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CONTRACT BETWEEN CITY OF DOUGLAS, WYOMING AND 1. Parties. This Contract is made and entered into this day of 2015, by and between the City of Douglas, Wyoming, a Wyoming municipal corporation (hereinafter referred to as "City"), whose address is 101 N. 4th Street, P.O. Box 1030, Douglas, Wyoming 82633 and (hereinafter referred to as "Operator"), whose mailing address is WITNESSETH: WHEREAS, the City owns a water park located at 701 East Center Street in Douglas, Wyoming (hereinafter referred to as "Pool"). WHEREAS, the City desires to engage the services of Operator to perform the staffing, operations and management of the City Municipal Water Park; WHEREAS, Operator is experienced in providing such services and is willing to provide the personnel to perform such services in exchange for the mutual promises as set forth in this agreement. WHEREAS, the parties hereto desire to enter into an Agreement for the operation of the Pool in accordance with the terms, provisions, and conditions set forth herein below. NOW, THEREFORE, for and in consideration of the mutual covenants and conditions contained herein, the parties agree as follows: 2. Term of Contract. The term of the Contract is from the day of 2015, through the 30th day of September, 2015. 3. Payment. City agrees to pay to Operator a management fee of for the operation of the Pool payable in four installment(s), which shall be paid to Operator on and in the amounts denoted in Attachment The management fee shall be the sole payment to which the Operator shall be entitled pursuant to this Contract except as denoted herein. If this Agreement is terminated, pursuant to Paragraph 7.14 herein prior to the 16th day of August, 2015, a prorated amount of the management fee, based upon the actual number of days the Pool was operated from May 22, 2015, to August 16, 2015, will be paid to Operator. In the event the City paid Operator in excess of the prorated amount of the management fee, Operator shall reimburse City any management fee paid in excess. Any extension of the 2015 swimming season will not increase the management fee due to the Operator except as approved by City Council. Extension of the season shall be by mutual consent of both parties. 4. Right to Operate Pool. City hereby grants to Operator the exclusive right and privilege to operate, manage and maintain the City Municipal Water Park during the term of this Agreement, subject to and expressly conditioned upon the terms, provisions, covenants, and conditions as set forth in this Municipal Pool Contract City of Douglas and Page 1 of 12 ---PAGE BREAK--- Agreement and the timely performance by Operator in strict compliance therewith. This agreement constitutes neither a conveyance nor a lease, but is a management agreement to manage, operate, and maintain the Pool for the purpose of providing a public swimming Pool. Nothing in this Agreement shall be construed to provide Operator with any ownership, right or interest in the Pool. Nothing in this Agreement shall be construed to provide authority for control by Operator over any portion of Pool, its parking areas, grounds, improvements or other facilities, except as specified in Section 5.05.06 of this contract. In the event the Pool is substantially destroyed by fire, explosion, the elements, the public enemy or other casualty or so damaged, City shall be under no obligation to repair, rebuild or reconstruct the premises. No alterations, additions, improvements or physical changes to the Pool shall be erected, installed, or permitted by Operator or any person at its request without the prior express written consent and approval of City. 5. Operator's Responsibilities. Operator shall perform the following services. 5.01. Trash Disposal. The Operator shall provide adequate sanitary handling and disposal of all trash, garbage, and other refuse located within the Pool area and within one (100) feet of the Pool's fence/bath house perimeter. The Operator shall deposit all waste materials in trash receptacles which shall be provided and serviced by the City. Piling of boxes, cartons, barrels, or other similar items in an or unsafe manner on or about the premises is forbidden. 5.02. Personnel. All recruitment, hiring, training, supervision and payment of Pool staff for the Pool shall be the responsibility of the Operator. Operator shall comply with all laws, ordinances, rules, and regulations regarding training, licensing, and certification of Pool staff, including lifeguards, managerial personnel, and Pool operators. Operator shall be solely responsible for payment of all taxes, workers' compensation, or other expenses of employment including but not limited to required certifications and training. 