HomeMy WebLinkAbout2016 10-17 City Council Special Meeting PacketAGENDA
MAPLEWOOD CITY COUNCIL
SPECIAL CITY COUNCIL MEETING
5:30 P.M. Monday, October 17, 2016
City Hall, Council Chambers
A. CALL TO ORDER
B. PLEDGE OF ALLEGIANCE
C. ROLL CALL
D. APPROVAL OF AGENDA
E. UNFINISHED BUSINESS
None
F. NEW BUSINESS
1. Consideration of Contract with YMCA for Maplewood Community Center Operations
G. ADJOURNMENT
THIS PAGE IS INTENTIONALLY LEFT BLANK
MEMORANDUM
TO: City Council
FROM: Melinda Coleman, City Manager
DuWayne Konewko, Parks and Recreation/EEDD Director
DATE: October 17, 2016
RE: Consideration of Contract with YMCA for Maplewood Community Center Operations
Introduction
City staff has been working with representatives from the YMCA for the last six-months to
expand the existing partnership agreement between the City and the YMCA which was
approved by City Council in March of 2015. Under this agreement, the YMCA is responsible for
managing the MCC’s Aquatic Center, as well as working with staff on the day-to-day
management of the facility. As discussed at the September 26, 2016 Council Workshop, the
City has received positive feedback from our members and the YMCA has proven to be a
successful partner. Also at this meeting, staff provided Council with a summary of the major
elements of the draft agreement for discussion purposes. Council then directed staff to move
forward with the draft agreement and set a Special City Council Meeting for October 17, 2016 at
5:30 p.m. The purpose of the meeting is to consider approval of final agreement between the
City and the YMCA.
Joining staff to discuss the Maplewood Community Center Operating Agreement and respond to
any questions the Council may have are; Greg Waibel, COO of YMCA of the Greater Twin
Cities; Chad Lanners, YMCA Vice President of Operations, and Shane Hoefer, Executive
Director of the White Bear Area YMCA. The YMCA staff will give an update on the employee
hiring process as well as membership information.
In addition, Bruce Kimmel, Senior Municipal Advisor/Director, with Ehlers-Inc. will be discussing
the financial implications of the proposed agreement with the City Council. Mr. Kimmel has been
involved in recent meetings with the YMCA and has provided guidance in some areas of the
operating agreement. Mr. Kimmel’s MCC financial analysis and report are included in the staff
report as Attachment 1.
Discussion
As stated in the September 26, 2016 staff report to the City Council - The Maplewood
Community Center (MCC) has long been an amenity for Maplewood residents and others who
have enjoyed using this facility since it opened in October of 1994. The City’s goal is to ensure
that this facility remain a keystone amenity for the community. However, the City’s ability to
provide the type of facility and programming that is expected from a community center is
becoming more of a challenge every year. In an effort to enhance programming and services,
staff started the process of exploring a partnership with the YMCA. We believe that the YMCA
will provide a first class experience for our members and residents, but also allow the City to
focus on other important goals related to parks and recreation and other city objectives.
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Special Meeting Packet Page Number 1 of 28
We understand that current operating standards are not sustainable. The City Council and staff
have been discussing the long term viability of the MCC in light of concerns regarding the
facility’s operating budget and deferred capital improvement projects. The annual operating
deficit has been between $250,000 and $460,000. The MCC operating loss for 2015 was
$457,000. In addition, the Asset Management Plan that was completed for the MCC in the fall of
2014 identified more than $10,000,000 in needed capital improvements to the facility in the next
ten years. These numbers present major budgetary challenges for the City and clearly are not
sustainable going forward. With that in mind, City Council directed staff to explore creative and
collaborative solutions to these long-term challenges for the MCC.
Besides understanding and addressing the financial implications, City Council directed staff to
engage our members and the community and work directly with staff during this transition. To
that end, staff held 3 employee meetings to explain why this operational change was important,
provide them with a timeline and to discuss the hiring opportunities and process. In addition, 2
community meetings were held in September whereby all MCC members were invited to come
hear about the changes and to voice questions and concerns related to their memberships and
use of the facility. These meetings were well attended. In addition, we had a press release go
out to area news publications and an article in the “Maplewood Living” that explained the
change in operations with the YMCA. Staff at the City and the YMCA did receive follow up
emails and calls, probably 20 or less. Questions and concerns pertained primarily to
membership pricing and fitness class options and staffing.
The transition of Maplewood employees has gone fairly well. Of the 11 MCC/Maplewood
benefit earning employees, 4 have been, or will be, transferred to city hall or public works
positions, and 1 employee is retiring. The remaining 6 employees will receive a severance
package. That severance package will be presented to you on October 24th for your
consideration.
City staff and the YMCA staff have been working on the Maplewood Community Center
Operating Agreement for a few months. The Agreement, Attachment #2, illustrates the
numerous opportunities and wins for the City and the YMCA. This is a strong partnership that
benefits our MCC members and the community overall.
Recommendation
Staff is recommending that the City Council approve the Maplewood Community Center
Operating Agreement between the City of Maplewood and the YMCA. Staff also recommends
that the City Council approve the Assignment and Assumption Agreement between the City of
Maplewood and the YMCA.
Attachments
1. MCC Financial Analysis and Report- Bruce Kimmel
2. Proposed Maplewood Community Center Operating Agreement
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Memo
To: City of Maplewood, Minnesota
From: Bruce Kimmel, Senior Municipal Advisor
Date: October 12, 2016
Subject: MCC Operating and Capital Cost Projection: 2016 - 2027
The City of Maplewood asked Ehlers to prepare a financial projection to help it compare
(a) its potential annual and cumulative costs in continuing to operate the Maplewood
Community Center (MCC) for the next 10 years to (b) its prospective costs under the
proposed YMCA lease agreement that the City Council will consider on October 17.
A major reference point for this financial projection is the MCC Asset Management Plan
that SEH prepared for the City in 2014. This comprehensive life cycle study identified
$24.5 million of future MCC repair and replacement requirements, with varying degrees
of priority, through 2034. Ehlers recognizes that many local governments are able to
defer a certain amount of capital investments through strong maintenance programs,
and that competing fiscal priorities often also constrain capital investment programs.
As such, Ehlers set hypothetical targets for future MCC investments so that, on a year-
by-year basis, the cumulative target investments would meet roughly 50% or more of
the cumulative capital needs identified in the MCC Asset Management Plan. Please
note that these target investments (growing from $500,000 to $1,000,000 in increments
of $50,000 per year) are a means by which to compare the City’s estimated total MCC
costs in the proposed YMCA lease agreement vs. continued City operations, and are
not a recommendation of actual capital needs or budgeting.
With these reference points, we projected the City’s MCC operating and capital costs
under Scenario 1 (City operation) and Scenario 2 (YMCA operation) through the initial
YMCA lease term of 2017 – 2026. In Scenario 1, we estimated that the City’s annual
operating deficit (roughly $450,000 in 2015 and 2016) will grow by only 2% per year, on
average. Scenario 2 eliminates these City operating deficits after 2016.
On the capital side, Scenario 1 includes the target capital investments discussed above,
while Scenario 2 includes the scheduled City deposits to a MCC capital fund that are
detailed in the proposed YMCA lease agreement, and also assumes the City will make
additional investments in major MCC capital needs every two years. The final section
reconciles these two capital investment approaches, showing that when one factors in
the capital investments that the YMCA will also make under the lease agreement, the
same cumulative level of investment is reached in both scenarios.
