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Recipient Agreement with Boys and Girls Club for Joint Use of GymnasiumRECIPIENT AGREEMENT AND AGREEMENT FOR JOINT USE OF GYMNASIUM This RECIPIENT AGREEMENT AND AGREEMENT FOR JOINT USE OF GYMNASIUM. (hereinafter "Agreement") is made this t_ day of3lLA_, 2014 (the `Effective Date"), by and between the City of Meridian, a municipal corporation organized under the laws of the State of Idaho (hereinafter "City"), and the Boys and Girls Clubs of Ada County, Idaho, Inc., a nonprofit corporation organized under the laws of the State of Idaho (hereinafter "BGC"). WHEREAS, the respective governing bodies of City and BGC are mutually interested in enhancing the Meridian community's quality of life by providing and supporting recreational facilities and opportunities, including gymnasium access and programming, for members of the Meridian community; WHEREAS, City and BGC recognize that through cooperation, facilities can be shared to meet broader community needs for athletic programming and recreation than either party can provide separately; WHEREAS, at its June 24, 2014 meeting, the City Council of City agreed to contribute five hundred thousand dollars ($500,000) toward BGG's construction of a gymnasium and related improvements included in the building containing the Gymnasium -(collectively -the "G- yrnnasum)-at BG(7s in Meridian; WHEREAS, under the public purpose doctrine underlying Idaho Constitution Article 8, section 2, as articulated by the Idaho Supreme Court in, e.g., Board of County Commissioners of Twin Falls County v. Idaho Health Facilities Authority, 96 Idaho 498 (1975), the City can finance activities that have a primarily public purpose, rather than a primarily private purpose, that is, activities that both benefit the community of Meridian as a whole and are directly related to the function of government; WHEREAS, BGC benefits the community of Meridian as a whole by offering transportation to BGC from schools serving a high number of low-income children, thereby facilitating these children's access to recreational, creative, entertainment, socializing, informational, and educational opportunities, thereby proactively meeting needs of an underserved and often low-income population, particularly at times of the day when alternative childcare resources are unavailable, alleviating the need for other agencies, families, and organizations do so, leading to crime prevention, public safety for vulnerable persons, and ultimately, a responsible and productive citizenry; WHEREAS, the respective governing bodies of City and BGC are mutually interested in enhancing the Meridian community's quality of life by providing and supporting transportation to BGC for children attending schools serving a high number of low-income children; and find that it is fiscally responsible and in the best interest of the community to share the costs and benefits of transporting these schools' participating children to BGC; AGREEMENT FOR JOINT USE OF Boys & GIRLS CLUB GYMNASIUM PAGE 1 OF 8 WHEREAS, the respective governing bodies of City and BGC find that it is fiscally responsible and in the best interest of the community to enter into an agreement sharing the costs of transporting children to the Gymnasium and related facilities at BGC's Meridian location; NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged and agreed, and in consideration of the mutual promises and covenants herein contained, and in consideration of the recitals above, which are incorporated herein, City and BGC agree as follows: L General obligations of City. A. Monetary contribution. Starting in Fiscal Year 2016, City agrees to pay to BGC, annually, nine thousand dollars ($9,000.00), to be applied by BGC to BGC's costs of providing free transportation to BGC's club facility located at 911 N. Meridian Road, in Meridian, Idaho, from the following Meridian schools serving low-income children: Peregrine Elementary School, Chief Joseph Elementary School, Meridian Middle School, and Meridian High School. City will pay to BGC funds available under this Agreement based upon detailed invoice submitted by BGC, and consistent with any approved budget and City policy concerning payments. primary Source -of Contact. City -shall -provide -BGC the name, e -mail -address,, and telephone number of specific City personnel (hereinafter "City Contact") who shall serve as City's primary contact between BGC and City for all matters regarding the day-to-day scheduling, use, and maintenance of the Gymnasium. The BGC Contact and the City Contact shall together review the partnership between BGC and City on an as -needed basis, but at lease on an annual basis, to address any problems which may have arisen and to discuss possible changes to improve matters regarding the parties' joint use of the Gymnasium. C. Adequate staffing. Where such use is scheduled or authorized by City, City shall assign adequate staff to ensure that the Gymnasium is staffed by a City employee and is maintained in a safe and sustainable condition, notwithstanding City's use thereof. D. Reasonable use. City shall employ best efforts to ensure that the use of Gymnasium is appropriate and reasonable during all times where such use is scheduled or authorized by City. Where the use of the Gymnasium results in excessive damage to same, over and above normal wear and tear, City shall reimburse BGC for the proportionate cost of all necessary repairs. City shall exercise best efforts to see that any and all use of Gymnasium, and conduct of City's participants, guests, and invitees while on BGC property before and after such use, where such use is scheduled or authorized by City, is