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City Manager’s Office
10000 North El Mirage Rd., El Mirage 85335
623-972-8116; TDD 623-933-3258
www.elmirageaz.gov
MEMORANDUM
TO:
HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM:
CITY MANAGER J. CRYSTAL DYCHES
SUBJECT:
YMCA CONTRACT
DATE:
JANUARY 12, 2021
BACKGROUND: 2012 City Council authorized a Landlord Tenant agreement with the YMCA to operate a City owned
facility to provide health and wellness services to the Northwest Valley and the City of El Mirage. The agreement
authorized the City Manager as Landlord to amend the agreement. The City Manager prefers that the Council approve
any future amendments to the agreement. The rent was based originally set at $100,000 per year.
First Addendum (8-20-13):
•
Added resident discounts and rates through 6/30/19.
•
Unless the parties agree in writing to change the rates.
•
A discount process was established.
•
Landlord agreed to pay the initial $75 joining fee.
•
A 50% discount for non-member resident use of the pool was established.
•
Addressed signage
Second Addendum (5-8-14):
•
Included City employees in the eligible group for resident discounts and rates.
•
Changed base rent to $1/month for first 30 months after opening - with caveats.
•
Addressed Landlord and Tenant FF&E.
•
Provided a legal description, site plan, commencement date, and tax exemption.
Third Addendum (7-20-15):
•
Permitted qualified Tenant staff to operate two specific City Vans/Buses to transport children for specific trips for
$10/year.
•
Can be cancelled with a 60-day notice.
•
NWVFY maintains insurance.
Fourth Addendum (12-2016):
•
Changed base rent (reduced base rent to $1/month for balance of the lease).
•
Rental amount can be reinstated with notice.
•
Clarified joining fee reimbursements
•
Executive Director Assistance – Annual Financial Contribution of $40,000 for qualified fulltime Executive Director.
•
Executive Director Assistance (Incentive Pay $10,000). The incentive pay is available only after submitting proof
of progress across the following three matrices:
2
•
increase in youth sports programming;
•
increase membership sales; and
•
increase annual fundraising.
Fifth Addendum (11-2018):
•
Change in language clarifying no rent.
•
Administration of Gateway Parks Sports Fields
•
Program sports and other accepted activities.
•
Responsible for field lighting and controls.
•
Tenant collects revenue from rentals/program participants provides City with 50% of gross revenue over $25,000.
•
Provide quarterly reports.
•
Landscape maintenance is taken over by City contractors.
•
Increased membership rates.
Sixth Addendum (proposed)
•
Increase the membership rates.
•
Increase the City’s subsidy rate as follows:
Teen
Current Subsidy
Proposed Subsidy
Young Adult
$4
$5
Adult
$4
$4
Senior
$4
Couple
$6
$8
Family 1
$6
Family 2
$4
$6
Financial Impact: Based on the current memberships, the impact of the changes to the subsidy is approximately $5,000
annually.
The City currently contributes (cash and in-kind) approximately $125,000 annually to operations and transfers $100,000
from GF to Debt Service to offset annual debt service payment.
Year
Amount
FY21 (budgeted)
$100,000
FY20
74,978
FY19
78,833
FY18
69,474
FY17
84,315
FY16
42,973
Includes funding for resident discounts, joining fees and
Executive Director salary contribution.
Attached:
•
YMCA Contract and Addendums 1-5.
•
Proposed Rates.
Landlord:
Tenant:
PREMISES:
DATE:
14790749.!2
LEASE AGREEMENT
City of El Mirage, Arizona
Northwest Valley Family YMCA, LLC, an Arizona limited liability
company
The City of El Mirage YMCA, El Mirage, Arizona
September I, 2012
1
LEASE AGREEMENT
This Lease Agreement ("Lease") is made and entered into the l , i_day of September,
2012, by and between the City of El Mirage, Arizona (City), a political subdivision of the
State of Arizona ("Landlord"), with a mailing address of 12145 NW Grand Avenue, El
Mirage, Arizona 85335 and Northwest Valley Family YMCA, LLC, (YMCA), an Arizona
limited liability company ("Tenant"), with a mailing address of 350 N. First Ave, Phoenix,
Arizona 85003.
ARTICLE I
LEASE OF PREMISES
Section 1.01- Premises: Upon and subject to the terms and conditions hereinafter
set forth, Landlord hereby leases to Tenant and Tenant takes and leases from Landlord,
that certain parcel, or portion thereof, of real property directly adjacent to Gateway Park,
and located in the State of Arizona, County of Maricopa, more particularly described on
Exhibit "A", attached hereto and made a part hereof, together with the building, facilities,
grounds, lighting, fixtures, furnishings, and appurtenances to be constructed or provided
by Landlord thereon (the "Building"), more particularly described in the concept plan set
forth on Exhibit "B", attached hereto and made a part hereof, other improvements now or
hereafter located thereon and all easements, rights and appurtenances thereto. The
aforesaid parcel of real estate and the Building shall hereinafter be called the "Premises."
Additional parcels, buildings, facilities, grounds, lighting, fixtures, furnishings, and
appurtenances may be added by addendum to this lease if signed and countersigned by the
City Manager of the City of El Mirage and the Executive Director of the YMCA.
Section 1.02 - Parkjng Lots: The Landlord and Tenant agree to allow public
access to the premises parking lots for overflow parking for public events and park needs.
Reciprocally, the City of El Mirage agrees to allow Tenant overflow parking at the
Gateway Park lot.
ABTTCT,ETT
TERM
Section 2.01 - Term: The term of this Lease shall be for a period commencing on
Tenant's Date of Possession (hereinafter also known as the "Commencement Date"), as
hereinafter defined, and ending on the thirtieth (30th) anniversary thereof, unless sooner
terminated or extended as hereinafter provided ("Initial Term"). If the Commencement
Date is a day other than the first day of the month, the Commencement Date shall be the
first day of the next succeeding calendar month. Each succeeding lease year shall
commence on the anniversary thereof (i.e., if the Commencement Date occurs on
September 12, 2013, the term of this Lease shall expire on September 31, 2043). For
purposes hereof, the term "Tenant's Date of Possession" shall mean the date upon which
(A) Landlord's Work (as hereinafter defined) has been substantially completed as more
14790749.12
2
fully set forth in Article VI hereof and possession of the Premises has been tendered to
Tenant by Landlord and (B) Tenant is legally permitted to occupy the Premises without
material impediment arising from uncompleted or defective construction of Landlord's
Work.
Section 2.02 - Delivery of Premises:
Possession of the Premises shall be
delivered to Tenant on Tenant's Date of Possession. Landlord shall use conunercially
reasonable efforts to cause Tenant's Date of Possession to occur on or before December
31, 2013. Landlord shall not be in default under this Lease for failure to deliver possession
of the Premises to Tenant on or before said date. Landlord shall notify Tenant of the date
that Landlord has scheduled as Tenant's Date of Possession at least sixty (60) days prior to
such date. Tenant shall be required to begin full operations of the facilities in the Building
and be open to the public no later than sixty (60) days after such scheduled date.
Section 2.03 - Tenant Acceptance Agreement: On or about Tenant's Date of
Possession, Landlord and Tenant shall execute a "Confirmation of Lease Commencement
Date" in the fonn set forth on Exhibit "C", attached hereto and made a part hereof, and
said document shall be considered an amendment to the Lease to establish that the
Commencement Date and possession of the Premises is accepted by Tenant, subject to
completion by Landlord of any punch list items established pursuant to Section 6.01 hereof.
Section 2.04 - Renewal Ontion<s}: Tenant is hereby granted an option to renew
this Lease for two (2) additional terms of five (5) years each ("Renewal Term"), upon the
same tenns and conditions contained herein, unless otherwise provided herein. Tenant
shall exercise said option, if at all, by giving to Landlord written notice thereof on or
before a date which is one hundred eighty days (180) days prior to the expiration date of
the Initial Tenn hereof.
Said renewal options, and any exercise thereof, shall be null and void and of no
force and effect if (i) there existed on the date of such exercise an Event of Default that is
not cured hereunder or (ii) there existed on the last day of the original term hereof an
uncured Event of Default hereunder. Except for such renewal option, there shall be no
further renewal option hereunder, except as expressly and lawfully granted by or through
Landlord in writing signed by the Board of Trustees or their representative duly authorized
in writing to execute the option.
Section 2.05 Financial Viahjlijy Landlord and Tenant acknowledge that Tenant
plans to operate the facilities at the Premises based upon revenues covering 100% of direct
operating expenditures plus overhead equal to 5% of operating revenues. For the purpose
of this section "direct" means only those expenditures located at this property or through a
centralized purchasing process distributing costs based on utilization, including actual
repair and maintenance costs but not indirect costs, goodwill, non-cash expenses, corporate
endowments or other similar items. If after the fourth ( 4th) year of the Lease annual direct
operating revenues are not equal to or greater than direct operating expenditures then
Tenant shall provide written notice to Landlord of Tenant's operating losses, and Landlord
and Tenant shall work together in good faith to develop an alternative operation model for
the Premises.
14790749.12
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Prior to providing Landlord written notice of Tenant's operating losses, Tenant
shall cause an independent audit to be made by a certified public accountant or public
accountant who is currently licensed by the Arizona state board of accountancy and who is
not an employee of the YMCA. The audit and the audit report shall include all of the
accounts and funds of the Northwest Valley Family YMCA. The audits shall be made in
accordance with generally accepted auditing standards. The consequent audit report shall
contain financial statements that are in conformity with generally accepted accounting
principles and shall set forth the financial position and results of the operations for each
fund and account of the Northwest Valley Family YMCA. The audit report shall also
include the professional opinion of the accountant or accountants with respect to the
financial statements or, if an opinion cannot be expressed, a declaration of the reasons an
opinion cannot be expressed.
The Landlord may at its sole discretion provide subsidies to the Tenant through
any resources available. If after one hundred eighty days (180) days from the date Tenant
provided written notice to Landlord of Tenant's operating losses, Landlord and Tenant
have not agreed to an alternative operation model, then the Tenant may terminate this
Lease upon one hundred eighty days (180) days prior written notice to Landlord, and
Landlord and Tenant shall be released from all further obligations hereunder.
ARTICLE III
Section 3.01 Base Rent:
(a) Tenant agrees to pay Landlord base rent for the Premises in equal monthly
installments of Eight Thousand Three Hundred Thirty-Three and 34/100 Dollars
($8,333.34) per Lease Year commencing on the Commencement Date. A "Lease Year"
shall be a period of twelve (12) consecutive calendar months, the first of which shall
commence on the Commencement Date, except that if the Commencement Date is a day
other than the first day of the month, the Commencement Date shall be the first day of the
next succeeding calendar month. Each succeeding Lease Year shall commence on the
anniversary thereof. All such rent shall be payable to Landlord on the first day of the
month. Base rent shall be payable to Landlord at the address set forth in the first paragraph
hereof, unless Landlord directs otherwise in writing.
(b) Tenant shall pay to Landlord base rent for the Premises during the renewal
term provided for in Section 2.04 hereof in consecutive monthly installments of Eight
Thousand Three Hundred Thirty-Three and 34/100 Dollars ($8,333.34). All such rent
shall be payable to Landlord as provided in Section 3.0 I (a) above.
Section 3.02 - Payments by Tenant: Throughout the term of this Lease, Tenant
shall pay to Landlord the base rent, and all additional rent, when and as the same shall be
due and payable hereunder. Unless otherwise stated, all other sums of money or charges
payable to Landlord from Tenant by this Lease are defined as "additional rent" and are due
thirty (30) days after the rendering of an invoice therefore, without any deductions, set-
offs, or counterclaims, and failure to pay such charges carries the same consequences as
Tenant's failure to pay rent. All payments and charges required to be made by Tenant to
14790749.12
4
Landlord hereunder shall be payable in electronic transfer as approved by the Landlord and
its fmancial institution, currency of the United States of America or by bank check, at the
address indicated herein. No payment to or receipt by Landlord of a lesser amount than the
then amount required to be paid hereunder shall be deemed to be other than on account of
the earliest amount of such obligation then due hereunder. No endorsement or statement
on any check or other communication accompanying a check for payment of any amounts
payable hereunder shall be deemed an accord and satisfaction, and Landlord may accept
such check in payment without prejudice to Landlord's right to recover the balance of any
sums owed by Tenant hereunder. Acceptance by the Landlord of any amounts tendered
will not constitute a waiver by Landlord of its ability to enforce any provision hereunder.
Section 3.03 - Triple Net Lease: Landlord and Tenant expressly intend that the
rent provided f or in the Article III shall be net to Landlord and that Tenant shall pay,
without any deductions, setoffs or counterclaims, and save Landlord harmless from and
against, costs, taxes, insurance, expenses of maintenance, repair and replacement and .
other charges and expenses and obligations of every kind and nature whatsoever relating
to the Premises which may arise, be incurred or become due during the term of this Lease,
except as otherwise set forth in this Lease.
