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AGREEMENT FOR SERVICES BETWEEN THE CITY OF EL MIRAGE AND THE NORTHWEST FAMILY YMCA THIS AGREEMENT FOR SERVICES (“Agreement”) is made between the CITY OF EL MIRAGE, a municipal corporation of the State of Arizona (“City”), and VALLEY OF THE SUN YOUNG MEN’S CHRISTIAN ASSOCIATION, an Arizona nonprofit corporation, on behalf of the Northwest Family YMCA, and for purposes of this Agreement (“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; WHEREAS, the YMCA has operated the Center since 2014, and the Parties mutually desire for the YMCA to continue to provide services, which include operating and managing the Center; and WHEREAS, the City and the YMCA agree to enter into this Agreement regarding the 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 I. DEFINITIONS Section 1.01 Recitals. The Recitals are incorporated herein by reference. Section 1.02 Center. The building, commonly known as the City of El Mirage/YMCA Community Recreation Center, provides health and fitness programs for residents of the City and surrounding communities, and is a resource for the public to assemble and meet during regular operating hours. The Center includes all parking lots, ball fields, and outdoor recreation facilities appurtenant to the property. As manager of the facility (defined below), the YMCA will provide access and opportunity to services and programs administered by the YMCA, which are comparable to services at other YMCA facilities in the Maricopa County area, subject to the constraints of each site as may be applicable. The YMCA may charge reasonable fees, consistent with other facilities approved by the City, which shall not unreasonably withhold its approval. Section 1.03 Director. Director means City appointed liaison to the YMCA, typically department head level. Section 1.04 Emergency Repair. Emergency Repair means any repair or replacement of any portion of the Facility (as defined below, that is the City’s responsibility) 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. Section 1.05 Scope of Services and Operations. Exhibit A, attached to this Agreement and incorporated for all purposes is the Scope of Services and Operations Exhibit and does not alter the terms of this Agreement (unless the parties also revise this Agreement), and to the extent that the Exhibit is inconsistent with this Agreement, this Agreement controls. Article II. TERM OF OPERATING AGREEMENT Section 2.01 Term. The term of this Agreement (“Term”) shall commence upon the date executed by the Parties regarding the Facility and shall expire on September 30, 2043. Section 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 (1) year before the Term or Extended Term expires. The party receiving the offer to extend must accept the offer 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: (a) An uncured default exists under this Agreement on the date of extension offered by the offering party. (b) 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 Extended Terms of this Agreement except as expressly agreed to upon in writing by the parties. Section 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 nor give YMCA any rights under the Agreement in or to the Premises. Section 2.04 Subsequent Facilities or Programming. Should the City construct or otherwise utilize the services of another provider to supply services similar to those the YMCA provides under the terms of this Agreement, the YMCA shall, in its sole discretion and as and when it deems appropriate without waiving such right, have the right to terminate this Agreement and at such time will have no further obligation under same to the City. Article III. OPERATIONS Section 3.01 Operations in General (a) The YMCA agrees to manage and operate the Center professionally, efficiently, and businesslike, similar to other YMCA operations. (b) The Center will be available to all, regardless of race, creed, sex, marital status, national origin, political affiliation, or religious preference. (c) YMCA will operate the Center under the direction of a Board specifically for the Center (the “Center Board”). The City shall be entitled to appoint one (1) representative to serve on the Center Board during the term of this Agreement. In addition, a designated City of El Mirage Council Member will be named ex-officio of the Center Board. (d) The YMCA will pay all expenses for the operations of the Center. Operations include all personnel, supplies, promotion, insurance, and miscellaneous materials necessary to serve members and guests 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 may 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. The City and the YMCA shall publicize scholarships for membership and programs. (e) In complying with its obligations and responsibilities herein, the YMCA shall not knowingly employ or contract with any person(s) convicted of a sex crime, regardless of the 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. (f) It is the goal of the YMCA and City to maximize the usage of the Center, and in providing its services, the YMCA shall use the Center free from the requirement to pay any rent, similar charges, and fees. Neither the YMCA nor the City desires for the operations of the Center to require operating subsidy from the City to balance the annual operational costs of the Center. It is the understanding of the YMCA and the City that a correlation exists between the number of membership units maintained through a given year and the cost of operating the Center. In calendar years where the YMCA operations at the site result in net income/profit (before