F1, Attachment 1
Special Meeting Packet Page Number 3 of 28
City of Maplewood, Minnesota
MCC Operating and Capital Cost Projection: 2016 -2027
October 12, 2016
Page 2
The net result of this comparative analysis is the $13.7 million total City cost projected in
Scenario 1 and the $7.1 million total cost projected in Scenario 2. Because these costs
would be incurred in different annual proportions over the 2016 – 2017 timeframe of the
analysis, Ehlers also calculated the present value of these total costs. Present value is
a way to determine what a stream of future payments is worth in today’s dollars, and/or
assuming an opportunity to invest the same funds elsewhere. As present values, then,
the City’s costs in Scenarios 1 and 2 are $10.7 million and $5.7 million, respectively.
Dividing one by the other, we see that the City’s prospective Scenario 2 cost is 53% of
its Scenario 1 cost. Knowing that many factors may shift over the next 10 years, we
would caution the City not to “count on” YMCA operation of the MCC delivering the full
$5 million of present value savings – or, more precisely, avoided City costs – that are
estimated here. Even so, we believe this analysis demonstrates that, by (a) eliminating
the City’s annual MCC operating deficit and (b) bringing YMCA funds to help address
future capital investment needs, the proposed YMCA lease will deliver significant fiscal
benefit to the City.
Please contact me at (651) 697-8572 or bkimmel@ehlers-inc.com with any questions
about this fiscal analysis, and thank you for the opportunity to be of assistance to the
City of Maplewood.
F1, Attachment 1
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City of Maplewood, MinnesotaComparison of Fiscal Impacts with YMCA Lease of Maplewood Community CenterOctober 10, 2016Reference Point: 2014 MCC Asset Management Plan Cost EstimatesTotals2016* 2017 2018 2019 2020 2021 2022 2023 2024 2025 2026 2016‐2027Estimated Plan Costs 1,000,000 465,000 1,301,000 362,000 937,000 11,000 548,000 363,000 8,111,000 1,739,000 313,000 15,150,000Cumulative Plan Costs1,000,000 1,465,000 2,766,000 3,128,000 4,065,000 4,076,000 4,624,000 4,987,000 13,098,000 14,837,000 15,150,000* Asset Management Plan included $2,051,000 in costs for 2015; this analysis assumes $1,000,000 of those costs remain to be completed in 2016 and beyond. Reference Point: Target Amounts for MCC Capital Investment (hypothetical City goal: keep cumulative plan costs remaining each year at/below 50% of cumulative plan costs above)Totals2016 2017 2018 2019 2020 2021 2022 2023 2024 2025 2026 2016‐2027Target MCC Capital Investment500,000 550,000 600,000 650,000 700,000 750,000 800,000 850,000 900,000 950,000 1,000,000 8,250,000 Cumulative Capital Investment500,000 1,050,000 1,650,000 2,300,000 3,000,000 3,750,000 4,550,000 5,400,000 6,300,000 7,250,000 8,250,000 Cumulative Plan Cost Remaining500,000 415,000 1,116,000 828,000 1,065,000 326,000 74,000 (413,000) 6,798,000 7,587,000 6,900,000 % of Cumulative Plan Costs Above50% 28% 40% 26% 26% 8% 2%‐8% 52% 51% 46%Scenario 1: City Operates MCCTotals2016 2017 2018 2019 2020 2021 2022 2023 2024 2025 2026 2016‐2027Projected City Operating Loss (2% Inflation) 450,000 459,000 468,180 477,544 487,094 496,836 506,773 516,909 527,247 537,792 548,547 5,475,922 Target MCC Capital Investment500,000 550,000 600,000 650,000 700,000 750,000 800,000 850,000 900,000 950,000 1,000,000 8,250,000 Total City Cost950,000 1,009,000 1,068,180 1,127,544 1,187,094 1,246,836 1,306,773 1,366,909 1,427,247 1,487,792 1,548,547 13,725,922Present Value of 2016‐2027 Annual Totals at 4% Discount Rate: 10,726,471Scenario 2: YMCA Operates MCC Beginning November 2016Totals2016 2017 2018 2019 2020 2021 2022 2023 2024 2025 2026 2016‐2027City Operating Loss 450,000 ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ 450,000 Scheduled City Capital Fund Deposit500,000 500,000 542,000 200,000 204,000 208,080 212,242 216,486 220,816 225,232 229,737 3,258,594 Estimated Other City Capital Investment500,000 600,000 700,000 800,000 800,000 3,400,000 Total City Cost950,000 500,000 1,042,000 200,000 804,000 208,080 912,242 216,486 1,020,816 225,232 1,029,737 7,108,594 Present Value of 2016‐2027 Annual Totals at 4% Discount Rate: 5,687,994 Scenario 2 Present Value as % of Scenario 1 Present Value: 53.03%Comparing Target MCC Capital Investment to Combined City ‐ YMCA Capital Investment in Scenario 2Totals2016 2017 2018 2019 2020 2021 2022 2023 2024 2025 2026 2016‐2027Target MCC Capital Investment 500,000 550,000 600,000 650,000 700,000 750,000 800,000 850,000 900,000 950,000 1,000,000 8,250,000 less: Scheduled City Capital Deposit (500,000) (500,000) (542,000) (200,000) (204,000) (208,080) (212,242) (216,486) (220,816) (225,232) (229,737) (3,258,594) less: Other City Capital Investment‐ ‐ (500,000) ‐ (600,000) ‐ (700,000) ‐ (800,000) ‐ (800,000) (3,400,000) less: Scheduled YMCA Capital Fund Deposit‐ ‐ ‐ (200,000) (200,000) (200,000) (200,000) (200,000) (200,000) (200,000) (200,000) (1,600,000) Target MCC Capital Investment Remaining‐ 50,000 (442,000) 250,000 (304,000) 341,920 (312,242) 433,514 (320,816) 524,768 (229,737) (8,594) Cumulative Target Investment Remaining‐ 50,000 (392,000) (142,000) (446,000) (104,080) (416,322) 17,192 (303,624) 221,143 (8,594) F1, Attachment 1
Special Meeting Packet Page Number 5 of 28
1
MAPLEWOOD COMMUNITY CENTER
OPERATING AGREEMENT
THIS MAPLEWOOD COMMUNITY CENTER OPERATING AGREEMENT (this “Agreement”) is
made on this _____ day of __________, 2016, by and between Young Men’s Christian
Association of the Greater Twin Cities, a non-profit corporation, and the City of Maplewood,
Minnesota. Young Men’s Christian Association of the Greater Twin Cities, with its
headquarters at 2125 E. Hennepin Ave., Minneapolis, Minnesota, 55413, will hereinafter be
referred to as the “YMCA”. The City of Maplewood, with its City Hall at 1830 County Road B
East, Maplewood, Minnesota, 55109, will hereinafter be referred to as the “City”.
WHEREAS, the City owns and operates the Maplewood Community Center located at 2100
White Bear Avenue in Maplewood, Minnesota, which will hereinafter be referred to as “MCC”
and the YMCA operates more than 23 similar facilities in the Twin Cities community;
WHEREAS, the City and YMCA share a vision to serve relentlessly with the community of
Maplewood until all can thrive in each stage of life; and
WHEREAS, the City and the YMCA have already entered into a partnership for the direct
operation of the MCC’s Aquatic Center during 2015-2016, which consists of the room
housing the swimming pools at the MCC, and related programming and to support City staff
in the overall management of the MCC; and
WHEREAS, the City and YMCA now desire to enter into an Agreement wherein the YMCA
becomes the primary operator of the MCC in order to better serve the community and
improve the financial viability and sustainability of the MCC; and
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, it is agreed by the parties hereto as follows:
I. SCOPE OF OPERATIONS
1.1 THE FACILITY. For the purposes of this Agreement, the “Facility” is understood to
be solely the MCC building located at 2100 White Bear Avenue, as depicted in Exhibit
A. Unless otherwise specified in this Agreement, the Facility shall be understood to
include all aspects of the building’s external and internal structures, all mechanical
systems, and all permanent fixtures attached to the building. The Facility shall not
be understood to include the sidewalks, grounds, landscaping, external walkways or
staircases, parking lots, or access ways surrounding the building.
