agreement/Contract Tracking Today’s Date: February 26, 2026 Your Name: Bryce Atkins Contract Type: Services over $5k - Contractor - NO ENG OR DESIGN Phone Number: (408)846-0210 Contract Effective Date: (Date contract goes into effect) 12/30/2025 Contract Expiration Date: 10/1/2026 Contractor / Consultant Name: (if an individual’s name, format as last name, first name) Swimming Swan Contract Subject: (no more than 100 characters) Aquatics Center Operator Contract Contract Amount: (Total Amount of contract. If no amount, leave blank) 266662 By submitting this form, I confirm this information is complete: ➢ Date of Contract ➢ Contractor/Consultant name and complete address ➢ Terms of the agreement (start date, completion date or “until project completion”, cap of compensation to be paid) ➢ Scope of Services, Terms of Payment, Milestone Schedule and exhibit(s) attached ➢ Taxpayer ID or Social Security # and Contractors License # if applicable ➢ Contractor/Consultant signer’s name and title ➢ City Administrator or Department Head Name, City Clerk (Attest), City Attorney (Approved as to Form) Routing Steps for Electronic Signature Risk Manager City Attorney Approval As to Form City Administrator or Department Head City Clerk Attestation Docusign Envelope ID: F2AAA950-4458-458E-B30D-742AAD6C632E TYPE OF PROCURMENT DOLLAR THRESHOLD / SIGNING AUTHORITY STAFF LEVEL DEPARTMENT HEAD CITY ADMINISTRATOR COUNCIL APPROVAL $0-$999.99 $1,000-$49,999.99 $50,000-$99,999.99 $100,000-Above EQUIPMENT /SUPPLIES/ MATERIALS Furniture, hoses, parts, pipe manholes, office supplies, fuel, tools, PPE items, etc… • Vendor selection at discretion of staff Payment Method Purchase Card or Payment Request (if vendor does not accept credit cards) • Informal bid/quotation – 3 quotes (verbal or written) • Purchasing Summary form w/ Purchasing Approval • Purchase Requisition Payment Method Purchase Order* • Informal bid/quotation – 3 written quotes • Purchasing Summary form w/ City Administrator Approval • Purchase Requisition Payment Method Purchase Order • Formal Bid • Advertisement • Council Approval • Purchase Requisition signed by City Administrator Payment Method Purchase Order GENERAL SERVICES Janitorial, landscape maintenance, equipment repair, installation, graffiti abatement, service inspections, uniform cleaning, etc… • Vendor selection at discretion of staff • May require insurance documents depending on scope/ nature of work Payment Method Purchase Card (if incorporated) Signed Payment Request (if sole proprietor or partner) • Informal bid/quotation – 3 quotes (verbal or written) • Purchasing Summary form w/ Department Head Approval • Standard Agreement • Purchase Requisition Payment Method Purchase Order* • Informal Bid/RFP quotation – 3 written quotes • Purchasing Summary form w/ City Administrator Approval • Standard Agreement • Purchase Requisition Payment Method Purchase Order • Formal Bid/RFP/RFQ • Advertisement • Council Approval • Standard Agreement • Purchase Requisition Payment Method Purchase Order PROFESSIONAL SERVICES Consultants, architects, designers, auditors, etc... • Vendor selection at the discretion of staff • Purchase Summary Form w/ Purchasing Approval • Standard Agreement signed by Department Head • Purchase Requisition Payment Method Purchase Order • RFP/RFQ to at least 3 consultants • Purchase Summary Form w/ Department Head Approval • Standard Agreement • Purchase Requisition Payment Method Purchase Order • RFP/RFQ to a list of consultants • Evaluation Spreadsheet w/ City Administrator Approval • Standard Agreement • Purchase Requisition Payment Method Purchase Order • Formal RFP/RFQ • Advertisement • Council Approval • Standard Agreement signed by City Administrator • Purchase Requisition Payment Method Purchase Order Docusign Envelope ID: F2AAA950-4458-458E-B30D-742AAD6C632E -1- 4835-2267-0361v1 LAC\04706083 AGREEMENT FOR SERVICES (For contracts over $5,000 – NON-DESIGN, NON-ENGINEERING TYPE CONTRACTOR) This AGREEMENT made this 26th day of February, 2026, between: CITY: City of Gilroy, having a principal place of business at 7351 Rosanna Street, Gilroy, California and CONTRACTOR: The Swimming Swan, LLC dba Swan Aquatics, having a principal place of business at 903 Paseo Del Lago, Fallbrook, CA 92028. ARTICLE 1. TERM OF AGREEMENT This Agreement will become effective on 12/30/2025 and will continue in effect through 10/1/2026, with one, one-year extension option at the CITY's sole discretion, unless terminated in accordance with the provisions of Article 7 of this Agreement. Any lapse in insurance coverage as required by Article 5, Section D of this Agreement shall terminate this Agreement regardless of any other provision stated herein. ______ Initial ARTICLE 2. INDEPENDENT CONTRACTOR STATUS It is the express intention of the parties that CONTRACTOR is an independent contractor and not an employee, agent, joint venturer or partner of CITY. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between CITY and CONTRACTOR or any employee or agent of CONTRACTOR. Both parties acknowledge that CONTRACTOR is not an employee for state or federal tax purposes. CONTRACTOR shall not be entitled to any of the rights or benefits afforded to CITY’S employees, including, without limitation, disability or unemployment insurance, workers’ compensation, medical insurance, sick leave, retirement benefits or any other employment benefits. CONTRACTOR shall retain the right to perform services for others during the term of this Agreement. ARTICLE 3. SERVICES TO BE PERFORMED BY CONTRACTOR A. Specific Services CONTRACTOR agrees to: Perform the services as outlined in Exhibit “A” (“Specific Provisions”) and Exhibit “B” (“Scope of Services”), within the time periods described in Exhibit “C” (“Milestone Schedule”). B. Method of Performing Services CONTRACTOR shall determine the method, details and means of performing the above-described services. CITY shall have no right to, and shall not, control the manner or determine the method of accomplishing CONTRACTOR’S services. Docusign Envelope ID: F2AAA950-4458-458E-B30D-742AAD6C632E -2- 4835-2267-0361v1 LAC\04706083 C. Employment of Assistants CONTRACTOR may, at the CONTRACTOR’S own expense, employ such assistants as CONTRACTOR deems necessary to perform the services required of CONTRACTOR by this Agreement, subject to the prohibition against assignment and subcontracting contained in Article 5 below. CITY may not control, direct, or supervise CONTRACTOR’S assistants in the performance of those services. CONTRACTOR assumes full and sole responsibility for the payment of all compensation and expenses of these assistants and for all state and federal income tax, unemployment insurance, Social Security, disability insurance and other applicable withholding. D. Place of Work CONTRACTOR shall perform the services