Without limiting the general nature of the preceding sentence or in any mallller
limiting any other obligation of Tenant under this Lease, Landlord and Tenant further agree
as follows:
(a)
Tenant's Obligation to Furnish Services. Except as provided in Section 11.03,
Landlord shall not be required to furnish or pay for any services or utilities to the Premises,
including without limitation, heat, air conditioning, water, stonn water and sanitary sewer,
electric, gas, telephone, sprinklers, trash removal, or other services or utilities, and shall not be
liable for any failure of any service or utility to the Premises, nor for any injury or damage to
persons (including death) or property caused by the failure of such services, or resulting from,
interference with light or other incorporeal hereditaments or easements, regardless of how
caused, except for any acts which are actionable under Arizona law. Tenant acknowledges
and agrees that it shall provide all such services and utilities to the Premises as needed for
Tenant's operations and as necessary for the preservation and protection of the Building and
improvements therein, including, without limitation, a supply of water for the sprinkler
system. Landlord agrees to reasonably cooperate and assist Tenant with any required
approvals for all such services and utilities at the Premises.
(b)
No Obligation of Landlord to Provide Security. With the exception of
services provided to the general public, Landlord shall not be required to provide or pay for
security services for the Premises or the Tenant, its employees, contractors, agents, invitees,
members, customers, guests or licensees and shall not be responsible for providing lighting of
the Premises or the surrounding areas. Tenant acknowledges and agrees that it shall provide
all security services needed in connection with the Premises and Tenant's pennitted use
thereof.
14790749.12
ARTICLE IV
AQDTTTQNAL RENT OBLIGATIONS
5
Section 4.01 - Taxes: Landlord shall pay all real estate taxes, lease excise taxes,
assessments, fees and charges (except as excluded below), whether general, special,
ordinary or extraordinary, due at any time or from time to time, during the Initial Term,
the Renewal Term and any extensions thereof, in connection with the ownership of the
Premises ("Real Estate Taxes") when such Real Estate Taxes, if any, become due and
payable. This provision shall not be construed to require Landlord to pay any other taxes,
assessments, fees and charges of any kind or nature on behalf of Tenant (including, for
example and without limitation, income taxes, personal property taxes or occupational
taxes) that do not pertain directly to the title ownership of the real estate and
improvements consisting of the Premises. Provided, however, in addition to the base rent
set forth in Section 3.01, above, Tenant shall reimburse Landlord for any and .all payments
of Real Estate Taxes or lease excise taxes, which are triggered as a result of Tenant's use
of the Premises, or Tenant's failure to maintain 501(c)3 or similar tax status, within thirty
(30) days after Tenant receives an invoice from Landlord for such payment of Real Estate
Taxes pertaining to the Premises. In addition to Real Estate Taxes which shall be first
paid by Landlord and then reimbursed to Landlord by Tenant, Tenant shall pay, as they
become due and payable, all Taxes (defined below) during the Term and any Renewal
Tenn. For the purposes hereof, the term "Taxes" shall mean all applicable governmental
taxes, assessments, fees and charges of every kind or nature ( except as excluded below),
whether general, special, ordinary or extraordinary, due at any time or from time to time,
during the Initial Term, the Renewal Term and any extensions thereof, in connection with
the leasing, or operation of the Premises, or of the personal property and equipment
located therein or used in connection therewith any and all taxes and assessments (special
or otherwise), transit taxes, any tax or excise on rentals or any other tax (however
described) on account of rental received for use and occupancy of all or any part of the
Premises, whether such taxes are imposed by the United States, the State of Arizona, the
county in which the Premises is located or any municipality, authority or agency, or any
other political snbdivision of any of the foregoing.
For the purpose of determining Real Estate Taxes or Taxes for any given Lease
Year, the amount to be paid for such Lease Year shall be (a) with respect to assessments,
the amount of the installments (and any interest) due and payable during such Lease Year,
and (b) with respect to all other Real Estate Taxes or Taxes, the amount due and payable
during such Lease Year without regard to the period for which any such Real Estate Taxes
or Taxes are payable.
Landlord shall, without delay, transmit to Tenant all notices and statements
received by Landlord of Real Estate Taxes with respect to the Premises. Tenant shall have
the right to contest or review by legal or other proceedings, or in such other manner as
Tenant, may deem suitable, any assessed valuation, real estate tax or assessments;
provided, that, unless Tenant shall have paid such tax or assessment under protest, Tenant
shall furnish to Landlord a surety bond or other security satisfactory to Landlord securing
the payment of such contested item or items and all interest, penalty and cost in
connection therewith upon the final determination of such contest or review. Landlord
shall, if so requested by Tenant, join in any proceeding for contest or review of such Real
Estate Taxes, but the entire cost of such proceedings (including any cost, expense or
attorney fees sustained by Landlord in connection therewith, through an attorney of
Landlord's choosing) shall be borne by Tenant. Any amount already paid by Tenant and
subsequently recovered as a result of such review shall be for the account of Tenant.
14790749.12
6
Notwithstanding the foregoing, Landlord and Tenant acknowledge that it is
their intent and expectation that the Premises shall be exempt from the payment of
taxes and that each shall, at their own respective cost and expense, take snch actions
as shall be required for the Premises to attempt to maintain snch tax-exempt status.
However, Landlord makes no certification or representation as to the tax exempt
status upon which Tenant can or should rely and, in the absence of tax exempt
status, payment of all Real Estate Taxes and Taxes for the Premises shall be
Tenant's sole responsibility.
Section 4.02 - Insurance: In addition to Base Rent, Tenant agrees to procure
and/or pay for insurance relating to the Premises, as more fully set forth in Section 8.02
hereof.
Section 4.03 -
Utilities:
In addition to Base Rent, Tenant shall be the
responsible party for, and timely pay the cost of all utility services, including, but not
limited all charges for gas, electricity, water, sanitary and storm sewer service, refuse or
garbage collection, telephone services and all electrical lighting. Landlord shall have no
liability or responsibility to furnish or provide utility services to Tenant. No interruption
of utility services shall be deemed an eviction or disturbance of Tenant's use and
possession of the Premises or any part thereof, or render Landlord liable to Tenant for
damages, or relieve Tenant from performance of Tenant's obligations under this Lease,
unless such interruption of utility services are caused directly by the intentional acts or
gross negligence of Landlord.
Section 4.04 - Repairs and Maintenance: In addition to Base Rent, Tenant shall
perform and pay for repairs, replacements and maintenance of the Premises during the term
hereof, all as set forth in Section 11.02 hereof.
ARTICLEV
SECJJRITY DEPOSIT
Section 5.01 - Deposit: Landlord and Tenant acknowledge and agree that Tenant
has not, and shall not be required to, maintain with Landlord a security deposit for the
performance and observance by Tenant of all of its obligations and covenants under this
Lease.
ARTICLE VI
LANDLORD'S AND TENANT'S WORK/ALTERATIONS
Section 6.01 - Performance of Landlord's Work and Tenant's Work:
(a)
Landlord, at its sole cost and expense (except as otherwise set forth
herein), shall construct, or cause to be constructed, with reasonable diligence, the
Building and other improvements to the Premises ("Landlord's Work"), which Building
and other improvements are generally depicted on the site plan reflected on Exhibit "B".
Landlord's Work shall be performed in accordance with plans and specifications
therefore prepared by an architect and engineering firm acceptable to Tenant (the
14790749.'12
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"Architect") and approved by Tenant as set forth herein (as finally approved, the "Final
Plans"). Landlord shall not be responsible for trade fixtures, exercise and other related
operational equipment contemplated for the facility, which items shall be the sole
financial responsibility of Tenant (except as otherwise set forth herein).
(b)
Landlord and Tenant acknowledge and agree that it is the intent of this
Lease that the Premises be designed and constructed as a community center with
approximately 22,000 to 28,000 square feet of leasable space, that shall include: (i)
leasable space for a fitness center; (ii) leasable space for a gymnasium; (iii) leasable space
for at least two multi-purpose uses specified; (iv) a swimming pool; (v) men's and
women's locker facilities and family locker rooms; and (vi) offices and related amenities
(the foregoing shall be generally referred herein as the "Design Characteristics").
(c)
Beginning on or about May 22, 2012 and for a period of 120 days
thereafter, Tenant shall work with Landlord's architect and staff to submit to the Landlord
the "Concept Plans." The Concept Plans shall include the minimum Design Requirements
and other specifications that are typical of a current standard family branch facility in the
Greater Phoenix area, and shall contain a detailed schematic development plan for the
Building, including without limitation site development plans showing the locations for the
various facilities and improvements comprising the Building, typical floor plans,
preliminary elevations, number of floors and square footage calculations. If Landlord and
Tenant do not mutually agree and approve the final Concept Plans, then either party may
terminate this Lease without further obligation to either party. Both Landlord and Tenant
will work in good faith with Landlord's architect towards Concept Plan completion and
approval.
(d)
Upon the parties' mutual agreement and approval of the final Concept
Plans, Landlord shall cause the Architect to prepare construction drawings, plans and
specifications in accordance with the approved Concept Plans ("Construction Drawings").
Landlord and Tenant shall meet regularly with the Landlord's Architect throughout
Construction Drawing development and provide regularly scheduled comments and
feedback. Tenant shall provide to Landlord its approval of the Construction Drawings, or
any reasonable request that the square footage allotted for any one Design Characteristic
should change in a material respect, or such other comments as will insure the
Construction Drawings comply with the approved Concept Plans, or that the Building and
Premises will be suitable and acceptable when completed for their intended purposes. For
purposes of this Section, the term "material respect" shall mean a variation of more than
five percent (5%) of the square footage specified in Section 6.0l(b). Landlord shall
thereupon either (i) approve such request of Tenant for revisions to the Construction
Drawings and cause the Architect to revise the Construction Drawings to incorporate any
of Tenant's comments; or (ii) disapprove Tenant's request and collaborate with Tenant, in
good faith, to modify and finalize the Construction Drawings to the mutual agreement of
the parties. The final Construction Drawings that have been approved by both Tenant and
Landlord are hereinafter referred to as the "Final Plans." In the event that the parties have
not reviewed and approved a final set of Construction Drawings on or before December
31, 2012, either party may terminate this Lease by sending a written notice to the other
party on or before January 9, 2013. In the event that Tenant exercises said right to
terminate the Lease as provided in this Section, Tenant shall remain indebted to Landlord
as specified in Section 6.03.
14790749.12
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( e)
Landlord shall, promptly after Final Plans have been approved for permit
according to applicable building code regulations, commence to cause construction of the
Building and other improvements strictly in accordance with the Final Plans, and shall
thereafter diligently prosecute to completion such construction.
Construction shall be
performed by a Construction Manager at Risk "CM@Risk" reasonably acceptable to
Tenant or otherwise identified in accordance with law. Tenant shall have an active role in
the CM@Risk selection process.
(f)
Without the prior written approval of Tenant, Landlord shall not authorize
substantial change order plans which alter the Final Plans in material respect.
(g)
Tenant shall have the right to request change orders to the Final Plans, so
long as (i) Landlord shall have consented to the requested changes, which consent shall
not be unreasonably .withheld or delayed; and (ii) the cost to Landlord of performing
requested Landlord's Work, with such requested changes, shall not be increased, unless
Tenant shall pay for such excess cost.
(h)
Landlord and Tenant shall each appoint a desig nated representative to
coordinate with each other the plan review and construction process. Landlord's initial
representative shall be Dr. Spencer A. Isom, City Manager, or his designee, and Tenant's
initial representative shall be George Scohas, President and CEO of Tenant, or her
designee.
(i)
Landlord's representative and Tenant's representative shall have the
exclusive authority on behalf of Landlord and Tenant, respectively, to request and approve
change orders pertaining to the Landlord's Work. Tenant's representative shall have the
right to attend weekly construction meetings with the CM@Risk and/or contractors and
shall have the right, without prior notice (but subject to reasonable safety regulations), to
enter the Premises for the purpose of inspecting the quality and progress of Landlord's
Work. Tenant agrees that it shall make diligent efforts not to materially interfere with the
progress of Landlord's Work by such entry. No such entry by Tenant shall be deemed an
acceptance of the Premises. Tenant may make limited use of such utilities as are available
during the course of such pre-possession inspections.
G)
Landlord and Tenant shall conduct a walk-through inspection of the
Premises at the time of Substantial Completion as scheduled by the CM@Risk. Tenant
shall have period of thirty days that from the Substantial Completion of Landlord's Work
to provide Landlord with a list of any defects and incomplete or unsatisfactory items with
respect to Landlord's Work. Landlord shall be obligated within a reasonable amount of
time to cure any defects. This time provision shall not apply to latent defects, and Tenant
shall have the right during the applicable contractor's warranty period to report to Landlord
any latent defects which are in need of repair based upon the obligation of Landlord to do
Landlord's Work.