1.2 THEATER OPERATIONS. YMCA and City acknowledge that the Theater area of the
Facility is operated and maintained subject to a 2016 lease agreement between City
and Ashland Productions, Inc. (the “Ashland Lease”), and that such Ashland Lease
will continue in effect until May 31, 2021. As part of this Agreement, City shall
assign its position in the Ashland Lease to YMCA, including all rights, responsibilities,
operating revenues, and operating expenses associated therewith. YMCA and City
understand that City is currently making specific capital improvements to the
Theater, as described in its lease. City commits to completing and paying for all
such improvements from its own funds, and City will coordinate with YMCA its
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performance of all such improvements that occur after the effective date of this
Agreement. YMCA and City agree that all subsequent, non-emergency capital
improvements to the Theater will be included in the Capital Improvements planning
and implementation process as described in Section 4.2.
1.3 OPERATIONAL AUTHORITY OF YMCA.
A. Operational Activities of and within the Facility. YMCA will assume direct
operational leadership and supervision of all Facility operations, including but not
limited to programs, services, rentals, reservations, cleaning, maintenance, and
day-to-day engineering within the Facility unless otherwise specified in this
Agreement. No City employees will office, work, or have any responsibility to the
maintenance or operations within the Facility except to undertake capital
improvements agreed to by YMCA and City, and described in Section 4.1
B. Use of Facility Program Areas. Unless otherwise specified in this Agreement,
YMCA shall be the sole determinant regarding any and all policies relating to the
operation or continuation of programs and services offered at the Facility,
including but not limited to Membership, Admissions, Concessions, Fitness, Day
Camp, Birthday Party, and Child Care programs offered at the Facility, and
regarding the use of all Facility components, including but not limited to the
Racquetball Courts, Gymnasium, Aquatics Center, Locker Rooms, Banquet
Facility, and Administrative Offices.
II. RESPONSIBILITIES OF CITY
2.1 TRANSITION AND POSSESSION. City shall deliver possession of the Facility to
YMCA as of the Effective Date (unless City and YMCA mutually agree to transition
operational control on Oct. 31, 2016).
2.2 USE OF PARKING LOTS. City shall provide YMCA access to and use of City-owned
Parking Lots for employees and customers of the Facility as shown in Exhibit A.
2.3 MAINTENANCE AND EXPENSES. City shall be responsible for operating and
maintaining areas outside the Facility, including snow removal and lawnmowing.
City shall be responsible for maintaining areas outside the Facility, including snow
removal of parking lots and sidewalks, entrances, exits, and walkways adjacent to
the MCC, and landscaping/mowing services. Irrigation controls are interior to the
building thus irrigation operations and schedule would be the responsibility of the
YMCA, however the City will repair as requested with exterior repairs to damaged
irrigation pipes or heads upon notice of the YMCA. The City shall remove snow from
and salt as needed the upper and lower parking lots, repeating as necessary during a
single snowfall event whenever snow depth reaches 2 inches or as soon as is feasible
once snowfall has reached that depth. City shall remove snow from and salt,
sidewalks, entrances, exits, and walkways adjacent to the Facility when snowfall
accumulates to a depth of 3 inches. YMCA shall be responsible for salting and
shoveling sidewalks and entrance/exits adjacent to the building as needed between
City snow removal operations in order to maintain safe entry and egress to and from
the Facility during published Facility hours. City shall also be responsible for snow
removal of the White Bear Avenue sidewalk, County Road B walking trail, and the
walking trail around Wicklanders Pond per its Snow and Ice Control Policy. City shall
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pay all Facility indebtedness, real estate and property taxes, and other legal
ownership expenses.
2.4 MEMBERSHIP RECORDS, IDENTITY, AND FINANCIAL ACTIONS. The City will
provide the YMCA with current and historical membership and program records and
payment information from the last 3 years in order to facilitate continued services
and communications to past and current customers and guests of the MCC. Without
limiting the generality of the foregoing, the City shall assign to the YMCA all of its
rights, title and interests under each membership agreement, including without
limitation the authorization and right to debit each member's account (on behalf of
the City d/b/a the Maplewood Community Center) for monthly fees in accordance
with the terms of each membership agreement. In addition to the foregoing, the
City agrees to take all such further actions as the YMCA or its depositary bank may
reasonably require to facilitate the orderly and uninterrupted processing of payments
due under each Membership Agreement.
2.5 ACCESS, KEYS, AND SECURITY. The City will provide sufficient keys, access codes,
and other such passkeys and passwords as are necessary to open every door in the
Facility and control access to all portions of the Facility, including to related security-
restricted electronic domains such as video cameras, energy management systems,
and similar.
2.6 NAME AND SIGNAGE COMMITMENTS.
A. Facility Name and Signage. YMCA will have the option to rename the
Maplewood Community Center as the Maplewood YMCA Community Center at any
time during the agreement, and YMCA has the option to install signage and
branding on interior and exterior of Facility, including the Digital Sign indicated in
Exhibit A, at YMCA’s expense. During the term of the Ashland Lease, YMCA shall
coordinate with Ashland Productions, Inc. to include Ashland in signage upgrades,
if Ashland desires to be included, at Ashland’s own expense.
B. Access to City-Owned Billboards and Communications. City grants YMCA
the right to operate and manage content for the Digital Sign indicated in Exhibit
A. In addition, YMCA may place up to two (2) ads per month on both of the City’s
digital billboards, located on Highway 36 and Interstate Highway 494, at no cost
to the YMCA. YMCA has the option to purchase additional space in City-generated
brochures and newsletters, electronic or paper, delivered to City residents. As of
the Effective Date (as defined herein), YMCA will take possession of the City-
owned Web site and social media platforms related to the MCC. YMCA will work
with City communications staff in the execution of these actions, and City is
allowed access to the Digital Sign for advertising of its recreation programs.
2.7 FURNISHINGS, FIXTURES, AND EQUIPMENT. The City will leave in place all
furnishings, fixtures, and equipment at the MCC which has been generally present in
the Facility since April 30, 2016 for the unrestricted use of the YMCA in its operation
of the Facility and related programs. As of the Effective Date, YMCA shall be
responsible for their maintenance and upkeep as described elsewhere in this
agreement.
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III. RESPONSIBILITIES OF YMCA
3.1 OPERATIONS AND MAINTENANCE. YMCA shall operate and maintain the Facility
in a safe and proper manner and in conformance with all Minnesota laws and rules,
including those related to public pools. YMCA shall be responsible for providing safe,
clean, and sanitary conditions in and around the Facility, and for all contracts for
furnishing electricity, natural gas, fuel, water, telephones, marketing, computer
service, window cleaning, or any other services the YMCA deems necessary or
required to operate and maintain the Facility. YMCA and City acknowledge that trash
or rubbish hauling services will be contracted and maintained by the City, and that
the City will invoice the YMCA for 75% of the City’s expense, which is $380 on a
monthly basis as of the Effective Date of this Agreement, which is adjustable
annually, for this service. YMCA and City acknowledge that City will maintain
contracts with Dakota Electric (City’s solar contract) and Electro Watchman (Fire
alarm monitoring). YMCA and City acknowledge that YMCA will take responsibility for
the cardio equipment lease and all related rights and responsibilities, including
payment of the lease beginning with the Effective Date of the Agreement as well as
ownership of the equipment at the conclusion of the lease.