required by this Agreement at any place or location and at such times as CONTRACTOR shall determine is necessary to properly and timely perform CONTRACTOR’S services. ARTICLE 4. COMPENSATION A. Consideration In consideration for the services to be performed by CONTRACTOR, CITY agrees to pay CONTRACTOR the amounts set forth in Exhibit “D” (“Payment Schedule”). In no event however shall the total compensation paid to CONTRACTOR exceed $266,662. B. Invoices CONTRACTOR shall submit invoices for all services rendered. C. Payment Payment shall be due according to the payment schedule set forth in Exhibit “D”. No payment will be made unless CONTRACTOR has first provided City with a written receipt of invoice describing the work performed and any approved direct expenses (as provided for in Exhibit “A”, Section IV) incurred during the preceding period. If CITY objects to all or any portion of any invoice, CITY shall notify CONTRACTOR of the objection within thirty (30) days from receipt of the invoice, give reasons for the objection, and pay that portion of the invoice not in dispute. It shall not constitute a default or breach of this Agreement for CITY not to pay any invoiced amounts to which it has objected until the objection has been resolved by mutual agreement of the parties. D. Expenses CONTRACTOR shall be responsible for all costs and expenses incident to the performance of services for CITY, including but not limited to, all costs of equipment used or provided by CONTRACTOR, all fees, fines, licenses, bonds or taxes required of or imposed against CONTRACTOR and all other of CONTRACTOR’S costs of doing business. CITY shall not be responsible for any expenses incurred by CONTRACTOR in performing services for CITY, except for those expenses constituting “direct expenses” referenced on Exhibit “A.” Docusign Envelope ID: F2AAA950-4458-458E-B30D-742AAD6C632E -3- 4835-2267-0361v1 LAC\04706083 ARTICLE 5. OBLIGATIONS OF CONTRACTOR A. Tools and Instrumentalities CONTRACTOR shall supply all tools and instrumentalities required to perform the services under this Agreement at its sole cost and expense. CONTRACTOR is not required to purchase or rent any tools, equipment or services from CITY. B. Workers’ Compensation CONTRACTOR agrees to provide workers’ compensation insurance for CONTRACTOR’S employees and agents and agrees to hold harmless, defend with counsel acceptable to CITY and indemnify CITY, its officers, representatives, agents and employees from and against any and all claims, suits, damages, costs, fees, demands, causes of action, losses, liabilities and expenses, including without limitation reasonable attorneys’ fees, arising out of any injury, disability, or death of any of CONTRACTOR’S employees. C. Indemnification of Liability, Duty to Defend As to all liability, to the fullest extent permitted by law, CONTRACTOR shall defend, through counsel approved by CITY (which approval shall not be unreasonably withheld), indemnify and hold harmless CITY, its officers, representatives, agents and employees against any and all suits, damages, costs, fees, claims, demands, causes of action, losses, liabilities and expenses, including without limitation attorneys’ fees, arising or resulting directly or indirectly from any act or omission of CONTRACTOR or CONTRACTOR’S assistants, employees or agents, including all claims relating to the injury or death of any person or damage to any property. D. Insurance In addition to any other obligations under this agreement, CONTRACTOR shall acquire and maintain Workers’ Compensation, Employer Liability, Commercial General Liability, Sexual Abuse Molestation, and owned/non-owned/hired automobile liability insurance coverage relating to the CONTRACTOR’s use of the Facility, including coverage of the activity pool’s play structure and four waterslides. The insurance coverage will need to be approved by the City. The CONTRACTOR will provide the City with 30 days’ notice of any changes, cancellations, or non- renewals. CONTRACTOR shall, at no cost to CITY, obtain and maintain throughout the term of this Agreement: (a) Commercial Liability Insurance on a per occurrence basis, with a minimum combined single limit coverage of $10,000,000 per occurrence for all damages due to bodily injury, sickness or disease, or death to any person, and damage to property, including the loss of use thereof; (b) Insurance coverage for owned and non-owned automobiles with a minimum combined single limit coverage of $1,000,000 per occurrence; Insurance coverage for Sexual Abuse Molestation with a minimum combined single limit coverage of $1,000,000 per occurrence. As a condition precedent to CITY’S obligations under this Agreement, CONTRACTOR shall furnish written evidence of such coverage (naming CITY, its Officers and employees as additional insureds on the Comprehensive Liability insurance policy referred to in (a) immediately above via Docusign Envelope ID: F2AAA950-4458-458E-B30D-742AAD6C632E -4- 4835-2267-0361v1 LAC\04706083 a specific endorsement) and requiring thirty (30) days written notice of policy lapse or cancellation, or of a material change in policy terms. E. Assignment Notwithstanding any other provision of this Agreement, neither this Agreement nor any duties or obligations of CONTRACTOR under this Agreement may be assigned or subcontracted by CONTRACTOR without the prior written consent of CITY, which CITY may withhold in its sole and absolute discretion. F. State and Federal Taxes As CONTRACTOR is not CITY’S employee, CONTRACTOR shall be responsible for paying all required state and federal taxes. Without limiting the foregoing, CONTRACTOR acknowledges and agrees that: • CITY will not withhold FICA (Social Security) from CONTRACTOR’S payments; • CITY will not make state or federal unemployment insurance contributions on CONTRACTOR’S behalf; • CITY will not withhold state or federal income tax from payment to CONTRACTOR; • CITY will not make disability insurance contributions on behalf of CONTRACTOR; • CITY will not obtain workers’ compensation insurance on behalf of CONTRACTOR. ARTICLE 6. OBLIGATIONS OF CITY A. Cooperation of City CITY agrees to respond to all reasonable requests of CONTRACTOR and provide access, at reasonable times following receipt by CITY of reasonable notice, to all documents reasonably necessary to the performance of CONTRACTOR’S duties under this Agreement. B. Assignment CITY may assign this Agreement or any duties or obligations thereunder to a successor governmental entity without the consent of CONTRACTOR. Such assignment shall not release CONTRACTOR from any of CONTRACTOR’S duties or obligations under this Agreement. ARTICLE 7. TERMINATION OF AGREEMENT A. Sale of CONTRACTOR’s Business/ Death of CONTRACTOR. CONTRACTOR shall notify CITY of the proposed sale of CONTRACTOR’s business no later