DRAFT COEM YMCA Operating Agreement

City of El Mirage — Regular Meeting (2022-08-23)

Extracted text (via pymupdf) 52905 characters

OPERATING AGREEMENT BETWEEN
THE CITY OF EL MIRAGE AND THE
NORTHWEST FAMILY YMCA

THIS OPERATING AGREEMENT (Operating Agreement) is made between the CITY
OF EL MIRAGE, a municipal corporation of the State of Arizona (City), and
NORTHWEST FAMILY YMCA, LLC, an Arizona limited liability company (YMCA).

RECITALS

WHEREAS, the City owns a multi-purpose recreational facility located at 12450 W
Cinnabar Ave, El Mirage, Arizona (the “Center”); and

WHEREAS, the YMCA is a non-profit organization dedicated to building self-
esteem and enriching body, mind, and spirit for persons of all ages and economic
levels and addresses community needs through wellness, leadership, and family
strengthening activities; and

WHEREAS, the City desires to provide its residents a facility for recreation, meeting
space and other traditional and progressive activities and health enrichment for
general public wellness and fitness; and

WHEREAS, the City has recognized the experience and expertise of the YMCA in
conducting programs for families at its branches in Maricopa County and
adjoining counties, and in providing recreational and character-building programs for
adults and youth; and

WHEREAS, the residents of the City will derive substantial benefits from the activities
and programs to be provided and conducted by the YMCA for YMCA members and
program participants at the Center and, through reciprocal membership privileges, at
other YMCA’s in the El Mirage area and nationally where El Mirage members work or
travel; and

WHEREAS, the YMCA have been operating the Center since 2012 by way of a Lease
Agreement and the Parties mutually desire for the YMCA to continue to operate and
manage the Center to compliment and add to other City facilities to ensure that
people of all ages and economic levels are provided with the opportunity to enjoy
and have access to a broad range of programs and services that meet the needs of the

community, and to do so in the most cost-effective and efficient manner; and

WHEREAS, the City and the YMCA agree to enter into this Operating Agreement
regarding management and operations of the Center for recreational purposes;

NOW THEREFORE, in consideration of the covenants and agreements contained in
this Agreement, the City and the YMCA hereby agree as follows:

ARTICLE 1. AND DEFINITIONS

1.01
City. City means the City of El Mirage, an Arizona municipality.

1.02
Center. The building commonly known as the City of El
Mirage/YMCA Community Recreation Center that provides health and fitness
programs for residents of the City and surrounding communities and that is a resource
for the public to assemble and meet during normal operating hours. The Center
includes all parking lots, ball fields and outdoor recreation facilities appurtenant to the
property. The YMCA, as manager of the facility (defined below) is entrusted by the
City to provide access and equal opportunity to services and programs administered
by the YMCA that are comparable to other YMCA facilities, that meet the needs of the
community, and for which the YMCA may charge fees that are reasonable, consistent
with other YMCA facilities in Maricopa County, and that are approved by the City
which shall not unreasonably withhold this approval.

1.03
Director. Director means ____________________________________.

1.04
Emergency Repair. Emergency Repair means any repair
or
replacement of any portion of the Facility (as defined below that is the responsibility of
the city), necessary to protect the public and the integrity of the building or its systems
in a timely and reasonable manner. See also, Section 3.14 below.

1.05
Scope of Services and Operations Exhibit means Exhibit A attached to
this Agreement and incorporated for all purposes. Revisions to the Scope of Services
and Operations Exhibit will not alter the terms of this Agreement (unless this
Agreement is also revised by the parties) and to the extent that the Scope of Services
and Operations Exhibit is inconsistent with this Agreement, this Agreement controls.

1.06
YMCA means the Northwest Family YMCA, LLC, an Arizona limited
liability company.

ARTICLE 2. TERM OF OPERATING AGREEMENT

2.01
Term. The term of this Agreement (Term) shall commence upon the
date executed by the Parties regarding the Facility and shall expire
o n
S e p t e m b e r 3 0 , 2 0 4 3 .
2.02
Extension of Term. The parties may mutually agree to extend the Term
of this Agreement for two (2) additional terms of five (5) years each (“Extended
Terms”) on the terms and conditions as provided in this Agreement unless otherwise
mutually amended or modified. Either party may offer to extend the Term by
providing written notice to the other party not less than one year prior to the expiration
of the Term or Extended Term. The party receiving the offer to extend must accept the
offer to extend not less than sixty (60) days after receiving the offer to extend The ability
to extend the Term or Extended Term of this Agreement shall be null and void and of
no force or effect if (i) there exists on the date of extension offer an uncured default
under this Agreement by the offering party, or (ii) there exists on the last day of the
Term or Extended Term an uncured default under this Agreement by the offering
party. Except as otherwise provided in this Section, there shall be no right to extend
the Term or Renewal Terms of this Agreement except as expressly agreed to in writing
by the parties.

2.03
Holdover. Unless terminated earlier by either party pursuant to a right
stated in this Agreement, this Agreement will expire without further notice when
the Term or Extended Term expires. Any holding over by YMCA after the Term expires
will not constitute a renewal of the Agreement or give YMCA any rights under the
Agreement in or to the Premises.

ARTICLE 3. OPERATIONS

3.01
Operations in General

The YMCA agrees to manage and operate the Center in a professional, efficient
and businesslike manner, similar to other YMCA operations. The YMCA shall act
as the general clearing house, overseer, coordinator, and promoter of recreation,
fitness, safety and therapy programs offered in the Center and act as the City’s
de-facto recreation department.