YMCA shall submit an Annual Inspection Report to the City by March 31st of each
year, with documentation that YMCA caused all inspections required in the previous
fiscal year to be completed. Inspections include but are not limited to the two
boilers, elevator, fire panel, Theater, emergency generator, fire extinguishers, fire
sprinkler system, RPZ or back flow prevention, and fire doors. City will conduct
annual Fire Inspections at no cost to YMCA.
YMCA shall submit an annual Agreement progress report to the City Council no later
than May 31 of each year. YMCA and City expect this report to include summaries of
Facility programming highlights, the previous fiscal year’s financial results, the status
of Capital Improvement planning and implementation, and other topics and concerns
relating to the practical, day-to-day performance of the Agreement.
3.2 FINANCIAL RISK RELATED TO OPERATIONS. During the term of this Agreement,
YMCA shall assume all financial risk associated with operations and maintenance of
the Facility, as and to the extent described in Section 3.1, above.
3.3 PROGRAM COMMITMENTS.
C. Racquetball Courts. YMCA shall preserve the functionality and availability of the
racquetball courts in accordance with current practices through Sept. 30, 2017 or
longer at the YMCA’s discretion.
D. Rentals and Use Agreements. All rentals, facility use agreements, and related
activities not otherwise described in this Agreement regarding the Facility will be
at the sole discretion of the YMCA.
E. City Program and Use Reservations. For the first 48 months of this
Agreement, YMCA agrees to maintain the use of the current Banquet Facility in its
current form and function. During this initial 48 months, the City shall have the
right to request and reserve use of the banquet areas for City purposes, as
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determined by the City, for up to 34 hours per week. Banquet areas are
described in Exhibit C. Reservations for City purposes must be made by the City
Manager or his or her appointed designee only, directly with the YMCA director
responsible for overall programming at the Facility. Reservations must be made a
minimum of 5 business days in advance and cannot displace reservations already
formally made by other parties. YMCA shall not charge the City for these
reservations unless YMCA incurs direct expenses as a result of such reservations,
such as catering expenses or damage to the Facility. Although YMCA’s customary
practice is to charge reservation fees and staffing expenses to third parties in its
rental and facility use agreements, it shall not charge the City such fees and
expenses for City’s use of the Facility’s banquet areas during the initial 48
months of this Agreement.
F. Resident Memberships and Policies. YMCA will offer City residents special
membership rates for 3 years (“Resident Memberships”). Pricing of Resident
Memberships will be determined by YMCA, but in the first year of this Agreement
will be no more than 3% higher than the City-established prices as published
April 30, 2016. Resident Membership will be valid only at the MCC; however, City
residents who purchase a standard priced YMCA membership will be able to use
all YMCA locations operated by YMCA of the Greater Twin Cities. All membership
and program guidelines shall be determined by YMCA in its sole discretion.
G. City Employee Memberships. At its discretion, the City will offer a free adult
membership at the Maplewood Community Center to eligible City employees,
reimbursing the YMCA on a monthly basis for such memberships and according to
the protocol set out in this section and below. The price of this membership will
be fixed to the City resident adult membership price, which is $33 per month as
of the Effective Date of this Agreement. This price may change as described
elsewhere in the Agreement.
1. Enrollment and Termination Procedure. On Oct. 15, 2016, the City shall
provide a list to YMCA of all eligible City employees to receive this
membership benefit, whose memberships will activate on Nov. 1, 2016. By
the 15th day of each month following Oct. 15, 2016, and for the remainder of
this agreement, the City shall notify the YMCA of changes to its list of eligible
City employees. For employees who are newly eligible, the City shall provide
the YMCA with their contact information. YMCA shall act to enroll these
employees, who must visit the MCC to activate their membership benefit. For
employees who are no longer eligible, the City shall provide notice of each
employee’s final day of work, which will serve as the termination date for that
employee’s membership.
2. Upgrade Options. City employees may use the dollar value of this
membership, defined as the current price of the City resident adult
membership, as a credit toward MCC-only Dual or Family memberships, or
toward YMCA of the Greater Twin Cities system-wide Adult, Dual, or Family
membership options.
3. Applicability of Health Insurance Reimbursements. If the City carries a health
insurance policy with an eligible health club membership reimbursement
benefit accepted by the YMCA, YMCA shall allow City employees to enroll in
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this program. Credits earned per the policies stated in such agreements will
be applied toward the expense incurred by the City for each employee who
earns the credit.
4. Invoicing. YMCA shall invoice the City on a monthly basis per employee in full
for the period between the first and final day of each month. YMCA shall
identify each actively enrolled employee on each invoice.
H. Daily Admissions. YMCA will continue to offer daily admissions at the Facility for
a minimum of one year. Pricing will be determined by YMCA but will not be more
than 10% higher than daily admissions fees published April 30, 2016.
3.4 COMPLIANCE WITH LAWS. The YMCA, at its sole expense, shall comply with all
laws, orders and regulations of federal, state and municipal authorities and any other
governmental entity having jurisdiction over the MCC relating to YMCA’s operation of
the MCC.
IV. FINANCIAL ARRANGEMENTS
4.1 CAPITAL IMPROVEMENT FUND. YMCA and City will establish separate Capital
Improvement Funds, hereinafter referred to as the “Fund” or “Funds”. City will
maintain custody of its Fund and YMCA will maintain custody of its Fund. YMCA and
City will use the Funds to pay capital improvement expenses for the Facility. YMCA
and City deposits to their respective Funds will occur as follows:
a. City will deposit $500,000 into its Fund no later than December 31,
2016. City will commit the funding for the contributions described in 4.1(b)
and (c) below on City’s balance sheet ending December 31, 2016.
b. City will deposit $500,000 into its Fund no later than June 30, 2017.
c. City will deposit $542,000 into its Fund no later than January 31, 2018.
d. No later than May 31 of each year beginning 2019, YMCA will deposit into its
Fund an amount equal to the greater of (i) $200,000 or (ii) 7.5% of MCC
Gross Operating Revenues for the preceding fiscal year, up to an annual
maximum of $300,000. Gross Operating Revenues shall be defined as all
revenue generated at the Facility, before expenses, as determined in the
YMCA financial audit that follows each YMCA fiscal year of January 1 –
December 31.
i. Example 1: If YMCA gross operating revenues in Fiscal
Year 2018 were to equal $2,000,000, 7.5% of that figure would be
$150,000. YMCA’s first annual deposit to its Fund, occurring no later
than May 31, 2019, therefore would be $200,000 ($200,000 >
$150,000).
ii. Example 2: If YMCA gross operating revenues in Fiscal
Year 2019 were to equal $3,000,000, 7.5% of that figure would be
$225,000. YMCA’s second annual deposit to its Fund, occurring no
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later than May 31, 2020, therefore would be $225,000 ($225,000 >
$200,000).
iii. Example 3: If YMCA gross operating revenues in Fiscal
Year 2020 were to equal $5,000,000, 7.5% of that figure would be
$375,000. YMCA’s third annual deposit to its Fund, occurring no later
than May 31, 2021, therefore would be $300,000 (maximum of
$300,000).
e. No later than June 30 of each year beginning 2019 City will make an annual
deposit to the Fund. The 2019 City deposit will be $200,000 and subsequent
annual deposits will inflate by 2% per year. If YMCA deposit in any year
exceeds $200,000, the amount over $200,000 will be credited against the
City deposit for that year.
i. Example 4: Per Example 1 above, YMCA deposit on
May 31, 2019 would be $200,000. Per City deposit formula above,
standard City deposit on June 30, 2019 would be $200,000 (no
adjustment).
ii. Example 5: Per Example 2 above, YMCA deposit on
May 31, 2020 would be $225,000. Per City deposit formula above,
standard City deposit in 2020 would be $204,000 (2019 standard
deposit of $200,000 inflated by 2%). However, because YMCA deposit
exceeds YMCA minimum by $25,000, adjusted City deposit on June
30, 2020 would be $179,000 ($204,000 minus $25,000).