than thirty (30) days prior to any such sale. CITY shall have the option of terminating this Agreement within thirty (30) days after receiving such notice of sale. Any such CITY termination Docusign Envelope ID: F2AAA950-4458-458E-B30D-742AAD6C632E -5- 4835-2267-0361v1 LAC\04706083 pursuant to this Article 7.A shall be in writing and sent to the address for notices to CONTRACTOR set forth in Exhibit A, Subsection V.H., no later than thirty (30) days after CITY’ receipt of such notice of sale. If CONTRACTOR is an individual, this Agreement shall be deemed automatically terminated upon death of CONTRACTOR. B. Termination by City for Default of CONTRACTOR Should CONTRACTOR default in the performance of this Agreement or materially breach any of its provisions, CITY, at CITY’S option, may terminate this Agreement by giving written notification to CONTRACTOR. For the purposes of this section, material breach of this Agreement shall include, but not be limited to the following: 1. CONTRACTOR’S failure to professionally and/or timely perform any of the services contemplated by this Agreement. 2. CONTRACTOR’S breach of any of its representations, warranties or covenants contained in this Agreement. CONTRACTOR shall be entitled to payment only for work completed in accordance with the terms of this Agreement through the date of the termination notice, as reasonably determined by CITY, provided that such payment shall not exceed the amounts set forth in this Agreement for the tasks described on Exhibit C” which have been fully, competently and timely rendered by CONTRACTOR. Notwithstanding the foregoing, if CITY terminates this Agreement due to CONTRACTOR’S default in the performance of this Agreement or material breach by CONTRACTOR of any of its provisions, then in addition to any other rights and remedies CITY may have, CONTRACTOR shall reimburse CITY, within ten (10) days after demand, for any and all costs and expenses incurred by CITY in order to complete the tasks constituting the scope of work as described in this Agreement, to the extent such costs and expenses exceed the amounts CITY would have been obligated to pay CONTRACTOR for the performance of that task pursuant to this Agreement. C. Termination for Failure to Make Agreed-Upon Payments Should CITY fail to pay CONTRACTOR all or any part of the compensation set forth in Article 4 of this Agreement on the date due, then if and only if such nonpayment constitutes a default under this Agreement, CONTRACTOR, at the CONTRACTOR’S option, may terminate this Agreement if such default is not remedied by CITY within thirty (30) days after demand for such payment is given by CONTRACTOR to CITY. D. Transition after Termination Upon termination, CONTRACTOR shall immediately stop work, unless cessation could potentially cause any damage or harm to person or property, in which case CONTRACTOR shall cease such work as soon as it is safe to do so. CONTRACTOR shall incur no further expenses in connection with this Agreement. CONTRACTOR shall promptly deliver to CITY all work done toward completion of the services required hereunder, and shall act in such a manner as to facilitate Docusign Envelope ID: F2AAA950-4458-458E-B30D-742AAD6C632E -6- 4835-2267-0361v1 LAC\04706083 any the assumption of CONTRACTOR’s duties by any new CONTRACTOR hired by the CITY to complete such services. ARTICLE 8. GENERAL PROVISIONS A. Amendment & Modification No amendments, modifications, alterations or changes to the terms of this Agreement shall be effective unless and until made in a writing signed by both parties hereto. B. Americans with Disabilities Act of 1990 Throughout the term of this Agreement, the CONTRACTOR shall comply fully with all applicable provisions of the Americans with Disabilities Act of 1990 (“the Act”) in its current form and as it may be amended from time to time. CONTRACTOR shall also require such compliance of all subcontractors performing work under this Agreement, subject to the prohibition against assignment and subcontracting contained in Article 5 above. The CONTRACTOR shall defend with counsel acceptable to CITY, indemnify and hold harmless the CITY OF GILROY, its officers, employees, agents and representatives from and against all suits, claims, demands, damages, costs, causes of action, losses, liabilities, expenses and fees, including without limitation reasonable attorneys’ fees, that may arise out of any violations of the Act by the CONTRACTOR, its subcontractors, or the officers, employees, agents or representatives of either. C. Attorneys’ Fees If any action at law or in equity, including an action for declaratory relief, is brought to enforce or interpret the provisions of this Agreement, the prevailing party will be entitled to reasonable attorneys’ fees, which may be set by the court in the same action or in a separate action brought for that purpose, in addition to any other relief to which that party may be entitled. D. Captions The captions and headings of the various sections, paragraphs and subparagraphs of the Agreement are for convenience only and shall not be considered nor referred to for resolving questions of interpretation. E. Compliance with Laws The CONTRACTOR shall keep itself informed of all State and National laws and all municipal ordinances and regulations of the CITY which in any manner affect those engaged or employed in the work, or the materials used in the work, or which in any way affect the conduct of the work, and of all such orders and decrees of bodies or tribunals having any jurisdiction or authority over the same. Without limiting the foregoing, CONTRACTOR agrees to observe the provisions of the Municipal Code of the CITY OF GILROY, obligating every contractor or subcontractor under a contract or subcontract to the CITY OF GILROY for public works or for goods or services to refrain from discriminatory employment or subcontracting practices on the basis of the race, color, sex, religious creed, national origin, ancestry of any employee, applicant for employment, or any potential subcontractor. Docusign Envelope ID: F2AAA950-4458-458E-B30D-742AAD6C632E -7- 4835-2267-0361v1 LAC\04706083 F. Conflict of Interest CONTRACTOR certifies that to the best of its knowledge, no CITY employee or office of any public agency interested in this Agreement has any pecuniary interest in the business of CONTRACTOR and that no person associated with CONTRACTOR has any interest that would constitute a conflict of interest in any manner or degree as to the execution or performance of this Agreement. G. Entire Agreement This Agreement supersedes any and all prior agreements, whether oral or written, between the parties hereto with respect to the rendering of services by CONTRACTOR for CITY and contains all the covenants and agreements between the parties with respect to the rendering of such services in any manner whatsoever. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein, and that no other agreement, statement or promise not contained in this Agreement shall be valid or binding. No other agreements or conversation with any officer, agent or employee of CITY prior to execution of this Agreement shall affect or modify any of the terms or obligations contained in any documents comprising this Agreement. Such other agreements or conversations shall be considered as unofficial information and in no way binding upon CITY. H. Governing Law and Venue This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflict of laws provisions of any jurisdiction. The exclusive jurisdiction and venue with respect to any and all disputes arising hereunder shall be in state and federal courts located in Santa Clara County, California. I. Notices Any notice to be given hereunder by either party to the other may be effected either by personal delivery in writing or by mail, registered or certified, postage prepaid with return receipt requested. Mailed notices shall be addressed to the parties at the addresses appearing in Exhibit “A”, Section V.H. but each party may change the address by written notice in accordance with this paragraph. Notices delivered personally will be deemed delivered as of actual receipt; mailed notices will be deemed delivered as of three (3) days after mailing. J. Partial Invalidity If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way. K. Time of the Essence All dates and times referred to in this Agreement are of the essence. Docusign Envelope ID: F2AAA950-4458-458E-B30D-742AAD6C632E -8- 4835-2267-0361v1 LAC\04706083 L. Waiver CONTRACTOR agrees that waiver by CITY of any one or more of the conditions of performance under this Agreement shall not be construed as waiver(s) of any other condition of performance under this Agreement. Executed at Gilroy, California, on the date and year first above written. CONTRACTOR: CITY: THE SWIMMING SWAN, LLC dba Docusign Envelope ID: F2AAA950-4458-458E-B30D-742AAD6C632E -1- 4835-2267-0361v1 LAC\04706083 EXHIBIT “A” SPECIFIC PROVISIONS I. PROJECT MANAGER CONTRACTOR shall provide the services indicated on the attached Exhibit “B”, Scope of Services (“Services”). (All exhibits referenced are incorporated herein by reference.) To accomplish that end, CONTRACTOR agrees to assign Melissa Swanson Musil, who will act in the capacity of Project Manager, and who will personally direct such Services. Except as may be specified elsewhere in this Agreement, CONTRACTOR shall furnish all technical and professional services including labor, material, equipment, transportation, supervision and expertise to perform all operations necessary and required to complete the Services in accordance with the terms of this Agreement. II. NOTICE TO PROCEED/COMPLETION OF SERVICE A. NOTICE TO PROCEED CONTRACTOR shall commence the Services upon delivery to CONTRACTOR of a written “Notice to Proceed”, which Notice to Proceed shall be in the form of a written communication from designated City contact person(s). Notice to Proceed may be in the form of e-mail, fax or letter authorizing commencement of the Services. For purposes of this Agreement, Adam Henig, Recreation Manager, shall be the designated City contact person(s). Notice to Proceed shall be deemed to have been delivered upon actual receipt by CONTRACTOR or if otherwise delivered as provided in the Section V.H. (“Notices”) of this Exhibit “A”. B. COMPLETION OF SERVICES When CITY determines that CONTRACTOR has completed all of the Services in accordance with the terms of this Agreement, CITY shall give CONTRACTOR written Notice of Final Acceptance, and CONTRACTOR shall not incur any further costs hereunder. CONTRACTOR may request this determination of completion when, in its opinion, it has completed all of the Services as required by the terms of this Agreement and, if so requested, CITY shall make this determination within two (2) weeks of such request, or if CITY determines that CONTRACTOR has not completed all of such Services as required by this Agreement, CITY shall so inform CONTRACTOR within this two (2) week period. III. PROGRESS SCHEDULE The schedule for performance and completion of the Services will be as set forth in the attached Exhibit “C”. IV. PAYMENT OF FEES AND DIRECT EXPENSES Payments shall be made to CONTRACTOR as provided for in Article 4 of this Agreement. Docusign Envelope ID: F2AAA950-4458-458E-B30D-742AAD6C632E -2- 4835-2267-0361v1 LAC\04706083 Direct expenses are charges and fees not included in Exhibit “B”. CITY shall be obligated to pay only for those direct expenses which have been previously approved in writing by CITY. CONTRACTOR shall obtain written approval from CITY prior to incurring or billing of direct expenses. Copies of pertinent financial records, including invoices, will be included with the submission of billing(s) for all direct expenses. V. OTHER PROVISIONS A. STANDARD OF WORKMANSHIP CONTRACTOR represents and warrants that it has the qualifications, skills and licenses necessary to perform the Services, and its duties and obligations, expressed and implied, contained herein, and CITY expressly relies upon CONTRACTOR’S representations and warranties regarding its skills, qualifications and licenses. CONTRACTOR shall perform such Services and duties in conformance to and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Any plans, designs, specifications, estimates, calculations, reports and other documents furnished under this Agreement shall be of a quality acceptable to CITY. The minimum criteria for acceptance shall be a product of neat appearance, well-organized, technically and grammatically correct, checked and having the maker and checker identified. The minimum standard of appearance, organization and content of the drawings shall be that used by CITY for similar purposes. B. RESPONSIBILITY OF CONTRACTOR CONTRACTOR shall be responsible for the professional quality, technical accuracy, and the coordination of the Services furnished by it under this Agreement. CONTRACTOR shall not be responsible for the accuracy of any project or technical information provided by the CITY. The CITY’S review, acceptance or payment for any of the Services shall not be construed to operate as a waiver of any rights under this Agreement or of any cause of action arising out of the performance of this Agreement, and CONTRACTOR shall be and remain liable to CITY in accordance with applicable law for all damages to CITY caused by CONTRACTOR’S negligent performance of any of the services furnished under this Agreement. C. RIGHT OF CITY TO INSPECT RECORDS OF CONTRACTOR CITY, through its authorized employees, representatives or agents, shall have the right, at any and all reasonable times, to audit