The Center will be available to all regardless of age, race, creed, sex, marital
status, national origin, political affiliation, religious preference, physical handicap
or ancestry. The YMCA will not discriminate. Individuals can purchase a

YMCA membership that provides ongoing use or purchase a daily pass
membership which allows day use. Individuals who choose to participate in
YMCA programs are not required to be a member.

The YMCA's community service delivery mode includes youth recreational sports
leagues for children three (3) years of age to teenagers. The YMCA shall operate
youth sports leagues, sport clinics and sports camps. Youth sports leagues will be
available to general public regardless of member status.

YMCA will operate the Center under the direction of a Board of Directors
specifically for the Northwest Family YMCA. The City shall be entitled to
appoint one (1) representative to serve on the Northwest Family YMCA Branch
Board of Directors for the Center during the term of this Agreement. In addition,
a designated City of El Mirage Council Member will be named as ex-officio of the
Northwest Family YMCA Branch Board of Directors.

All expenses for the operations of the Center will be paid by the YMCA.
Operations include all personnel, supplies, promotion, insurance, and
miscellaneous materials necessary to serve members, guests, and spectator who
utilize the Center or participate in YMCA programs. In addition to any City and/or
YMCA provided subsidy of resident rates/fees/charges the YMCA shall provide
scholarships and/or other forms of financial assistance for the programs or
qualifying members as per established practice for all other YMCA facilities and
members. Scholarships for membership and programs shall be publicized by the
City and the YMCA and made readily and quickly available for those who cannot
afford the full cost of participating.

In complying with its obligations and responsibilities herein, the YMCA shall not
employ or contract with any person(s) convicted of a sex crime, regardless of
age or sex of the victim and shall not knowingly allow an employee of a contractor,
or subcontractor to work on the premises who has been convicted of a sex crime,
regardless of age or sex of the victim.

It is the goal of the YMCA and City to maximize the usage of the Center. Neither the
YMCA nor the City desires for the operations of the Center to require operating
subsidy from the City to balance the annual operating costs of the Center. It is the
understanding of both the YMCA and the City that there exists a correlation with the
number of membership units maintained through a given year and the cost of
operating the Center. In calendar years where the Northwest Valley Family YMCA
net income/profit (before reserves, general administration, capital, and debt charges)

exceeds $250,000 the YMCA shall compensate the City $100,000 to be paid by April
1st following the end of the calendar year.

A. User Fees, Programs Schedule, and Budget

The specific programming, user fees and scope of services to be provided by the
YMCA are set forth in the Scope of Services and Operations Exhibit attached to this
Agreement. The Scope of Services and Operations Exhibit may be revised from time
to time as the Parties see fit without altering the terms of this Agreement. Prior to the
end of _________ of each calendar year the City shall submit to the YMCA for the
following calendar year requested dates for scheduled City use of the Center. The
City will be responsible for incidental costs associated with the use of the Center,
i.e. lifeguards, janitorial. Usage of the Center for City events cannot conflict,
compete or be similar to programs being offered by the YMCA. The YMCA shall
consider the City's submitted information in preparing the annual schedule.

Prior to the end of _________ of each calendar year, the YMCA and the City shall
discuss proposed programs that will be mutually beneficial to the community.
The YMCA shall produce a schedule for a seasonal brochure of programs available
to the community. The City will distribute this brochure through any and all
means necessary to promote recreational offerings to the general public.

B. Maintenance Obligations of YMCA

Annually before the end of February, the City and the YMCA will meet at the
Center and perform a facility walkthrough. At that time, the City and the
YMCA will outline all planned maintenance needs for the Center and agree to
the responsibilities. A timeline will be developed, and confirmation of both the
City and YMCA's responsibilities will be formalized by both parties by July of
each year.

The YMCA agrees to maintain the Center and the moveable equipment provided
within the Center, and all parts thereof, in good condition and repair and in as
safe a condition as its operation will reasonably permit, and to make all repairs
thereto which may be reasonably necessary for this purpose. It is the expectation
and goal of both the YMCA and the City that the movable equipment
maintenance, typical daily maintenance, preventative maintenance, Center
finishes maintenance and replacement, and capital fixed asset maintenance repair

and replacement will be completed in a timely, efficient manner (no longer than
14 days from the time of breakdown).

Moveable equipment/daily maintenance, preventative maintenance and finish
maintenance will be completed and funded by the YMCA. All capital fixed asset
repairs, maintenance and replacement will be completed and funded by the City
per the plan as discussed above.

ARTICLE 3. USE OF PREMISES/OWNERSHIP OF PROPERTY

3.01
Premises. In consideration of the mutual terms and covenants of this
Operating Agreement, YMCA has the right to occupy and jointly use with the City, (a)
a _______ acre tract of land, more or less, as legally described in Exhibit B attached to
this Operating Agreement (Land), and (b) buildings and improvements on the Land or
to be constructed on the Land described in Exhibit B. The Land and Facility are
collectively referred to as the “Premises”.

3.02
Permitted Use of Premises. YMCA may use the Premises only for the
purpose of operating the Facility for use by the public. YMCA will offer, conduct,
and operate non-faith-based recreation, wellness, and youth and family programs and
related activities, consistent with other YMCA facilities and the Scope of Services and
Operations Exhibit.

3.03
Illegal Use Not Permitted. YMCA may not use any part of the Premises
or any building situated on them for any use or purpose that violates any applicable
law, regulation, or ordinance of the United States, the State of Arizona, the County of
Maricopa, or the City of El Mirage, or other lawful authority with jurisdiction over the
Premises.