5.03. Concessions. The Operator shall provide vending machines or other licensed food service to the swimming public which, in the Operator's opinion, meets the public demand. Operator shall comply with Wyoming State Health Department rules and regulations pertaining to food and beverages in the Pool area. Operator shall be responsible to secure all applicable permits and licenses for concessions and payment of any fee for said permits and licenses. Patrons shall be allowed to bring snack food, and drink to the facility. 5.04. Cleaning of Bathhouse and Pool area. The Operator shall be responsible for the cleaning of Bathhouse located within the Pool area and deck area of the Pool. Operator shall be responsible to purchase all operational and cleaning supplies for the Bathhouse including but not limited to toilet paper, paper towels and general cleaning supplies and all cleaning supplies for the deck area of the Pool. 5.05. Pool Operations. 5.05.01. Operator agrees to perform the necessary daily cleaning of the Pools and Pool deck during the swimming season. 5.05.02. Operator agrees to perform the necessary back flushing and filter maintenance of the Pool. When emergency situations arise with the Pool filters, chemical pumps, or other Municipal Pool Contract City of Douglas and Page 2 of 12 ---PAGE BREAK--- equipment owned by City, Pool staff should contact the City immediately. Operator further agrees to maintain chemical levels of the pool within legal and safety guidelines at all times. 5.05.03. Operator agrees to operate the Pool as authorized herein during days and hours which offers the maximum convenience to the public; provided, however, the Pool shall be open commencing the 22nd day of May, 2015 through August 16th, 2015 from Noon to 5:00 o'clock p.m., Monday through Sunday and private parties in the evenings and weekends from 6:00 p.m. to 8:00 p.m. (except in July), and Saturday mornings from 9:30 a.m. to 11:30 a.m. During the month of July, the Pool will operate during the hours of 6:00 p.m. to 8:00 p.m. as well as the regular hours as stated in this contract. Operator shall submit to City any proposed changes to such schedule a minimum of fourteen (14) days prior to the proposed change. All changes must be approved by the City Council. Changes in hours of operation shall not be cause for adjustment of compensation for pool operations unless otherwise agreed by both parties. No private parties, groups, classes, or programs shall be conducted during regular pool hours as denoted in this section. 5.05.04. Operator agrees to employ persons who are clean, courteous, efficient and neat in appearance. Operator shall not employ any person or persons in or about the premises who shall use improper language or act in a loud or boisterous or otherwise improper or unsafe manner. 5.05.05 Operator agrees to seek local staffing for pool management and operations so long as it is financially feasible and available. Non-compete clause or other similar agreements/requirements will not be allowed in the contract between the operator and individual staff. 5.05.06. Operator agrees to eject or direct the removal of patrons who are boisterous, loud, using improper language or acting in an unsafe manner. City expressly grants Operator and its employees such authority. 5.05.07. Operator may offer any and all public swim related programs which can be conducted safely and within regulatory requirements at the Pool. These programs may include, but are not limited to, swim lessons, swim teams and Pool rentals. Any such program shall not be conducted during regular hours of operation as denoted in 5.05.03 of this agreement. All fees for such programs shall be retained by the Operator. 5.05.08. In the event of inclement weather, Operator may, at its option and with the approval of the Parks Supervisor, close the Pool. The pool shall not be closed for the purpose of low bather load or for any other reason beyond inclement weather as required by regulations or as required by law. 5.05.09. The rates to be charged for Pool use for the 2015 season shall be as adopted by City Council via Resolution. All fees and charges shall be consistently applied and no special or reduced rate(s) shall be offered to any group or individual. All admission fees and daily pass revenues shall be retained by the City of Douglas. Operator shall accept cash, checks, and debit card/credit card as acceptable types of payment. 5.05.10 All fees and charges for private pool parties shall be retained by the Operator. The cost of said parties shall be uniform and provided to all applicants at the same rate. Said rate shall be denoted by the Operator prior to the season beginning or any such event being scheduled. Municipal Pool Contract City of Douglas and Page 3 of 12 ---PAGE BREAK--- 5.05.11 Operator shall have the option to provide water programs such as water aerobics, lap swimming, and the like in so long as classes do not interfere with standard hours as set forth herein. 