in compliance with BGC's policies regarding use of Gymnasium and governing persons on BGC's properties. AGREEMENT FOR JOINT USE of Boys & GIRLS CLUB GYMNASIUM PAGE 2 OF 8 E. Site Supervisor. City shall assign one (1) Site Supervisor to unlock the Gymnasium, set up equipment, be on site at BGC during games or practices in Gymnasium scheduled by City, put away equipment, ensure that all persons have left Gymnasium. and/or SGC, and lock the Gymnasium. The Site Supervisor shall advise BGC immediately of any condition requiring assessment, maintenance, or repair. The Site Supervisor may leave Gymnasium during such use of Gymnasium as needed to supervise other facilities, during which time game officials shall provide supervision on City's behalf of Gym use; however the Site Supervisor shall be assigned to spend the majority of his or her time in the Gymnasium BGC supervising Gymnasium use. II. General obligations of BGC. A. Transportation Activities. BGC shall use City's annually provided funds toward fulfilling its mission to "inspire and empower all young people, especially those who need us most, to realize their full potential as productive, responsible and caring citizens," by providing free transportation to BGC from the following Meridian schools serving low-income children: Peregrine Elementary School, Chief Joseph Elementary School, Meridian Middle School, and Meridian High School. As a condition of receiving these funds, BGC shall be responsible for administering its City funds in a manner satisfactory to City and consistent with any and all requirements set forth in this Agreement. .Documentation,•-annual-r-epor-t. BGC -shall -maintain -all -records -that are -pertinent to the activities to be funded under this Agreement, including, but not limited to: full descriptions and records of expenditures of funds received from City; records required to document the acquisition, improvement, use or disposition of property acquired or improved with funds received from City; financial records; other records necessary to document compliance with this Agreement or applicable law. With respect to funds received by BGC under this Agreement, between May 1 and June 15 every year throughout the term of this agreement, BGC shall provide to City a written report of activities undertaken under this Agreement, including narrative descriptions and records of each activity undertaken, property or services purchased, receipts, and such other documentation as may be specifically requested by City to demonstrate compliance with this Agreement or furtherance of goals set forth herein. C. Performance monitoring. City will monitor the performance of BGC against goals as set forth herein. Performance monitoring shall include City's review of BGCS' submitted documents for accuracy and completion, as well as an on-site visit from City staff to review the completeness and accuracy of records maintained. Substandard performance as reasonably determined by City shall constitute noncompliance with this Agreement. If action to correct such substandard performance is not taken by BGC within fourteen days (14) after being notified by City, this Agreement may be suspended or terminated. AGREEMENT FOR JOINT USE OF BOYS & GIRLS CLUB GYMNASIUM PACE 3 OF 8 D. Primary Source of Contact. BGC shall provide City the name, e-mail address, and telephone number of specific BGC personnel (hereinafter "BGC Contact") who shall serve as BGC's primary contact between City and BGC for all matters regarding the day-to-day scheduling, use, and maintenance of the Gymnasium. E. Audits and inspections. With reasonable advance notice to BGC, all of BGC's records with respect to any matters covered by this Agreement shall be made available to City at any time during normal business hours, as often as deemed necessary, to audit, examine, and make excerpts or transcripts of all relevant data for purposes of investigation to ascertain compliance with the rules, regulations and provisions stated herein. Any deficiencies noted in audit reports must be fully repaired by BGC within thirty (30) days after receipt of such report by BGC. Failure of BGC to comply with the above audit requirements will constitute a violation of this Agreement and may result in the withholding of future payments. 111. General rights of City. A. Collection of Fees. In accordance with its policies, City shall have right to assess and collect reasonable user fees from persons who use Gymnasium; however, the amount of such user fees shall not exceed costs and expenses actually incurred. BGC shall not be entitled to any user fee assessed and/or collected by City. B.City -pr-ior-ity- use -of -Gymnasium. During -the -term -of -this Agreement, -City -shall be entitled to priority use of the Gymnasium for practice sessions, games, classes, camps, and related preparatory activities, under the terms set forth in this Agreement, from 6:30 p.m. to 10:30 p.m., on all Mondays, Tuesdays, Wednesdays, and Thursdays. City may request additional use of the Gymnasium at other times, which use may be granted as availability permits, in BGC's sole discretion. City agrees to cooperate with BGC on occasions when BGC may need the use of the Gymnasium for occasional special events during times otherwise reserved for City's use. IV. General Provisions. A. Term of Agreement. This Agreement shall become effective as of the Effective Date upon execution by both parties, and shall expire ten (10) years from the Effective Date unless earlier terminated or extended in the manner as set forth in this Agreement. If the parties to this Agreement fail to mutually extend this Agreement, and neither has terminated the Agreement, the term of this