3.04
Condition of Premises. YMCA accepts the Premises described in
Exhibit B in its present condition, finds them suitable for the purposes intended, and
further acknowledges that it is thoroughly familiar with such condition by reason of a
personal inspection and does not rely on any representations by City as to the
condition of the Premises or its suitability for the purposes intended. YMCA further
accepts the Premises described in Exhibit B AS-IS and releases City from any and all
damages, claims for damages, loss or liabilities that may be caused to all invitees,
licensees, or trespassers by reason of the exercise of such rights or privileges granted in
these easements.

3.05
Membership Fees. Fees for memberships and programs shall be priced in

accordance with fees established by the YMCA for branches of similar size, community
structure, and amenities located in Maricopa County and consistent with the YMCA’s
goal to permit participation by all socio-economic groups.

3.06
Janitorial Services and Housekeeping. The YMCA, at its sole cost and
expense, shall provide daily janitorial and custodial service for the Facility. For the
Term of this Agreement, the YMCA will employ or subcontract for housekeeping staff
whose function shall be daily in-house tasks related to routine and emergency
cleanups, room or facilities preparation, minor repairs and other routine function
associated with programs and building Operating. The YMCA shall pay the full cost
of the total salary and fringe benefits of said employee(s) or contractors.

3.07
Inspections. The City shall conduct periodic and regular inspections as
may be required of the Facility to ensure that fire, safety and sanitation regulations and
other provisions contained in this Agreement or in the City Code are being adhered to
by the YMCA. The City shall notify the YMCA of its findings, specifying any items
needing attention. The YMCA agrees to grant the City the right to access the facility for
inspections during normal business hours, and after hours, with prior notice as may be
necessary. Failure to conduct any inspections as may be required shall not operate as a
waiver of the City’s right to conduct these inspections and shall not be considered a
default of the terms of this Agreement.

3.08
Fire Code Inspections. YMCA will permit the City's Fire Chief or
authorized agents to inspect the Premises, and YMCA and City will comply with all
requirements of the Fire Chief or authorized agents that are necessary to bring the
Premises into compliance with the City Fire Code and Building Code provisions
regarding fire safety, as such provisions exist or may later be amended subject to the
maintenance and repair obligations under Paragraph 3.12 (a) below. YMCA shall
maintain in proper condition accessible fire extinguishers of a number and type
approved by the Fire Chief or authorized agents for the particular hazard involved.

3.10
Ownership of Equipment and Furniture. No City funds shall be used to
acquire equipment and furniture to be used by the YMCA. The YMCA shall own all
equipment and furniture purchased by it. The YMCA, at its sole cost and expense shall
be responsible for repair and/or replacement of this furniture and equipment during
the term of the Agreement.

3.11
Ownership of Building and Fixtures. City shall own the Facility and all
attached fixtures. The Facility and any other buildings, improvements, additions,

alterations, and fixtures (except furniture, movable equipment, and trade fixtures)
constructed, placed, or maintained on any part of the Premises during the Term are
considered part of the real property of the Premises and must remain on the Premises
and title to all permanent improvements on the Premises shall vest in the City.

3.12
Right to Remove Personal Property; Trade Fixtures. YMCA may, at any
time while it occupies the Premises, or within a reasonable time thereafter, not to
exceed ninety (90) days, remove personal property, furniture, machinery, equipment,
or other trade fixtures owned solely by YMCA, in, under, or on the Premises, or
acquired by YMCA, whether before or during the Term and any extension, this
property is referred to as “YMCA Property.” On or before the date of expiration of this
Agreement, YMCA shall vacate the Premises, remove all YMCA Property, repair any
damage to any buildings or improvements on the Premises resulting from the removal,
restoring the Premises to a condition reasonably satisfactory to the City. If the City or
YMCA terminates this Agreement, YMCA shall vacate the Premises, remove the
YMCA Property and restore the Premises within such time as the City shall reasonably
designate, but in no event less than ninety (90) days. In either event, if YMCA shall fail
or neglect to remove the YMCA Property within a reasonable time after the Agreement
termination date, not to exceed ninety (90) days and so restore the Premises, then the
YMCA Property shall become the property of the City.

3.13
Maintenance and Repair.

(a)
City Obligations. Except for repairs required by YMCA under (b) below,
the City will at all times during the Term, keep and maintain, or cause to be kept and
maintained, the Premises, including the Facility and all other buildings and
improvements erected on the Premises, in good state of appearance and repair (except
for reasonable wear and tear) at the City’s sole expense including, without limitation,
the structure, roof, foundation, HVAC, electrical, plumbing and the parking area. Such
maintenance and repairs will be made expeditiously and in the same manner as a
person generally proficient in that industry or trade performing under similar
circumstances.

After City receives notice of needed repairs pursuant to (b) below, the City shall
within five (5) working days of notification inspect the Facility to determine the extent
of repair required. The City shall complete the repairs within ninety (90) days from the
date of such notice.
If the City is unable to initiate the repairs as required, the City shall notify the
YMCA in writing and YMCA may make and pay for repairs as approved in writing by

the Director or designee. YMCA shall submit a request for reimbursement for the cost
of an approved repair. The Director shall determine what is an approved repair and
what is general maintenance as outlined in section (b) below. The City shall reimburse
the YMCA for the approved repair within 30 days. Needed repairs as used in this
subsection exclude obligations of the YMCA in (b) below. For repair and/or
replacement expenses less than or equal to $5,000, YMCA may make repairs internally
or hire outside contractors, but agrees to solicit at least one bid and provide a copy of
the bid if requested by the City. For repair and/or replacement expenses greater than
$5,000 and less than or equal to $30,000, YMCA may make repairs internally and
submit a written request for reimbursement or hire outside contractors based on the
YMCA's determination of the best of three (3) bids. The City may request a copy of the
bids solicited prior to reimbursement. For repair and/or replacement expenses greater
than $30,000, the YMCA shall use existing standard purchasing procedures currently
in place by the City of El Mirage for expenses more than $30,000, and upon approval
by the Director, the City shall reimburse the YMCA for approved repairs or
replacement.