5.06. Records and Reports. 5.06.01. Operator shall at all times during the term of this Agreement keep or cause to be kept true and complete books, records, and accounts of all fees, charges, and expenses associated with this Agreement. This shall also include staff certifications for lifeguard training and pool operator certifications for any and all employees. 5.06.02. Operator shall provide to City daily attendance numbers, daily staffing figures and daily income figures for every week or partial week during the 2015 swimming season. An annual report shall be submitted to City no later than the 1st day of October, 2015 as denoted in section 5.06.04 of this contract. Daily attendance reports shall denote daily admissions from paid admissions and season pass holders separately. 5.06.03. City shall have the right to conduct audit examinations and to examine the books and records of Operator in connection with the operation of the Pool facility, training, and attendant sales and services. 5.06.04. On or before the 1st day of October, 2015 Operator shall submit to the City Clerk and City Treasurer a statement showing “Gross Receipts" received by the Operator from the operation of said facility for the swimming season. The term "Gross Receipts" includes fees received from passes, Pool memberships, daily swim fees, lessons, Pool rentals, swim team charges, and any and all other fees charged at the Pool, and revenues from food and beverage sales of any and all other sundry items. Reports shall denote all aforementioned categories separately. 5.06.05. Operator shall comply with Wyoming Department of Health and Human Service rules, regulations, and statutes pertaining record keeping including but not limited to report of Pool operation and accident. The Pool must be operated in compliance with the Wyoming Swimming Pool and Safety Act, 35-28-101 and the Wyoming Regulations for Swimming Pools, Spas, & Similar Installations, At a minimum, the Pool Operator must have the required State Certifications and be a Certified Pool Operator. All State and local regulations must be strictly adhered to. 5.06.06. Operator shall register with the Wyoming Secretary of State and provide any and all insurance as required. 5.07. Uniforms. Operator shall be responsible for obtaining uniforms for staff and payment of all costs for uniforms. 6. Responsibilities of City. City shall perform the following services: Municipal Pool Contract City of Douglas and Page 4 of 12 ---PAGE BREAK--- 6.01. Utilities. City shall be responsible for all electrical, water, and sewage charges applicable to the Pool during the term of this Agreement including all utility charges incurred by City in the process of providing the Pool start up and close down operations. 6.02. Maintenance. City shall be responsible for all maintenance and repairs for all Pool and Bathhouse related items including, but not limited to, all mechanical systems and associated water and electrical supply lines between the Pools and their meters and all improvements located within and including the Pool fence. 6.03. Start-Up. City agrees to use its best diligence to perform all Pool start up functions on or before the 18th day of May, 2015, in preparation for a May 22nd, 2015, opening of the contract year and provide the Pool to the Operator in an operational condition. 6.04. Consultation. City agrees to be available to provide advice and consultation regarding Pool operation as requested by Operator. 6.05. Close Down. City agrees to perform all close down functions for the end of season Pool closing with the exception of final cleaning of the facility. City and Operator shall coordinate to insure efficient and timely close down procedures. In the event City is unable to perform such procedures due to he acts of Operator or its employees or agents and incurs costs, injuries, or damage, Operator agrees to reimburse City for all time, equipment, and costs to include prorated benefits to employees. 6.06 Maintenance of Grounds. City agrees to maintain the park grounds around the Pool to City standards. Such maintenance shall include mowing of grass provision of trash receptacles and providing for the removal of such trash. Cleaning of the facility shall be the responsibliltiy of the Operator. 6.07. Pool Pumps. City will provide, in proper working condition, both a chlorine and acid pump and will replace or repair these pumps as necessary during the season. City will provide a vacuum pump in an operational condition. 6.08. Pool Improvement and Maintenance. Nothing in this Agreement shall require or obligate City to provide any repair, maintenance, or improvement to Pool except as specifically defined herein. City may individually evaluate any repairs and determine whether it will accept financial responsibility for such repair, maintenance, or improvement. In the event both parties decline to make repairs essential to the proper and lawful operations of the Pool, this Agreement will terminate as further described in Paragraph 7.14 herein. 