the books and records (including, but not limited to, invoices, vouchers, canceled checks, time cards, etc.) of CONTRACTOR for the purpose of verifying any and all charges made by CONTRACTOR in connection with this Agreement. CONTRACTOR shall maintain for a minimum period of three (3) years (from the date of final payment to CONTRACTOR), or for any longer period required by law, sufficient books and records in accordance with standard California accounting practices to establish the correctness of all charges submitted to CITY by CONTRACTOR, all of which shall be made available to CITY at the CITY’s offices within five (5) business days after CITY’s request. Docusign Envelope ID: F2AAA950-4458-458E-B30D-742AAD6C632E -3- 4835-2267-0361v1 LAC\04706083 D. CONFIDENTIALITY OF MATERIAL All ideas, memoranda, specifications, plans, manufacturing procedures, data (including, but not limited to, computer data and source code), drawings, descriptions, documents, discussions or other information developed or received by or for CONTRACTOR and all other written and oral information developed or received by or for CONTRACTOR and all other written and oral information submitted to CONTRACTOR in connection with the performance of this Agreement shall be held confidential by CONTRACTOR and shall not, without the prior written consent of CITY, be used for any purposes other than the performance of the Services, nor be disclosed to an entity not connected with the performance of the such Services. Nothing furnished to CONTRACTOR which is otherwise known to CONTRACTOR or is or becomes generally known to the related industry (other than that which becomes generally known as the result of CONTRACTOR’S disclosure thereof) shall be deemed confidential. CONTRACTOR shall not use CITY’S name or insignia, or distribute publicity pertaining to the services rendered under this Agreement in any magazine, trade paper, newspaper or other medium without the express written consent of CITY. E. NO PLEDGING OF CITY’S CREDIT. Under no circumstances shall CONTRACTOR have the authority or power to pledge the credit of CITY or incur any obligation in the name of CITY. F. OWNERSHIP OF MATERIAL. All material including, but not limited to, computer information, data and source code, sketches, tracings, drawings, plans, diagrams, quantities, estimates, specifications, proposals, tests, maps, calculations, photographs, reports and other material developed, collected, prepared (or caused to be prepared) under this Agreement shall be the property of CITY, but CONTRACTOR may retain and use copies thereof subject to Section V.D of this Exhibit “A”. CITY shall not be limited in any way in its use of said material at any time for any work, whether or not associated with the City project for which the Services are performed. However, CONTRACTOR shall not be responsible for, and City shall indemnify CONTRACTOR from, damages resulting from the use of said material for work other than PROJECT, including, but not limited to, the release of this material to third parties for work other than on PROJECT. G. NO THIRD PARTY BENEFICIARY. This Agreement shall not be construed or deemed to be an agreement for the benefit of any third party or parties, and no third party or parties shall have any claim or right of action hereunder for any cause whatsoever. Docusign Envelope ID: F2AAA950-4458-458E-B30D-742AAD6C632E -4- 4835-2267-0361v1 LAC\04706083 H. NOTICES. Notices are to be sent as follows: CITY: Adam Henig, Recreation Manager City of Gilroy 7351 Rosanna Street Gilroy, CA 95020 CONTRACTOR: Melissa Swanson Musil, President 903 Paseo Del Lago Fallbrook, CA 92028 I. FEDERAL FUNDING REQUIREMENTS. If the box to the left of this sentence is checked, this Agreement involves federal funding and the requirements of this Section V.I. apply. If the box to the left of this sentence is checked, this Agreement does not involve federal funding and the requirements of this Section V.I. do not apply. 1. DBE Program CONTRACTOR shall comply with the requirements of Title 49, Part 26, Code of Federal Regulations (49 CFR 26) and the City-adopted Disadvantaged Business Enterprise programs. 2. Cost Principles Federal Acquisition Regulations in Title 48, CFR 31, shall be used to determine the allowable cost for individual items. 3. Covenant against Contingent Fees The CONTRACTOR warrants that he/she has not employed or retained any company or person, other than a bona fide employee working for the CONTRACTOR, to solicit or secure this Agreement, and that he/she has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift or any other consideration, contingent upon or resulting from the award or formation of this Agreement. For breach or violation of this warranty, the Local Agency shall have the right to annul this Agreement without liability or, at its discretion, to deduct from the agreement price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee. Docusign Envelope ID: F2AAA950-4458-458E-B30D-742AAD6C632E -1- 4835-2267-0361v1 LAC\04706083 EXHIBIT “B” SCOPE OF SERVICES A. General Requirements The Aquatic Service CONTRACTOR (“CONTRACTOR”) shall deliver the following scope of services and meet the following minimum requirements: 1. Facility: The CONTRACTOR shall operate the facility commonly known as the Christopher High School Aquatics Center (“CHS Aquatics Center”), which consists of two pools: the activity pool with a play structure and four waterslides, and a 50-meter competition pool with two diving boards, which will not be in operation. The facility also includes outdoor showers, men’s and women’s bathrooms, a lifeguard office, concrete pool decks with shade structures and picnic tables, bleachers, a storage closet, a storage shed, a triage room, and an adjoining office with a ticket window. Pool maintenance is handled by Gilroy Unified School District staff (“GUSD”), and they have sole access to the pump room. 2. Services: The CONTRACTOR must provide the following aquatic services: swim lessons and recreation swim. Additional services may include, but are not limited to: lap swim, master swim, water aerobics/exercise classes, swim team partnership, lifeguard certification classes, pool parties/rental program, and/or food and non-alcoholic drink concession operations. Other programs or services outside of the intended use of the facility or from the list mentioned above will require prior approval by the City and may require approval from GUSD. 3. Hours of Operation: When school is not in session, the CONTRACTOR may use the Activity Pool. During the summer, the Activity Pool is available from 8:00 am to 8:00 pm, six days a week (not available on Mondays due to weekly maintenance). The CONTRACTOR may use the competition pool when school is not in session and is not being used by a GUSD program. The City will negotiate the schedule with GUSD on behalf of the CONTRACTOR. 