(b)
YMCA Obligations. At all times during the Term, the YMCA shall, at its
sole cost and expense, make all regular and ordinary minor nonstructural building
maintenance and repairs including but not limited to painting, wallpaper, tile, general
pool maintenance, and window glass replacement. Such repairs will be made in an
expeditious and proper manner. Further, the YMCA shall be responsible for collection
and proper disposal of trash, garbage, litter and debris will be the responsibility of
YMCA, at its sole cost and expense.

YMCA shall neither commit nor allow to be committed any waste on the
Premises, nor shall YMCA maintain, commit or permit the maintenance or
commission of any nuisance on the Premises or use the Premises for any unlawful
purpose.

3.14
Emergency Repairs.

(a)
If the YMCA and City mutually agree that emergency repairs need to be
undertaken immediately, the YMCA may undertake the necessary repair waiving the
bidding requirements of Section 3.13(a) and the City shall be responsible to reimburse
the YMCA within thirty (30) days. The City will approve the emergency repair in
writing to the YMCA as soon as is reasonably possible, but not more than five (5)
business days.

(b) If the YMCA is unable to reach the City’s contact person and action is
necessary to prevent further damage to the Facility or to prevent imminent danger or
injury to persons, the YMCA may undertake the necessary repairs to cure the condition
and the City shall be responsible to reimburse the YMCA within 30 days the
reasonable cost of the repairs.

ARTICLE 4. VEHICLE USE

4.01 Vehicles. City agrees to lease to YMCA, vehicles for program participant
transportation. Participants include but are not limited to persons meeting the statutory
requirements of the funding source of the associated vehicle. List of vehicles to be
leased shall be maintained by the City.

(a) Payments: YMCA shall pay the City as rent the sums outlined in Exhibit A
(b) Use: YMCA shall use the Vehicles, solely for the transportation of Youth for
field trips related only to the Northwest Valley Family YMCA's Spring,
Summer, Fall, and\or Winter Youth Camp seasons (Youth Camp).
(c) No warranties: Exclusive of original vehicle warranties and/or factory
warranties that are in effect, City makes no representations, covenants or
warranties, express or implied, concerning the condition of any of the Vehicles,
their delivery, or fitness for any particular purpose. City shall in no way be
held responsible for any damages, whether actual, special, consequential or
otherwise, arising from the Leased Vehicles(s), or this Lease.
(d) Vehicle maintenance: YMCA is responsible for all routine maintenance
including gasoline and other fluids while Vehicles are in YMCA's possession.
YMCA shall return Vehicles to Landlord in the same condition they were
obtained subject to normal wear and tear associated with the use of the vehicle.
YMCA is responsible for any and all damage, vandalism, maintenance, repairs,
etc. while Vehicles are in YMCA’s possession or while parked at the NW Valley
Family YMCA facility.
(e) Insurance: YMCA shall provide insurance, evidenced by a certificate issued
to City, for such amounts and coverages as are satisfactory and approved by
City, naming City, its employees, officers and directors, as additional insureds.

ARTICLE 5. AUDITING

5.01 Audits. YMCA agrees that the representatives of the City, or other authorized
representatives of the City, shall have access to, and the right to audit, examine, or
reproduce, any and all records of YMCA related to the performance under this
Commented [NR1]: Check with YMCA for intended use.
Needs to meet grant funding requirements of vehicle
procurement.

Contract. YMCA shall retain all such records for a period of three (3) years after final
payment on this Contract or until all audit and litigation matters that the City has
brought to the attention of YMCA are resolved, whichever is longer. YMCA agrees to
refund to the City any overpayments disclosed by any such audit.

ARTICLE 6. INSURANCE REQUIREMENTS

6.01 Insurance Required. Prior to the time YMCA is entitled to any right of access to
or use of the Facility, YMCA shall obtain and maintain the following types of
insurance and minimum limits of coverage during the Term of the Lease of the
Facility:

(a) Workers' Compensation
Statutory limits
Employer's liability
$100,000
Each accident/occurrence
$100,000
Disease - each employee
$500,000
Disease - policy limit

(b) Commercial General Liability $1,000,000
Each occurrence
$2,000,000
Aggregate limit

Coverage shall include but not be limited to the following: premises/Operating,
independent contractors, products/completed Operating, personal injury, and
contractual liability.

A commercial business policy shall provide coverage on "Any Auto", defined as
autos owned, hired and non-owned.

(d) Umbrella or Excess Liability
$5,000,000 Each occurrence
$5,000,000 Aggregate

(e)
Sexual Abuse and Molestation coverage is required if care of a child is
provided outside the presence of a legal guardian or parent, this coverage shall be
written for a minimum limit of $500,000 per occurrence. If this coverage is written on
a stand-alone basis the City shall be listed as an additional named insured.

6.02 Additional Insurance Requirements.

(a)
The City and its Officers, Employees and Volunteers shall be named as
an Additional Insured on the Automobile and Commercial General
Liability policies.

(b)
Thirty days (30) prior written notice of cancellation or non-renewal is
required.

(d)
The insurers for all policies must be licensed and/or approved to do
business in the State of Arizona. Except for workers’ compensation, all
insurers must have a minimum rating of A: VII in the current A. M. Best
Key Rating Guide or have reasonably equivalent financial strength and
solvency to the satisfaction of Risk Management. If the rating is below
that required, prior written approval of the City’s Management is
required.