iii. Example 6: Per Example 3 above, YMCA deposit on
May 31, 2021 would be $300,000. Per City deposit formula above,
standard City deposit in 2021 would be $208,080 (2020 standard
deposit of $204,000 inflated by 2%). However, because YMCA deposit
exceeds YMCA minimum by $100,000, adjusted City deposit on June
30, 2021 would be $108,080 ($208,080 minus $100,000).
f. Scheduled deposits by YMCA and City to their respective Funds, as specified in
4.1(a) through (e), during the Agreement Term, are summarized as follows:
Deposit Minimum Scheduled Maximum Scheduled Cumulative Balance of
Deadline YMCA Deposits City Deposits Scheduled Deposits
12/31/2016 ‐ 500,000 500,000
5/31/2017 ‐ ‐ 500,000
6/30/2017 ‐ 500,000 1,000,000
12/31/2017 ‐ 542,000 1,542,000
5/31/2018 ‐ ‐ 1,542,000
6/30/2018 ‐ ‐ 1,542,000
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12/31/2018 ‐ ‐ 1,542,000
5/31/2019 200,000 ‐ 1,742,000
6/30/2019 ‐ 200,000 1,942,000
12/31/2019 ‐ ‐ 1,942,000
5/31/2020 200,000 ‐ 2,142,000
6/30/2020 ‐ 204,000 2,346,000
12/31/2020 ‐ ‐ 2,346,000
5/31/2021 200,000 ‐ 2,546,000
6/30/2021 ‐ 208,080 2,754,080
12/31/2021 ‐ ‐ 2,754,080
5/31/2022 200,000 ‐ 2,954,080
6/30/2022 ‐ 212,242 3,166,322
12/31/2022 ‐ ‐ 3,166,322
5/31/2023 200,000 ‐ 3,366,322
6/30/2023 ‐ 216,486 3,582,808
12/31/2023 ‐ ‐ 3,582,808
5/31/2024 200,000 ‐ 3,782,808
6/30/2024 ‐ 220,816 4,003,624
12/31/2024 ‐ ‐ 4,003,624
5/31/2025 200,000 ‐ 4,203,624
6/30/2025 ‐ 225,232 4,428,857
12/31/2025 ‐ ‐ 4,428,857
5/31/2026 200,000 ‐ 4,628,857
6/30/2026 ‐ 229,737 4,858,594
g. Per the Capital Improvement planning and implementation process described
in 4.2(b) below, City anticipates depositing additional amounts into its Fund,
at future dates to be determined and as required to bring the combined
balance of the Capital Improvement Funds to an amount sufficient to
complete major planned capital improvements, which City and YMCA define
as having a cost over $500,000.
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h. Per the Capital Improvement planning and implementation process described
in 4.2(c) below, City anticipates the possibility of depositing further amounts
into its Fund, as required to bring the combined balance of the Capital
Improvement Funds to an amount sufficient to remedy capital emergencies,
without unduly restricting the implementation of planned capital
improvements.
4.2 CAPITAL IMPROVEMENTS. YMCA and City will coordinate the planning and
implementation of all capital improvements to the Facility, and the payment of capital
improvement costs from the Funds. Capital improvements shall be understood as repairs,
replacements, and enhancements to the Facility, its equipment, and furnishings, beyond the
repairs and replacements that YMCA will undertake in its normal scope of Facility
administration, operations and maintenance. All capital improvements with an estimated
cost above $7,500 shall be included in the coordinated process described in this section.
a. YMCA and City will collaboratively develop and agree upon an annual priority
list of projects with initial budget allocations for the use of all capital monies
for the Facility. City and YMCA will develop a rolling five-year capital plan,
updated annually, using the City’s 2014 Management Report for the MCC as a
guide. If YMCA and City agree to engage consultants to assist in this capital
planning process, City will hire such consultants and incur such costs.
b. YMCA and City recognize their mutual intent that major planned capital
improvements, informally defined as projects expected to cost more than
$500,000, likely will require City funding above City’s scheduled deposits to
its Capital Improvement Fund (see 4.1(g) above). To mitigate the potential
for conflict over the definition, scope, cost, and necessity of future major
projects, YMCA and City agree that all non-emergency major capital
improvements shall be included in the five-year capital plan, and
implemented and funded as described in this section.
c. In the event of any unexpected capital emergency, YMCA and City will
convene immediately to determine how to address the emergency, and the
timing and amount of any additional City deposit(s) to its Fund (see 4.1(h)
above), such as required to remedy a major capital emergency as promptly
and effectively as possible.
d. YMCA shall coordinate with the City before hiring capital improvement
contractors and vendors, if City funds are involved in fulfilling the contract, to
ensure compliance with municipal contracting and bid laws. To maintain an
appropriate level of stewardship with regard to the expenditure of public
funds, City will follow all legally required processes for approval of contracts
that encumber public funds. YMCA will make final decisions on budget
allocations depending on execution of projects.
e. YMCA and City shall cooperate in implementing the capital improvements
specified in Exhibit B, with a total estimated cost of $1,542,000. YMCA and
City expect such improvements to be completed in 2017 and 2018, as also
indicated in Exhibit B, and to pay all actual project costs from the respective
Capital Improvement Funds. City will disburse funds to YMCA from its Capital
Improvement Fund within three business days, upon receipt of appropriate
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documentation of approved, scheduled capital improvement project
expenditures.
f. The City will plan, implement, and fund all non-Facility capital improvements,
including to the sidewalks, grounds, and parking lots surrounding the Facility,
independent of YMCA but with appropriate consultation and coordination.
g. If at any time this Agreement terminates, the City will retain ownership of all
capital assets (as defined as items with a minimum expense of $7,500).
4.3 BILLING FOR PREPAID SERVICES. Prior to the Effective Date, the City will
provide a list of all programs and services scheduled or expected to take place at the
Facility after the Effective Date along with payments received by the City for those
programs and services. The YMCA will bill the City for the prepayments made prior
to the Effective Date with payment to be made within 30 days of the billing date.
Examples of Prepayments include, but are not limited to, space reservation fees for
future events, annual memberships paid in full, and personal training sessions paid
in advance. In the case of a Prepayment for a space reservation, YMCA will bill the
City for the full value of the payment made. In the case of an annual membership
that was paid in full, YMCA will bill the City for a pro-rata amount equal to the
portion of the membership taking place on and after the Effective Date. In the event
prepayments are discovered after the Effective Date, the YMCA will bill the City for
such amounts and the City will make payment within 30 days of the billing date.
4.4 EXPENSES AND LIABILITIES. All expenses and liabilities incurred by the City with
respect to the Facility prior to the Effective Date will be the responsibility of the City,
and the YMCA will have no liability whatsoever for such expenses and liabilities
unless specifically assumed herein. The YMCA is responsible only for expenses and
liabilities it incurs with respect to the Facility on and after the Effective Date.
4.5 ASSIGNMENT AND ASSUMPTION OF CERTAIN CONTRACTS. The parties will
execute an Assignment and Assumption Agreement, in the form attached hereto as
Exhibit D, dated as of the Effective Date, whereby City will assign, and YMCA will
assume, the rights and obligations in and to contracts identified herein and listed on
an exhibit to the Assignment and Assumption Agreement (the “Assumed Contracts”).
The City is not assigning, and YMCA is not assuming, any contracts of City except for
contracts specifically identified as Assumed Contracts.
V. EMPLOYMENT MATTERS
5.1 EMPLOYEES CURRENTLY WORKING AT MCC. All City employees other than
temporary contractors or employees of Ashland Productions, Inc. working within the
Facility will be considered for, but not guaranteed, employment with YMCA. All
existing employees will be encouraged to interview for YMCA defined roles within the
entire organization of YMCA of the Greater Twin Cities.