Upon completion, the Premises shall be in a finished condition
complete with floor coverings, wall coverings, ceilings, lighting, HVAC, complete and
operable plumbing and electrical systems, sprinkler system, pool heating, filter and
circulation system, security system, and phone and cable ready. Landlord warrants that
upon completion of Landlord's Work, the utilities, including and without limitation, the
HVAC, and the plumbing and electrical systems, and the interior and exterior of the
building will meet all present laws, codes, regulations and ordinances at the time the
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Premises are delivered by Landlord to Tenant.
In the event Tenant is delayed in
commencement of its operations as a result of the repairs performed by Landlord in order
to comply with this Paragraph, then Tenant's obligation to commence operations shall be
abated for that period of time Tenant is delayed in commencing its operations as a result of
such repairs. Landlord covenants that the Landlord's Work shall be completed in a good
and workmanlike manner for the period covered by the applicable contractor's warranty.
After expiration of said warranty, Landlord shall assign to Tenant any and all warranties
and guarantees of third parties held by Landlord, except in the event some are not
assignable, and Landlord shall enforce the same for the benefit of Tenant.
(k)
Upon substantial completion of Landlord's Work, Tenant shall provide
fitness equipment and office equipment for the operation of the Premises and shall
complete any additional leasehold improvements of the Premises desired by Tenant which
have been reasonably approved by Landlord ("Tenant's Work"). The equipment provided
by Tenant shall be comparable to the equipment used by Tenant in its operation of other
standard, new family branch facilities in the Greater Phoenix Area. Tenant shall cause all
of Tenant's Work to be done in accordance with the provisions of Section 6.02 hereof,
approved plans and specifications therefore and applicable law.
(I)
Except as provided in Section 6.03, the fees of the Architect shall be paid by
Landlord.
(m)
Notwithstanding any provision herein to the contrary, in the event that
Landlord is unable to cause the construction of the Building on the Premises by a reputable
commercial contractor, in accordance with the Final Plans, for an aggregate cost that has
been approved by the City of El Mirage, Landlord may terminate this Lease by providing
written notice to Tenant no later than March 31, 2013. Landlord represents to Tenant that
the approved budget cost for the Premises, including, but not limited to, cost of issuance,
offsite improvements, and construction of the Building, shall not exceed $5,500,000.00.
Section 6.02
Alteratjons b y Tenant:
(a)
After the Commencement Date, Tenant may not make any major exterior
or structural alterations to the Premises without the prior written consent of Landlord,
which consent shall not be unreasonably withheld. Tenant may make any other interior
alterations which Tenant deems necessary or beneficial to Tenant's operation of the
Premises, so long as the alterations do not materially decrease the value of the Premises,
upon notification of Landlord thereto. All alterations to the Premises made by Tenant
shall comply with the Americans With Disabilities Act and other applicable laws and
regulations. Any snch alterations shall be performed in a good and workmanlike manner
by a contractor reasonably acceptable to Landlord and in accordance with applicable legal
and insurance requirements- and the terms and provisions of this Lease, and in quality
equal to or better than the original construction of the Building. Provided, however,
Tenant shall not need to provide notice to Landlord to make an alteration to the interior of
the Premises, obtain consent from Landlord, nor provide evidence of insurance to
Landlord, if the cost of such work is less than Five Thousand Dollars ($5,000.00) and such
alteration otherwise complies with the terms and conditions of this Lease.
Further, no
such notice is necessary for interior painting or the replacement of flooring, ceiling tiles,
14790749.12
10
wall or other surfaces requiring replacement as a result of time and usage. Tenant shall
promptly pay all costs attributable to such alterations and im p rovements and shall
indenmify Landlord against any mechanics' liens or other liens or claims filed or asserted
as a result thereof and against any costs or expenses which may be incurred as a result of
building code violations attributable to such work. Tenant shall promptly repair any
damage to the Premises or to the Building caused by any such alterations or
improvements.
When required hereunder, any prior notice of such alterations shall be made by
Tenant providing to Landlord at least thirty (30) days prior to its commencement, a
description of the work to be performed, the cost of the work, and the identity of the
contractor performing the work. Any reasonable objections by Landlord to the
contemplated work or contractor must be made in writing to the Tenant within twenty five
(25) days following receipt of the notice. Failure by Landlord to respond shall be
conclusively presumed as Landlord's consent to such work and contractor.
All such alterations erected by Tenant shall be and remain the property of Tenant
during the term of this Lease. At the end of the Initial Term or Renewal Term, as the case
may be, such alterations erected by Tenant shall become the property of Landlord and
Tenant shall have no obligation to remove the same and/or to restore the Premises to its
original condition.
Any trade fixtures installed on the Premises by Tenant at its own expense, such as
movable partitions, counters, shelving, showcases, fitness equipment and the like may,
and at the request of Landlord, shall be removed on the termination of this Lease,
provided that no Event of Default then exists hereunder. In any event, Tenant shall bear
the cost of such removal, and Tenant shall repair at its own expense any and all damage to
the Premises resulting from such removal.
(b)
In the event that any mechanic's lien is filed against the Premises as a result
of any work or act of Tenant, Tenant, at its expense, shall discharge or bond off the same
within sixty (60) days from the filing thereof. If Tenant fails to discharge said mechanic's
lien, Landlord may bond or pay without inquiring into the validity of the merits of such
lien and all sums so advanced shall be paid on demand as additional rent by Tenant.
(c)
Prior to the commencement of any work by Tenant, Tenant shall obtain
certificates of public liability insurance and evidence of worker's compensation coverage
from every contractor to be employed by Tenant, and shall deliver duplicate originals of
all certificates of such insurance to Landlord for written approval.
Section 6.03-Notice of Termination; Tenant's Obligations: If the Tenant shall
· exercise Tenant's right to terminate the Lease as set forth in Section 6.0 I, Tenant shall not
remove from the premises any assets purchased with bond proceeds.
14790749.?1
ARTICLE VII
USE OF PREMISES
11
Section 7.01 - w: The Premises shall be occupied and used by Tenant for the
operation of a new standard family branch YMCA facility, and related functions and
activities as may be conducted from time to time by Tenant at other suburban YMCA
facilities. No other organization or entity shall use, license or sublease any space or facility
in the Premises without the prior written consent of Landlord, which shall not be
unreasonably withheld by Landlord. The Premises shall be named 'The City of El Mirage
YMCA". Except for the name "The City of El Mirage YMCA", Tenant shall not name the
Building, the Premises, or any part thereof without the prior written consent of Landlord, in
its sole and absolute discretion. Except as otherwise set forth in this Lease, Tenant shall
have the full right to operate its business and conduct operations on the Premises without
interference or restriction by Landlord or anyone claiming by, through or under Landlord.
Tenant shall be responsible for all costs and expenses incurred in the operation of its
services, programs, activities and facility, and shall retain for its own use and account any
and all revenue, surplus or otherwise, resulting therefrom. Tenant shall permit one
designated representative of the Landlord to serve on the Branch Board of The City of El
Mirage YMCA, which shall be the advisory committee of The City of El Mirage YMCA.
Such representative of Landlord shall also be approved by the Tenant according to the
bylaws of the Tenant. All decisions with respect to operating and staffing the Premises
shall be made solely by Tenant.
Tenant covenants and agrees: (a) to use the Premises and conduct its operations at
the Premises in a safe, careful and lawful manner; (b) to report in writing to Landlord any
defective condition which exists on the Premises; ( c) to pay for any repairs to the
Premises and the Building as hereinafter set forth in Article XI; ( d) to permit Landlord
and its employees and agents access to the Premises, after reasonable notice from the
Landlord, for inspection purposes at all reasonable times during business hours, subject to
safety regulations and at Landlord's sole risk; (e) to pay the cost of all remodeling,
redecorating, painting, alterations or additions required of or by Tenant during the term of
this Lease; (f) to make all billing arrangements directly with the appropriate utility
companies for the supply of gas, electricity, water, light, power and tele p hone to the
Premises; (g) to operate a YMCA community center generally in accordance with
practices established by Tenant from time to time at other suburban YMCA facilities
owned and/or operated by Tenant; (h) to comply with all governmental regulations,
whether or not communicated to Landlord or Tenant, including, but not limited to, the
Americans With Disabilities Act, and regulations, environmental conditions and releases;
and (i) to not permit the use by any quasi-governmental or political subdivision, nor
contract with any quasi-governmental or political subdivision for the use, of any of the
facilities on the Premises, without the written consent of the Landlord.
Tenant further covenants and agrees to staff and operate the facilities at the
Premises and make them available to the members not less than eighty (80) hours per
week (excluding the pool hours). Provided, however, in such weeks that include legal
holidays, Tenant may reduce the minimum hours of operation by the number of hours the
Premises is generally open for business on such day that corresponds to such holiday.
Section 7.02 - Legal Requirements: Tenant shall, at its own expense, comply
with all laws, orders, ordinances and with directions of public officers thereunder, with
all applicable Board of Fire Insurance Underwriters' regulations and other requirements
respecting all matters of occupancy, condition, or maintenance of the Premises, whether
14790749.12
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such orders or directions shall be directed to Tenant or Landlord, and Tenant shall hold
Landlord harmless from any and all costs or expenses on account thereof. Tenant shall
procure and maintain all licenses and permits legally necessary for the operation of
Tenant's business and allow Landlord to inspect them on request.
Section 7.03 - Special Membership Rares: Tenant shall have the right to set use
charges and membership fees for the use of the Premises by its members.
Resident
discounts will be established annually by the City of El Mirage City Council and shall be
included in the annual budget. There shall be a cap to the discounts as identified in the
budget. By way of example a discount of ten dollars ($10) per month to the first five
hundred (500) residents to purchase an annual Northwest Valley Family YMCA
membership shall be permitted by the Tenant. The YMCA will bill the City of El Mirage
quarterly for the value of the discounts, not to exceed the annual budgeted amount. The
Landlord and Tenant will work together to establish the discount.
Section 7.04-RESERVED
Section 7.05 - Tax-exempt Bond Requirements: In conducting its business,
hereunder, Tenant shall not take, or permit to be taken, any action which would jeopardize
the tax- exempt status of any bonds issued by Landlord to finance construction and/or
acquisition of the Premises. Compliance with the foregoing covenant shall include, but
not be limited to, compliance with those requirements set forth on Exhibit "D", attached
hereto and made part hereof; provided, however, that if compliance with any such bond
requirements should have the effect of prohibiting or materially altering Tenant's ability to
operate a YMCA community center in a manner consistent with Tenant's operation at the
commencement of the Lease, Tenant shall have the right to terminate this Lease without
additional penalty herein.
ARTICLE VIII
INSURANCE, INDEMNITY AND LIABILITY
Section 8.01 - Building Insurance: Landlord shall obtain and maintain, at its
sole cost and expense, during the term of this Lease insurance insuring:
(a)
The Building against loss or damage by fire, lightning, wind storm, hail
storm, vehicles, smoke, explosion, riot or civil commotion as provided by the Standard
Fire and Extended Coverage Policy and all other risks of direct physical loss as insured
against under Special Form ("all risk" coverage). The insurance coverage shall be for not
less than I 00% of the full replacement cost of the Premises for an agreed amount basis
with the insurance carrier. Landlord shall be named as the insured and all proceeds of
insurance shall be payable to Landlord. Landlord shall deliver to Tenant certificates of
insurance or duplicate originals of each such policy, naming Tenant as an additional
named insured. Said insurance shall contain an endorsement waiving the insurer's right of
subrogation against Landlord and Tenant;
(b) Plate glass insurance; and
14790749.12
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( c) Flood or earthquake loss or damage, whenever, in the reasonable judgment of
Landlord, such protection is necessary and it is available at commercially reasonable cost.
All of the aforesaid insurance policies shall meet the requirements set forth in
Section 8.02(6) hereof.
Section 8.02 Other Insnranse Coverage:
(a)
Tenant, at Tenant's sole cost and expense, shall obtain and maintain for the
term of this Lease, commencing on the possession date, insurance policies providing the
following coverage: (i) Tenant's fixtures, equipment, furnishings, merchandise, and other
contents in the Premises, for the full replacement value of said items; and (ii) commercial
general liability insurance, which shall include premises/operations coverage, independent
contractors and products/completed operations coverage, contractual liability coverage,
and vehicular liability coverage naming Landlord as an additional insured, which policy is
to be in the minimum aggregate amount of One Million Dollars ($1,000,000.00) and in the
minimum amount of Five Hundred Thousand Dollars ($500,000.00) with respect to
property damage. In addition to the foregoing, Tenant shall maintain One Million Dollars
($1,000,000.00) "umbrella" coverage applicable to the Premises. The minimum limits
herein before set forth may, at Landlord's option, be increased by such amounts during the
term hereof as Landlord shall reasonably determine, but no such increase shall be in an
amount that is not commercially reasonable for similar facilities located in the Greater
Phoenix Area. Tenant shall deliver to Landlord certificates of insurance or duplicate
originals of each such policy, naming Landlord as an additional named insured.