4. Program Fees: The fees charged by the CONTRACTOR for aquatic services shall be comparable to rates and fees charged by other public aquatic facilities in surrounding communities and reviewed by the CITY before being publicly released. The CONTRACTOR shall provide an option for low-cost swim lessons for income-eligible youth (17 years old and under) living in the incorporated areas of Gilroy. 5. Community Access & Scheduling: The CONTRACTOR will be solely responsible for the operation and scheduling of the facility. The CONTRACTOR shall provide reasonable public access and community use of the facility, which the City and CONTRACTOR Docusign Envelope ID: F2AAA950-4458-458E-B30D-742AAD6C632E -2- 4835-2267-0361v1 LAC\04706083 shall determine. The CONTRACTOR will not reduce public access or community use without prior approval from the City. 6. Program Administration: The CONTRACTOR shall have a method for the public to register, pay, and receive adequate customer service in an easy and effective manner. Administrative staff and assistance should be provided to support all hours of operation. Policies and procedures for handling registration, refunds, and complaints are required. The CONTRACTOR shall provide sufficient communication and marketing to inform the public of its programs and services. The CONTRACTOR shall take appropriate steps to maintain a high level of customer service and overall satisfaction at all times. 7. Program Equipment and Supplies: The CONTRACTOR is responsible for providing all the equipment and supplies needed to operate the facility. The current City aquatics equipment and supplies are available for use; however, the City will not replace any damaged or missing items. These include: a. Spinal boards b. Rescue tubes c. Swim lesson equipment d. AEDs e. Lifeguard chairs and umbrellas The City will not provide the following: a. Office supplies (e.g., computers, printer, pens, paper, and electronic devices) b. First Aid supplies c. Janitorial supplies d. Paper products and soap for the restrooms 8. Reporting and Meeting Requirements: The CONTRACTOR shall meet regularly with the Recreation Division’s Designated Representative. Once registration begins for that season, the CONTRACTOR shall provide a monthly report to the representative that includes the following items: a. Participation statistics by program area (including low-income swim lessons) to include: i. Number of users for each program, per day, and what fee classification and amount they were charged with. Include monthly and season pass entries as well as those paying at the window. ii. Resident v. non-resident participants Docusign Envelope ID: F2AAA950-4458-458E-B30D-742AAD6C632E -3- 4835-2267-0361v1 LAC\04706083 iii. The number of seasonal passes, party rentals, and any other program or facility rental that is not charged on a per-person basis 1. Include each pass category in the daily numbers of item i) above. iv. The number and date of days requiring closure v. Number of lifeguard and position hours, and their hourly rates vi. Other data as may be determined to be needed by the CITY b. Current challenges (e.g., need three more lifeguards; more cool days than warm days) Reporting requirements are subject to change at the City's discretion. In addition, seasonal audits and reviews demonstrating standards of care are met (required by OSHA) shall be shared with the designated representative. Risk management documentation (required by OSHA) must always be readily available. The CONTRACTOR will maintain reasonable evidence and documentation of these statistics and results (listed above) and make these records accessible to the City upon request. 9. School and Neighborhood Impacts: To minimize impacts on residents of the surrounding neighborhood, the CONTRACTOR will notify the City (through the submission of their program calendar) of swim meets and any other large group events that exceed the normal day-to-day operations. The City reserves the right to limit the number of major events at CHS Aquatics Center that may conflict with GUSD events. Amplified sound must be maintained at a reasonable level, as determined by the City. 10. Staff Qualifications: The CONTRACTOR will always be expected to provide reasonable and adequate staffing to maintain operations. The CONTRACTOR shall maintain adequate layers of protection, including active supervision. The staff will have the required qualifications and certifications for each position. The CONTRACTOR will maintain appropriate and safe ratios for lifeguards on deck to pool users at all times. Certifications and training records must be accessible by the City and/or OSHA at any time following proper notice (OSHA conducts unannounced visits for the waterslides). 11. Compliance with Laws & Regulations: The CONTRACTOR must remain in compliance with all City, county, state and federal laws and regulations as well as industry standards related to pool and aquatic program operations. These regulators include but are not limited to: a. City of Gilroy b. Gilroy Unified School District c. Santa Clara County Health Department d. California Department of Health Services Docusign Envelope ID: F2AAA950-4458-458E-B30D-742AAD6C632E -4- 4835-2267-0361v1 LAC\04706083 e. Cal/OSHA Amusement Ride and Tramway Unit f. California Department of Labor g. Emergency Medical Services Authority (EMSA) h. Consumer Product Safety Commission & Virginia Graeme Baker Act i. Americans With Disabilities Act j. California Department of Fair Employment and Housing k. Centers for Disease Control and Prevention l. American Red Cross m. WhiteWater (waterslides manufacturer) - The CONTRACTOR shall: i. Comply with Cal/OSHA’s rules and regulations for operating waterslides ii. Be present and participate in OSHA inspections (scheduled and unannounced visits) iii. Maintain daily records for water slide inspections and make these records accessible to the City iv. Maintain staff lifeguard certification records and training records for OSHA inspections and make these records accessible to the City The City and GUSD reserves the right to conduct periodic and regular site inspections and operational audits to ensure CONTRACTOR is compliant with City, county, state, and federal regulations. City staff will follow up with the CONTRACTOR on specific safety issues it identifies, but does not relieve the CONTRACTOR of its duty to inspect and maintain the facility in safe working order and notify CITY of safety issues it identifies, nor does it transfer responsibility for identifying safety issues or mitigating them to the CITY. The CONTRACTOR will be required to comply with the City’s requests in a timely manner. In addition, documentation demonstrating compliance with all regulators/regulations will be