6.09. Chemicals and Other Supplies. City shall have the responsibility for the order, purchase, and delivery of all chemicals for water-treatment and other purposes required for the proper and lawful operation of the Pool. Operator shall insure all chemicals are used properly and to the appropriate levels for public use. 6.10. General Liability Insurance. Operator agrees to provide general liability insurance for the operation of the Pool along with all other applicable insurance. Municipal Pool Contract City of Douglas and Page 5 of 12 ---PAGE BREAK--- 6.11. Pool Permit. City shall be responsible to secure a permit for the operation of the pool and payment of any fee for said permit. 6.12. Telephones and Computer. City shall provide telephones at Pool for local and restricted long-distance calling by Operator’s staff and will pay any and all costs associated with the installation, maintenance and operation of telephones. City shall provide internet hook-up but Operator shall be responsible for all computers. 7. General Provisions. 7.01 Amendments. Any changes, modifications, revisions or amendments to this Contract which are mutually agreed upon by the parties to this Contract shall be incorporated by written instrument, executed and signed by all parties to this Contract. 7.02. Applicable Law/Venue. The construction, interpretation and enforcement of this Contract shall be governed by the laws of the State of Wyoming. The Courts of the State of Wyoming shall have jurisdiction over this Contract and the parties, and the venue shall be the Eighth Judicial District, Converse County, Wyoming. 7.03. Compliance with Laws. Operator shall keep informed of and comply with all applicable federal, state and local laws and regulations in the performance of this Contract. 7.04. Entirety of Contract. This Contract, consisting of twelve (12) pages represents the entire and integrated Contract between the parties and supersedes all prior negotiations, representations, and agreements, whether written or oral. 7.05. Ethics. Operator shall keep informed of and comply with the Wyoming Ethics and Disclosure Act (Wyo. Stat. §9-13-101, et seq.), and any and all ethical standards governing Operator's profession. 7.06. Force Majeure. Neither party shall be liable for failure to perform under this Contract if such failure to perform arises out of causes beyond the control and without the fault or negligence of the nonperforming party. Such causes may include, but are not limited to, acts of God or the public enemy, fires, floods, epidemics, quarantine restrictions, freight embargoes, and unusually severe weather. This provision shall become effective only if the party failing to perform immediately notifies the other party of the extent and nature of the problem, limits delay in performance to that required by the event, and takes all reasonable steps to minimize delays. This provision shall not be effective unless the failure to perform is beyond the control and without the fault or negligence of the nonperforming party. 7.07. Indemnification. Operator covenants and agrees to indemnify and hold harmless the City, its officers, agents and employees, their successors and assigns, individually or collectively, from and against all liability for any fines, claims, suits, demands, actions or causes of action of any kind and nature for personal injury or death, or property damage in any way arising out of or resulting from any activity or operation of the Operator on the premises or in connection with its use of the premises or facilities and Operator further agrees to pay all expenses in defending against any damage or loss occasioned by the sole negligence or willful misconduct of the City, its agents, or employees. Operator Municipal Pool Contract City of Douglas and Page 6 of 12 ---PAGE BREAK--- and City shall give prompt and timely notice of any claim made or suit instituted which in any way, directly or indirectly, contingently or otherwise, affects or might affect either party. 7.08. Independent Operator. Operator shall function as an independent Operator for the purposes of this Contract, and shall not be considered an employee of City for any purpose. Operator shall assume sole responsibility for any debts or liabilities that may be incurred by Operator in fulfilling the terms of this Contract, and shall be solely responsible for the payment of all federal, state and local taxes which may accrue because of this Contract. Nothing in this Contract shall be interpreted as authorizing Operator to incur any obligation of any kind on the behalf of City or its staff. Operator agrees that no health/hospitalization benefits, workers' compensation and/or similar benefits available to City employees will inure to the benefit of Operator or Operator's agents and/or employees as a result of this Contract. 