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INTERGOVERNMENTAL AGREEMENT
FOR THE OPERATION OF SCHOOLS AS COMMUNITY CENTERS
CITY OF EL MIRAGE AND DYSART UNIFIED SCHOOL DISTRICT NO. 89
This agreement (“Agreement”) is made and entered into between Dysart Unified School District
No. 89 of Maricopa County, Arizona (“District” or "the District") and the City of El Mirage,
Arizona (“City” or "the City") on this ____ day of ________, 2020.
RECITALS
A. Arizona law encourages cities and school districts to cooperate in using facilities to better
and more efficiently serve the public.
B. City and District both recognize that schools operated by the District in the City, to the
extent possible, can serve as community centers after school hours, on weekends, during
holidays and during the summer.
C. City and District both recognize the value to provide for the joint planning and
development of future facilities, and scheduling and implementation of programs to be
conducted at school facilities.
D. The City and District wish to cooperate to ensure that schools serve as community centers
when they are not being used for school purposes and should be shared to the extent
feasible.
Now, therefore, pursuant to A.R.S. §§ 9-500.05, 11-952, 15-363, 15-364, 15-1511 and other
statutes, policies, and provisions of the City’s Code, the City and District agree as follows:
AGREEMENT
Section 1. Definitions
1.1
“City Activities” – all programs and events put on by the City utilizing city
staff and/or volunteers.
1.2
"City Facilities" means all City-owned facilities, including any facilities that are
constructed after this Agreement becomes effective.
1.3
"City Uses" means City activities and includes scheduled maintenance of facilities
and City sponsored activities. “City Uses” shall include activities organized by non-profit entities
under a cooperative agreement with the City.
1.4
“District Activities” - all programs and events put on by the District utilizing
district staff and/or volunteers.
1.5
"District Facilities" means all facilities and fields owned or operated by the
District within the City of El Mirage, including any facilities constructed after this Agreement
becomes effective.
1.6
"District Uses" means District activities and includes scheduled maintenance of
facilities and District sponsored activities. “District Uses” shall include activities organized by
non-profit entities under a cooperative agreement with the District.
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1.7
"Non-Instructional Periods" means those calendar days and periods when school is
not scheduled to be held, including Saturdays, Sundays, and District-designated holidays or
vacation days.
1.8
"Non-School Hours" means those hours of each calendar day during which there
is no Instructional Periods, beginning no later than forty-five (45) minutes after classes are
dismissed.
1.9
"Out-of-Pocket Costs" means those direct costs incurred by City or District over
and above normal operating costs.
Section 2. Term and Termination of Agreement
2.1
Term. The initial term of this Agreement will be for one year, effective upon
approval by the City and the District. This Agreement may be renewed for subsequent terms of
one year for up to five years upon written agreement of the parties (terminating June 30, 2023).
2.2
Termination. Either party may terminate this Agreement at the end of its initial term
or at the end of each subsequent term by providing the other party with ninety (90) days' written
notice of the intention to so terminate; provided, however, that the termination of the Agreement
shall not be effective until any events or programming that have already been scheduled by District
or City at the other's facilities with the other's consent have been completed.
Section 3. Joint Scheduling, Reporting and Oversight
3.1
Meetings and Scheduling. As needed, designated representatives of District and
City shall meet to plan and review the scheduling at District and City Facilities during Non-
Instruction Periods and Non-School Hours.
3.2
Documentation of Costs. The District and City will maintain and share records of
costs associated with all uses of each other's facilities.
3.3
Annual Determination of Costs, Benefits and Contributions. On an annual basis and
within 30 days of execution of this Agreement, the District and the City will meet to calculate and
review the costs and benefits of this Agreement, taking into account hours of facility utilization,
costs (including Out of Pocket Costs), fees and charges, capital investments and any other
contributions made to the other party, costs waived or costs imposed on the other party. Any
imbalance in the contributions made by each party pursuant to this Agreement shall be rectified
through adjusting future contributions and benefits without exchanging cash, except for payment
of Out of Pocket Costs as specified in this Agreement.