capital and debt charges) exceeding $250,000, the YMCA shall compensate the City $100,000 to be paid by April 1st following the end of the calendar year. The parties agree that the net income/profit does not include grant revenues. Section 3.02 User Fees, Programs Schedule, and Budget (a) The specific programming, user fees, and scope of services to be provided by the YMCA outlined in Exhibit A attached to this Agreement. Exhibit A may be revised from time to time as the parties see fit without altering the terms of this Agreement. The YMCA reserves the right to increase program fees, and reimbursement by the City will be increased accordingly. Prior to the end of November 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 using the Center (i.e., lifeguards and janitorial). Usage of the Center for City events must be consistent with the YMCA’s programs. The YMCA shall consider the City's submitted information in preparing the annual schedule. (b) Prior to the end of November of each calendar year, the YMCA and the City shall discuss proposed programs that will be mutually beneficial to the community. The YMCA may 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. Section 3.03 Maintenance Obligations of YMCA (a) Annually, before the end of February, the City and the YMCA will meet at the Center and perform a facility walk-through. 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 both parties will formalize confirmation of the City and YMCA's responsibilities by July of each year. (b) 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 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 fourteen (14) days from the time of breakdown). (c) 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. Article IV. USE OF PREMISES/OWNERSHIP OF PROPERTY Section 4.01 Premises. In consideration of the mutual terms and covenants of this Agreement, YMCA has the right to occupy and jointly use with the City: (a) A 4.77-acre tract of land, more or less, as legally described in Exhibit B attached to this Agreement (Land). (b) Buildings, including the Facility, and improvements on the Land or to be constructed on the Land described in Exhibit B are collectively referred to as the “Premises.” Section 4.02 Permitted Use of Premises. YMCA may use the Premises only for the purpose of operating it for use by the public. YMCA will offer, conduct, and operate recreation, wellness, youth and family programs, and related activities, consistent with other YMCA facilities and Exhibit A. Section 4.03 Illegal Use Not Permitted. YMCA may not use any part of the Premises 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. Section 4.04 Janitorial Services and Housekeeping. The YMCA, at its sole cost and expense, shall provide daily janitorial and custodial service for the Facility. Section 4.05 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 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; provided, however, the City agrees to use best efforts not to interrupt or disrupt programs or services, and such inspection shall require the presence of a YMCA representative. 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. Section 4.06 Ownership of Equipment and Furniture. The parties agree that all furniture, equipment, and fixtures are and shall remain the property of the YMCA. The YMCA, at its sole cost and expense, shall be responsible for the repair and/or replacement of this furniture and equipment during the term of the Agreement. Section 4.07 Ownership of Building and Fixtures. The City shall own the Facility and all attached fixtures. The Facility and any other buildings, improvements, additions, alterations, and fixtures (except furniture, portable 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. They must remain on the Premises, and title to all permanent improvements on the Premises shall vest in the City. Section 4.08 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, and restore 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. Section 4.09 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 inspect the Facility within five (5) working days of notification 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 an approved repair and general maintenance as outlined in section (b) below. The City shall reimburse the YMCA for the approved repair within thirty (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 or hire outside contractors but agrees to solicit at least one (1) bid and provide a copy of the bid to the City if requested. 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. 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 expeditiously and properly. Further, the YMCA shall be responsible for the 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. Section 4.10 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 4.09(a), and the City shall be responsible for reimbursing the YMCA within thirty (30) days after receiving the invoice for same. The City will approve the emergency repair in writing to the YMCA as soon as possible, but at most within 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 repairs required to cure the condition, and the City shall be responsible for reimbursing the YMCA for the reasonable cost of repairs within thirty (30) days of receiving the invoice for same. Article V. VEHICLE USE Section 5.01 Vehicles. The City agrees to lease vehicles for program participant transportation to the YMCA. Participants include but are not limited to persons meeting the statutory requirements of the funding source of the associated vehicle. The City shall maintain the list of vehicles to be