7.09. Assignment. The activities and uses for which the Pool property may be used, and the privileges, rights, and obligations authorized herein are personal. The Operator agrees that it will not assign its rights granted hereunder without the express written consent of City. Any purported assignment in violation hereof shall be void. 7.10. Ownership of Documents/Work Product. All documents, reports, records, field notes, materials, and data of any kind resulting from performance of this Contract are at all times the property of City. 7.11 Penalties. If at any time the pool is closed for a reason other than inclement weather, public health concern, lawful order of a government agency, or with the permission of the City, the Operator shall be required to pay a prorated share of the contract fee to the City plus fifteen (15) percent. 7.11. Liaison and Notice. City and Operator's designated representatives are as follows: 7.11.01. City's designated representative is Tony Tolstedt, City Administrator; email: [EMAIL REDACTED]; telephone number: (307) 358-3462. 7.11.02. Operator's project representative is email: telephone number: 7.11.03. All notices and invoices required in this Contract shall be in writing, properly addressed to the liaison above, and mailed first-class, postage prepaid. All notices sent via U.S. Postal Services are deemed effective on the date of postmark. Notices and invoices mailed through another carrier UPS or FedEx) are effective upon receipt. 7.11. Insurance. Operator shall maintain the following insurance: 7.11.01. Workers’ Compensation and Employers Liability Insurance. Operator shall provide City proof of workers’ compensation coverage for all of its employees who are to work at Pool described in this Contract. Operator’s coverage shall be under the Wyoming Workers’ Safety and Compensation program, if statutorily required, or such workers’ compensation insurance, as appropriate. Operator’s insurance shall include Employer’s Liability “Stop Gap” coverage, in an amount not less than Five Hundred Thousand Dollars ($500,000.00) per employee for each accident or disease. Municipal Pool Contract City of Douglas and Page 7 of 12 ---PAGE BREAK--- Operator shall also supply to City proof of workers’ compensation and employer’s liability insurance in each and every subcontractor before allowing that subcontractor on the site. Operator shall also keep in full force and effect a comprehensive general liability policy with aggregate limits in the amount of no less than One Million Dollars ($1,000,000.00) and shall name the City as an additional insured on said policy. 7.11.02. Coverage. All policies required under this Contract shall be in effect for the duration of this Contract and projects. All policies shall be primary and not contributory. Operator shall pay the premiums on all insurance policies and insurance certificates must include a clause stating that the insurance may not be revoked, canceled, amended or allowed to lapse until the expiration of at least thirty (30) days advance written notice to City. 7.11.03. City's Right to Reject. City reserves the right to reject a certificate of insurance if Operator's insurance company is widely regarded in the insurance industry as financially unstable. This would include but is not limited to insurance companies with any less than AVIII rating in the A.M. Best insurance rating guide. 7.11.04. Subcontractors. The insurance requirements set forth above apply to all subcontractors. It is Operator's responsibility to ensure that its subcontractor's meet these insurance requirements. City has the right to review the Certificates of any and all subcontractors used by Operator. 7.11.05. Cancellation. There shall be no cancellation, material change, and potential exhaustion of aggregate limits or intent to not renew insurance coverage without thirty (30) days written notice from Operator or their insurers to City. Any failure to comply with the reporting provision of this insurance, except for the potential exhaustion of aggregate limits, shall not affect the coverage provided to City and its division, officers and employees. 7.12. Governmental Immunity. City does not waive sovereign immunity by entering into this Contract and specifically retains immunity and all defenses available to them as sovereigns pursuant to Wyo. Stat. § 1-3 9-104(a) and all other state law. 7.13. Taxes. Operator shall pay all taxes and other such amounts required by federal, state and local law, including but not limited to federal and social security taxes, workers' compensation, unemployment insurance and sales taxes. 7.14. Termination of Contract. 