3.4
Audit. The City and District shall have the right, at their sole cost and expense, to
audit costs associated with facility use and documentation of such costs by notifying the other
party (Audited Party) of its intent to audit within thirty (30) days of receipt of the annual
determination of costs, benefits and contributions. Any such audit shall be conducted by an
accounting firm of the requesting party’s choosing, and such accounting firm shall have reasonable
access to the Audited Party’s books and records and work papers and shall have the right to meet
with personnel of the Audited Party. To the extent that any such audit reveals an error in the
calculation of reported costs from the use of facilities in an amount greater than five percent (5%),
the requesting party will be promptly and without set-off reimbursed its reasonable costs and
expenses of such audit by Audited Party. Any disputes regarding costs associated with facility use
or the audit, if not resolved by the parties within thirty (30) days, will be submitted to an
independent, third party auditor to be mutually agreed by the parties, acting reasonably and in good
faith. Any agreed upon or agreed auditor mandated adjustment costs associated with facility use
shall be promptly paid.
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Section 4. Use of District Facilities by City
4.1
City Use. The City may request uses of District facilities for City Use during Non-
School Hours or Non-Instruction Periods when the District is not using District Facilities for
District Uses. After scheduling for District Uses, the District will give the City first priority for
use of District Facilities. District may, in its discretion, decline to allow City Use of some District
Facilities. However, District will make every reasonable effort to accommodate City requests for
facilities. Documentation will be provided upon request to explain denied requests. If the District
agrees to City Uses of District Facilities, such uses shall be governed by the terms of this
Agreement.
4.2
Fees for Use. The District waives any and all fees for the City Uses of District
Facilities. However, the City will pay District the Out of Pocket Costs resulting from City Uses of
District Facilities. Payment of Out of Pocket Costs owed by the City will be made in a timely
manner and no later than sixty (60) days following the receipt of invoice.
4.2.1 All invoices for use of facilities shall itemize all Out-of-Pocket Costs
associated with the City Uses of District Facilities. The invoice will clearly state the amount
and type of fees waived pursuant to this Agreement.
4.2.2 Out of Pocket Costs shall be established by the District-approved fee schedule
associated with its Facility Use Policy and Procedures (at the time of the facility use), as
may be amended from time to time.
4.3
Use of Fields. The District hereby agrees to permit access to the ball fields at its
elementary school campuses for use by the community and residents of El Mirage during non-
school hours. The parties acknowledge that property damage may be caused by vandalism that
occurs during this authorized use. The District will obtain a cost estimate of repairs to fix the
property damage and will forward the estimate to the City to District ball field during this
authorized use. The City agrees to reimburse the District for up to Two Thousand Dollars
($2000.00) per occurrence with a maximum amount in a fiscal year of Ten Thousand Dollars
($10,000.00) subject to the City’s ability to disagree as per Section 7.5.
4.4
Requests for Services and Equipment. Specific requests by the City for services or
equipment may be provided, at direct charge, to the City. By way of example, if the City
requests custodial services at a District Facility at a time when a custodian is not normally
scheduled in the building, the City will be assessed a direct charge for service hours provided.
4.5
Conflicts in Scheduled Use. In the event that a District Use takes precedence over
a scheduled City Use, District will provide notice no later than forty-eight (48) hours in advance
and use its best efforts to find an alternative location to host the City Use. The District and City
agree that conflicts regarding the City Use of District Facilities will be resolved promptly, in
good faith and in accordance with this Agreement by the District’s designated representative.
4.6
Compliance with Rules. The City’s employees and invitees must comply with the
Governing Board policies and any other rules set by the District for the use of a District Facility
on such City Use.
4.7
Cancellations. If City reserves District facilities for anticipated City Activities or
City-Sponsored Activities that are subsequently cancelled, City shall give District notice of the
cancellation at least thirty (30) days before the activity was scheduled to commence. If at least
thirty (30) days’ notice of a cancellation is not provided, City shall be assessed the District’s
rental rate for the facilities that were reserved for the period of time for which the facilities were
reserved.
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Section 5. Use of City Facilities by District
5.1
District Use. The District may request use of City Facilities for District Use when
the City is not using City Facilities for City Uses. After scheduling for City uses, the City will give
the District first priority for use of City Facilities. The City may, in its discretion, decline to allow
District use of some City Facilities. However, City will make every reasonable effort to
accommodate District requests for facilities. Documentation will be provided to the District upon
request to explain denied facility requests. If the City agrees to District Uses of City Facilities, such
uses shall be governed by the terms of this Agreement.