leased. (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. The City shall not be held responsible for any actual, special, consequential, or otherwise damages arising from this Lease’s Leased Vehicles(s). (d) Vehicle maintenance: YMCA is responsible for all routine maintenance, including gasoline and other fluids, while Vehicles are in YMCA's possession. YMCA is responsible for any damage, vandalism, maintenance, and repairs while Vehicles are in YMCA’s possession or while parked at the NW Valley Family YMCA facility. YMCA shall return Vehicles to Landlord in the same condition they were obtained subject to normal wear and tear associated with using the vehicle. (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 VI. AUDITING Section 6.01 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 financial records of YMCA directly related to the performance under this Agreement. YMCA shall retain all such records for a period of three (3) years after final payment on this Agreement or until all audit and litigation matters that the City has brought to the attention of YMCA are resolved, whichever is longer, but in no event longer than four (4) years after the final payment on this Agreement. YMCA agrees to refund to the City any overpayments disclosed by any such audit. Should it be determined that the City under-paid the YMCA, such amount shall be paid to the YMCA within thirty (30) days after such knowledge of the underpayment. Notwithstanding the foregoing, City shall, within thirty (30) days of learning of an overpayment to the YMCA, provide written notice to the YMCA. Should the City fail to notify the YMCA of an overpayment in excess of three (3) months of the City learning of the same, the YMCA shall not be obligated to return such overpayment. Article VII. INSURANCE REQUIREMENTS Section 7.01 Insurance Required. 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. Automobile Liability $1,000,000 Each accident on a combined single limit basis A commercial business policy shall provide coverage on "Any Auto,” defined as autos owned, hired, and non-owned. (c) Umbrella or Excess Liability $5,000,000 Each occurrence $5,000,000 Aggregate (d) Sexual Abuse and Molestation coverage is required if the 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. Section 7.02 Additional Insurance Requirements. (a) The City and its Officers, and Employees shall be named Additional Insured on the Automobile and Commercial General Liability policies. (b) Thirty days (30) prior written notice of cancellation or non-renewal is required. (c) Waiver of rights of recovery (subrogation) in favor of the City. (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 the 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 coincide 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 five (5) years following the completion of the contractual agreement. An annual certificate of insurance submitted to the City shall evidence such insurance coverage. (g) 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 (90) days prior to the effective date of such adjustment. (h) The City shall be entitled, upon request and without the 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. Section 7.03 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. Section 7.04 Premises 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 designated 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 because of fire or other casualty or because 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 VIII. TAXES Section 8.01 Payment by YMCA. YMCA will pay and discharge all taxes, general and special assessments, and other charges 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 the 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 YMCA receives City’s written notice shall constitute an event of default under Section 12.01. 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 IX. UTILITIES Section 9.01 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 X. RESTORATION Section 10.01 Damage or Destruction. The 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, unless such damage, theft or destruction was caused by the City its, employees, agents, contractors, subcontractors, invitees, or licensees. If the YMCA causes 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 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, interferences, fire or other casualties, 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, and the YMCA shall have no further obligation to provide services to the City contemplated by this Agreement. Article XI. INDEMNIFICATION Section 11.01 Liability of City. The 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 4.09 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 casualties on the premises, or brought about by YMCA’s failure to maintain the premises in a safe condition. Section 11.02 Indemnification. The parties agree to defend, indemnify and hold it, its officers, agents, servants, and employees, harmless against any 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 (a) A breach of any of the terms or provisions of this Agreement. (b) Any negligent act or omission or intentional misconduct of it, its officers, agents, associates, employees, contractors or subcontractors related to the construction of a facility or the performance of this Agreement; 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. Section 11.03 Notification. Each party agrees to notify the other promptly upon the receipt of any claim or lawsuit brought in connection with any injury, death, or damages at the Center. Each party agrees to make its officers, agents, and employees available to the other at all