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YMCA Agreement for Joint Use of Sports FacilitiesAGREEMENT FOR JOINT USE OF SPORTS FACILITIES This AG E N}ENT FOR JOINT USE OF SPORTS FACILITIES is made this 13-6— day of +60 ON 16, by and between the City of Meridian, a municipal corporation organized under the laws of the State of Idaho ("City"), and the Young Men's Christian Association of Boise City, an Idaho Nonprofit Corporation, dba Treasure Valley Family YMCA ("YMCA"). City and YMCA may be referred to collectively herein as "the Parties." WHEREAS, the respective governing bodies of the City and YMCA are committed to enhancing the community's quality of life by providing and supporting places and programming that foster individual and community growth, development, and wellness for children, adults, and families; and WHEREAS, the Parties recognize that through cooperation, we can more fully and effectively provide opportunities for diverse educational, recreational, athletic, and wellness programming than any of us can provide separately; and WHEREAS, the YMCA intends to build and operate a new family recreation center in south Meridian at the site of the Hillsdale Elementary School; and WHEREAS, and City is under contract to purchase the YMCA Homecourt facility in Meridian on October 1, 2016; and WHEREAS, after City takes ownership of the Homecourt, the YMCA has requested to jointly use the facility to provide continuity in its programs until such time as the new south Meridian YMCA family recreation center is ready to be used. 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 YMCA agree as follows. I. DEFINITIONS As used herein, these terms shall be defined as follows: A. Agreement: This Agreement for Joint Use of Sports Facilities, executed by and between City and YMCA. B. City Contact: Specified City employee who shall serve as the liaison between City and YMCA for all matters regarding the day-to-day scheduling, use, and maintenance of Facility. C. City: City of Meridian, Idaho, a municipal corporation organized under the laws of the State of Idaho D. Facility: The Homecourt building located at 936 W. Taylor in the City of Meridian, with areas described as Bays 1 through 5 and a common area as generally depicted on Exhibit A, attached hereto and incorporated herein. AGREEMENT WITH YMCA FOR JOINT USE OF FACILITIES PAGE 1 OF 11 E. YMCA Contact: Specified YMCA employee who shall serve as the liaison between YMCA and City for all matters regarding the day-to-day scheduling, use, and maintenance of the Facility. F. YMCA: the Young Men's Christian Association of Boise City, an Idaho Nonprofit Corporation, dba Treasure Valley Family YMCA. G. Effective Date: The day upon which this City takes ownership of the Facility pursuant to a Purchase and Sale Agreement between the Parties. The target Effective Date is October 1, 2016. II. TERM A. Primary Term. The Term shall be from the Effective Date until October 1, 2017, unless extended pursuant to the subsection below. Upon the request of City, YMCA shall execute a written acknowledgment of the Commencement Date and/or Expiration Date. B. Option Periods. YMCA shall have the option to extend the Primary Term for two annual option periods, the first being effective until October 1, 2018, and the second effective up to October 1, 2019 ("Option Periods"). YMCA shall give City written notice of its intention to exercise such options not less than three (3) months in advance of the expiration date of the Primary Term, or current Option Period, as applicable. C. Move -Out Date, Removal of Property. YMCA shall end its use of the Facility no later than October 1, 2019, unless the parties mutually agree in writing to extend or shorten the Move -Out Date. YMCA shall endeavor to provide as much advance notice as possible to City regarding the opening date of the new YMCA facility and YMCA's desired Move -Out Date. YMCA shall remove all of its tangible personal property by the Move -Out Date, including but not limited to fitness equipment, computers, volleyballs, basketballs, copy machine, office supplies, and employee personal effects. Any property left on the Premises after the expiration or termination of the Lease Term shall be deemed to have been abandoned and to have become the property of City to dispose of as City deems expedient. III. JOINT USE OF FACILITY A. YMCA's Facility Use Schedule. 1. YMCA will have exclusive use of Bay 5 (Fitness Area), the Child Watch Area, and the Office area for the duration of this Agreement. YMCA may allow the City to have incidental use of these areas as determined in YMCA's sole discretion. 2. On Monday, Wednesday, and Friday, the YMCA will have exclusive use of Bays 1, 2, and 3 from 8:00am to 2:00pm. 3. On Tuesday and Thursday, the YMCA will have exclusive use of Bays 1, 2, and 3 from 8:00am to 1:00pm. 4. Monday through Friday, the YMCA will have exclusive use of Bay 4 from at 5:00am to 3 :00pm. 5. Saturday, for the term of this agreement, the YMCA will have priority use of Bay 4 between the hours of 7:00am and 8:00pm excluding existing annual events and or tournaments such as ATA Martial Arts Tournament, Holiday Classic Volleyball Tournament, Bryan Dunn Tournament, Treasure Valley Tournament Series, Girls Scouts Cookie Kick -Off, Treasure AGREEMENT WITH YMCA FOR JOINT USE OF FACILITIES PAGE 2 OF 1 1 Valley Pickleball Classic, Boise Bombers Wheelchair Rugby, Idaho Select NPI Tournament, and other events with prior year reservations. 