(b)
The policies described in Section 8.01 and 8.02 shall: (i) be acceptable to
Landlord in form and content; (ii) contain an express waiver of any right of subrogation by
the insurance company against Landlord and Tenant and their respective agents and
employees (and any certificate of insurance shall so state); (iii) in compliance with Section
16.01, Tenant shall notify Landlord of any default; failure to pay premiums, fees, or costs;
or changes in policy or status; (iv) not be materially changed without prior notice to
Landlord; (v) be issued by a company with a rating of at least A, as listed by A.M. Best;
and (vi) shall list Landlord as a named or additional insured as set forth above.
( c)
Landlord and Tenant shall not permit to be done any act which will
invalidate or be in conflict with the fire insurance policies covering the Premises or any
other insurance referred to in this Lease. The parties shall promptly comply with all
commercially reasonable rules and regulations relating to such policies.
Section 8.03 - Covenants to Hold Harm)ess:
(a) Landlord and Tenant each hereby release the other, its officers, directors,
employees, and agents from any and all liability or responsibility for any loss or damage to
property which is required by the terms of this Lease to be covered by valid and collectible
insurance, even if the cause of such loss shall have been the fault or negligence of the other
party, or anyone for whom such party may be responsible, unless Tenant fails to maintain
the insurance required by the Lease in which case Tenant shall be responsible for such loss.
14790749.12
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(b) Tenant hereby indemnifies and agrees to defend and save harmless Landlord
from and against any and all claims that arise from or in connection with the Tenant's
possession, use, occupation, management, repairs, maintenance, or control of the Premises,
or any portion thereof. Tenant shall, at its own cost and expense, defend any and all
actions which may be brought against Landlord, and any mortgagee, with respect to the
foregoing. Tenant shall pay, satisfy, and discharge any and all judgments, orders, and
decrees which may be recovered against Landlord, any mortgagee, or master lessor in
connection with the foregoing.
(c) Landlord hereby indemnifies and agrees to defend and save harmless Tenant
from and against any and all claims and other liabilities in any way and to the extent arising
from any negligent or intentional acts or omissions of Landlord or Landlord's agents,
invitees, contractors, licensees or employees. Landlord shall, at its own cost and expense,
defend any and all actions which may be brought against Tenant, with respect to the
foregoing. Landlord shall pay, satisfy, and discharge any and all judgments, orders, and
decrees which may be recovered against Tenant.
Section 8.04 - Liability of Landlord t o Tenant: Except for any acts which are
actionable under Arizona law, Landlord shall not be liable to Tenant, its agents,
employees, or customers for any damages, losses, compensation, accidents, or claims
whatsoever. Notwithstanding the foregoing, Landlord's liability is subject to collection
and enforcement from only its equity in the Premises.
ARTICLE IX
ENVIRONMENTAL COVENANTS, REPRESENTATIONS AND WARRANTIES
Section 9.01 - Tenant's Compliance With Environmental Laws: Tenant shall
comply with all laws, regulations, ordinances and other governmental standards applicable
to Tenant's use of the Premises with respect to hazardous waste, hazardous substances and
any and all other environmental matters. Furthermore, Tenant shall procure and maintain
all licenses and permits required by such applicable laws, ordinances or regulations. Except
as may be required in the ordinary course of its business or operations (but in such case in
compliance with all applicable environmental laws and regulations), Tenant covenants and
agrees that is shall not release, emit, or discharge at or from the Premises any hazardous or
toxic substances consisting of any hazardous or toxic chemical, waste, byproduct,
pollutants, contamination, compound, product or substance, including, without limitation,
asbestos, polychlorinated byphenyls, petroleum (including crude oil or any fraction
thereof), and any material the exposure to, or manufacture, possession, presence, use,
generation, storage, transportation, treatment, release, disposal, abatement, cleanup,
removal, remediation or handling of which, is prohibited, controlled or regulated by
federal, state, regional, county, local, governmental, public or private statute, law,
regulation ordinance, order, consent decree, judgment, permit, license, code, covenant,
deed restrictions, common law, treaty, convention or other requirement, pertaining to
protection of the environmental, health or safety of persons, natural resources,
conservation, wildlife, waste management, any hazardous material activity, and pollution
(including, without limitation, regulation of releases and disposals to air, land, water and
ground water).
These requirements include, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended by the
14790749.12
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Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. 9601 et seq., Solid
Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of
1976 and Solid and Hazardous Waste Amendments of 1984, 42 U.S.C. 6901 et seq.,
Federal Water Pollution Control Act, as amended by the Clean Water Act of 1977, 33
U.S.C. 1251, et seq., Clean Air Act of 1966, as amended 42 U.S.C. 7401 et seq., Toxic
Substances Control Act of 1976, 15 U.S.C. 2601 et seq., Occupational Safety and Health
Act of 1970, as amended, 29 U.S.C. 651 et seq., Emergency Planning and Community
Right-to-Know Act of 1986, 42 U.S.C. 11001 et seq., National Environmental Policy Act
of 1975, 42 U.S.C. 300(f) et seq., and any similar or implementing Arizona laws, and all
amendments, rules, regulations, guidance documents and publications promulgated
thereunder ("Environmental Laws").
Section 9.02 - Indemnification: Tenant, its successors and assignees, shall
indemnify, defend and hold harmless Landlord, its directors, officers, employees and
agents, and successors and assigns, from and against all harms, including, without
limitation, damages, punitive damages, liabilities, fines, losses, demands, claims, cost
recovery actions, lawsuit, administrative proceedings, orders, response costs, compliance
costs, investigation expenses, consultant fees, attorneys' fees incurred through counsel
selected by the insurance company or, if no insurance cost of defense coverage applies,
through counsel of Landlord's choosing, costs of defense and litigation expenses, arising
from Tenant's possession, use and storage of (I) any hazardous material at the Premises;
(2) the operation of any applicable environmental law against the Tenant, Landlord or the
Premises, based on Tenant's activities during the term of this Lease; (3) the violation at the
Premises or by the Tenant of any applicable environmental law; or (4) the inaccuracy or
breach of any representation, warrant or covenant contained in this Article IX.
The Tenant and its successors or assigns shall pay all costs and expenses incurred
by Landlord, its successors and assig n s, to enforce the provisions of this indemnification,
including, without limitation, attorneys' fees and litigation expenses. This indemnification
and the obligations of Tenant hereunder shall survive the termination or expiration of this
Lease and shall remain in force notwithstanding: (I) the expiration date of any applicable
statute of limitations; and (2) payment or satisfaction in full of any single claim of
Landlord within the scope of this indemnification.
Section 9.03 Landlord's Indemnjficatjon: Landlord represents and warrants to
Tenant that it has no knowledge of any hazardous discharges, environmental complaints or
violations of Environmental Laws applicable to the Premises. Landlord, its successors and
assignees shall forever indemnify, defend and hold harmless Tenant, its partners,
employees, agents and successors and assigns, from and against all harms, including,
without limitation, damages, punitive damages, liabilities, losses, demands, claims, cost
recovery actions, lawsuit, administrative proceedings, orders, response costs, compliance
costs, investigation expenses, consultant fees, attorneys' fees incurred through counsel
selected by Tenant, costs of defense and litigation expenses, arising from: (I) the
inaccuracy or breach of the foregoing representation and warranty; or (2) any violation of
environmental laws pertaining to the Premises during Landlord's ownership of the
Premises. To establish the condition of the Premises, Landlord shall obtain a Phase I
Environmental Site Assessment of the Premises, and shall provide Tenant with a copy of
such Phase I Environmental Site Assessment prior to Tenant taking possession of the
Premises. The indemnification shall survive the termination of this Lease and shall remain
14790749.12
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in force beyond (I) the expiration date of any applicable statute of limitations; and (2)
payment or satisfaction in full of any single claim of the Tenant within the scope of this
indemnification.
ARTICLEX
SIGNAGE
Section 10.01 - Sjgnage: As a part of the Final Plans, Tenant shall provide and
pay for a free-standing sign on the Premises and a building mounted identification sig n
subject to compliance with the City of El Mirage Zoning Code and subject to the approval
of the City of El Mirage Zoning Administrator. Tenant may thereafter replace and/or
modify the same with such signage as is reasonably approved by Landlord, otherwise
permitted by applicable laws and regulations, or as may be permitted by variance
therefrom lawfully granted by applicable governmental authority. Any such signage shall
conform to all laws, ordinances and regulations pertaining thereto. After the initial
provision and installation of such sig nage, Tenant shall pay for all costs in connection
with the operation and/or maintenance thereof and shall be responsible for any damage
occasioned by the removal thereof. Tenant shall make reasonable efforts to communicate
to the general public (i.e. signage; statement on membership application) that City of El
Mirage YMCA offers memberships to all people regardless of race, religion or national
origin of such person.
The Landlord may at its sole discretion, participate in the process and/or expense
of providing or acquiring sig nage.
ARTICLE XI
REPAIRS AND MAINTENANCE
Section 11.01 - Landlord's Obligatjogs:
Except as specifically provided in
Section 11.03, Landlord shall not be required to maintain or make any improvements,
repairs or replacements of any kind or character to the Premises during the Initial Term or
any renewal term of this Lease. Landlord shall be under no obligation to inspect the
Premises and Tenant shall promptly report to Landlord in writing any defective condition
known to Tenant.
Section 11.02 - Tenant's Obligations:
Except as specifically provided in
Sections 11.03 and I 1.04, Tenant, at its sole cost and expense, shall: (i) maintain, repair
and replace all parts of the Premises so as to keep the Premises, and every part thereof, in
good order, condition and repair and in a safe and dry tenantable condition, including, but
not limited to the roof, parking areas, exterior walls, windows, plate glass, doors, heating,
ventilating and air conditioning systems, down spouts, fire sprinkler systems, dock
bumpers, lawn maintenance, pest control and extermination, trash pick-up and removal
and painting of the Building and exterior doors; (ii) install and maintain such fire
protection devices as may be required by any governmental body or insurance underwriter
for the Building ( except for provision of such items as shall be initially provided by
Landlord as a part of Landlord's Work); (iii) keep the Premises clean, neat and tidy, and
free from accumulations of trash, debris and rubbish; Tenant shall promptly place into
14790149,12
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suitable containers all trash, debris and rubbish resulting from its business operations and
remove the contents of these containers at least weekly from the Premises; (iv) change the
Tenant's heating and air conditioning filter, as necessary, and have the Tenant's air
conditioning and heating facilities serviced, as recommended by the manufacturer of such
equipment or as generally recommended under industry standards; (v) maintain and
replace the pool filtering equipment, as recommended by the manufacturer of such
equipment or as generally recommended under industry standards; and (vi) repair any
portion of the Building which is damaged as a result of any act or omission of Tenant or
Tenant's customers, members, business invitees or recreational users. In order to fulfill its
duties, Tenant shall periodically inspect all equipment, mechanical systems, and Tenant
shall maintain, repair, or replace, as necessary, all equipment and mechanical systems
located in, on, or about the Premises, including, but not limited to, all plumbing, heating,
air conditioning, ventilating, pool, and sprinkler systems. All interior walls, ceilings,
ceiling tile, windows, doors, door frames, and door glass shall at all times be kept in good
order, condition, and repaired or replaced by Tenant at the sole cost of Tenant. In the
event of any window or door glass damage or breakage, Tenant shall board any openings
and remove debris within twenty-four (24) hours of such damage and forthwith have the
same repaired or replaced at Tenant's sole cost. Tenant shall keep all parking areas,
driveways and sidewalk areas on the Premises free and clear of obstruction. Tenant shall
maintain all maintenance and inspection records for the prior three (3) years and make
them available for inspection by Landlord. Notwithstanding any contrary provision of this
Article XI, Landlord, at its expense, shall make any and all repairs to the Premises as may
be necessitated by the gross negligence or wanton acts of Landlord or its employees or
agents.
Section 11.03 Landlord's Obligatiops.
RESERVED.
Section 11.04 - Landlord Repairs and Benlacernenfs
Snecific Building
Comnoqegts.