5.2
Fees for Use. The District agrees to pay City for the Out of Pocket Costs resulting
from District Use of City Facilities. Payment of Out of Pocket Costs owed by the District will be
made in a timely manner and no later than sixty (60) days following the receipt of an invoice. The
City waives any and all other fees for District Uses of City Facilities.
5.2.1 All invoices for use of facilities shall itemize all Out-of-Pocket Costs
associated with the District Uses of the City Facilities. The Invoice will clearly state the
amount and type of fees waived pursuant to this Agreement.
5.2.2 Out of Pocket Costs shall be established by the City-approved fee schedule (at
the time of the facility use), as may be amended from time to time.
5.3
Requests for Services and Equipment. Specific requests by District for services or
equipment may be provided, at direct charge, to the District. For example, if the District should
request custodial services at a City Facility at a time when a custodian is not normally scheduled
in the building, the District would be assessed a direct charge for service hours provided.
5.4
Conflicts in Scheduled Use. In the event that a City Use takes precedence over a
scheduled District Use, City will provide notice no later than forty-eight (48) hours in advance and
use its best efforts to find an alternative location to host the District Use. The District and City
agree that conflicts regarding District Use of City Facilities will be resolved promptly, in good faith
and in accordance with this Agreement by the City’s designated representative.
5.5
Compliance with Rules. The District’s employees and invitees must comply with
the applicable rules adopted by the City for the use of a City Facility and any conditions imposed
by the City on such District Use.
5.6
Cancellations. If District reserves City facilities for anticipated District Activities
or District-Sponsored Activities that are subsequently cancelled, District shall give City notice of
the cancellation at least thirty (30) days before the activity was scheduled to commence. If at
least thirty (30) days’ notice of a cancellation is not provided, District shall be assessed the City’s
rental rate for the facilities that were reserved for the period of time for which the facilities were
reserved.
Section 6. Construction of Facilities
6.1
Construction of Facilities. District and City shall consult with each other
regarding plans or proposals to construct new facilities that may be suitable for joint uses.
Consideration shall be given during planning of such facilities to whether changes in design of a
City or District facility might facilitate joint use. Consideration shall also be given to whether
economies of scale for the community might be achieved by constructing facilities in a manner
that is conducive to joint use.
6.2
Expedited Plan Review and Inspection. City will perform, in an expedited
manner, the customary plan review and inspections in connection with all schools built in the
City of El Mirage while this Agreement is in effect. City and District acknowledge that it is
imperative that District receive expedited, priority treatment with regard to plan review and
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inspections to the extent necessary to avoid delays in construction and City agrees to provide
such expedited, priority treatment.
6.3
Fees. City agrees to waive any and all fees that it might otherwise be entitled to
charge to District in connection with the construction of District Facilities while this Agreement
is in effect, with the exception of Development Impact Fees. All fees waived will be accounted
for and reported to respective parties.
Section 7. Repair of Property Damage
7.1
Property Damage. The District will be responsible for the costs to repair any
property damage caused by the District Use of City Facilities, and the City will be responsible for
the costs to repair any property damage caused by the City Use of District Facilities.
7.2
Reporting Damage. The facility owner will notify the user of damage or loss
promptly upon discovery of damage. The notification will identify the facility or field, the use
that caused the damage, and the date of damage and will describe the damage and estimate the
cost of repairs.
7.3
Repair of Facilities. Except as otherwise mutually agreed, repair of facilities will
be the responsibility of the facility owner.
7.4
Reimbursement. The facility owner will invoice the facility user upon completion
and payment of the cost of repairs. The invoice will itemize all work hours, equipment and
materials with cost rates as applied to the repair work. If the repair is contracted, a copy of the
contractor’s itemized statement will be attached. Actual costs will be invoiced if less than
estimated and/or fixed costs. Reimbursement shall be made within 30 days from receipt of such
invoice.
7.5
Disagreements.