required to be kept up to date and reviewed as deemed necessary by the City. 12. Health & Safety: The CONTRACTOR will be required to maintain health and safety standards and associated training records in a reasonable and acceptable manner for the facility, participants, and its employees that comply with City standards and other regulatory agencies listed above. The CONTRACTOR is responsible for keeping up to date with all changes, additions, or amendments to the laws, regulations, and codes related to pool operations and aquatic programs. These standards include but are not limited to: a. Employee Injury and Illness Prevention Plan b. Hazardous Materials Communications and Business Plan Docusign Envelope ID: F2AAA950-4458-458E-B30D-742AAD6C632E -5- 4835-2267-0361v1 LAC\04706083 c. Bloodborne Pathogens and Biohazardous Exposure Control Plan d. Hazard Communications (labeling & MSDS management) e. Hearing Conservation f. Lifting and Fall Prevention/Protection (Equipment) g. Electrical Safety Plan h. Lock Out, Tag Out Equipment Specific Procedures i. Emergency Action Planning/Drills j. First Aid/CPR/AED k. Oxygen Administration l. Heat Illness and Sun Protection m. Confined Spaces/Entry Equipment n. Chemical Storage/Spill Response/Cleanup o. Fire Extinguisher p. Personal Protective Equipment q. Recreational Waterborne Illnesses (RWI’s) r. Signage/Labeling 13. Standard of Care: The CONTRACTOR will be expected to provide aquatic programs and manage the facility in a manner that is comparable to or above the Standard of Care (e.g., Red Cross, Public Health Department, OSHA, etc.) that is reasonable and acceptable for a public pool. This Standard of Care should be demonstrated in all areas including operations, staff training, record keeping, maintenance and janitorial, safety and risk management. The CONTRACTOR is expected to ensure that they are maintaining this Standard of Care by conducting seasonal audits and reviews by qualified external experts and including this information in the report to the City. 14. Risk Management: The CONTRACTOR shall take all appropriate and necessary steps to provide adequate risk management planning to minimize liability or negligence by the CONTRACTOR. In addition to maintaining an acceptable Standard of Care, the CONTRACTOR shall manage their risk by demonstrating proficiency in the following areas: a. Facilities & equipment b. Supervision c. Documentation (staff manuals, certifications, and training records) Docusign Envelope ID: F2AAA950-4458-458E-B30D-742AAD6C632E -6- 4835-2267-0361v1 LAC\04706083 The CONTRACTOR is expected to ensure they are maintaining and performing adequate risk management planning and practices by conducting annual audits and reviews by qualified external experts. This information will also be included in an annual report to the City mentioned above. 15. Emergency Action Plan & Procedures: The CONTRACTOR shall create and maintain all emergency procedures and EAPs for the Facility. An EAP is required under Title 29 of the Federal Regulations, Sections 1910.38/.120/.156, and Title 8 of the California Code of Regulations, Sections 3220 and 3221. The EAP covers all employees and non- employees who may be exposed to hazards arising from emergency situations. It must contain information for all the CONTRACTOR’s employees, including administration and line-level employees, who shall use the plan to reduce the severity of emergency situations and minimize the risk to life and property. 16. Facility Maintenance & Records: The CONTRACTOR shall maintain the facility in an orderly, clean, and professional condition at all times. GUSD will provide maintenance services on the pool and pool equipment to ensure that the pool is operating per health standards. The CONTRACTOR will be responsible for the hourly chlorine checks and will notify the GUSD Pool Technicians if the water chemistry is out of the normal operating range per Santa Clara County Health Department and California Code of Regulations (Title 22) section 65529, Public Pool Disinfection. The CONTRACTOR will ensure that the facility is maintained in a clean, safe, and professional manner (the CONTRACTOR will perform general cleaning and custodial duties) in the following areas: a. Offices b. Restrooms c. Outdoor shower areas d. Supply storage areas e. Private party area f. Picnic table areas g. Equipment/mechanical rooms h. Disposing of garbage to nearby GUSD dumpster i. Lights in Facility j. Personal Protection Equipment (PPE) k. Slip and fall protection equipment The CONTRACTOR shall maintain standard operation procedure manuals and maintenance records and logs. These records should include: Docusign Envelope ID: F2AAA950-4458-458E-B30D-742AAD6C632E -7- 4835-2267-0361v1 LAC\04706083 l. Daily Pool and Chemical Log m. Daily Water Slide Inspection Log n. Checklist for routine maintenance and janitorial duties (daily, weekly, monthly, quarterly, bi-annual, and annual) The CITY shall maintain the Annual Water Slide Inspection. a. GUSD shall maintain the following: b. Daily Pool and Chemical Log c. Equipment Log for each piece of major equipment with maintenance schedule, maintenance contracts, record of work or repairs conducted, manufacturer guidelines, and specifications d. Training Log for GUSP Pool Technicians e. The CONTRACTOR will also be responsible for any damage that is outside the normal wear and tear of the facility. If the damage is beyond normal wear and tear of the facility (e.g. due to misuse, poor maintenance or damage caused by the CONTRACTOR and/or the CONTRACTOR’s employees, agents, and service users) as determined by the City, the CONTRACTOR will be required to make the appropriate repairs within 30 days of a written notice (or reimburse the City the cost of the repairs within 30 days). Any fines or fees incurred by the City for OSHA or health inspector violations issued when the CONTRACTOR is operating the pool shall be reimbursed by the CONTRACTOR within 30 days of receiving notice. 