5.2 BACKGROUND CHECKS. City and YMCA shall require criminal history background
checks for all employees employed by City or YMCA to perform duties at the Facility.
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VI. GENERAL
6.1 TERM AND TERMINATION. This Agreement is effective as of 12:01 a.m.,
November 1, 2016 (the “Effective Date”) and shall continue in effect for 120 months
(the “Term”) unless terminated or extended as provided herein. YMCA shall have the
option to extend this Agreement for up to two (2) additional 60-month terms at its
sole discretion.
A. Termination without Cause. YMCA may terminate this Agreement, without
cause, by providing 12 months’ written notice to the City, with the
termination not to take effect before the end of the 60th month of this
Agreement.
B. Termination for Breach of Maintenance Obligations. Either party may
terminate this Agreement if the other party fails to maintain the Facility or, as
applicable, the areas outside the Facility, as provided in Sections 2.3 and 3.1
of this Agreement. If either party breaches its obligations under Sections 2.3
or 3.1, the non-breaching party shall give the breaching party written notice
of such breach, and the opportunity to cure such breach for thirty (30) days
after delivery of the notice of breach. If the breach is not cured during such
period to the satisfaction of the non-breaching party, the non-breaching party
may terminate the Agreement immediately upon written notice of termination
to the other party, with no requirement to submit the matter to the dispute
resolution procedures described in Section 6.3.
C. Termination for Breach of Financial Commitments. Either party may terminate
this Agreement if the other party fails to timely make contributions to the
Fund as provided in Section 4.1 or fails to cooperate in good faith in the
development and implementation of the capital improvement process
described in Section 4.2 of this Agreement. If either party breaches its
obligations under Sections 4.1 or 4.2, the non-breaching party shall give the
breaching party written notice of such breach, and the opportunity to cure
such breach for thirty (30) days after delivery of the notice of breach. If the
breach is not cured during such period to the satisfaction of the non-
breaching party, the non-breaching party may terminate the Agreement
immediately upon written notice of termination to the other party, with no
requirement to submit the matter to the dispute resolution procedures
described in Section 6.3.
6.2 PROCEDURES UPON TERMINATION. Both YMCA and City recognize that early
termination of this Agreement requires discussion and coordination between the
parties and compliance with all applicable laws and regulations. Upon notice of
termination of this Agreement, YMCA and City shall cooperate to provide for an
orderly cessation or transfer of Facility operations to City or its designee. As of the
effective date of termination (the “Termination Date”), each party shall retain full
title and interest in and to its respective Fund; provided, however, that each party
shall remain responsible for its budgeted share of all capital improvement payment
obligations incurred by it pursuant to the procedures described in Section 4.2 prior to
the Termination Date, to the extent such amounts are due and owing, as of the
Termination Date, to vendors and contractors engaged to perform work on the
Facility. In no case shall YMCA be required to contribute any amounts after the
Termination Date toward any capital improvements (as described in Section 4.2) to
be retained by the City unless (a) such amounts were budgeted prior to the
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Termination Date, and (b) are due and owing to a vendor or contractor pursuant to a
written agreement with such contractor or vendor.
As soon as practicable following the Termination Date, YMCA will vacate the Facility,
leaving in place all furnishings and fixtures and equipment at the Facility that were
delivered to YMCA by the City on the Effective Date hereunder (allowing for the
reasonably expected useful life of furnishings and equipment), or that are capital
improvements as described in Section 4.2. YMCA will retain any and all equipment
purchased by it for use at the Facility that is not a capital asset as defined in Section
4.2.g. To the extent any of the Assumed Contracts are in effect on the Termination
Date, YMCA agrees to use its best efforts to promptly assign its rights and interests
in and to such contracts to City, and City agrees to assume YMCA’s obligations under
such contracts.
6.3 DISPUTE RESOLUTION PROCEDURE: Except as otherwise provided herein, all
disputes arising between the parties involving the interpretation or application of the
terms and conditions of this Agreement, including, but not limited to, any alleged
breach of a party’s obligations hereunder, shall be subject to the dispute resolution
procedure set forth herein. Minor delays in performance (i.e., delays of less than 60
days) of a party’s obligations under this Agreement will not trigger such dispute
resolution procedures. Notwithstanding anything herein to the contrary, the parties
may agree by mutual written agreement on a case by case basis or otherwise to a
dispute resolution procedure which differs from that contained in this section.
A. Informal Meeting: The first stage of dispute resolution shall be an informal
meeting between the YMCA of the Greater Twin Cities Chief Operating Officer
or his or her designee, and the City’s City Manager, or his or her designee.
B. Conference: The second stage of dispute resolution shall be a conference.
When a dispute has arisen between the parties and is not settled promptly in
the normal course of business, the complaining party shall notify the other
party of its complaint by means of a brief written statement. The statement
shall describe with specificity the alleged wrong and shall set forth the
complaining party's position. Within ten (10) calendar days of receipt of the
complaining party's written statement, the parties shall meet. Each party
may designate those person(s) who will meet as representatives on that
party's behalf. The complaining party will present its position, claims,
defenses, and other relevant information. Following the complaining party's
presentation, the other party will present its position, claims, defenses, and
other relevant information. Each party shall have up to one (1) hour to make
its presentation. Immediately following the parties' presentations, the parties
shall meet for the purpose of resolving the dispute.
C. Mediation: The third stage of dispute resolution shall be mediation. If the
parties have not resolved the dispute within thirty (30) days of receipt of the
written complaint, either party may require the dispute be submitted for
mediation. If the parties are unable to agree on a mediator within ten (10)
days following a request for mediation, the parties shall request that the
Mediation Center for Dispute Resolution, 1536 Hewitt Avenue, St. Paul,
Minnesota, appoint a mediator. The parties agree to share equally all fees
incurred in the mediation. The parties shall submit to mediation for a
minimum of eight (8) hours. The parties agree that the mediation
proceedings are private and confidential to the extent permitted by law. If, at
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the end of eight (8) hours of mediation, the parties have not resolved the
dispute, the parties may agree to extend the hours of mediation.
D. Further Action: If the parties are unable to resolve their dispute through
mediation they are free to take whatever action they are entitled to under law
6.4 PROGRAM PARTNERSHIP. The City’s Parks and Recreation Department shall have
the right to use space in the Facility for Park & Recreation programs, for the duration
of the Agreement as described in this section. City Parks and Recreation Department
Programs to be operated within the Facility shall be limited to Youth Dance, Karate,
Tumbling/Gymnastics, Adult Volleyball, Adult 3 vs. 3 basketball, Youth
Volleyball/tournament, senior high school basketball league, special events, Young
Rembrandts, Ballroom dancing, Guitar, and Golf lessons.
The City shall use the basketball court in the northeast corner of the gym, known as
Court 2, at any time, for the provision of these programs. The City shall have access
to banquet spaces as well as described elsewhere in this Agreement. City will provide
the YMCA with two parks, Robinhood and Sherwood, for programmatic use at no
cost. YMCA will manage reservations for the use of any park space.
YMCA further commits to consulting with the City’s Parks and Recreation Department
to propose and recommend a schedule to ensure the City’s and the Y’S programs can
be feasible for the first year by Nov. 15, 2016 for both MCC and outdoor field space,
provided the City desires this service.
The City shall also have the option to request other spaces in the Facility for its
purposes with 45 days’ written notice before the beginning of each quarter (January
1, April 1, July 1, October 1). The YMCA shall provide spaces to the City at no charge
at its discretion, if such space is available based on other YMCA programming needs.
The City will transition any current fitness and beach management agreements
between the City and a third party relating to such off-site programming to the YMCA
for operation, including all revenue and responsibilities for programming contained
therein.