(e)
If insurance policies are not written for specified coverage limits, an
Umbrella or Excess Liability insurance for any differences is required.
Excess Liability shall follow form of the primary coverage.

(f)
Unless otherwise stated, all required insurance shall be written on the
“occurrence
basis”.
Prior
written
approval
from
the
City’s
Management is required for any claims-made policies. If coverage is
underwritten on a claims-made basis, the retroactive date shall be
coincident with or prior to the date of the contractual agreement and the
certificate of insurance shall state that the coverage is claims-made and
the retroactive date. The insurance coverage shall be maintained for the
duration of the contractual agreement and for five (5) years following
completion of the contractual agreement. An annual certificate of
insurance submitted to the City shall evidence such insurance coverage.

(g)
Any deductible in excess of $5,000.00, for any policy that does not
provide coverage on a first-dollar basis, must be approved in writing
by the City’s Management.

(h)
The City, at its sole discretion, reserves the right to review the insurance
requirements and to make reasonable adjustments to insurance
coverages and their limits when deemed necessary and prudent by the
City based upon changes in statutory law, court decision or the claims
history of the industry as well as of the contracting party to the City. The
City shall be required to provide prior written notice of ninety (days).

(i)
The City shall be entitled, upon request and without expense, to receive
copies of policies and endorsements thereto and may make any
reasonable requests for deletion or revision or modifications of particular
policy terms, conditions, limitations, or exclusions except where policy
provisions are established by law or regulations binding upon either of
party or the underwriter on any such policies.

6.03 Minimum Coverage. Insurance coverage specified herein constitutes the
minimum requirements and said requirement shall in no way lessen or limit the
liability of the YMCA under the terms of this Agreement. YMCA shall procure and
maintain, at its own cost and expense, any additional kinds and amounts of insurance
that, in its own judgment, it deems to be necessary.

6.04 Center and Facility Coverage. During the Term of this Agreement and at its sole
cost and expense, YMCA shall at all times maintain in effect property and casualty
insurance coverages insuring the Premises in an amount equal to at least 100% of the
actual replacement cost thereof and providing protection against any peril generally
included in the classification "Fire and Extended Coverage" or so called "special form"
coverage. The YMCA shall be the named insured under the policy and the City shall be
named as Loss Payee. Such insurance must be payable to the YMCA and the City, as
their interests may appear, and shall include a waiver of subrogation in favor of the
City. YMCA shall deliver to City, upon City’s request, certificates of such insurance. In
no event shall the City be responsible for damage to the Facility by reason of fire or
other casualty, or by reason of any other cause that could have been insured against
under the terms of a standard fire and extended coverage insurance policy or policies.
In the event of a casualty, if the YMCA reconstructs the Facility under Section 10.01,
YMCA and City shall use all insurance proceeds to reconstruct the Facility. If the
Facility is not reconstructed after a casualty, the YMCA and City shall proportionally
share in the insurance settlement proceeds.

ARTICLE 7. TAXES

7.01 Payment by YMCA. YMCA will pay and discharge all taxes, general and special
assessments, and other charges of any kind levied on or assessed against the Premises
and all interests in the Premises and all improvements and other property on them
during the Term and any extension, whether belonging to City or to YMCA.
YMCA will pay all the taxes, charges, and assessments directly to the public officer
charged with their collection before they become delinquent, and, to the extent
permitted by law, YMCA will indemnify City and hold it harmless from all such taxes,
charges, and assessments. YMCA may, in good faith at its own expense (and in its own
name) contest any such taxes, charges, and assessments and must pay the contested
amount, plus any penalties and interest imposed, if and when finally determined to be
due. YMCA's failure to discharge any such tax, charge or assessment when finally due
within ten (10) days after the date City’s written notice is received by YMCA shall
constitute an event of default under Section 11.01 below. However, YMCA's financial
obligation to City to liquidate and discharge such lien shall survive following
termination of this Agreement and until such a time as the lien is discharged.

ARTICLE 8. UTILITIES

8.01 Payment by YMCA. The YMCA, at its sole cost and expense, will incur the cost
to provide all gas, water, sewer, electric utilities (including solar power), network and
communication services for use by the YMCA at the Facility.

ARTICLE 9. RESTORATION

9.01 Damage or Destruction. City shall not be responsible, under any circumstances,
for any damage to property belonging to YMCA, its members, employees, agents,
contractors, subcontractors, invitees, licensees, or trespassers, which may be damaged,
stolen, or destroyed, and YMCA hereby releases City from any responsibility therefore.
If the Facility or any other building or improvement constructed on the Premises is
damaged or destroyed by fire or any other casualty, YMCA shall within ninety (90)
days from the date of the damage or destruction, begin to repair, reconstruct, or replace
the damaged or destroyed Facility and pursue the repair, reconstruction, or
replacement with reasonable diligence so as to restore the Facility to substantially the
condition it was in before the casualty. But if beginning or completing this work
is prevented or delayed by war, civil commotion, acts of God, strikes, governmental
restrictions or regulations, or interferences, fire or other casualty, or any other reason
beyond the YMCA’s control, whether similar to any of those enumerated or not, the
time for beginning or completing the restoration (or both) will automatically be

extended for the period of each such delay. In lieu of reconstructing the Facility, the
parties can mutually agree to declare this Agreement terminated.