Notwithstanding the foregoing, and subject to the conditions and
limitations set forth below, Landlord agrees to share with Tenant the cost and expense of
all mutually agreed upon major repairs and/or replacements, if necessary, of the following
parts of the Premises: (i) structural components of the Building; (ii) roof of the Building;
(iii) heating, ventilation and air conditioning equipment in the Building; and (iv) any pool
mechanical and water circulation equipment (hereinafter individually and collectively
referred to as "Specific Components"). For the purpose of this Section, "major repairs
and/or replacements" shall mean the failure of such Specific Component and the cost to
repair or replace such individual (not the aggregate) Specific Component exceeds the
amount of Five Thousand Dollars ($5,000.00). The determination of whether to repair or
replace such Specific Component shall be based upon the recommendations and bids of
not less than two (2) qualified, third-party contractors and the mutual agreement of
Landlord and Tenant. During the Initial Term of this Lease, Tenant shall be responsible
for the entire cost and expense, up to the amount of Five Thousand Dollars ($5,000.00), for
repair and/or replacement of each Specific Component. During the Term, Landlord agrees
to pay the cost and expense that exceeds Five Thousand Dollars ($5,000.00) to repair
and/or replace any Specific Component up to a total cost and expense of Twenty Thousand
Dollars ($20,000.00). During the Term, Landlord shall be responsible for Seventy-Five
percent (75%) of the cost and expense that exceeds Twenty Thousand Dollars ($20,000.00)
to repair and/or replace any Specific Component and Tenant shall be responsible for
Twenty-Five percent (25%) of the cost and expense that exceeds Twenty Thousand Dollars
1479074௭.12
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($20,000.00) to repair and/or replace any Specific Component. Landlord shall not be
required or obligated to share the cost and expense to repair and/or replace any Specific
Component if such repair and/or replacement is due to: (i) a casualty covered by a policy
of insurance; or (ii) the negligent or intentional acts of Tenant its employees, contractors or
agents.
All major repairs may be subject to the City's procurement and budgeting
processes. The Landlord may at its sole discretion create a fund to address its major repair
responsibilities as further defined in section 22.15.
ARTICLE XII
DESTRUCTION OF PREMISES
Section 12.01 - Continuance o f Lease: In the event the Premises shall be
partially or totally destroyed by fire or other casualty insured under the provisions of
Section 8.01 above, then the damage to the Premises shall be promptly repaired by
Landlord, at Landlord's expense, and annual base rental and other charges shall be
abated in proportion to the amount of the Premises rendered untenantable until so
repaired. In no event shall Landlord be required to repair or replace Tenant's
merchandise, trade fixtures, furnishings, or equipment. Tenant shall repair or replace its
merchandise, trade fixtures, furnishings, and equipment in a manner and to at least a
condition equal to that which existed prior to such damage or destruction.
If the time for any repair or reconstruction, as reasonably estimated by Landlord,
exceeds one hundred eighty (180) days after such casualty, or if such repair or
reconstruction has not been completed with one hundred eighty (180) days after such
casualty, and the building is still deemed untenantable then Landlord or Tenant shall have
the option to tenninate this Lease upon notice to the other party, and Landlord shall retain
any insurance proceeds received by it as compensation for such damage.
Section 12.02
Reconstruction; Rent Abatement: If all or any portion of the Premises
is damaged by fire or other casualty and this Lease is not terminated in accordance with
the above provisions, then all insurance proceeds provided for in Section 8.01 shall be
made available for payment of the cost of repair, replacing and rebuilding of the Building.
Landlord shall make available the proceeds from the insurance as set forth herein to repair
or rebuild the Premises to its original condition. Tenant shall, using the proceeds from the
insurance provided for in Section 8.02, repair, restore, replace, or rebuild any additional
improvements installed by Tenant prior to the occurrence of such casualty. (In the event
that this Lease is terminated as herein provided, all of the aforesaid Tenant's insurance
proceeds shall be retained by Tenant. The base rental and other charges which are payable
hereunder during the existence of such damage and until such repair or rebuilding is
substantially completed, shall be equitably abated. Equitable abatement shall tenninate
upon the earlier of the date upon which Landlord substantially completes its repair or
rebuilding work.)
ARTICLE XIII
14790749.12
19
EMINENT DOMAIN
Section 13.01 - Eminent Domain: If the whole or any material part of the
Premises shall be taken for public or quasi-public use by a governmental or other authority
having the power of eminent domain or shall be conveyed to such authority in lieu of such
taking, and if such taking or conveyance shall cause the remaining part of the Premises not
so taken to be untenantable and inadequate for use by Tenant as herein set forth, as
determined by Tenant, in Tenant's reasonable discretion, this Lease shall terminate as of
the date of such taking. If a part of the Premises shall be taken or conveyed but the portion
remaining after restoration can be made usable for Tenant's purpose, as determined by
Tenant, in Tenant's reasonable discretion, then this Lease shall not be terminated as
provided for in this Section 13, but this Lease shall be terminated only as to the part taken
or conveyed as of the date Tenant surrenders possession, and Landlord
shall make such repairs, alterations and improvements as may be necessary to render the
part not taken or conveyed tenantable. All compensation awarded for such taking or
conveyance shall be the property of Landlord without any deduction therefrom, except
such compensation as may be awarded specifically to Tenant by the condemnation
authority(ies) on account of moving and relocation expenses and depreciation to and
removal of Tenant's trade fixtures and personal property.
ABTICI,E XIV
ASSIGNMENT, SUBLETTING. AND ENCUMBERING LEASE
Section 14.01 - No Assignment, Subletting or Encumbering:
(a)
Tenant shall not, without the prior written consent of Landlord
(which consent shall not be unreasonably withheld): (i) assign or otherwise
transfer, or mortgage or otherwise encumber this Lease or any of its rights
hereunder; (ii) sublet the Premises or any part thereof by any persons other than
Tenant or its agents; or (iii) permit the assignment or other transfer of this Lease or
any of Tenant's rights hereunder by operation of law. If this Lease is assigned, or
if the Premises or any part thereof is subject to or occupied by anyone other than
Tenant, Landlord may, after default by Tenant, collect rent from the assignee,
subtenant or occupant, and apply the net amount collected to the rent herein
reserved but no such assignment subletting, occupancy, or collection shall be
deemed a waiver by Landlord of any of Tenant's covenants contained in the Lease
or a release of Tenant from the performance by Tenant of the covenants on the part
of Tenant contained in this Lease.
Any attempted or purported transfer,
assignment, mortgaging, or encumbering of this Lease or any of Tenant's interest
hereunder and any attempted or purported subletting or grant of a right to use or
occupy all or a portion of the Premises in violation of this section shall be null and
void and shall not confer any rights upon any purported transferee, assignee,
mortgagee, sublessee, or occupant.
(b)
In the event Tenant desires to assig n or transfer this Lease, or
sublet ( or permit occupancy or use of) the Premises, or any part thereof, Tenant
shall give Landlord thirty (30) days prior written notice of Tenant's intention to so
assign or transfer or sublet all or any part of the Premises (which notice shall
147go749,12
20
14790749.12
contain the name of the proposed assignee or sublessee and the terms thereof).
Landlord shall, within such thirty (30) day period, notify Tenant whether or not
such proposed assignee or subtenant is acceptable to Landlord, in Landlord's
reasonable discretion; in the event that Landlord does not give to Tenant written
notice that such proposed assignee or sublessee is acceptable within said thirty
(30) day period, such proposed assignee or sublessee shall not be deemed to be
acceptable to Landlord hereunder. Upon obtaining the prior written consent of
Landlord, Tenant may assign or transfer or sublet such space. The consent by
Landlord to any assignment, transfer, or subletting to any party shall not be
construed as a waiver or release of Tenant under the terms of any covenant or
obligation under this Lease, nor shall the collection or acceptance of rent from any
such assignee, transferee, subtenant, or occupant constitute a waiver or release of
Tenant of any covenant or obligation contained in this Lease, nor shall any such
assignment, transfer or subletting be construed to relieve Tenant from giving
Landlord said thirty (30) days' notice or from obtaining the consent in writing of
Landlord to any further assignment, transfer, or subletting.
( c) Landlord shall have the right to sell, transfer, or assign its interest
hereunder, or any part thereof, without the prior consent of Tenant. After such sale,
transfer, or assignment, Tenant shall attorn to such purchaser, transferee, or
assignee, and provided that such purchaser, transferee, or assignee assumes
Landlord's obligations hereunder, Landlord shall be released of all obligations
hereunder after the effective date of such sale, transfer or assignment.
(d) For the purposes of this Lease, Landlord and Tenant acknowledge and
agree that the mission and reputation of "The Valley of the Sun YMCA" as a
community-based, family-oriented, not-for-profit organization, is a material
inducement for Landlord to fund, construct and lease the Premises to Tenant.
Accordingly, in the event that Tenant requests Landlord to consent to any
assignment, transfer, sublease, use, license (hereinafter collectively, "Assig nment")
of the Premises, or any part thereof, pursuant to this Article XIV or Section 7.01
herein, Landlord may withhold consent based upon such factors that may include,
but shall not be limited to: (i) the creditworthiness of any such third-party to the
Assig n ment; (ii) whether such third-party to the Assignment will pay or exchange
any consideration to Tenant for such Assig n m ent; (iii) whether such third-party that
is the subject to an Assignment is a not-for-profit organization; (iv) the reputation
and mission of such third-party; and (v) whether such Assignment may violate any
covenants, conditions or agreements set forth in this Lease; or (v) whether such
Assignment may jeopardize the tax exempt status of the Premises. As a condition
to such Assignment, Landlord may require that Tenant share with Landlord a
portion of any rent or other consideration paid by such third-party to Tenant for use
or occupancy of the Premises, or any part thereof.
ARTICLE XV
SUBORDINATION
21
Section lS.01 - Lease Subordinate: Provided that the holder of a mortgage or
deed of trust who acquires rights in the Premises after the date that this Lease is fully
executed executes and delivers to Tenant a non-disturbance agreement in recordable form
reasonably satisfactory to Tenant which provides that such holder will honor all of the
terms of this Lease so long as no Event of Default exists hereunder, this Lease and all of
the rights of Tenant hereunder are and shall be subject and subordinate at all times to the
lien of any mortgage or deed of trust which may now or hereafter affect the real property
of which the Premises form a part, and to all renewals, modifications, consolidations,
replacements and extensions thereof. This clause shall be self-operative and no further
instrument of subordination shall be required by any holder of a mortgage.
In
con:fmnation of such subordination, Tenant shall execute promptly any instrument that
Landlord or any mortgagee may request related thereto.
If any holder of a mortgage elects to have this Lease superior to the applicable
mortgage and signifies its election in the instrument creating its lien or by separate
recorded instrument, then this Lease shall be superior to such mortgage, notwithstanding
any other provision hereof.
Section lS.02 - Attomment: If, and so long as this Lease is in full force and
effect, then: (a) this Lease shall remain in full force notwithstanding: (i) a default under the
mortgage by Landlord; (ii) failure of Landlord to comply with this Lease; (iii) a defense to
which Tenant might be entitled against Landlord under this Lease; or (iv) any bankruptcy
or similar proceedings with respect to Landlord; (b) if any such mortgagee shall become
possessed of the Premises, Tenant shall be obligated to such mortgagee to pay it the rentals
and other charges due hereunder and to thereafter comply with all the terms of this Lease;
and (c) if any mortgagee or purchaser, at a private or public sale shall become possessed of
the Premises, Tenant shall, without charge, attom to such mortgagee or purchaser as its
Landlord under the lease.
14790749,12
22
ARTICLE XVI
EVENTS QF DEFAULT
Section 16.01 - Events of Default: The occurrence of any one or more of the
following events shall be classified as an "Event of Default" of this Lease by Tenant:
(a) Tenant fails to pay any installment of base rent and/or additional rent
when the same shall be due and payable and the same remains unpaid fifteen (15)
days after Landlord shall have given written notice thereof to Tenant;
(b) Tenant fails to perform or observe any term, condition, covenant or
obligation required to be performed or observed by it under this Lease, other than
payment of base rent or additional rent, for a period of thirty (30) days after notice
thereof from Landlord, provided, however, that if the term, condition, covenant or
obligation to be performed by Tenant is of such nature that the same cannot
reasonably be cured within thirty (30) days and if Tenant commences such
performance or cure within said thirty (30) day period and thereafter diligently
undertakes to complete the same, then such failure shall not be an Event of Default;
(c) If Tenant refuses to take possession o f the Premises at the Delivery
of Possession Date, vacates or abandons the Premises or permits the same, or
any substantial portion thereof, to remain unoccupied and unattended for a
period of ninety (90) consecutive days;
( d) A trustee or receiver is appointed to take possession of substantially all
of Tenant's assets in, on or about the Premises or of Tenant's interest in this Lease
(and Tenant or any guarantor of Tenant's obligations under this Lease does not
regain possession within ninety (90) days after such appointment); Tenant makes
an assignment for the benefit of creditors; or substantially all of Tenant's assets in,
on or about the Premises or Tenant's interest in this Lease are attached or levied
upon under execution (and Tenant does not discharge the same within ninety (90)
days thereafter); or
( e) A petition in bankruptcy, insolvency, or for reorganization or
arrangement is filed by or against Tenant or any guarantor or Tenant's obligations
under this Lease pursuant to any Federal or state statute, and, with respect to any
such petition filed against it, Tenant or such guarantor fails to secure a stay or
discharge thereof within sixty (60) days after the filing of the same.