6. Sunday, for the term of this agreement, the YMCA will have priority use of Bays 1, 2, and 3 between the hours of 10:00am to 12:00pm and Bay 4 between the hours of 10:00am to 6:00pm excluding existing annual events and or tournaments such as ATA Martial Arts Tournament, Holiday Classic Volleyball Tournament, Bryan Dunn Tournament, Treasure Valley Tournament Series, Girls Scouts Cookie Kick -Off, Treasure Valley Pickleball Classic, Boise Bombers Wheelchair Rugby, Idaho Select NPI Tournament, and other events with prior year reservations. 7. On Saturdays from October through September the YMCA's Youth Sports Program will have priority use of no less than 3 courts for 30 of the total number of Saturdays, as determined by City, during the October through September time period. Priority use time on the selected Saturdays will end at 6:00pm. This provision regarding YMCA Youth Sports Saturday priority use shall survive the Term of this Agreement. After the Move -Out Date, YMCA shall continue Saturday priority use as set forth herein for an additional 10 years. After the first 10 years, the YMCA shall have the option to renew for additional consecutive terms of 1 year each, unless City provides written notice of its intent not to allow further options to renew. Each and every renewal term shall commence upon the expiration of the original term or the prior renewal term, as applicable. YMCA's payment for use of the facility after the Move -Out Date shall be at the fee rates set by the Meridian City Council. 8. All gym facility reservation requests must be turned into the City annually on or before April 1St for reservations starting October 1St through September 30tH 9. The facility use schedule set forth herein is subject to temporary suspension for reasonable and necessary maintenance as provided in Section F of this Agreement. City shall endeavor to schedule maintenance outside of the hours of facility use set forth herein and shall provide advance notice of required maintenance when possible. B. Facility Staffing. 1. YMCA will provide adequate and necessary staffing of the facility, as determined in its sole discretion, during the YMCA hours of operation. City will staff its own programs and operations. 2. YMCA staff will be responsible to document any injuries and or first aid given during the YMCA hours of operation, and City Staff will be responsible to document any injuries and or first aid given during City Programs. 3. City Contact will coordinate with YMCA contact on a weekly basis to discuss staffing and schedule of the 4 basketball courts, as well as any facility maintenance needs or concerns. C. Common Areas. YMCA shall have the non-exclusive right to use all common areas located within the Building, including, but not limited to, entrance ways, foyers, and restrooms, locker rooms and other areas intended to be used in common by all users of the Facility and their invitees, and the common areas located on the land on which the Building is situated, including, but not limited to, the parking lot and sidewalks adjacent to the Building and all other areas on such land intended to be used in common by users of the Facility and their invitees (collectively, "Common Areas") AGREEMENT WITH YMCA FOR .JOINT USE OF FACILITIES PAGE 3 OF I 1 D. Signs. During the effective dates of the Agreement, the exterior of the Facility shall display signage reflecting the joint use, in a manner generally depicted on Exhibit B. Upon the expiration or sooner termination of this Agreement, YMCA shall remove its logo sign, and other advertising matters or decorations (both internal and external to the Facility) at its sole cost and expense and repair any resulting damage to the Premises and the Building. E. Revenues. 1. All revenues from facility reservations will be collected and retained by the City. 2. All revenues from building leases such as the Church and YMCA will be collected by the City. 3. All revenues associated with City programs or events will be collected and retained by the City. 4. All revenues associated with YMCA membership fees and or YMCA program fees will be collected and retained by the YMCA. 5. All events and or programs requesting admission fees must be approved by the City prior to the event being scheduled. 6. Facility Sponsorships will be administered by the City and all facility sponsorship revenues will be collected and retained by the City. 7. Upon the expiration or sooner termination of this Agreement, YMCA shall pay for facility use at the fee rates set by the Meridian City Council. F. Maintenance. 1. City shall repair and maintain the structural portions of the Building, including the basic plumbing, air conditioning, heating and electrical systems, the exterior of the Building, the parking lot and the landscaping, unless such maintenance or repairs are required as a result, in whole or in part, of the act of, or neglect of any duty by, YMCA, its agents, servants, employees, or invitees, in which event YMCA shall pay to City the reasonable cost of such maintenance or repairs. 