ARTICLE 10. INDEMNIFICATION

10.01
LIABILITY OF CITY. CITY IS NOT LIABLE FOR ANY LOSS,
DAMAGE, OR INJURY OF ANY KIND TO ANY PERSON OR PROPERTY
ARISING FROM ANY USE OF THE PREMISES (OR ANY PART OF THEM), OR
CAUSED BY ANY DEFECT IN ANY BUILDING, STRUCTURE, IMPROVEMENT,
EQUIPMENT, OR FACILITY ON THE PREMISES (EXCEPT AS RELATED TO THE
CITY’S REPAIR AND MAINTENANCE OBLIGATIONS DESCRIBED IN SECTION
3.13 ABOVE) OR CAUSED BY OR ARISING FROM ANY ACT OR OMISSION OF
YMCA, OR OF ANY OF ITS AGENTS, EMPLOYEES, LICENSEES, OR INVITEES,
OR BY OR FROM ANY ACCIDENT, FIRE, OR OTHER CASUALTY ON THE
PREMISES, OR BROUGHT ABOUT BY YMCA’S FAILURE TO MAINTAIN THE
PREMISES IN SAFE CONDITION.

10.02
INDEMNIFICATION. YMCA AGREES TO DEFEND, INDEMNIFY
AND HOLD THE CITY, ITS OFFICERS, AGENTS SERVANTS AND EMPLOYEES,
HARMLESS AGAINST ANY AND ALL CLAIMS, LAWSUITS, ACTIONS, COSTS
AND EXPENSES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THOSE
FOR PROPERTY DAMAGE OR LOSS AND/OR PERSONAL INJURY, INCLUDING
DEATH, THAT MAY RELATE TO, ARISE OUT OF OR BE OCCASIONED BY (i)
YMCA’S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS
AGREEMENT OR (ii) ANY NEGLIGENT ACT OR OMISSION OR INTENTIONAL
MISCONDUCT OF YMCA, ITS OFFICERS, AGENTS, ASSOCIATES, EMPLOYEES,
CONTRACTORS (OTHER THAN THE CITY) OR SUBCONTRACTORS, RELATED
TO CONSTRUCTION OF A FACILITY OR THE PERFORMANCE OF THIS
AGREEMENT; EXCEPT THAT THE INDEMNITY PROVIDED FOR IN THIS
PARAGRAPH SHALL NOT APPLY TO ANY LIABILITY RESULTING FROM THE
NEGLIGENCE OF THE CITY OR ITS OFFICERS, AGENTS, EMPLOYEES OR
SEPARATE
CONTRACTORS,
AND
IN
THE
EVENT
OF
JOINT
AND
CONCURRENT NEGLIGENCE OF BOTH YMCA AND CITY, RESPONSIBILITY, IF
ANY, SHALL BE APPORTIONED COMPARATIVELY IN ACCORDANCE WITH
THE LAWS OF THE STATE OF ARIZONA.

10.03
Notification. YMCA agrees to notify City promptly upon the receipt of

any claim or lawsuit brought in connection with any injury, death or damages on the
Premises. YMCA agrees to make its officers, agents, and employees available to the City,
at all reasonable times for any statements and case preparation necessary for the
defense of any claims or litigation for which the City may be responsible hereunder.
YMCA shall place language in its contract with contractors that contractors shall notify
the City as required by YMCA in this subsection.

10.04
Waiver of Immunity. Nothing in this Agreement shall be deemed to
constitute a waiver of any immunity or affirmative defense, which may be asserted by
City or YMCA as to any claim of any third party.

10.05
Cause of Action. Nothing in this Agreement shall be construed in any
manner, to create a cause of action for the benefit of any person not a party to this
Agreement, or to create any rights for the benefit of any person not a party to this
Agreement not otherwise existing at law.

ARTICLE 11. DEFAULT AND REMEDIES

11.01
Event of Default. The following shall be deemed events of default by
YMCA under this Agreement:
a.
YMCA fails to use the Premises for conducting and operating the Facility
for the purpose of offering, conducting and operating non faith-based
recreation, wellness, and youth and family programs and related activities,
consistent with other YMCA facilities;
b.
YMCA makes a transfer in fraud of creditors, or makes an assignment for
the benefit of creditors;
c.
YMCA vacates any substantial portion of the Premises for a period of
longer than thirty (30) days, unless YMCA can demonstrate to the reasonable
satisfaction of the City that all reasonable efforts are being made by YMCA to
occupy said Premises or
d. YMCA fails to comply with any other term, provision or covenant of this
Agreement that is material.
e. YMCA fails to provide services in accordance with the requirements of the
Services Plan.
11.02
Curing a Default. If an event of default occurs, the City shall give written
notice that describes the default in reasonable detail to the YMCA. The YMCA must
commence curing such default within fourteen (14) calendar days after the time it

receives the notice from the City, and then complete the cure within ninety (90) days
thereafter. If the nature of the defaulting party’s nonperformance is such that it cannot
reasonably be cured within 90 days, then the defaulting party will have such additional
periods of time as may be reasonably necessary under the circumstances, provided the
defaulting party immediately (A) provides written notice to the non-defaulting party
and (B) commences to cure its nonperformance and thereafter diligently continues to
completion the cure of its nonperformance.

11.03

Other Remedies. Any termination of this Agreement as provided in this
article will not relieve YMCA from paying any sum or sums due and payable to City
under this Agreement at the time of termination, or any claim for damages then or
previously accruing against YMCA under this Agreement. Any such termination will
not prevent City from enforcing the payment of any such sum or sums or claim for
damages by any remedy provided for by law, or from recovering damages from YMCA
for any default under the Agreement. All City’s rights, options, and remedies under this
Agreement will be construed to be cumulative, and not one of them is exclusive of the
other. City may pursue any or all such remedies or any other remedy or relief provided
by law, whether or not stated in this Agreement.