YMCA commits to purchasing or providing up to $5,000 of cardio and strength
equipment for the use of the Police Department to be delivered by Nov. 21, 2016.
6.5 INSURANCE AND INDEMNIFICATION.
A. INSURANCE
1. 1. General Liability Insurance
The City will maintain liability coverage with the League of Minnesota Cities
Insurance Trust with a limit of at least $2,000,000 per occurrence, under
standard LMCIT liability coverage forms. Alternatively, the City may maintain
equivalent private liability insurance coverage.
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The YMCA will maintain Commercial General Liability Insurance protecting it
from claims for damages for bodily injury and property damage, which may
arise from operations under this Agreement. Insurance minimum limits are as
follows:
$2,000,000 – per occurrence
$3,000,000 – annual aggregate
$3,000,000 – annual aggregate – Products/Completed Operations
The following coverages shall be included:
Premises and Operations Bodily Injury and Property Damage
Personal and Advertising Injury
Blanket Contractual Liability
Products and Completed Operations Liability
2. Workers’ Compensation Insurance
The YMCA and the City will provide Workers’ Compensation insurance for all
their employees in accordance with Minnesota statutory requirements.
Employer’s liability coverage must be included with minimum limits are as
follows:
$500,000 – Bodily Injury by Disease per employee
$500,000 – Bodily Injury by Disease aggregate
$500,000 – Bodily Injury by Accident
3. Additional Insurance Provisions
The YMCA and the City will add the other party as an additional insured for
claims that arise under this Agreement. All policies will be primary insurance
to any other valid and collectible insurance available to a party with respect to
any claims arising out of party’s performance under this Agreement. The YMCA
and the City will annually submit a Certificate of Insurance to the other party
as evidence of the required insurance coverage requirements.
B. INDEMNIFICATION BY YMCA
To the extent permitted by law, the YMCA agrees to indemnify and defend the City
and its employees, agents and contractors, and save them harmless from and against
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all claims, losses or liabilities arising out of damage to property of, or injury to, any
third parties or the City, including the City's employees, agents and contractors,
occasioned by or caused in connection with the acts or omissions of the YMCA or the
YMCA's employees, agents and contractors, and all costs, fees and reasonable
attorneys' fees, including in-house or staff attorneys' fees, incurred in connection
therewith.
C. INDEMNIFICATION BY CITY
To the extent permitted by law, the City agrees to indemnify and defend the YMCA
and its employees, agents and contractors and save them harmless from and against
all claims, losses or liabilities arising out of damage to property of, or injury to, any
third parties or the YMCA, including YMCA employees, agents and contractors,
occasioned by or caused in connection with the acts or omissions of the City or the
City's employees, agents, and contractors, and all costs, fees and reasonable
attorneys' fees, including in-house or staff attorneys' fees, incurred in connection
therewith.
6.6 DATA PRACTICES COMPLIANCE. YMCA will have access to data collected or
maintained by the City to the extent necessary to perform YMCA's obligations under
this Agreement. YMCA agrees to maintain all data obtained from the City in the same
manner as the City is required under the Minnesota Government Data Practices Act,
Minn. Stat. Chap. 13 (the "Act"). YMCA will not release or disclose the contents of
data classified as not public to any person except at the written direction of the City
or as otherwise required by law, and understands that it is subject to penalty for
failure to comply with the requirements of the Act. YMCA agrees to defend and
indemnify the City from any claim, liability, damage or loss asserted against the City
as a result of YMCA's failure to comply with the requirements of the Act.
6.7 NONDISCLOSURE AND NONUSE OBLIGATIONS. YMCA will use any Confidential
Data, as explicitly identified by the City as Confidential Data, solely to perform
Services contemplated herein for the benefit of City. YMCA agrees that it shall treat
all Confidential Data of City with the same degree of care as it accords to its own
Confidential Data, and YMCA represents that it exercises reasonable care to protect
its own Confidential Data. If YMCA is not an individual, YMCA agrees that it shall
disclose Confidential Information only to those employees who need to know such
information and certifies that such employees have previously agreed, either as a
condition of employment, or in order to obtain the Confidential Data, to be bound by
terms and conditions substantially similar to those of the Agreement. YMCA agrees
not to communicate any information to City in violation of the Proprietary rights of
any third party. YMCA will immediately give notice to City of any unauthorized use or
disclosure of the Confidential Data. YMCA agrees to assist City in remedying any
such unauthorized use or disclosure of the Confidential Data.
6.8 EXCLUSIONS FROM NONDISCLOSURE OBLIGATIONS. YMCA's obligations under
the Nondisclosure and Nonuse Obligations section with respect to Confidential Data
shall terminate when YMCA can document that: (a) the information was in the public
domain at or subsequent to the time it was communicated to YMCA by the disclosing
party through no fault of YMCA; (b) the information was rightfully in YMCA's
possession free of any obligation of confidence at or subsequent to the time it was
communicated to YMCA by the disclosing party; or (c) the information was developed
by employees or agents of YMCA independently of and without reference to any
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information communicated to YMCA by the disclosing party. If YMCA is required to
disclose the Confidential Data in response to a valid order by a court or other
government body, or as otherwise required by law or as necessary to establish the
rights of either party under the Agreement, YMCA agrees to provide City with prompt
written notice so as to provide City with a reasonable opportunity to protect such
Confidential Data.
6.9 DISCLOSURE OF THIRD PARTY INFORMATION. Neither party shall communicate
any information to the other in violation of the proprietary rights of any third party.
6.10 RETURN OF PROPERTY. All materials (including, without limitation, content
articles, documents, drawings, models, apparatus, sketches, and lists but excluding
items purchased and supplied by the YMCA such as YMCA branded signs, materials,
and equipment) furnished to YMCA by City, whether delivered to YMCA by City or
made by YMCA in the performance of services under the Agreement (collectively
referred to as the "City Property") are the sole and exclusive property of City and/or
its suppliers or customers. YMCA agrees to promptly deliver the original and any
copies of the City Property to City at any time upon City's request. Upon termination
of the Agreement by either party for any reason, YMCA agrees to promptly deliver to
City or destroy, at City's option, the original and any copies of the City Property.
Within five (5) days after the termination of the Agreement, YMCA agrees to certify
in writing that YMCA has so returned or destroyed all such City Property.
6.11 AMENDMENTS, CHANGES, MODIFICATION. This Agreement may not be
amended, changed, modified, altered or terminated without the prior written consent
of the City and the YMCA.
6.12 BINDING EFFECT. This Agreement shall inure to the benefit of and shall be binding
upon the City and the YMCA and their respective successors and assigns.
6.13 NOTICES. Any notice, request, consent or approval, required or permitted to be
given hereunder, shall be in writing and shall be deemed effective (a) on the date
delivered, if hand delivered, (b) on the date mailed by registered or certified U.S.
Mail, return receipt requested, with adequate postage affixed, or (c) on the date
when sent, charges pre-paid, if delivered by commercial overnight delivery service or
U.S. Express Mail, as evidenced by service receipt or Express Mail postmark. Notice
shall be addressed to the addresses stated below or to such other address or
addressee as may from time to time be designated by either party by notice similarly
given.
Address of the YMCA: Young Men’s Christian Association
of the Greater Twin Cities
2125 East Hennepin Avenue
Minneapolis, MN 55413
Attn: Chief Operating Officer
Address of City: City of Maplewood
1830 County Road B East
Maplewood, MN 55109
Attn: Parks & Recreation Director
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6.14 SEVERABILITY. In the event that any provision of this Agreement shall be held to
be invalid or unenforceable, the same shall not affect in any respect whatsoever the
validity or enforceability of the remainder of this Agreement.