7.14.01. In addition to all other remedies available to City, this Agreement shall be subject to cancellation by City should any one or more of the following events occur: 7.14.01(i). If the Operator shall file a petition of bankruptcy; or if proceedings in bankruptcy shall be instituted against it and it is thereafter adjudicated a bankrupt pursuant to proceedings; or if a court shall take jurisdiction of the Operator and its assets pursuant to proceedings brought under the provision of any Federal reorganization act; or if a Receiver for the Operator's assets is appointed; or if the Operator shall be divested of its rights, power, and privileges under this Agreement by other operation of law. Municipal Pool Contract City of Douglas and Page 8 of 12 ---PAGE BREAK--- 7.14.01(ii). If the Operator shall abandon and discontinue the conduct of the Pool operation. 7.14.01(iii). If the Operator shall fail to perform, keep, and observe any of the terms, provisions, covenants, and conditions contained in this agreement to be performed, kept, and observed by it. 7.14.01(iv). If the Operator shall fail to abide by all applicable laws, ordinances, rules and regulations of the United States, State of Wyoming or the City of Douglas, Wyoming. 7.14.01 Provided that, upon the happening of any of the contingencies recited in subparagraphs through (iv) above, City shall give written notice to the Operator to correct or cure same and if, within seven days from the date of such notice, the default to perform or breach complained of shall have the right to terminate this Agreement, without further notice, to enter upon and take full possession of the premises and facilities and to operate or close the Pool. Upon such happening, this Agreement shall automatically be deemed to have been irremovably breached by the Operator and shall terminate. 7.14.01 (vi). In the event this contract is terminated prior to the 16th day of August, 2015, the Operator shall remit to City the prorated share of membership and season fees collected by the Operator. Said proration shall be based upon the number of days of operation of the Pool by the Operator and the remaining number of days until the 16th day of August, 2015. 7.14.01 (vii). This Agreement will terminate and the Pool shall close in the event that both Operator and City decline to provide repairs necessary for the proper and lawful operation of the Pool. 7.14.02. Operator acknowledges and agrees that upon the termination of this Agreement all rights that it may have under this Agreement shall terminate and does hereby expressly release and waive any rights, claims or causes of action it may have against the City or its successor in interest which may or could arise, either directly or indirectly as a result of any such action. 7.14.03. Without prejudice to any other remedy which otherwise might be used for any breach of this Agreement, if the City is required or elects to pay any sum or incurs any obligation or expense by reason of the failure, neglect or refusal of the Operator to perform any one or more of the terms, conditions, or covenants of this Agreement or as a result of any act or omission of Operator contrary to said terms, conditions, or covenants, the sum so paid or the expense so incurred, including all interest, costs, damages and penalties shall become a financial obligation of the Operator, thereafter due hereunder and each and every part of the same shall be and become revenue recoverable by the City. 7.15. Nondiscrimination. Operator shall comply with Presidential Executive Order 11246 entitled, "Equal Employment Opportunity," as amended by Presidential Executive Order 11375, and as supplemented in the Department of Labor Regulations (41 CFR Part 60), the Civil Rights Act of 1964, the Wyoming Fair Employment Practices Act (Wyo. Stat § 27-9-105 et seq.), and the Americans Municipal Pool Contract City of Douglas and Page 9 of 12 ---PAGE BREAK--- With Disabilities Act (hereinafter referred to as "ADA"), 42 U.S.C. 12101, et seq. Operator shall assure that no person is discriminated against based on the grounds of sex, race, religion, national origin or disability in connection with the performance of this Contract. Operator shall also comply with any additional policies adopted by the City. Operator shall include the provisions of this section in every subcontract awarded in excess of ten thousand dollars ($10,000) so that such provisions are binding on each subcontractor. 