7.5.1 The facility user will retain the right to disagree with any and all items of damage to
facilities, equipment or missing property, provided that this challenge is made within ten (10)
working days after first notification. Where notice of disagreement is provided in a timely
manner, the facility user may decline to pay a request for reimbursement until the matter is
settled.
7.5.2 Disagreements must be made in writing to the facility owner and will clearly
identify the reasons for refusing responsibility for damages to the facility or equipment. Failure
to do so within the prescribed time period will be considered as acceptance of responsibility by
the facility user.
7.5.3 Settlement of disagreements, after proper notification, will be made by an on-site
investigation involving both the District and City representatives. If damage occurs as a result of
shared use of a facility over time or during an undetermined time period, both the City and
District will share equally in the cost(s) to repair the damage if the City and District mutually
agree that the repair is necessary.
Section 8. Insurance and Indemnification
8.1
Indemnification. Each party (the "Indemnifying Party") shall, to the extent
permitted by law, defend, indemnify and hold harmless, jointly and severely, the other party and
each official, or employee thereof (any such person being referred to herein as an "Indemnified
Party"). This indemnity applies to any and all losses, claims, damages, expenses (including
reasonable attorney fees), or liabilities ("Liabilities"), joint or several, which the Indemnified
Party may be subject to in law or in equity, but only to the extent that such Liabilities arise out of
or are based upon the use of facilities by the Indemnifying Party or its employees and invitees, as
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provided in Sections 3 and 4 hereof. The obligations of the foregoing indemnification provision
shall not apply to the extent that any such Liability is found to have resulted from the negligence
or intentional misconduct of the Indemnified Party.
8.2
Insurance. Each party, at its cost, shall maintain comprehensive general liability
insurance with limits of not less than $1,000,000 per occurrence, insuring against all liability of
said party and its authorized representatives arising out of and in connection with said party's use
or occupancy of the facilities. Said insurance shall include broad form contractual liability
covering, without limitation, the liability assumed under the indemnification provisions of this
Agreement. If the policy is to be written with an annual aggregate limit, that limit shall be not less
than $2,000,000. Comprehensive general liability shall name the other party to this Agreement as
an additional insured. All insurance policies shall provide that the policies cannot be cancelled,
not renewed, nor limited in scope of coverage or limits until and unless thirty (30) calendar days
prior notice is given to the other party.
8.3
Self-Insurance. The obligations of the City and District with respect to the
insurance specified in this Section 8 may be satisfied by the existence of a self-insurance program
containing the same coverage and elements specified herein with respect to third party insurance.
Section 9. Notices
All notices given, or to be given, by either party to the other, shall be given in writing, by
registered mail, and shall be addressed to the Superintendent where notice is being given to the
District or the City Manager where notice is being given to the City. All notices shall be deemed
received upon actual receipt or three (3) business days after deposit in the United States mail,
whichever date is earlier.
Section 10. General Provisions.
10.1
Supervision of Programs. The City agrees that City Use of District Facilities shall
be properly supervised by qualified personnel. The District agrees that District Use of City
Facilities shall be properly supervised by qualified personnel. All personnel shall adhere to the
applicable rules and regulations of each respective party.
10.2
Facility Access. Access will be provided for program events and activities approved
under this Agreement.
10.3
Access to Storage. Wherever reasonably possible, a facility owner will make
available storage space on site for joint use program equipment and supplies.
10.4
Facility Maintenance Responsibilities. With each occupancy, the facility user will
be responsible for the pre and post occupancy preparations which may include opening and
closing movable walls unless other conditions are established between the facility owner and
user. All joint use spaces will be returned to the condition which preceded use. Where possible
and necessary, access to cleaning supplies will be provided by the facility owner agency.
Whenever possible, the facility user should check with the facility custodian to establish
agreement upon the pre and post use conditions.
Section 11. Miscellaneous Provisions.
11.1
Entire Agreement, Amendments. This Agreement represents the entire Agreement
of the Parties with respect to its subject matter. This Agreement shall not be changed, modified,
or rescinded, except through a writing signed by both parties. This agreement supersedes all prior
negations, understandings, and agreements between the parties concerning the subject matter of
this agreement.