2. All Facility repairs will be performed by the City. If repairs are needed, YMCA staff will submit a written report to City detailing what needs to be fixed. For personal property and equipment items, City and YMCA shall repair their own items at their own expense. Any item (Facility or equipment) that needs repaired due to not being used properly and or used against the items recommended use, will be repaired at the expense of the party responsible for the damage. 3. Any building damages done by YMCA participants during a YMCA program, the YMCA will be responsible to pay for such damages. Example; if a hole gets kicked into the wall by a YMCA participant during Zumba class, the YMCA must pay for the damages. All repairs will be administered by the City. 4. The four basketball courts will be closed for two weeks every year to resurface the gym flooring. 5. All building inspections will be done on the City maintenance schedule. 6. All Cleaning Service contracts will be administered by the City. If cleaning needs are not being met, YMCA must submit a written report explaining the issues and or needs. 7. All other contracts such as pest control and landscaping will be administered by the City. 8. YMCA will be responsible for any City owned equipment that is damaged during YMCA programs. Example: if Pickleball nets and or equipment are broken during the Pickleball program hours, the YMCA will be responsible to repair such damages. 9. City will begin ownership of the facility on October 1, 2016 with all 4 basketball courts refinished on the current YMCA court maintenance schedule at the YMCA expense. AGREEMENT WITH YMCA FOR JOINT USE OF FACILITIES PAGE 4 OF 1 1 10. In case of damage to the Premises or the Building by fire or other casualty, YMCA immediately shall notify City. If the Building is damaged by fire or any other cause to such extent that the cost of restoration, as reasonably estimated by City, will equal or exceed thirty percent (30%) of the replacement value of the Building (exclusive of foundations) prior to the occurrence of the damage, and if insurance proceeds sufficient for full restoration are unavailable for any reason, then City no later than the sixtieth (60th) day following the damage may give YMCA a notice of election to terminate this Agreement. In the event of such election this Agreement shall be deemed to terminate on the third (3rd) day after the giving of such notice, and YMCA shall surrender possession of the Premises within a reasonable time thereafter, and operating expenses shall be apportioned as of the date of YMCA's surrender. If insurance proceeds are availabe for such restoration, then the City, at its option, may elect to terminate this Agreement and shall provide YMCA notice of such election and and YMCA shall surrender possession of the Premises in like fashion. If the cost of restoration as estimated by City shall amount to be less than thirty percent (30%) of said replacement value of the Building and insurance proceeds sufficient for restoration are available, then City shall restore the Building and the Premises with reasonable promptness, subject to delays beyond City's control. 11. No damages, compensation or claims shall be payable by City for inconvenience, loss of business or annoyance arising from any repair or restoration of any portion of the Premises or the Building. City will not carry insurance of any kind on any property of YMCA, including inventory, equipment, floor, ceiling and wall coverings, furniture and trade fixtures, and any improvements to the Premises that are paid for by YMCA and City shall not be obligated to repair any damage thereto or replace the same. G. Services. 1. Basic Services. City shall provide mechanical, cooling, heating and ventilation during "Normal Business Hours," including but not limited to the hours that YMCA will be utilizing the Facility. City shall provide cooling, heating and ventilation at times other than Normal Business Hours upon YMCA's request and with reasonable notice to City. 2. Basic Utilities. City shall furnish water, sewer, electricity and natural gas service to the Premises and the cost of such utility service, including costs based on consumption, shall be the expense of City, subject to operating expense reimbursement set forth in this Agreement. This Agreement by City is predicated on YMCA not engaging in any business which would cause a consumption or use of such utility services beyond that normally associated with office usage. In the event City reasonably determines that YMCA's consumption or use of any such utility is greater than that normally associated with office usage, City shall bill YMCA for the cost of such special or comparatively excessive use of such utility services on a regular basis. City shall not be liable for any loss or damage caused by or resulting from any variation, interruption or failure of such services due to any cause whatsoever 3. Additional Utilities. YMCA shall purchase all other utility services, including but not limited to telephone, cable and television services desired by YMCA from the utility or municipality providing such service, and shall pay for such services when such payments are due. H. Operating Expenses. 