ARTICLE 12. RECORDS

12.01
Provision of Records. On a quarterly basis, or at such intervals as may be
requested, the YMCA shall provide the City digital copies of current Facility
membership in the form of electronic statistics, e.g. itemized by zip code, family unit or
as reasonably specified by the City, as well as financial, operational and maintenance
information related to the Facility and all other information reasonably deemed
necessary by the City and the YMCA.

12.02

Public Records. YMCA acknowledges that City is required to comply
Arizona Revised Statutes Title 39 (Arizona Public Records Statutes or Statutes). Under
the Statutes, this agreement, and documents related to this agreement, which are in
City’s possession, or to which City has access, are presumed to be public and the City
may release these records to the public unless an exception described in the Statutes
applies to a document.

12.03
Notice of complaints or violation reports. The YMCA shall promptly
notify the City of any complaints or reports of violations of the law that have occurred
at the Facility and that are significant in nature and that have a material effect on the
Operating of the Facility.

ARTICLE 13. NOTICES

13.01
Notices. Any notice, demand, request or other communication
hereunder given or made by either party to the other shall be in writing and shall be
deemed to be delivered whether actually received or not, when deposited in the United
States mail, postage prepaid, certified or registered mail, return receipt requested,
addressed to the parties hereto at the respective addresses set out below, or at such other
address as they may hereafter specify by written notice so given.

If to City:
City Manager

City of El Mirage

City Hall
10000 N EL Mirage Road
El Mirage, Arizona 85335
With a copy to:

If to YMCA:

ARTICLE 14. GENERAL PROVISIONS

14.01 Right of Entry and Inspection. YMCA must permit City or its agents,
representatives, or employees to enter the Premises for the purposes of inspection;
determining whether YMCA is complying with this Agreement; maintaining,
repairing, or altering the Premises; or any other reasonable purpose During any
inspection, City may perform any obligations that City is authorized or required to
perform under the terms of this Agreement or pursuant to its governmental duties
under federal state or local laws, rules or regulations.

14.02 Interpretation. In the event of any dispute over the meaning or application of any
provision of this Agreement, this Agreement shall be interpreted fairly and reasonably,
and neither more strongly for or against any party, regardless of the actual drafter of
this Agreement.

14.03 No Third Party Rights. The provisions and conditions of this Agreement are solely
for the benefit of the City and YMCA, and any lawful assign or successor of the YMCA,
and are not intended to create any rights, contractual or otherwise, to any other person
Commented [NR2]: Need YMCA contact info here

or entity.

14.04 Declared Emergency. In the event of a declared City, state or federal emergency,
the YMCA will immediately make the facility available for use as deemed necessary by
the City in order to respond to the declared emergency. Should the declared emergency
extend beyond 72 hours, the City will seek reimbursement from federal, state and/or
local funding and compensate the YMCA for any lost revenue as a result of declared
emergency use, to the extent funds are received from these sources.

14.05 Force Majeure. Each party to this agreement agrees to excuse the failure of another
party to perform its obligations under this Agreement to the extent that failure is caused
by an event of Force Majeure. Force Majeure means acts and events not within the
control of the party, and which the party could not use due diligence to avoid or prevent.
Events of Force Majeure include acts of God, strikes, riots, sabotage, civil disturbances,
epidemics, acts of domestic or foreign terrorism, lightning, earthquakes, fires, storms,
floods, and landslides. Force Majeure does not include economic or market conditions,
which affect a party’s cost, but not its ability to perform. The party invoking Force
Majeure shall give timely and adequate notice to the other party of the event by facsimile
transmission, telephone, or e-mail and then the party must promptly provide written
notice of the Force Majeure in the manner required by this Agreement. The party shall
use due diligence to remedy the effects of Force Majeure as soon as reasonably possible.
If a party’s performance is delayed by the event of Force Majeure, the parties will
mutually agree to extend the time for the completion of obligations by a period of time
reasonably necessary to overcome the effect of the Force Majeure event.

14.06 Binding Covenants. Subject to the limitations contained in this Agreement, the
covenants, conditions and agreements made and entered into by the parties are declared
to be for the benefit of and binding upon their respective successors, representatives and
assigns, if any.

14.07 Invalid Provision. It is agreed that, in the event any covenant, condition or
provision of this Agreement is held to be invalid by any court of competent jurisdiction,
the invalidity of such covenant, condition or provision shall in no way affect any other
covenant, condition or provision; provided, however, that the invalidity of any such
covenant, condition or provision does not materially prejudice either YMCA or City in
connection with the rights and obligations contained in the valid covenants, conditions
or provisions of this agreement.

14.08 Assignment and Successors. YMCA may not assign, transfer or otherwise convey

any of its rights or obligations under this Agreement to any party without the prior
written consent of the City, which consent shall not be unreasonably withheld or
delayed, conditioned on (i) the prior approval of the assignee or successor and a finding
by the City Council that the proposed assignee or successor is financially capable of
completing the construction and occupancy of Facility and (ii) the proposed assignee or
successor has executed a written agreement with the City under which it agrees to
assume all covenants and obligations of the YMCA under this Agreement, in which case
such assignee or successor shall thereafter be deemed “YMCA” for all purposes under
this Agreement. An attempt to assign this contract without the consent of the YMCA
shall be considered an event of default.

14.09 Applicable Laws. The laws of the State of Arizona shall govern this Agreement
and the relationship created hereby. Venue for any action brought to interpret or
enforce, or arising out of or incident to, the terms of this agreement shall be in Maricopa
County, Arizona.