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11.2
Governing Law, Forum. It is mutually understood and agreed that this Agreement
will be governed by the laws of the State of Arizona, both as to interpretation and performance.
Any action at law, suit in equity or judicial proceeding for the enforcement of this Agreement or
any provision thereof will be instituted only the courts of the State of Arizona.
11.3
Headings Not Controlling. Headings used in this Agreement are intended for
convenience or reference only and shall not control or affect the meaning or construction of any
provision of this agreement.
11.4
Severability. In the event any term or provision of this Agreement is held to be
invalid or unenforceable, the validity of the other provisions shall not be affected, and the
Agreement shall be construed and enforced as if it did not contain the particular term or provision
that is deemed to be invalid or unenforceable.
11.5
A.R.S. §38-511. Under Section 38-511, Arizona Revised Statutes, as amended, City
or District may cancel any contract to which they are a party within three (3) years after execution
of such contract and without penalty or further obligation, if any person significantly involved in
initiating, negotiating, securing, drafting or creating the contract on behalf of the party so canceling
is, at any time while the contract or any extension thereof is in effect, an employee or agent of any
other party to the contract in any capacity or a consultant to any other party to the contract with
respect to the subject matter of the contract.
11.6
Nondiscrimination. City and District agree to comply with all applicable provisions
of federal, state, and local laws related to nondiscrimination and equal employment opportunity.
11.7
Approval by Parties. Before this Agreement shall become effective and binding
upon the parties, the appropriate governing authorities of each party must approve it. In the event
that such appropriate authority fails or refuses to approve this Agreement, it shall be null and void
with no effect whatsoever.
11.8
Non-appropriation. All parties acknowledge that the City and the District are
government entities, and the contract validity is based upon the availability of public funding under
its authority. In the event that public funds are unavailable and not appropriated for the
performance of either's obligations under this Agreement, then this Agreement shall automatically
expire without penalty to either party after written notice to of the unavailability and non-
appropriation of public funds. It is expressly agreed that neither party shall not activate this non-
appropriation provision for its convenience or to circumvent the requirements of this Agreement,
but only as an emergency fiscal measure.
11.9
E-verify, Records and Audits. To the extent applicable under A.R.S. § 41-4401, the
parties warrant their compliance with all federal immigration laws and regulations that relate to
their employees and compliance with the E-verify requirements under A.R.S. § 23-214(A). A
party's breach of the above-mentioned warranty shall be deemed a material breach of the
Agreement and may result in the termination of the Agreement by either party under the terms of
this Agreement. The parties each retain the legal right to randomly inspect the papers and records
of the other party to ensure that the other party is complying with the above-mentioned warranty.
The parties warrant to keep their respective papers and records open for random inspection during
normal business hours by the other party. The parties shall cooperate with the other party's random
inspections including granting the inspecting party entry rights onto their respective properties to
perform the random inspections and waiving their respective rights to keep such papers and records
confidential.
11.10 No Israel Boycott. The parties agree that they are not currently engaged in, and
agree that for the duration of the Agreement they will not engage in, a boycott of Israel, as that
term is defined in A.R.S. §35-393.
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11.11 Surviving Provisions. The obligations under Section 8 (Indemnification) and any
other Section which reasonably should survive shall survive expiration or other termination of this
Agreement.
11.12 Construction. Except as otherwise provided in this Agreement, this Agreement shall
be construed as having been fully and completely negotiated and neither the Agreement nor any
provision thereof shall be construed more strictly against with party.
11.13 Waiver of Fees. The City agrees to waive fees associated with special events
sponsored by the District.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date first written
above.
CITY OF EL MIRAGE
DYSART UNIFIED SCHOOL
DISTRICT NO. 89
By:________________________
By:______________________
Alexis Hermosillo, Mayor
Dr. Quinn Kellis, Superintendent
ATTESTED:
___________________________
Sharon Antes, City Clerk
ATTORNEY CERTIFICATION
The undersigned certify that they have reviewed the foregoing Agreement and that said Agreement
is in proper form and is within the powers and authority granted to the public body represented by
the respective attorneys.
______________________________
_________________________________
Jennifer N. MacLennan
Attorney for Dysart Unified School
Attorney for City of El Mirage
District No. 89