1. YMCA shall pay to City its proportionate share of City's Operating Costs of the Facility. City's Operating Costs are its reasonable costs to maintain the Facility and the land on which it is situated, including janitorial, maintenance, and utilities (Idaho Power and Intermountain Gas). YMCA will pay directly for its phone, internet, and data accounts. YMCA's proportionate share of operating expenses will be determined by the number of operational AGREEMENT WITH YMCA FOR JOINT USE OF FACILITIES PAGE 5 OF 11 hours the YMCA utilizes under this agreement as a percentage of the total number of hours that the Facility is available. 2. Estimated Payments. As soon as practicable after the Effective Date of this Agreement, City shall reasonably estimate and give YMCA written notice ("Notice of Estimated Operating Expenses") of the anticipated Operating Expenses during the fiscal year just commenced. The notice will indicate in reasonable detail City's estimate of such expenses and shall indicate YMCA's Proportionate Share thereof. YMCA shall pay the estimate on a monthly basis. City shall have the right at any time during the current year to amend the estimate of increase of Operating Expenses occasioned by any unforeseen expense. City shall notify YMCA of such further increase by means of an abbreviated estimate of increases in Operating Expenses which will identify the area of expense being increased and the amount thereof. YMCA shall thereafter pay YMCA's Proportionate Share of said increased expense prorated over the number of monthly rental payments remaining in the fiscal year. 3. Annual Settlement. Each year, City shall deliver to YMCA with the Notice of Estimated Increase in Operating Expenses based on the expenses from the prior year and other reasonable factors. Such statement will be final and binding upon City and YMCA unless YMCA objects to it in writing to City within thirty (30) days after it is given to YMCA. YMCA may review City's records of the Operating Expenses, at YMCA's sole cost and expense, at the place City normally maintains such records during City's normal business hours upon reasonable advance written notice. 4. Final Proration. If this Lease ends on a day other than the last day of a fiscal year, the amount of increase (if any) in the Operating Expenses payable by YMCA applicable to the fiscal year in which this Lease ends will be calculated on the basis of the number of days of the Term falling within such fiscal year, and YMCA's obligation to pay any increase or City's obligation to refund any overage will survive the expiration or other termination of this Lease. 5. Emergency Expenditures. If at any time during the Term, City deems it necessary to make emergency repairs or other emergency payments which are included as part of Operating Expenses, YMCA shall pay YMCA's Proportionate Share of such emergency expenditures within thirty (30) days following receipt from City of a statement therefor identifying the expenditure and YMCA's Proportionate Share of such expenditure. I. Uses. 1. General Use. The Premises shall be used only for the uses typically associated with gymnasiums and sports workout facilities ("Permitted Uses") and for no other use without the prior written consent of City. YMCA shall comply with all laws and regulations relating to its use or occupancy of the Premises or of the Common Areas. YMCA shall observe such rules and regulations for the Building as may be adopted by City. 2. No Hazardous Substances. YMCA agrees not to use, store or deposit any substance that is hazardous or dangerous to person, property or the environment (or any similar substance) as now or hereafter defined by or determined pursuant to any applicable law or regulation ("Hazardous Substance") in, on or about the Premises in violation of applicable law, and YMCA shall indemnify and hold City harmless against any liability, damages, costs, loss or claim therefor, including attorneys' fees incurred in connection therewith, arising from or related to the presence of any Hazardous Substance in, on or about the Premises, which presence was caused by YMCA, its agents, employees, subleases or anyone otherwise associated with YMCA. 3. Insurance Risks. YMCA will not do or permit to be done any act or thing upon the Premises, the Building or the Common Areas which would (a) jeopardize or be in conflict with fire insurance policies covering the Building and fixtures and property in the Building; (b) increase AGREEMENT WITH YMCA FOR JOINT USE OF FACILITIES PAGE 6 OF 1 1 the rate of fire insurance applicable to the Building to an amount higher than it otherwise would be for the general office use of the Building; or (c) subject City to any liability or responsibility for injury to any person or persons or to property by reason of any business or operation being carried on upon the Premises. 