reasonable times for any statements and case preparation necessary for the defense of any claims or litigation for which it 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. Section 11.04 Waiver of Immunity. Nothing in this Agreement shall be deemed to constitute a waiver of any immunity or affirmative defense, which the City or YMCA may assert as to any claim of any third party. Section 11.05 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 XII. DEFAULT AND REMEDIES Section 12.01 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 to offer, conduct, and operate 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 YMCA is making reasonable efforts to occupy said Premises. (d) YMCA fails to comply with any other term, provision, or covenant of this Agreement that is material. (e) The City fails to perform any term, provision, or covenant of this Agreement that is material. Curing a Default. If an event of default occurs, the non-defaulting party shall give written notice that describes the default in reasonable detail to the defaulting party. The defaulting party must commence curing such default within fourteen (14) calendar days after the time it receives the notice from the non-defaulting party 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. Section 12.02 Other Remedies. Any termination of this Agreement as provided in this Article will not relieve a party from paying any sum or sums due and payable to the other party under this Agreement at the time of termination or any claim for damages then or previously accruing against a party under this Agreement. Each party’s rights, options, and remedies under this Agreement will be construed to be cumulative, and not one of them is exclusive of the other. A party may pursue any or all such remedies or any other remedy or relief provided by law, whether or not stated in this Agreement. Article XIII. RECORDS Section 13.01 Provision of Records. Every quarter, 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. Section 13.02 Public Records. YMCA acknowledges that City must comply with 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. The City may release these records to the public unless an exception in the Statutes or federal law or regulations applies to a document. The City agrees to keep information provided to the City that may contain personally identifiable information and other information confidential and shall not release such information, shall keep it secure, and preserve confidentiality. Section 13.03 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 that are significant in nature and have a material effect on the Facility. Article XIV. NOTICES Section 14.01 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: Valley of the Sun YMCA 350 North 1st Avenue Phoenix, Arizona 85003 Attn: Chief Operating Officer With copy to: Harvey Law, PLLC 7702 East Doubletree Ranch Road, Suite 300 Scottsdale, Arizona 85258 Attn: Travys Harvey, Esq. Article XV. GENERAL PROVISIONS Section 15.01 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 nor against any party, regardless of the actual drafter of this Agreement. Section 15.02 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 or entity. Section 15.03 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 seventy-two (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. Section 15.04 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 reasonable 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 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 reasonable 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. Section 15.05 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. Section 15.06 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. Section 15.07 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 (a) 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. (b) 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. Section 15.08 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. Section 15.09 Severability 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 such invalid, illegal, or unenforceable provision had never been in this Agreement. Section 15.10 Governmental Powers. It is understood that by execution of this Agreement, the City does not waive or surrender any of its governmental powers. Section 15.11 Captions. Captions and headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. Section 15.12 Sole Agreement. This Agreement constitutes the sole and only agreement of the parties respecting the services to be provided. Article XVI. Termination; Cancellation. Section 16.01 This Agreement may be terminated without cause by either party after providing one (1) year written notice from the terminating party. Section 16.02 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 12.01 and 12.02, 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 YMCA for the undisputed portion of its fee due as of the termination date. Section 16.03 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. Section 16.04 Gratuities. The City may, by written notice to YMCA, cancel this Agreement if the City finds 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 YMCA 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. 