Agreement, or such other terms as the parties have agreed upon in writing, shall be renewed automatically for five-year periods thereafter unless terminated by either party in the manner provided in this Agreement. B. Nonappropriation. Notwithstanding any other provision of this Agreement, City shall not be obligated by any provision of this Agreement during any future fiscal year unless and until the Meridian City Council appropriates adequate funds for this Agreement in the City's budget for each such future fiscal year. In the event that AGREEMENT FOR .JOINT USE OF BOYS & GIRLS CLUB GYMNASIUM PAGE 4 OF 8 funds are not appropriated for this Agreement, then this Agreement shall terminate as of September 30 of the last fiscal year for which funds were appropriated. City shall notify BGC of any such non -allocation of funds at the earliest practicable date. In the event of such termination city's use of the Gymnasium shall cease, and BGC shall have no obligations to City under this Agreement other than for the accounting for funds received from City prior to such termination. C. Conflict Resolution. If either party believes that the other party is not fulfilling its obligations as established by this Agreement, the complaining party shall give written notice of its complaint to the other party. The party receiving the complaint shall, within fifteen (15) calendar days, correct the situation and confirm the correction in writing, or reject the complaint, explaining the mitigating circumstances and why a remedy cannot be achieved. D. Notice. Communication between the BGC Contact and the City Contact regarding day-to-day matters (e.g., issues related to use, scheduling, and maintenance of Gymnasium) shall occur via e-mail or telephone. All other notices required to be given by either of the parties hereto shall be in writing and be deemed communicated when personally served, or mailed in the United States mail, addressed as follows: City of Meridian Boys and Girls Clubs of Ada County Attn: Steve Siddoway Attn: Colleen Braga P-ar-ks-& Recr-eationDepartment-DirectorExecutiveDirector 33 E. Broadway Avenue 610 E. 42nd Street Meridian, Idaho 83642 Garden City, Idaho 83714 Either party may change its authorized representative and/or address for the purpose of this paragraph by giving written notice of such change to the other party in the manner herein provided. E. Assignment. City shall not assign or sublet all or any portion of City's interest in this Agreement or any privilege or right hereunder, either voluntarily or involuntarily, without the prior written consent of BGC. BGC shall not assign or sublet all or any portion of BGC's interest in this Agreement or any privilege or right hereunder, either voluntarily or involuntarily, without the prior written consent of City. This Agreement and each and all of the terms and conditions hereof shall apply to and are binding upon the respective organizations, legal representative, successors, and assigns of the parties. F. No agency. Neither party nor their employees, agents, contractors, officials, officers, servants, guests, and/or invitees shall be considered the agent of the other party in any manner or for any purpose whatsoever as a result of this Agreement. G. Indemnification of City. BGC and each and all of its employees, agents, contractors, officials, officers, servants, guests, and/or invitees, and all participants in BGC programming, shall indemnify and save and hold harmless City from and for any and all losses, claims, actions, judgments for damages, or injury to persons or AGREEMENT FOR JOINT USE OF BOYS & GIRLS CLUB GYMNASIUM PAGE 5 OF 8 property and losses and expenses caused or incurred by BGC or any BGC employee, agent, contractor, official, officer, servant, guest, and/or invitee, or any participant in or observer of BGC programming, at or in its use of Gymnasium or any lack of maintenance or repair thereon and not caused by or arising out of the tortious conduct of City. H. Indemnification of BGC. City and each and all of its employees, agents, contractors, officials, officers, servants, guests, and/or invitees, and all participants in City programming, shall indemnify and save and hold harmless BGC from and for any and all losses, claims, actions, judgments for damages, or injury to persons or property and losses and expenses caused or incurred by City or any City employee, agent, contractor, official, officer, servant, guest, and/or invitee, or any participant in or observer of City programming, at or in its use of Gymnasium or any lack of maintenance or repair thereon and not caused by or arising out of the tortious conduct of BGC. L Insurance. BGC shall maintain, and specifically agrees that it will maintain, throughout the term of this Agreement, liability insurance in the minimum amount as specified in the Idaho Tort Claims Act set forth in Title 6, Chapter 9 of the Idaho Code. The limits of insurance shall not be deemed a limitation of the covenants to indemnify and save and hold harmless City; and if City becomes liable for an amount in excess of the insurance limits herein provided due to the actions or omissions of BGC or any _B-G-C-employee,_agent,_contractor,_official,_officer_,_servant,_guest,_and/or invitee, or any participant in or observer of BGC programming. City shall maintain adequate liability insurance, and shall name the Boys and Girls Clubs of Ada County, Idaho, Inc., as an additional insured. Neither City nor BGC makes no warranty or promise as to the condition, safety, usefulness, or habitability of the premises. Unless otherwise notified as provided herein, City accepts Gymnasium for use as -is, both at the Effective Date of this Agreement and