14.10Severability of Provisions. If any of the provisions contained in this Agreement
shall be held, for any reason, to be invalid, illegal, or unenforceable in any respect, such
invalidity, illegality, or unenforceability, shall be construed as if such invalid, illegal, or
unenforceable provision had never been in this Agreement.

14.11 Governmental Powers. It is understood that by execution of this Agreement, the
City does not waive or surrender any of it governmental powers.

14.12 Captions. Captions and headings used in this Agreement are for reference
purposes only and shall not be deemed a part of this Agreement.

14.13 Sole Agreement. This Agreement constitutes the sole and only agreement of the
parties respecting the Operating of the Premises.

14.14 Termination; Cancellation.

14.14.1 This Agreement may be terminated without cause by either party
after providing one (1) year written notice from the terminating party.

14.14.2 For Cause. If either party fails to perform any obligation pursuant
to this Agreement and such party fails to cure its nonperformance as set

forth in Sections 11.01 and 11.02, such party will be in default. In the event
of such default, the non-defaulting party may terminate this Agreement
immediately for cause and will have all remedies that are available to it at
law or in equity including, without limitation, the remedy of specific
performance. In the event of such termination for cause, payment shall be
made by the City to the Vendor for the undisputed portion of its fee due as
of the termination date.

14.14.3 Conflict of Interest. This Agreement is subject to the provisions of
ARIZ. REV. STAT. § 38-511. The City may cancel this Agreement without
penalty or further obligations by the City or any of its departments or
agencies if any person significantly involved in initiating, negotiating,
securing, drafting or creating this Agreement on behalf of the City or any
of its departments or agencies is, at any time while this Agreement or any
extension of this Agreement is in effect, an employee of any other party to
this Agreement in any capacity or a vendor to any other party of this
Agreement with respect to the subject matter of this Agreement.

14.14.4 Gratuities. The City may, by written notice to YMCA, cancel this
Agreement if it is found by the City that gratuities, in the form of economic
opportunity, future employment, entertainment, gifts or otherwise, were
offered or given by YMCA or any agent or representative of the Vendor to
any officer, agent or employee of the City for the purpose of securing this
Agreement. In the event this Agreement is canceled by the City pursuant
to this provision, the City shall be entitled, in addition to any other rights
and remedies, to recover and withhold from YMCA an amount equal to
150% of the gratuity.

14.14.5 Agreement Subject to Appropriation. This Agreement is subject to
the provisions of ARIZ. CONST. ART. IX, § 5 and ARIZ. REV. STAT. § 42-
17106. The provisions of this Agreement for payment of funds by the City
shall be effective when funds are appropriated for purposes of this
Agreement and are actually available for payment. The City shall be the
sole judge and authority in determining the availability of funds under this
Agreement and the City shall keep YMCA fully informed as to the
availability of funds for this Agreement. The obligation of the City to make
any payment pursuant to this Agreement is a current expense of the City,
payable exclusively from such annual appropriations, and is not a general

obligation or indebtedness of the City. If the City Council fails to
appropriate money sufficient to pay the amounts as set forth in this
Agreement during any immediately succeeding fiscal year, this Agreement
shall terminate at the end of then-current fiscal year and the City and the
YMCA shall be relieved of any subsequent obligation under this
Agreement.

ARTICLE 15. YMCA WARRANTIES

YM understands and acknowledges the applicability to it of the American with
Disabilities Act, the Immigration Reform and Control Act of 1986 and the Drug Free
Workplace Act of 1989. The following is only applicable to construction contracts: The
YMCA must also comply with A.R.S. § 34-301, “Employment of Aliens on Public Works
Prohibited”, and A.R.S. § 34-302, as amended, “Residence Requirements for Employees”.

Under the provisions of A.R.S. § 41-4401, YMCA hereby warrants to the City that
the YMCA and each of its subcontractors (“Subcontractors”) will comply with and are
contractually obligated to comply with all Federal Immigration laws and regulations that
relate to their employees and A.R.S. § 23-214(A) (hereinafter “YMCA Immigration
Warranty”).
A breach of the YMCA Immigration Warranty shall constitute a material breach of
this Agreement and shall subject the YMCA to penalties up to and including termination
of this Contract at the sole discretion of the City.
The City retains the legal right to inspect the papers of any YMCA or Subcontractors
employee who works on this Agreement to ensure that the YMCA or Subcontractor is
complying with the YMCA Immigration Warranty. YMCA agrees to assist the City in
regard to any such inspections.
The City may, at its sole discretion, conduct random verification of the employment
records of the YMCA and any of subcontractors to ensure compliance with YMCA’s
Immigration Warranty. YMCA agrees to assist the City in regard to any random
verification performed.
Neither the YMCA nor any Subcontractor shall be deemed to have materially
breached the YMCA Immigration Warranty if the YMCA or Subcontractor establishes
that it has complied with employment verification provisions prescribed by sections
274A and 274B of the Federal Immigration and Nationality Act and the E-Verify
requirements prescribed by A.R.S. § 23-214, Subsection A.

The provisions of this Section must be included in any contract the YMCA enters
into with any and all of its subcontractors who provide services under this Contract or
any subcontract. “Services” are defined as furnishing labor, time or effort in the State of
Arizona by a YMCA or subcontractor. Services include construction or maintenance of
any structure, building or transportation facility or improvement to real property.

Israel Boycott. To the extent applicable, YMCA certifies that it is not currently
engaged in, and agrees for the duration of this Agreement that it will not engage in a
“boycott,” as that term is defined in Ariz. Rev. Stat. § 35-393, of Israel.

EXECUTED this the
day of
,202_.

CITY OF EL MIRAGE
YMCA OF EL MIRAGE