7.16. Publicity. Any publicity given to the program or services provided herein including, but not limited to, notices, information, pamphlets, press releases, research, reports, signs, and similar public notices prepared by or for the Operator, shall identify City as the sponsoring agency and shall not be released without prior written approval from City. 7.17. Kickbacks, Operator certifies and warrants that no gratuities, kickbacks or contingency fees were paid in connection with this Contract, nor were any fees, commissions, gifts, or other considerations made contingent upon the award of this Contract. Operator shall provide the State with a certification under oath that he or she has not in any way been involved in any gratuities, kickbacks or contingent fees in connection with his or her selection or ultimate performance under this contract. If the Operator breaches or violates this warranty, City may, at its discretion, terminate this Contract without liability to City, or deduct from the Contract price or consideration, or otherwise recover, the full amount of any commission, percentage, brokerage, or contingency fee. 7.18. Third Party Beneficiary Rights. The parties do not intend to create in any other individual or entity the status of third party beneficiary, and this Contract shall not be construed so as to create such status. The rights, duties and obligations contained in this Contract shall operate only between the parties to this Contract, and shall inure solely to the benefit of the parties to this Contract. The provisions of the Contract are intended only to assist the parties in determining and performing their obligations under this Contract. The parties to this Contract intend and expressly agree that only parties signatory to this Contract shall have any legal or equitable right to seek to enforce this Contract, to seek any remedy arising out of a party's performance or failure to perform any term or condition of this Contract, or to bring an action for the breach of this Contract. 7.19. Warranty. Operator warrants the following: 7.19.01. Has the ability to perform the agreed services; 7.19.02. Shall provide suitable resources to perform work in accordance with agreed services; 7.19.03. Will endeavor to provide the services herein on a timely basis consistent with the difficulty and scope of services to be provided; and 7.19.04. Shall perform services in a manner consistent with the degree of care and skill ordinarily exercised by members of the same profession currently practicing under similar circumstances. 7.20. Confidentiality. All documents, data compilations, reports, computer programs, photographs, and any other work provided to or produced by Operator in the performance of this Contract Municipal Pool Contract City of Douglas and Page 10 of 12 ---PAGE BREAK--- shall be kept confidential by Contract unless written permission is granted by City for its release or unless disclosure is otherwise required by law. Operator shall have similar agreements with any subcontractor to maintain the confidentiality of information specifically designated as confidential by City. 7.21. Time is of the Essence. Time is of the essence in all provisions of the Contract. 7.22. Titles Not Controlling. Titles of paragraphs are for reference only, and shall not be used to construe the language in this Contract. 7.23. Successor and assigns. All covenants, stipulations, and agreements in this Agreement shall extend to and bind the legal representatives, successors, and assigns of the respective parties hereto. 7.24. Waiver. The waiver of any breach of any term or condition in this Contract shall not be deemed a waiver of any prior or subsequent breach. 7.25. Limitation of Payments. City's obligation to pay the Operator for services rendered pursuant to this Contract is conditioned upon the availability of City's funds which are allocated to pay Operator. If funds are not allocated and available to pay Operator for these services, City may terminate this Contract at the end of the period for which the funds are available. City shall notify Operator at the earliest possible time if this Operator will or may be affected by a shortage of funds. No liability shall accrue to City in the event this provision is exercised, and the City shall not be obligated or liable for any future payments due or for any damages as a result of termination under this section. This provision shall not be construed so as to permit City to terminate this Contract in order to acquire similar services from another party. The Operator shall be paid for all services provided and expenses incurred prior to receipt of any such notification that City was terminating the Contract because of a shortage of funds. REMAINING PORTION OF PAGE INTENTIONALLY LEFT BLANK Municipal Pool Contract City of Douglas and Page 11 of 12 ---PAGE BREAK--- IN WITNESS WHEREOF, the City Council has caused this Agreement to be signed and executed in its behalf by its Mayor, and duly attested by its City Clerk, and Operator has signed and executed this Agreement, the day and year first written above. CITY OF DOUGLAS, WYOMING: By: Bruce A. Jones, Mayor Attest: Karen Rimmer, City Clerk OPERATOR: By: Attest: Witness Municipal Pool Contract City of Douglas and Page 12 of 12