Section 16.02 - Landlord's Remedies: Upon the occurrence of any event of
default, Landlord shall have the following rights and remedies, any one or more of which
may be exercised without further notice to or demand upon Tenant.
(a)
Landlord may re-enter the Premises and cure any default of
Tenant, in which event Tenant shall reimburse Landlord as additional rent for any
cost and expenses which Landlord may incur to cure such default; and Landlord
shall not be liable to Tenant for any loss or damage which Tenant may sustain by
14790749.12
23
reason of Landlord's action, unless the same is a result of Landlord's intentional
acts or gross negligence;
(b)
Landlord may terminate this Lease or Tenant's right to possession
under this Lease as of the date of such default, in which event: (1) neither Tenant
nor any person claiming under or through Tenant shall thereafter be entitled to
possession of the Premises, and Tenant shall immediately thereafter surrender the
Premises to Landlord; (2) Landlord may re-enter the Premises and dispose Tenant
or any other occupants of the Premises by summary proceedings, ejectment or
otherwise, and may remove their effects, without prejudice to any other remedy
which Landlord may have for possession or arrearages in rent; and (3)
notwithstanding a termination of this Lease Landlord may re-let all or any part of
the Premises for a term different from that which would otherwise have
constituted the balance of the term of this Lease and for rent and on terms and
conditions different from those contained herein, whereupon Tenant shall
immediately be obligated to pay to Landlord all of Landlord's costs and expenses
for preparing the Premises for re- letting, including all repairs, tenant finish
improvements, broker's and attorney's fees, and all loss or damage which
Landlord may sustain by reason of such termination re- entry and re-letting, it
being expressly understood and agreed that the liabilities and remedies specified
in this clause shall survive the termination of this Lease; or (4) continue this Lease
in full force and effect, but with the right at any time thereafter to elect options (3)
immediately hereinabove. Should Landlord, following default as aforesaid, elect
to continue this Lease in full force, Landlord shall use its reasonable efforts to rent
the Premises ou the best terms available for the remainder of the term hereof, or
for such longer or shorter periods as Landlord shall deem advisable. Tenant
acknowledges that Landlord shall have no obligation to rent the Premises prior to
Landlord's renting any other available space owned by Landlord in the Building.
Tenant shall remain liable for payment of all rentals and other charges and costs
imposed on Tenant herein, in the amounts, at the times and upon the conditions as
herein provided, but Landlord shall credit against such liability of the Tenant all
amounts received by Landlord from such re-letting after first reimbursing itself
for all costs incurred in curing Tenant's defaults and re-entering, preparing and
refinishing the Premises for re-letting, and re-letting the Premises;
(c)
Upon termination of this Lease pursuant to Section 16.0Z(B),
Landlord may recover possession of the Premises under and by virtue of the
provisions of the laws of the State of Arizona, or by such other proceedings,
including reentry and possession, as may be applicable;
( d)
Any damage or loss of rent sustained by Landlord may be
recovered by Landlord, at Landlord's option, at the time of the re-Jetting, or in
separate actions, from time to time, as said damage shall have been made more
easily ascertainable by successive re-lettings, or at Landlord's option in a single
proceeding deferred until the expiration of the term of this Lease (in which event
Tenant hereby agrees that the cause of action shall not be deemed to have accrued
until the date of expiration of said term) or in a single proceeding prior to either
the time of re-letting or the expiration of the term of this Lease;
14790749,12
24
( e)
Nothing contained herein shall prevent the enforcement of any
claim Landlord may have against Tenant for anticipatory breach of the unexpired
term of this Lease. In the event of a breach or anticipatory breach by Tenant of
any of the covenants or provisions hereof, Landlord shall have the right of
injunction and the right to invoke any remedy allowed at law or in equity as if re-
entry, summary proceedings, and other remedies were not provided for herein.
Mention in this Lease of any particular remedy shall not preclude Landlord from
any other remedy, in law or in equity. Tenant hereby expressly waives any and
all rights of redemption granted by or under any present or future laws in the
event of Tenant being evicted or dispossessed for any cause, or in the event of
Landlord obtaining possession of the Premises by reason of the violation by
Tenant of any of the covenants and conditions of this Lease or other use;
(f)
If an event of default described in subparagraph D or E of this
Section 16.02 occurs, then, and in any such event, Landlord shall have the right to
elect any use of the remedies set forth above. If this Lease is assumed or assig ned
to a trustee, receiver, liquidator or other court appointed person or entity without
Landlord's prior written consent, the parties and their respective successors
(whether by operation of law or otherwise) agree that, upon such an assignment or
assumption all defaults of Tenant prior to such assignment or assumption must be
cured and that adequate assurances of future performance under this Lease must be
provided;
Section 16.03 - Additional Remedies and Wajvers:
The rights and
remedies of Landlord set forth herein shall be in addition to any other right and
remedy now or hereinafter provided by law and all such rights and remedies shall
be cumulative. Without limiting the rights and remedies of Landlord, Landlord
may recover from Tenant Landlord's reasonable attorney's fees and any litigation
costs, fees and expenses if Landlord prevails in any such litigation. No action or
inaction by Landlord shall constitute a waiver of a Default and no waiver of Default
shall be effective unless it is in writing, signed by the Landlord.
ARTICLE XVII
DEFAJJJ,T BY l,ANPl10RD
Section 17.01 - Landlord's Default: It shall be a default and breach of this
Lease by Landlord if it shall fail to perform or observe any term, condition, covenant or
obligation required to be performed or observed by it under this Lease for a period of
thirty (30) days after written notice thereof from Tenant; provided, however, that if the
term, condition, covenant or obligation to be performed by Landlord is of such nature that
the same cannot reasonably be performed within such thirty (30) day period, such failure
shall not constitute a default by Landlord hereunder if Landlord commences such
performance within said thirty (30) day period and there after diligently undertakes to
complete the same.
Section 17.02 - Remedies of Tenant: Upon the occurrence of an Event of
Default by Landlord, Tenant shall have all rights and remedies which are available to it at
law or in equity, including but not limited to the right to terminate this Lease, the right to
14790749.?2
25
self-help, the right to seek and recover monetary damages and/or the right to injunctive
relief and other equitable remedies, attorney's fee and any litigation costs, fees and
expenses if Tenant prevails in any such litigation.
ARTTCT,E XVIII
NON-WAIVER OF DEFAULT
Section 18.01 - Non-Waiver of Default: The failure or delay by either party
hereto to enforce or at any time any of the rights or remedies or other provisions of this
Lease shall not be construed to be a waiver thereof, nor affect the validity of any part of
this Lease or the right of either party thereafter to enforce each and every such right or
remedy or other provision. No waiver of any default and breach of the Lease shall be held
to be a waiver of any other default and breach. The receipt by Landlord of less than the
full rent due shall not be construed to be other than a payment on account of rent then due,
nor shall any statement on Tenant's check or any letter accompanying Tenant's check be
deemed an accord and satisfaction, and Landlord may accept such payment without
prejudice to Landlord's right to recover the balance of the rent due or to pursue any other
remedies provided in this Lease.
ARTICLE XIX
NOTICES
Section 19.01 - Notices: No notice or other communication given under this Lease
or by law shall be effective unless the same is in writing and is delivered in person or
mailed by registered or certified mail, return receipt requested, first class, postage prepaid,
addressed:
(!) Ifto Landlord, to the address set forth in the first paragraph hereof, attention:
City Manager,
City of El Mirage
12145 NW Grand Avenue
El Mirage, AZ 85335
(2) Ifto Tenant, to the address set forth in the first paragraph hereof, attention:
President/Chief Executive Officer
The Valley of the Sun Young Men's Christian Association (YMCA)
350 N. First Ave
Phoenix, AZ 85003
The address for notices may be changed by the Landlord or Tenant by notice to the other
party. The date of service of any notice given by mail shall be the date on which such
notice is deposited in the U.S. Mail.
14790749.12
26
ARTICLE XX
ENDOFTERM
Section 20.01 - Return of Premjses: Upon the expiration or termination of this
Lease, Tenant shall quit and surrender the Premises, in good order, broom clean, normal
wear and tear, casualty and acts of God excepted, to the Landlord. Tenant shall deliver up
and surrender the Premises and all parts to Landlord in that condition which would exist if
Tenant had fully complied with obligations under this Lease. Upon the expiration or
termination of this Lease, Tenant shall execute and acknowledge a lease termination to
Tenant's interest in the Premises, in recordable form, in favor of the Landlord ten (IO)
days after written notice and demand therefore by Landlord, and failing to do so within
said ten (10) day time period, Tenant hereby appoints Landlord its attorney-in-fact,
irrevocably, to execute and deliver such lease term.ination.
Section 20.02 - Holding Oyer: If Tenant shall hold possession of the Premises
after the expiration or termination of this Lease, at Landlord's option: (i) Tenant shall be
deemed to be occupying the Premises as a tenant from month-to-month. The Landlord
and Tenant agree to immediately negotiate the rent in good faith; or (ii) Landlord may
exercise any other remedies it has under this Lease or at law or in equity, including an
action for holding over. No payment by Tenant, or receipt by Landlord, of a lesser
amount than the correct rent shall be deemed to be other than a payment on account, nor
shall any endorsement or statement on any check or letter accompanying any check for
payment of rent or any other amounts owed to Landlord be deemed to effect or evidence
an accord and satisfaction, and Landlord may accept such check or payments without
prejudice to Landlord's rights to recover the balance of the rent or other amount owed or
to pursue any other remedy provided in this Lease.
Section 20.03
Restriction on Use: For ten years after termination of this Lease,
whether at the end of the Term hereof, or upon the earlier termination hereof for any
reason, Landlord shall not permit the Premises to be used as a "YMCA" or permit the
name "YMCA", "Young Men's Christian Association" or any variation or derivation
thereof to be used on or in connection therewith without written permission from the
Valley of the Sun YMCA. The foregoing restriction shall burden the Premises and shall
run with the land.
Section 20.04 - Non-Compete: During the term of this lease and for ten years
after termination of this Lease, if terminated prior to the thirty (30) year lease period,
Tenant shall not permit any Premises to he used as a "YMCA" or permit the name
"YMCA", "Young Men's Christian Association" or any variation or derivation thereof to
be used on or in connection therewith on any freestanding location within a five-mile
radius of this Premises. The foregoing restriction shall burden the Tenant after the
expiration of this agreement.
14790749,12
ARTICLEXXI
27
COVENANT OF QUIET ENJOYMENT
Section 21.01 - Covenant of Quiet Enjoyment: Subject to the provisions of
Section 1.02 hereof, Landlord covenants that if and so long as Tenant pays the rent and all
other charges provided for herein and performs all of its obligations provided for herein,
Tenant shall at all times during the term hereof peaceably have, hold, and enjoy the
Premises, without any interruption or disturbance from Landlord or anyone claiming
through or under Landlord, subject to the terms hereof.
ARTICLE XXII
MISCELLANEOUS PRoy1s10Ns
Section 22.01 - Memorandum o f Lease: RESERVED.
Section 22.02 -
Indemnification for Leasing Commjssions:
Each party
represents and warrants to the other that ( except with respect to any broker identified for
the other in writing prior to full execution of this Lease) no broker, agent, commissioned
salesman, or other person has represented by such party in the negotiations for and
procurement of this Lease and of the Premises and that no commissions, fees, or
compensation of any kind are due and payable in connection herewith to any broker, agent,
commissioned salesman, or other person. Each party hereto agrees to indemnify and hold
the other harmless from any and all claims, suits, or judgments (including, without
limitation, reasonable attorney's fees and court costs incurred in connection with any such
claims, suits, or judg m ents) for any fees, commissions or compensation of any kind which
arise out of or are in any way connected with a breach of the foregoing representation.
Section 22.03 - Governing Law: This Lease is being executed and delivered by
Landlord in the State of Arizona and shall be construed and enforced in accordance with
the laws of that State.
Section 22.04 - Successors and Assigns: Except as otherwise set forth herein, this
Lease and the respective rights and obligations of the parties hereto shall inure to the
benefit of and be binding upon the successors and assigns of the parties hereto as well as
the parties themselves; provided, however, that Landlord, its successors and assigns shall
be obligated to perform Landlord's covenants under this Lease only during and in respect
of their successive periods of ownership during the term of this Lease.
Section 22.05 - Severability of Inyaljd Proyjsions: If any provision of this Lease
shall be held to be invalid, void or unenforceable, the remaining provisions hereof shall
not be affected or impaired, and such remaining provisions shall remain in full force and
effect.
Section 22.06 - Complete Agreement; Amendments: This Lease, including all
Exhibits, constitutes the entire agreement between the parties hereto; it supersedes all
previous understandings and agreements between the parties, if any, and no oral or
implied representation or understandings shall very its term, and it may not be amended
except by a written instrument executed by both parties hereto.