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 the then-current fiscal year, and the City and the YMCA shall be relieved of any subsequent obligation under this Agreement. EXECUTED this ______day of August 2023. CITY OF EL MIRAGE THE VALLEY OF THE SUN YOUNG MEN CHRISTIAN’S ASSOCIATION EXHIBIT “A” SCOPE OF SERVICES AND OPERATIONS Purpose This document outlines the general scope of services for the Northwest Family YMCA (YMCA) between the City of El Mirage (City) and the YMCA. This document is fluid and is intended to be altered when necessary to ensure proper fulfillment of the intent of the Agreement. As such, the City and YMCA will meet regularly to review this document, verify resident/employee status, and make changes per section 3.02 of the Agreement. The City does not operate an internal department dedicated to recreational services. It is the goal of the City to have the YMCA act as the City’s recreation partner. In acting as the City’s recreation partner, the general areas of responsibility of the YMCA include and are not limited to personnel, administration, utilities, and general facility maintenance as detailed in the Agreement. This document is divided into three sections: programming, user fees, and transportation. The programming section provides a list and description of all recreational offerings from the YMCA. The user fees section details the allocation of costs to the YMCA, City, and residents. The transportation section outlines permitted use of City vehicles. Programming Programming is defined as the type of recreational program the YMCA offers. Programming includes recreational activity, age group, and location. For this document, the following program information has been taken from the YMCA’s website: https://valleyymca.org/programs-and-activities/. Administration of Gateway Park Sports Fields: YMCA is responsible for all administrative duties related to reserving and using the sports fields at Gateway Park. The YMCA shall retain the first right of refusal to reserve the sports fields at Gateway Park. Revenues collected from the reservation and use of the sports fields at Gateway Park shall be recorded and documented by the YMCA and be available for review at the request of the City. To ensure similar availability of the recreation programs, the City and YMCA will also review and compare similar documents from neighboring cities. Table A1 – YMCA Seasonal Programming List Northwest Valley Family YMCA Seasonal Program List* Program Location Facility Day Pass (all-inclusive) Youth sports leagues (ages 3-18) Recreational Volleyball YMCA Competitive Volleyball YMCA Recreational Basketball YMCA Competitive Basketball YMCA Recreational Soccer Gateway Park Itty Bitty Sports Gateway Park Teen classes (ages 13-17) Youth and Government YMCA Leaders Club YMCA Lifeguard Training YMCA Adult sports Soccer Gateway Park Volleyball YMCA Healthy Living Programming Group Fitness Classes (Zumba, Yoga, Etc.) YMCA Personal Training YMCA Aquatics Swim Lessons YMCA Swim Team YMCA Open Swim YMCA * Subsidized programs are subject to change by written agreement of the City Administration and the YMCA. User Fees User fees are defined as the costs associated with providing recreation programming. User fees are allocated between the YMCA, City, and residents. City discount is for El Mirage residents and City employees only. Residents must show verification of residency. The table below outlines the current cost distribution. As a result of inflation and the increased cost of doing business, the YMCA reserves the right to increase membership and program fees and will communicate such increase to the City ninety (90) days in advance of such adjustments. The table below outlines the current cost distribution. Table A2 – User fee cost distribution (individual and family membership example) Individual Membership (includes Senior, Adult, Young Adult, Youth/Teen) Monthly Annual Cost/Discount Percentage City Cost $ 21.87 $ 262 52% YMCA Discount $ 8.75 $ 105 20% Resident Cost (Individual) $ 11.28 $ 135 28% Family Membership (Includes Family & Couple) Monthly Annual Cost/Discount Percentage City Cost $ 47.79 $ 573 52% YMCA Discount $ 18.38 $ 221 20% Resident Cost (Family) $ 25.73 $ 309 28% Annual City Contribution – based on the information in Table A2, the City’s annual subsidy of the YMCA would be participation based, with no minimum requirement. The number of members is directly related to the amount of annual subsidy. Three participation scenarios/examples have been outlined below. Table A3 – Annual City Subsidy (based on memberships) City Contribution per Number of Members (Individual - includes Senior, Adult, Young Adult, Youth/Teen) 250 500 1000 $ 65,622 $ 131,245 $ 262,489 City Contribution per Number of Members (Family & Couple) 250 500 1000 $ 143,364 $ 286,728 $ 573,456 Individual resident program registration discount (subsidy) – in addition to the membership subsidy outlined in Table A2, the City would also offer a $20 resident discount for individual program registration regardless of YMCA membership to be reimbursed to YMCA. Discount applies to programs listed in Table A1. Invoicing - Monthly invoices will be sent to the City detailing membership levels, program participation, corresponding contribution amounts, and individual resident program registration discounts. Transportation The YMCA shall to the City pay five dollars ($5.00) per month, per vehicle for the use of City vehicles. The amount due will be subject to any federal, state, and local taxes applicable at the time of payment. Payment of the amount due by the YMCA shall initially be owed to the City upon delivery of each vehicle and/or unit of equipment and then every month thereafter. EXHIBIT “B” Property Description Purpose The purpose of this document is to detail the City property referenced in the Agreement between the City of El Mirage and the Northwest Valley YMCA. The document contains a legal description of the property and an aerial layout (April 2023). Legal Description of Property Aerial Layout