17. Signage: The CONTRACTOR will be required to maintain and provide program-specific signage for the facility. These signs shall include pool rules and other signs as needed or required. Please note, the City and GUSD are not responsible for lost or stolen items. Per the County Health Code, the City and GUSD will maintain the following signage for the facility: a. Shallow Water Diving Warnings b. Maximum Pool Capacity c. Chemical Storage d. 911 Emergency e. First Aid/CPR f. AED g. Depth Markers Docusign Envelope ID: F2AAA950-4458-458E-B30D-742AAD6C632E -8- 4835-2267-0361v1 LAC\04706083 18. Custodial Costs: The CONTRACTOR will assume sole financial responsibility for the custodial services and shall operate and maintain the facility at no cost to the City. B. City Requirements City will provide access to the CHS Aquatics Center during the agreed-upon assigned hours. The City will be responsible for all building maintenance (not janitorial), capital improvement(s), utilities, and water slide waxing. The City will serve as the liaison between GUSD and the CONTRACTOR (beyond water-chemistry related issues). The City will provide an advertisement for the CONTRACTOR’s services in the Spring-Summer Recreation Guide. CONTRACTOR will produce a print-ready advertisement in both English and Spanish. In addition, the City will assume sole responsibility for the following: • Separately metered utilities and pool maintenance services for the Facility, billed to the City from GUSD for the use of the facility occupied by the CONTRACTOR • Annual, structural, and operational inspection of the waterslides conducted by a qualified safety inspector (QSI) who is employed by either the Division or by the owner or Contractor. • Annual facility and building maintenance expenses. • The City shall maintain the Annual Water Slide Inspection C. Additional Services Any services not identified in the Scope of Services will be considered additional services. Additional services will be provided only as authorized in writing by the City before commencement of the particular task and/or activity. Docusign Envelope ID: F2AAA950-4458-458E-B30D-742AAD6C632E 4835-2267-0361v1 LAC\04706083 EXHIBIT “C” MILESTONE SCHEDULE Below are the identified milestones. 1. Services • March through April: Recruitment and hiring of lifeguards, pool managers, and cashiers. • Finalize program and fee schedule. A draft program and fee schedule are appended to this Exhibit as Exhibit "E." The final program schedule shall be negotiated between CITY and CONTRACTOR in good faith and shall reflect substantially the same level of service as in the draft schedule attached as Exhibit E. The final fee schedule shall be negotiated as set forth in Paragraph B.4 of the Scope of Services (Exhibit B). • Open registration for summer swim lessons • Begin offering lifeguarding and/or water safety certification courses • Memorial Day weekend through Labor Day weekend: Open Aquatics Center for swimming lessons and recreation swimming based on an agreed-upon schedule between the City of Gilroy and the Gilroy Unified School District. • September: Meet with City staff to debrief aquatic programs and facility operations 2. Reporting a. Monthly Invoice Report Each monthly invoice must include the corresponding monthly report before the invoice can be processed. b. Year-End Report The Year-End/Final report will be due at the completion of the 2026 season. c. As-Needed Reports Any additional reports will have their own deadlines, established with reasonable timeframes for completion based on the level of work required. Docusign Envelope ID: F2AAA950-4458-458E-B30D-742AAD6C632E 4835-2267-0361v1 LAC\04706083 EXHIBIT “D” PAYMENT SCHEDULE A management fee of $266,662, which will cover insurance, certifications, equipment, and any additional administrative expenditures, will be paid over the course of a calendar year and will be issued in semi-annual installments of $133,331 on the following dates: June 1 and October 15. On the first of every month, from April 1 through October 1, the contractor will provide a monthly report to the City staff representative, as explained in Exhibit "B," Scope of Services (Section A, #8). Failure to provide monthly status reports will delay payment. Docusign Envelope ID: F2AAA950-4458-458E-B30D-742AAD6C632E Certificate Of Completion Envelope Id: F2AAA950-4458-458E-B30D-742AAD6C632E Status: Completed Subject: Aquatics Center Operator Agreement Source Envelope: Document Pages: 26 Signatures: 8 Envelope Originator: Certificate Pages: 2 Initials: 1 Bryce Atkins AutoNav: Enabled EnvelopeId Stamping: Enabled Time Zone: (UTC-08:00) Pacific Time (US & Canada) 707 17th Street Suite 4000 Denver, CO 80202 bryce.atkins@cityofgilroy.org IP Address: 195.155.8.48 Record Tracking Status: Original 2/26/2026 1:52:00 PM Holder: Bryce Atkins bryce.atkins@cityofgilroy.org Location: DocuSign Signer Events Signature Timestamp Melissa Swanson Musil melissa@swanaquatics.com CEO Security Level: Email, Account Authentication (None)Signature Adoption: Drawn on Device Using IP Address: 64.154.89.6 Sent: 2/26/2026 2:04:40 PM Viewed: 2/26/2026 3:49:03 PM Signed: 2/26/2026 3:49:44 PM Electronic Record and Signature Disclosure: Not Offered via Docusign LeeAnn McPhillips leeann.mcphillips@cityofgilroy.org Security Level: Email, Account Authentication (None) Signature Adoption: Pre-selected Style Using IP Address: 66.189.161.134 Sent: 2/26/2026 3:49:46 PM Viewed: 2/27/2026 10:49:20 AM Signed: 2/27/2026 2:12:16 PM Electronic Record and Signature Disclosure: Not Offered via Docusign Andrew Faber andy.faber@berliner.com City Attorney Berliner Cohen Security Level: Email, Account Authentication (None) Signature Adoption: Pre-selected Style Using IP Address: 143.198.98.139 Sent: 2/27/2026 2:12:19 PM Viewed: 3/2/2026 5:01:08 PM Signed: 3/2/2026 5:01:43 PM Electronic Record and Signature Disclosure: Not Offered via Docusign Matt Morley matt.morley@cityofgilroy.org City Administrator City of Gilroy Security Level: Email, Account Authentication (None) Signature Adoption: Uploaded Signature Image Using IP Address: 66.189.161.134 Sent: 3/2/2026 5:01:46 PM Viewed: 3/2/2026 7:22:28 PM Signed: 3/2/2026 7:23:02 PM Electronic Record and Signature Disclosure: Not Offered via Docusign Signer Events Signature Timestamp Kim Mancera kim.mancera@cityofgilroy.org City Clerk City of Gilroy Security Level: Email, Account Authentication (None) Signature Adoption: Pre-selected Style Using IP Address: 66.189.161.134 Sent: 3/2/2026 7:23:04 PM Viewed: 3/3/2026 6:53:44 AM Signed: 3/3/2026 6:53:49 AM Electronic Record and Signature Disclosure: Not Offered via Docusign In Person Signer Events Signature Timestamp Editor Delivery Events Status Timestamp Agent Delivery Events Status Timestamp Intermediary Delivery Events Status Timestamp Certified Delivery Events Status Timestamp Carbon Copy Events Status Timestamp Adam Henig Adam.Henig@cityofgilroy.org Security Level: Email, Account Authentication (None) Sent: 3/3/2026 6:53:51 AM Viewed: 3/3/2026 8:20:07 AM Electronic Record and Signature Disclosure: Not Offered via Docusign Stefan Mercer stefan.mercer@cityofgilroy.org Security Level: Email, Account Authentication (None) Sent: 3/3/2026 6:53:52 AM Viewed: 3/3/2026 8:32:29 AM Electronic Record and Signature Disclosure: Not Offered via Docusign Witness Events Signature Timestamp Notary Events Signature Timestamp Envelope Summary Events Status Timestamps Envelope Sent Hashed/Encrypted 2/26/2026 2:04:40 PM Certified Delivered Security Checked 3/3/2026 6:53:44 AM Signing Complete Security Checked 3/3/2026 6:53:49 AM Completed Security Checked 3/3/2026 6:53:52 AM Payment Events Status Timestamps