14790749.12
28
Section 22.07 - Inability to Perform: This Lease and the obligation of either
party to perform their respective covenants and agreements hereunder shall not be
impaired nor shall either party be in default hereunder because a party is unable to fulfill
any of its obligations under this Lease, if that party is prevented or delayed from so doing
by any accident, breakage, repairs, alterations, improvements, strike or labor troubles, or
any outside cause whatsoever beyond the reasonable control of that party, including, but
not limited to, energy shortages or governmental preemption in connection with a natural
emergency, or by reason of governmental laws or any rule, order or regulation of any
department or subdivision thereof of any governmental agency, or by reason of the
conditions of supply and demand which have been or are affected by war or other
emergency. The foregoing shall in no event, however, apply to the payment of Base Rent
and other charges hereunder, which shall be due and payable on the date(s) specified
herein notwithstanding any such event.
Section 22.08 - No Option: Submission of this instrument for examination or
signature by Tenant does not constitute a reservation of or option for lease and it is not
effective as a lease or otherwise until execution and delivery by both Landlord and Tenant.
Section 22.09 - Tjrne of the Essence: Time is of the essence of this Lease and
each and all of its provisions.
Section 22.10 - Authorized Sirnatocy: Each person executing this Lease on
behalf of a party hereto represents that he is authorized to do so and that such execution is
fully binding on such party.
Section 22.11 -
Paragraph Captions: Paragraph Captions herein are for
Landlord's and Tenant's convenience only and neither limit nor amplify the provisions of
this Lease.
Section 22.12 - Rider: All of the terms and conditions in the attached Rider (if
any) to Lease Agreement are hereby incorporated into this Lease Agreement by
reference and made a part hereof.
Section 22.13 - Jucy Trjal: Landlord and Tenant hereby waive trial by jury in
any action, proceeding or counterclaim brought by either or the parties hereto against
the other on or in respect of any matter whatsoever arising out of or in any way
connected with this Lease, the relationship of Landlord and Tenant hereunder, Tenants
use or occupancy of the Premises and/or any claim of injury or damage.
Section 22.14 - Landlord's Contingency: Landlord's obligations are contingent
upon successful bidding of the facility within budgetary limitations.
Section 22.15 - Development Fund and Fund Raising: A development fund will
be established to track fund raising, donations, and uses of these funds. Possible uses of
donations include, but are not limited to, funding repairs, scholarships, and offsetting
Tenant's direct operating expenditures, including scheduled rent, plus overhead equal to
5% of operating revenues as described in Section 2.05.
14790749.12
29
All fund raising dollars will be recorded as income to Tenant and the related reserve
account balances will be managed be the controller's office at Tenant's corporate
headquarters. Tenant's use of development funds received after Tenant's Date of
Possession shall not require Landlord's approval. Tenant's use of development funds
received prior to Tenant's Date of Possession shall require authorization from the Mayor of
the City of El Mirage (the "Mayor"), which authorization shall not be unreasonably
withheld. Within twenty-five (25) days of Tenant's request to Landlord to use development
funds which were received prior to Tenant's Date of Possession, Landlord shall provide
such written authorization or denial from the Mayor. If the Mayor denies Tenant's request,
the Mayor's denial shall also include a written summary outlining the reasons for such
denial. Failure of Landlord or Mayor to respond to Tenant's request to use development
funds within twenty-five (25) days shall be deemed to constitute Landlord's and Mayor's
approval of such request. Both the Landlord and Tenant commit to support the operation
and development of this fund through means available, and at their disposal.
Section 22.16 - General Lease Administration:
Unless otherwise stated in this document the City of El Mirage City Manager or his
designee shall have the authority to take action and administer the lease on behalf of the
Landlord. Such actions shall include but not be limited to amendments, clarifications, and
interpretations.
Unless otherwise stated in this document the Executive Director of the Valley of the
Sun YMCA or his designee shall have the authority to take action and administer the lease
on behalf of the Tenant. Such actions shall include but not be limited to amendments,
clarifications, and interpretations.
[Remainder of Page Intentionally Left Blank- Execution Pages Follow]
14790749.12
30
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease
as of the day and year first above written.
STATE OF ARIZONA
)
)SS
COUNTY OF MARICOPA)
LANDLORD:
City of El
Mirage,
Arizona,
a political subdivision of the State of
Arizona
By:
/
_ _ _ . .
P int
$ p .,..
t r -
/ ) . Ll o - - -
Title:
C _,
&IL.
-
' ,..:,
,-,,,....
Before me, the undersigned signed, a Notary Public for Maricopa County, personally,
appeared 5¥cac-er A. J:"s<YJ1he duly authorizedCJ:iJj 1Ycu1a€Jif .:..4._ The City
of El Mirage, Arizona, a political subdivision of the State of Arizona, the Landlord in the
foregoing instrument who acknowledged the signing of the foregoing instrument to be his
free act and deed on bebalf of the Landlord for the uses and purpose set forth therein.
IN WITNESS WHEREOF, I have hereunto signed by name and affixed my
official seal on the Q#l day of AuJ v 5 .f-
, 2012.
.•
•
14790749.12
RUBY ARVIZU
-IY Public• Aflfona
Maricopa County
My Commlulon Expires
MAY2,2016
-
Notary Public
My Commission Expires:
31
STATE OF ARIZONA
)
)
SS COUNTY OF MARICOPA
)
TENANT:
Northwest Valley Family YMCA,
LLC, an Arizona limited liability
company
By:
Valley of the Sun Young Men's
Christian Association, an Arizona
non-profit
corporation,
its
sole
member t,/'. /)•,-,;J::::' /J_
!71V4
:£/ /?'
Pr-mt Name: C / ; ; .,,.4c;;:, / I / / ? / / ,61-I,
f .J /2,
Title: C' ro
XJ.
Before m!dhe und rsigned, a Notary Public < ? 1 a i c o p a County, personally appeared
, ,;
v.·& he
duly authorized "'-" ........ -
of Valley of the Sun
Y un
Men's Chr' an Association, an Arizona non-profit corporation, which is the sole
membe r of Northwest Valley Family YMCA, LLC, an Atizona limited !(ability company,
the Tenant in the foregoing instrument who acknowledged the signing of the foregoing
instrument to be her free act and deed on behalf of the Tenant for the uses and purpose set
forth therein.
IN WITNESS WJcE:REOF
ave hereunto signed by name and affixed my
official seal on the e5'7 day o f : : , I . - -
2012.
14790749.12
•
JOYCESTIJAI\T
. No. tary. Publlc - Arizona
Maricopa county
My Cc,mmlsslon Expires
Fel;truary 15, 2015
-
N o
1
.
My Commission Expires:J.d 152 ,a:J /5
,
Type or Print Name
32
EXHIBIT "A"
PREMISES
That parcel or portion thereof, described below, as is depicted on Exhibit B,
14790749.12
33
14790749.12
EXHIBIT "B"
SITE PLAN
See
Attached
34
EXHIBIT "C"
CONFIRMATION OF COMMENCEMENT DATE
[Date]
[Tenant's Name and Address]
RE:
[Describe lease, by title and date (the "Lease"); name Landlord and Tenant]
Dear [Name of Contact Person at Tenant]:
This Jetter shall confirm that the Commencement Date for the above-referenced Lease is
[specify
Commencement Date].
[Name of Tenant], as Tenant, hereby acknowledges the following: (i) Tenant is
in possession of the Premises (as defined in the Lease); (ii) the Lease is in full force and
effect; (iii) Landlord is not in default under the Lease; and (iv) possession of the Premises
is accepted by Tenant as having been delivered in accordance with the terms and
conditions of the Lease.
Commencement Date:
Base Rent Commencement
Date:
201
201
Please sign two (2) copies of this letter in the space provided below acknowledging your
agreement with the above and return them to me at my office. I suggest you attach a
copy of this letter to your copy of the Lease.
Thank you again for your cooperation and assistance regarding this matter. Please
contact me at any time should you have questions regarding the lease, building, or any
related manner.
Sincerely, Acknowledged and Agreed to this _ _ day of _ _ _ _
2012
City of El Mirage, Arizona
[Name o f Tenant]
By: _ _ _ _ _ _ _ _ _
_
By: _ _ _ _ _ _ _ _ _
_
Print Nam,"°"· _ _ _ _ _ _ _
_
Title: _ _ _ _ _ _ _ _ _ _
_
Print N a m e : - - - - - - - -
Title: _ _ _ _ _ _ _ _ _ _
_
14790749.12
35
EXHIBIT "D"
TAX-EXEMPT BOND REQUIREMENTS
Definitions
In addition to the words and terms elsewhere defined in this Lease, in this Exhibit C have
the meanings set forth below.
"Bonds" means the securities issued by the Landlord for the purpose of financing the
Building.
"Bond Counsel" means any nationally recognized firm or municipal bond attorneys
selected by the Landlord.
"Code" means the Internal Revenue Code of 1986, as amended. References to the Code
and sections of the Code include applicable regulations and proposed regulations
thereunder and any successor provisions to such sections, regulations or proposed
regulations.
"Federal Tax Status" means, with respect to the interest on the Bonds, the status of such
interest as excluded from gross income for federal income tax purposes and not treated as
an item of tax preference under section 57 of the Code for purposes of the alternative
minimum tax imposed on individuals and corporations under the Code.
"Net Proceeds" means net proceeds as defined in Section 150(a)(3) of the Code, that is,
Proceeds minus amounts in any reasonably required reserve or replacement fund as
provided in Section 148( d) of the Code.
"Private Business Use" means (i) use by any Private Person, other than use as a member
of the general public, or (ii) use by a "501(c) (3) organization" as defined in Section
150(a)(4) of the Code, in an unrelated trade or business, as described in Code Section
5 l3(a).
"Private Person" means any person, firm, entity or individual other than a Tax-Exempt
Organization.
"Regulations" means the Income Tax Regulations, including proposed and temporary
regulations, promulgated by the Department of the Treasury pursuant to the Code.
"Service Contract" means any management, service or incentive payment contract under
which a Service Provider provides management or other services involving all, a portion,
or any function of the Building, for the benefit of the Tenant.
14790749.12
36
"Service Provider" means (a) any Private Person, or (b) any Tax-Exempt Organization
providing services in an unrelated trade or business under §513(a) of the Code, either of
which provides services for the benefit of the Tenant under a Service Contract.
"Tax-Exempt Organization" means any "501(c)(3) organization" as defined in §150(a)(4)
of the Code or any "governmental unit" within the meaning of §141(b)(6) of the Code.
Tenant Agreements
1. No more than 5% of the sum of (i) the Net Proceeds of the Bonds, and (ii) all income
derived by Tenant from the investment of Net Proceeds will be used ( directly or
indirectly by Tenant) for any Private Business Use. For purposes of this paragraph, the
payment issuance costs, to the extent paid from Net Proceeds of the Bonds ( or from
income derived from the investment of such Net Proceeds) constitutes use of Net
Proceeds for a Private Business Use.
2. The Tenant will not secure directly or indirectly more than 5% of either the principal
of or the interest on the Bonds by (i) any interest in property used or to be used for any
Private Business Use or (ii) payments in respect of property used or to be used for any
Private Business Use. It will not cause or permit more than 5% of either the principal of
or the interest on the Bonds to be derived directly or indirectly from payments (whether
or not to the Landlord) in respect of property, or borrowed money, used or to be used for
any Private Business Use.
3. No changes will be made by or through Tenant in the facilities comprising the Building
or in the use of the Building that would adversely affect the Federal Tax Status of the
interest on the Bonds.
4. In connection with any sublease or grant by the Tenant of the use of the Building, the
Tenant will require that the sublessee or user of any portion of the Building may not use
that portion of the Building in any manner which would violate the covenants set forth in
this Exhibit C.
S. The Tenant will restrict the use of the Building in such manner and to such extent as
may be necessary so that the Bonds will not constitute "federally guaranteed" obligations
under Section 149(b)(2) of the Code.
6. The Tenant will provide such information as the Landlord requests to enable the
Landlord to timely file each Form 8038 or Form 8038-G required in connection with the
Bonds.
7. The Tenant must perform all acts necessary and within its reasonable control in order
to preserve the Federal Tax Status of the interest on the Bonds.
8. The Tenant acknowledges that the covenants and conditions set forth in this Exhibit C
are based upon the Code and Regulations and related interpretations thereof by the
14790749.12
37
Internal Revenue Service and the Treasury Department, as they exist on the date of this Lease
and that the Code and the Regulations may be subsequently interpreted or modified by the
Federal government in a manner which is inconsistent with the covenants in this Lease. Any
such subsequent modification or interpretation of the Code, the Regulations or related
interpretations will be deemed a requirement that must be met under the agreement in
paragraph 7 above, except as provided in paragraph 10 below.