4. Personal Property Taxes. YMCA shall pay, prior to delinquency, all taxes and assessments payable with respect to all Property of YMCA located on the Premises, if any. "Property of YMCA" shall mean and include all personal property of YMCA including inventory, equipment, floor, ceiling and wall coverings, furniture and trade fixtures kept or used on or installed in the Premises and any improvements to the Premises that are owned by and separately assessed to YMCA. 5. Care of Premises. YMCA shall keep the Premises in a neat, clean and sanitary condition and shall at all times preserve them in good condition and repair, ordinary wear and tear excepted. 6. Alterations and Damage. YMCA shall make no additions, changes, alterations or improvements to the Facility without the prior written consent of City. All damages or injury done to the Premises, the Common Area or the Building by YMCA or by any persons who may be in or upon the Premises, the Common Area or the Building with the express or implied consent of YMCA, shall be paid for by YMCA. IV. GENERAL TERMS AND CONDITIONS A. Seasonal Review. The YMCA Contact and the City Contact shall meet annually to review the schedule, operating expenses, and address any problems which may have arisen, and discuss improvements regarding the parties' joint use of Facility. B. 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. C. 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 YMCA. YMCA shall not assign or sublet all or any portion of YMCA'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. D. No Agency. Neither YMCA nor its employees, agents, contractors, officials, officers, servants, guests, and/or invitees shall be considered agents of City in any manner or for any purpose whatsoever in their use and occupancy of Facility. E. Indemnification and Insurance. YMCA and each and all of its employees, agents, contractors, officials, officers, servants, guests, and/or invitees, and all participants in YMCA 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 property and losses and expenses caused or incurred by YMCA or any YMCA employee, agent, contractor, official, officer, servant, guest, and/or invitee, or any participant in or observer of YMCA programming, at or in its use of Facility or any lack of maintenance or repair thereon and not caused by or arising out of the tortious conduct of AGREEMENT WITH YMCA FOR JOINT USE OF FACILITIES PAGE 7 OF 1 1 City. YMCA 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. City shall be named as an additional insured on YMCA's policy. 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 YMCA or any YMCA employee, agent, contractor, official, officer, servant, guest, and/or invitee, or any participant in or observer of YMCA programming, YMCA covenants and agrees to indemnify and save and hold harmless City from and for all such losses, claims, actions, or judgments for damages or liability to persons or property. City makes no warranty or promise as to the condition, safety, usefulness, or habitability of the Facility; YMCA accepts Facility for use as is, both at the Effective Date of this Agreement and for each day thereafter. F. Compliance with Laws. In performing the scope of services required hereunder, City and YMCA shall comply with all applicable laws, ordinances, and codes of federal, state, and local governments. G. 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. H. Grounds for Termination. Grounds for termination of this Agreement shall include, but shall not be limited to: 1. An act or omission by either party which constitutes a material breach of any term of this Agreement. 2. An act of nature or other unforeseeable event which precludes or makes impossible the performance of the terms of this Agreement by either party. 3. A change in circumstances that renders the performance by either party a detriment to the public health, safety, or welfare. I. Termination Process. Either party may terminate this Agreement by providing thirty (30) days advance written notice of intention to terminate. Such written notice shall include a description of the breach or circumstances providing grounds for termination. A thirty (30) 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. J. 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 part of this Agreement so long as the remainder of the Agreement is reasonably capable of completion. K. 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. L. 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 AGREEMENT WITH YMCA FOR JOINT USE OF FACILITIES PAGE 8 OF 1 1 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. M. Applicable Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Idaho. N. Approval Required. This Agreement shall not become effective or binding until approved by the respective governing bodies of both City and YMCA. The parties signatory hereto represent and warrant that each is duly authorized to bind, respectively, City and YMCA to this Agreement in all respects. 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. YMCA: BY: Efa'tffiuro President CITY OF MERIDIAN: Tammy Mayor EDA Attest: S't R C'i1Y of -- DYgN oAMo EAL City Clerk C stir cad AGREEMENT WITH YMCA FOR JOINT USE OF FACILITIES PAGE 9 OF I I EXHIBIT A .�� Not A Part (Church Lease) 5 4 2 AGREEMENT WITH YMCA FOR JOINT USE OF FACILITIES PAGE 10 OF 11 EXHIBIT B External Signage Diagram CITY OF } AGREEMENT WITH YMCA FOR JOINT USE OF FACILITIES PAGE 1 1 OF 11