6.15 COUNTERPARTS. This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original and all of which, taken together,
shall constitute one and the same Agreement.
6.16 CAPTIONS. The captions or headings in this Agreement are for convenience only
and in no way define or describe the scope or intent of any provisions or sections of
this Agreement.
6.17 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Minnesota.
6.18 ENTIRE AGREEMENT. This Agreement constitutes the entire Agreement between
the parties hereto with respect to the subject matter hereof and supersedes all
Agreements, representations, warranties, statements, promises, and
understandings, whether oral or written, with respect to subject matter hereof. No
party will be bound by or charged with any oral or written agreements,
representations, warranties, statements, promises or understandings not specifically
set forth in this Agreement. Without limiting the generality of the foregoing, as of
the Effective Date, this Agreement supersedes and replaces the March 9, 2015
Agreement between YMCA and the City pursuant to which YMCA operates the
aquatics center of the MCC and provides other services, and the parties agree that
such prior agreement is of no further force and effect.
6.19 INFORMATION TECHNOLOGY. The City and YMCA mutually agree that the
transition of all information technology (IT) functions will be completed by the end of
February 2017 unless both parties mutually agree to extend that deadline.
Information technology functions shall include but are not limited to Internet,
Workstations, Phones and phone lines, WiFi and access points, Camera security
system, Access control system, and printers. The City shall incur all expenses
necessary in the servicing and maintenance of this technology infrastructure until IT
functions transition to YMCA control, at which point YMCA shall incur these expenses
for the duration of the Agreement. The YMCA also agrees to allow up to 4 City IT
employees to have access into the building and to the main data closet for as long as
this agreement is in effect or until such time the City no longer deems it necessary.
WHEREFORE, the parties hereto have executed this Agreement on the respective dates set
forth below.
CITY OF MAPLEWOOD YMCA OF GREATER TWIN CITIES
By: By:
Its: Mayor Its: Chief Operating Officer
By: Dated: ______________________
Its: City Manager
Dated:
F1, Attachment 2
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F1, Attachment 2
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Exhibit B: Capital and Infrastructure Priorities, Schedule of Payments
Maplewood Community Center Capital Priority Plan
Description Initial Budget
Estimate Priority Running Subtotal
Probable
Project
Year
Notes on Budget
Recommissioning Study (exclu theater) $ 15,000.00 1 $ 15,000.00 2017
Recommissioning Contingency $ 75,000.00 2 $ 90,000.00 2017 Primary focus on Locker Room HVAC, amount could vary
Pool Roof Repair $ 275,000.00 3 $ 365,000.00 2017 City to fund expenses above $275,000 from separate source
Locker Rom Update $ 180,000.00 4 $ 545,000.00 2017
EMS Upgrade $ 135,000.00 5 $ 680,000.00 2017
Strength Equipment $ 25,000.00 6 $ 705,000.00 2017
Refresh Finishes, TVs, Mirrors, Windows $ 25,000.00 7 $ 730,000.00 2017
South Entry Redo for Banquet Area $ 150,000.00 8 $ 880,000.00 2017
Steps by Circle Drive to Lower Area $ 35,000.00 9 $ 915,000.00 2017
Carpet $ 140,000.00 10 $ 1,055,000.00 2017-18
Gym Roof Leaks $ 10,000.00 11 $ 1,065,000.00 2018
Lighting Fix (1st/3rd Floor Gym Area) $ 30,000.00 12 $ 1,095,000.00 2018
Lobby Desk, Fix, Repair $ 25,000.00 13 $ 1,120,000.00 2018
1st Floor Seating (Furniture) $ 25,000.00 14 $ 1,145,000.00 2018
Child Care Refresh $ 30,000.00 15 $ 1,175,000.00 2018
Paint $ 150,000.00 16 $ 1,325,000.00 2018
Replace 2 Existing Double Doors $ 5,000.00 17 $ 1,330,000.00 2018
Scrub and Recoat Wood Floors - Gym $ 20,000.00 18 $ 1,350,000.00 2018
Scrub and Recoat Wood Floors - Studios $ 5,000.00 19 $ 1,355,000.00 2018
Slide Bolts $ 3,000.00 20 $ 1,358,000.00 2018
Chlorine Tank Fence $ 2,000.00 21 $ 1,360,000.00 2018
1 Double Door Replacement - Pool $ 5,000.00 22 $ 1,365,000.00 2018
3 Single Door Replacements - Pool $ 3,000.00 23 $ 1,368,000.00 2018
Replace Laminate on Railings / Repaint Rails - Track $ 2,000.00 24 $ 1,370,000.00 2018
Refinish Wood Doors $ 5,000.00 25 $ 1,375,000.00 2018
Subtotal $ 1,375,000.00
Contingency Budget $ 167,000.00
Total $ 1,542,000.00
F1, Attachment 2
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Exhibit C: Banquet Areas
Banquet areas shall be defined, as described on the original floor plans pictured below, as
Rooms 244 (kitchen), 242, 243, and 245 (which are currently designated Rooms A, B, C,
and D). Room 233 (Room E) shall also be available for such purposes, or a similar room,
such as Room 238 (Crafts Room), if the YMCA repurposes Room 233 to a use not conducive
to hosting meetings.
F1, Attachment 2
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EXHIBIT D
Assignment and Assumption Agreement
This Assignment and Assumption Agreement is made and entered into
effective as of November 1, 2016 by and between Young Men’s Christian
Association of the Greater Twin Cities, a Minnesota nonprofit corporation (“YMCA”),
and the City of Maplewood, a municipal corporation under the laws of Minnesota
(“City”).
RECITALS
A. YMCA and City are parties to an Operating Agreement dated to be
effective November 1, 2016 (the “Agreement”), providing, on the terms and
conditions set forth therein, for the operation of the Maplewood Community Center
by YMCA.
B. This Assignment and Assumption Agreement is being executed and
delivered in order to effectuate the assumption by YMCA of certain contracts with
third parties as set forth in the Agreement.
C. All capitalized terms used herein, if not otherwise defined, shall have
the meanings ascribed to them in the Agreement.
NOW, THEREFORE, in consideration of the promises and the mutual
covenants set forth in the Agreement:
AGREEMENT
1. Assignment of Interests. City hereby conveys, assigns, and transfers to
YMCA and its successors and assigns, all right, title and interest of City in and to
the agreements identified on Exhibit A hereto (the “Assumed Contracts”).
2. Assumption of Obligations. YMCA hereby assumes and agrees to pay,
perform and discharge when due, those City obligations identified as Assumed
Contracts and listed on Exhibit A hereto.
3. Representations of City. City has delivered to YMCA a correct and complete
copy of each Assumed Contract. With respect to each such Assumed Contract, to
City’s knowledge: (i) the agreement is legal, valid, binding, enforceable on the
parties thereto and in full force and effect; (ii) no party is in breach or default, and
event has occurred that, with notice or lapse of time, would constitute breach or
default, or permit termination, modification, or acceleration, under the agreement;
(iii) no party has repudiated any provision of the agreement; and (iv) City has
procured all third party consents, authorizations, and approvals necessary to assign
the Assumed Contracts to YMCA.
F1, Attachment 2
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IN WITNESS WHEREOF, the parties have executed this Assignment and
Assumption Agreement as of the date first above written.
CITY OF MAPLEWOOD
By:
Its: Mayor
By:
Its: City Manager
YMCA OF THE GREATER TWIN
CITIES
By:
Its: Chief Operating Officer
F1, Attachment 2
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EXHIBIT A TO ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSUMED CONTRACTS
[List each contract to be assigned by the City and assumed by YMCA]
1. Lease between City of Maplewood and Ashland Productions, Inc., dated April
25, 2016
2. Membership Agreements
3. Mahtomedi Beach Agreement
F1, Attachment 2
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