9. Bond Counsel is hereby authorized to rely on the representations of the Tenant in
rendering its opinions relating to the Federal Tax Status of the Bonds.
10. The Tenant will not be required to comply, or may modify its compliance, with the
provisions of this Exhibit C to the extent that, in the opinion of Bond Counsel furnished
to the Landlord and the Tenant, compliance with such provisions is not necessary, or such
modified compliance is sufficient, to preserve the Federal Tax Status of the interest on
the Bonds.
14790749.17
2
Exhibit F
For vehicles and equipment provided to Tenant by Landlord under this Lease Agreement,
complete the following:
Unit
No.
Make
Model
Year
VIN Number
Or
Equipment
Identification
Number
State Mileage Condition
at Date of
Delivery
3409
StarCraft
Bus
2015
1GB6G5BG5F1123409 AZ
New
4501
StarCraft
Bus
2015
1GB6G58G9F1124501 AZ
New
ADDENDUM #5
CITY OF EL MIRAGE AND THE NORTHWEST VALLEY FAMILY YMCA, LLC
LEASE AGREEMENT
Th.is Addendum to the Lease Agreement dated September I. 2012, is hereby made and entered
into this~
ay of}h__{ 20 18, by and between the City of El Mirage ("'Landlord'') and the
Northwest Valley Family YMCA, LLC ('Tenant'}
RECITALS
WHEREAS, Landlord and Tenant entered into a lease agreement (the ·'Lease·') on
September I. 20 I 2; and
WHEREAS. Landlord and Tenant entered into Addendum # I to the Lease on August 20,
2013;and
WHEREAS. Landlord and Tenant entered into Addendum #2 to the Lease on May 8.
20 14; and
WHEREAS, Landlord and Tenant entered into Addendum #3 to the Lease on July 20,
20 15:and
WHEREAS, Landlord and Tenant entered into Addendum #4 to the Lease on December
2 1, 20 16; and
WHEREAS, Landlord and Tenant desire to further amend the Lease; and
WHEREAS. the Lease may be amended in writing by the parties.
ADDENDUM
OW THEREFORE, the Landlord and the Tenant hereby agree to amend the Lease and
Addendums as follows and add Article XXV of the Lease and add Section 25.0 I and 25.02. as
follows:
.. Section 3.0l(a) - Base RenC is hereby replaced with a new Section 3.0l(a) that reads as
follows:
(a) Tenant agrees to pay Landlord Base Rent for the Premises in equal monthly
installments of Eight 1710usand Three Hundred Thirty-Three and 34/ 100 Dollars ($8.333.34) per
Lease Year commencing on the Commencement Date. A ·'Lease Year .. shall be a period of
twelve ( 12) consecutive calendar months, the first of which shall commence on the
Commencement Date. except that if the Commencement Date is a day other than the first day of
the month. the Commenceme nt Date shall be the first day of the nex't succeeding calendar month.
Each succeeding Lease Year shall commence on the anniversary thereof All such Base Rent
shall be payable to Landlord on the first day of the month. Base Rent shall be payable to
Landlord at the address set forth in the first paragraph hereof, unless Landlord directs otherwise
in writing.
Notwithstanding the first paragraph of this Section .. 3.0l(af above. the Landlord hereby
reduces the Base Rent to $1 .00 per month and the rate will automatically renew for additiona I 12
month terms during the remainder of the Lease unless notice is provided by the Landlord. After
December 31. 2022, the Landlord may reinstate the Base Rent in equal monthly installments of
Eight l11ousand l11ree Hundred Thirty-Three and 34/100 Dollars ($8,333.34) per Lease Year by
giving written notice ninety (90) days before the start of the calendar year. and the Tenant agrees
to begin paying the reinstated monthly Base Rent the first of the following month, and no more
reductions in Base Rent shall be granted unless otherwise agreed to by the parties. In exchange
for the reduced rent the Tenant agrees not to invoke Section 2.05 of the Lease (including prior
Addendurns) prior to December 31, 2022.
Section 25.01 -Administration of Gateway Park Sports Fields: Tenant is responsible
for all administrative duties related to the reservation and use of the properties detailed in
Exhibit I. Administrative duties include:
(a) Reservation and programming of properties in Exhibit I. Reservation and
programming are defined as any and all administrative duties required to mainta in a schedule of
reservations and use of the properties detailed in this section. A reservation is defined as
removal of a designated property from open public use for a pre-determined function. The
Tenant is assumed to have the administrative capacity to handle reservations and programming
in any form, including but not limited to verbal, walk-up, and online reservation requests.
(b) Reservation of sports fields detailed in Exhibit I. This section covers reservation of
the five (5) general sports field areas at Gateway Park as identified in Exhibit I. This includes
three (3) multipurpose fields and two (2) basebalVsoftball fields. The Tenant has the authority to
divide these spaces to accon1rn0date programming but may not make any physical changes to the
field areas.
(c) Sports field programming. Programming is defined as the allotment of the properties
detailed in this section for a specific purpose. Generally acceptable purposes for these properties
include but are not limited to youth/adult sports activities (soccer. football, baseball) and related
events. Any use outside of the generally accepted activities outlined above will be agreed upon
by the Landlord and Tenant prior the use of the fields.
(d) Revenue collection/sharing from rentals for properties in Exhibit I. Revenues
collected from the reservation and use of the properties outlined in Exhibit I are considered
operating revenues for the Tenant. Tenant may charge fees to program participants and agrees to
pay the Landlord a total of fifty (50%) percent of the gross revenue over $25.000 received
annually from program registrations as a cost share. Any Landlord use of the properties are
exempt from any tenant program fees and take precedence over any other use of the fields. The
Landlord will provide the Tenant with a list of events, dates. and times annually. Tenant will
provide a swnmary of planned programs and program fee schedule for Landlord review and
approval prior to any fee collection taking place.
As such, all Tenant collected revenues generated from the reservation and use of these
properties shall be recorded and docwnented by the Tenant and provided for review on an annual
basis. Revenue share shall be paid by Tenant at the time that annual revenue report is produced.
(e) Advertising/sponsorship opportunities. Tenant may use property in Exhibit I to
advertise program sponsors. Any revenue collected from sponsor advertising will be included
and treated as operating revenues for the Tenant and will be subject to the revenue sharing and
reporting stipulations outlined in section (d) of this addendum.
(t) Sports field lighting and controls - Tenant shall be provided with access and training
on field lighting system controls (computer program). Tenant shall be responsible for ensuring
that field lights are used only for scheduled programming and training and are turned off when
programming is complete each night.
(g) Concession sales. Outside concession sales are prohibited on any of the properties
outlined in Exhibit I.
(h) Vehicles prohibited on sports fields. Vehicles are prohibited on any of the properties
outlined in Exhibit I.
(h) Addendum Tenn and Termination
i. This addendum will be in effect through December 31. 2022.
ii. This addendum may be terminated in whole or in part by either Party for
convenience and without cause upon ninety (90) days prior written notice.
iii. This addendum may be terminated in whole or in part by either party for cause
upon thirty (30) days prior written notice to the other party specifying the
effective date of termination and the reasons (cause) for such termination. Cause
for termination includes, but is not limited to, the failure of a patty to comply with
any tenn and condition of this addendum or compliance with any federal state
and/or local laws.
iv. Landlord may terminate this addendum imrned iate ly if the Landlord
determines that the health. welfare. or safety of any patticipant in the Program is
endangered.
Section 25.02 - Landscape maintenance and reporting terms.
(a)
Landscape maintenance. The Landlord agrees to regularly maintain landscaping
for the property located at 12450 W. C innabar Ave., El Mirage. AZ 85335.
(b)
Quarterly and annual reporting. The Tenant agrees to provide the Landlord with
timely quarterly financ ia I reports. The Tenant further agrees to provide the Landlord with an
annual financial report due within sixty days of the completio n of an annual financial review of
the Tenants finances by a Certified Public Accounting Firm (CPA). The quarterly and annual
financia l reports to the Landlord do not need to be certified to comply with Section 25.02. The
Tenant shall use the certified numbers from the CPA to complete the annual report and the report
shall be in a format that complies with Section 2.05 of the Lease.
fN WITNESS WHEREOF. the patties have set their hand this _ day of __
. 2018.
LANDLORD:
City of El Mirage. Arizona.
A political subdivision of the State of Arizona
:;~.0:J:::J't!l?ttl!UA
Title: City Manager
STATE OF ARJZONA
)
)SS
County of Maricopa
)
Before me, the undersigned. a Notary Public for Maricopa County, personally, appeared
J. Ct<ySTAJ.- -:DYCHE.5
the duly authorized C!..ir:y /11,4/VAGl:.R
of The City of El
Mirage. Arizona. a political subdivision of the State of Arizona. the Landlord in the foregoing
instrument who acknowledged the signing of the foregoing instrument to be his free act and deed
on behalf of the Landlord for the uses and purpose set forth therein.
IN WITNESS WHEREOF, I have hereunto signed by name and affixed my officia l seal on the
~'I- day of i.JOV. , 2018.
8
SHARON ANTES
Notary Pul»llc • Arizona
Maricopa County
My comml11ion Expires
February 11 • 2022
STATE OF ARJZONA
)
)SS
County of Maricopa
)
Notary PubLic
MyCommission fa7Jires:
..;:t/11/2o:22.
Type or Print Name
TENANT:
orthwest Valley Family YMCA. LLC
An Arizona Limited liability company
BY:
Valley of the Sun Young Men·s Christian
Association. an Arizona non-profit
corporation, its sole member
By:
_)4,U,~
--yv, ~
Print Name: Susan M. Suman
Title: Chief Financial Officer
Before me. the undersigned. a Notary Public for Maricopa County, personally. appeared
St,(s~°V'. ,vi. J 1,1.W'c,.~
the duly authorized
(,T-o
of Valley
of the Sun Young Men's Christian Association. an Arizona non-profit corporation, which is the
sole member of Northwest Valley Family YMCA. LLC, and Arizona Limited liability company.
the Tenant in the foregoing instrument who acknowledged the signing of the foregoing
instrument to be his free act and deed on behalf of the Landlord for the uses and purpose set forth
therein.
rN W11NESS WHEREOF. l have hereunto signed by name and affixed my official seal
on the ().J- day of f.t~,111-1, 20 l il.
Angelica R Martinez
Notary Public
Maricopa County, Arizona
My Comm. Expires 08/31/21
N~ ublic
I I
My Commission Expires:
g °';/ ~ I
Type or Print Name
EXHIBIT " I"
GATEWAY PARK SPORTS FIELDS
1. Field #1 (BasebalVSoftball)
2. Field #2 (BasebalVSoftball)
3. East Field (Soccer/Football)
4. Center Field (Soccer/FootbalO
5. West Field (Soccer/FootbalO
· ARBOR WAI.KITRAIL
Center Field
West Field
East Field
Gateway Park Sports Fields
NORTH
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Northwest Valley Family YMCA
Membership Rate Schedule
Agreement
Guaranteed
Maximum
Guaranteed
Current
Minimum
Resident
Proposed
Proposed
M inimum
Non-
Current
Subsidy per
YMCA
Rate
2019
2019 Non-
Subsidy per
YMCA
Resident
Current
Resident
Rate per
Resident
through
Resident
Resident
Proposed
Rate per
Resident
Rate
Discount
Rate
Agreement Subsidy
6/ 30/2019
Rate
Rate
Discount
Agreement
Subsidy
Teen
18.00
{5.00)
13.00
4.00
1.00
11.00 I 14.00
24.00
{10.00)
4.00
6.00
Young
I
Adult
22.00
(4.00)
18.00
4.00
36.00
19.00
29.00
{10.00)
4.00
6.00
Adult
35.00
(4.00)
31.00
4.00
36.00 I 36.00
40.00
{4.00)
4.00
Couple
55.00
{6.00)
51.00
6.00
54.00 I 54.00
65.00
{11.00)
6.00
5.00
Family
61.00
{4.00)
57.00
4.00
63.00 I 60.00
70.00
{10.00)
4.00
6.00
City of
EL MIRAGE
Arizona
GRAND HERITAGE, BRIGHT FUTURE!
November 21, 2018
orthwest Valley Family YMCA
Susan M. Suman, Chief Financial Officer
12450 W. Cinnabar Avenue
El Mirage. AZ 85335
City Clerk
10000 N El Mirage Road, El Mirage 85335
623-972-2943; Fax 623-876-4603; TDD 623-933-3258
www.eln1irageaz.gov
RE:
orthwest Valley Family YMCA, LLC Lease Agreement
Dear Ms. Suman,
Enclosed please find two copies of the above referenced agreement. Please have the documents
signed and return one fully executed agreement to:
City of El Mirage
Edith W. Hoover
10000 . El Mirage Road
El Mirage, AZ 85335
Thank you for your assistance.
Sincerely,
Edith W. Hoover
City Clerk Assistant