throughout the term of this Agreement. J. Compliance with laws. Both parties agree to comply with all applicable federal, state and local laws, regulations, and policies governing the funds provided and activities undertaken under this Agreement. K. Nondiscrimination. In performing activities pursuant to this Agreement, neither party shall not unlawfully discriminate in violation of any federal, state or local law, rule or regulation against any person on the basis of race, color, religion, sex, national origin or ancestry, age or disability. Both parties agree to comply with Title VI of the Civil Rights Act of 1964 as amended, Title VII of the Civil Rights Act of 1968 as amended, the Americans with Disabilities Act of 1990, and the Age Discrimination Act of 1975. L. Amendments. The parties hereto may amend this Agreement at any time provided that such amendments make specific reference to this Agreement, and are executed in writing, signed by a duly authorized representative of each party. Such amendments shall not invalidate this Agreement, nor relieve or release either party from its AGREEMENT FOR JOINT USE OF BOYS & GIRLS CLUB GYMNASIUM PAGE 6 OF 8 obligations under this Agreement. City may, in its discretion, amend this Agreement to conform with federal, state or local laws or available funding amounts; however, if such amendments result in a change in the funding, the scope of services, the schedule of the activities to be undertaken as part of this Agreement, or constitute a material modification of the terms of this Agreement, such modifications will be incorporated only by written amendment acceptable to, and signed by, both parties. M. Termination. 1. Notice of termination. Either party may terminate this Agreement by, at least thirty (30) days before the effective date of such termination, giving written notice to the other party of such termination and specifying the effective date thereof. 2. Termination for material noncompliance. Suspension or termination of the Agreement, in whole or in part, may occur if any party materially fails to comply with any term of this Agreement, which shall include, but shall not be limited to, the following: a. Failure by BGC to comply with any statutes, regulations, or City policies or directives as may become applicable at any time; b. City's failure to provide adequate supervision of its participants, guests, and invitees as provided in this Agreement; c. An act or omission by either party which breaches any term of this Agreement. d. Ineffective or improper use of funds provided under this Agreement; or e. Submission by the BGC to City reports that -are incorrect -or incomplete in any material respect. 3. Penalty for material noncompliance. In addition to suspension or termination of this Agreement and/or any other remedies as provided by law, upon a finding of material noncompliance by BGC, City may declare BGC ineligible for any further City funding. 4. Termination process. Either party may terminate this Agreement by providing (6) months advance written notice of intention to terminate. Such written notice shall include a description of the breach or circumstances providing grounds for termination. A ninety (90) day cure period shall commence upon mailing of the notice of intention to terminate. If, upon the expiration of such cure period, cure of the breach or circumstances providing grounds for termination has not occurred, this Agreement may be terminated upon provision of written notice of termination. N. Attorney Fees. Should any litigation be commenced between the parties hereto concerning this Agreement, the prevailing party shall be entitled, in addition to any other relief as may be granted, to court costs and reasonable attorneys' fees as determined by a court of competent jurisdiction. This provision shall be deemed to be a separate contract between the parties and shall survive any default, termination or forfeiture of this Agreement. O. Construction and Severability. If any part of this Agreement is held to be invalid or unenforceable, such holding will not affect the validity or enforceability of any other AGREEMENT FOR JOINT USE OF BOYS & GIRLS CLUB GYMNASIUM PAGE 7 OF 8 part of this Agreement so long as the remainder of the Agreement is reasonably capable of completion. If any provision of this Agreement is held invalid, the reminder of the Agreement shall not be affected thereby and all other parts of this Agreement shall nevertheless be in full force and effect. P. Entire Agreement. This Agreement contains the entire agreement of the parties and supersedes any and all other agreements or understandings, oral or written, whether previous to the execution hereof or contemporaneous herewith. Q. Non -waiver. Failure of either party to promptly enforce the strict performance of any term of this Agreement shall not constitute a waiver or relinquishment of any party's right to thereafter enforce such term, and any right or remedy hereunder may be asserted at any time after the governing body of either party becomes entitled to the benefit thereof, notwithstanding delay in enforcement. R. Approval Required. This Agreement shall not become effective or binding until approved by the respective governing bodies of both City and BGC. IN WITNESS WHEREOF, the parties shall cause this Agreement to be executed by their duly authorized officers to be effective as of the day and year first above written. Boys and Girls Clubs of Ada County, Maho, Inc. By: Colleen Braga, Executi@e Director CITY: City of Meridian Attest: 00,.,0-57z CW, `•N% By: Tam Weerd, Mayor Ja e o a, i y IDAHO �A SEAL w yr�$nfrAe TR4 A5044'aP AGREEMENT FOR JOINT USE OF BOYS & GIRLS CLUB GYMNASIUM PAGE 8 OF 8