HomeMy WebLinkAboutAgreementOPERATING AGREEMENT
LAS PALMAS POOL AND CAMACIIO GYM RECREATION CENTER
This Operating Agreement is entered into between the CITY OF NATIONAL CITY, a municipal corporation
(CITY), and YMCA OF SAN DIEGO COUNTY, a California nonprofit, public benefit corporation (YMCA),
(collectively, the Parties) with reference to the following facts:
RECITALS
A. CITY owns the real property commonly known as Las Palmas Park, located in proximity to Newell
Street, between 20th Street and 22nd Street, National City, California, as further described in Exhibit A
and depicted on Exhibit B (the Park).
B. YMCA is an experienced human services organization, nationally recognized in aquatics
operations and wellness activities, and a well -respected charity in the greater San Diego community.
B. CITY wishes to have YMCA operate those portions of the Park known as the Las Palmas Pool and
the Camacho Gym Recreation Center with YMCA programs serving the local community.
NOW, THEREFORE, in consideration of the foregoing facts, and in consideration of the promises and
covenants hereinafter set forth, the parties agree as follows:
ARTICLE 1
TERM OF AGREEMENT
1.1 Term. The term of this Operating Agreement shall be Five (5) years, commencing on the first
day of the calendar month immediately following full execution of this Operating Agreement (the
Commencement Date) and terminating on the anniversary of the Commencement Date five years
thereafter. The Commencement Date shall be memorialized in writing and such document shall be
executed by both parties.
1.2 Option to Extend Term. If YMCA is not in default of any provision of this Operating Agreement
upon the expiration of the Term, YMCA may elect to extend the term of this Operating Agreement for
another like period ofitime.
1.3 Option to Terminate. YMCA shall have the option to terminate this Operating Agreement,
without cause, at any time after the first twelve (12) months after the Commencement Date upon
ninety (90) days written notice to CITY. The City shall have the option to terminate this Operating
Agreement with cause, upon compliance with the notice of default provision in Article 12.
1.4 Annual Reporting by YMCA. YMCA shall provide annual reports to the City denoting
National City participant numbers, total participant numbers, events coordinated, capital projects
completed, total joint use time, budget, next year operating and maintenance plan and fee
schedule, and any other pertinent statistics.
ARTICLE 2
PREMISES
Comment [CS11: The City has requested that
the option to extend be upon Mutual Agreement
The YMCA will not agree to a mutual provision. The
I. YMCA has indicated they want the unilateral ability
( to extend the term .
- 1 Conuneat [CS2]: The City typically has a
I termination for convenience provision In
agreements for the use of their facilities. The YMCA
il has indicated they will not accept termination for
convenience, but are amendable to a provision that
I. termination could occur should they breads the
i agreement J
2.1 Delivery of Possession. For the purpose of operating the Las Palmas Pool and the Camacho Gym
Recreation Center (the Premises) for the benefit of the citizens of National City, CITY shall deliver
exclusive possession of the Premises to YMCA, subject to the covenants and conditions hereinafter set
forth, on the Commencement Date.
2.2 Ownership of Personal Property and Improvements. The rights and obligations of the parties
regarding the ownership of personal property and improvements on the Premises shall be as follows:
2.2.1 Ownership of Personal Property. All improvements existing on the Premises
(Improvements), together with all fixtures permanently attached to the Premises (Fixtures), as of the
Commencement Date shall remain the property of CITY during the Term. YMCA shall not remove any
Improvements or Fixtures from the Premises nor waste, destroy, or modify any Improvements or
Fixtures on the Premises, except as permitted by this Operating Agreement.
2.2.2 Ownership of Improvements and Fixtures. All of YMCA's furniture, furnishings, signs, and
other personal property not permanently affixed to the Premises (Personal Property) shall remain the
property of YMCA. YMCA shall, at its expense, repair any damage occasioned to the Premises or any
Improvements by reason of the removal of any Personal Property.
ARTICLE 3
PERMITTED USE
3.1 Permitted Uses. YMCA shall operate the Premises by providing for and facilitating the activities
listed on the attached Exhibit C, which may be amended or replaced from time -to -time by agreement of
the authorized representatives of the parties.
3.2 Use by Others. The YMCA may allow short term use of the Premises to other groups or
organizations, subject to fees as imposed by YMCA.
3.3 Consideration. YMCA's performance under this Operating Agreement shall serve as the sole
consideration due CITY for YMCA's right to use and operate the Premises. YMCA may, in its sole
discretion, charge for the use of the Premises and retain any and all remuneration collected.
3.4 CITY Residents. Participants seeking day use of the Premises who prove to YMCA's satisfaction
that they are Residents of CITY shall not be required to become members of YMCA and shall be offered
day use at a reduced rate.
3.5. Financial Assistance. As a charitable organization, YMCA offers financial assistance to qualified
participants subject to the availability of funds. YMCA shall extend financial assistance to participants at
the Premises under the same terms and conditions as applied to other YMCA facilities.
3.6 Compliance with Laws. YMCA, at its sole expense, shall procure, maintain and hold available for
CITY`s inspection any governmental license or permit required for the proper and lawful conduct of
YMCA's operation of the Premises. YMCA shall not use the Premises for any use or purpose in violation
of the laws of the United States of America, or the laws, ordinances, regulations, orders or requirements
of the State of California, the County of San Diego, the CITY, or of other lawful authorities. YMCA shall,
at its expense, comply promptly with all applicable statutes, laws, ordinances, rules, regulations, orders,
covenants and restrictions of record, and requirements in effect during the Term (Laws or Orders),
regulating the use by YMCA of the Premises,
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3.7 CITY Employees and Contract Instructors. All CITY employees and contract instructors currently
working at the Premises who formally apply for employment with the YMCA for work at the Premises
will be given due consideration and are guaranteed an interview.
ARTICLE 4
UTILITIES
4.1 Utility Services. YMCA shall be responsible for maintaining utility services to the Premises, and
shall provide and pay for all utilities or services necessary for its use and operation of the Premises
during the Term, including but not limited to gas, water, electricity, trash, sewer charges and telephone.
YMCA shall pay directly to the applicable utility company such charges, and CITY shall have no obligation
to pay for such utility services.
ARTICLE 5
REPAIRS; MAINTENANCE
5.1 YMCA's Repair and Maintenance Obligations. YMCA acknowledges that it has made a thorough
inspection of the Premises and that it accepts the Premises "as -is" as of the Commencement Date,
subject to the list of deferred maintenance items, attached as Exhibit D. To remediate some of those
deferred maintenance items, CITY shall deposit with YMCA the sum of Two Hundred Fifty Thousand
Dollars ($250,000.00) on the Commencement Date. YMCA shall pay for the costs of remediation of as
many items on Exhibit D as it, in its sole discretion, deems possible using all of the deposited funds.
YMCA shall give safety of the public the highest priority in deciding what items to remediate. YMCA shall
expend the deposited funds no later than nine (9) months following the Commencement Date. YMCA
shall provide an accounting of all expenditures made related to the remediation of the deferred
maintenance items within 30 days following the exhaustion of the deposited funds, but in any event, no
later than 12 months following the Commencement Date. YMCA shall provide receipts, documents,
and/or contracts for all remediation using CITY funds upon request by CITY. YMCA shall comply with all
applicable state and/or local procurement and contracting requirements.
Thereafter, YMCA shall, at its own cost and expense, repair, maintain in good and tenantable condition,
ordinary wear and tear excepted, and replace, as necessary, the Premises; provided, however, that the
sum of such costs and expenses shall not exceed Two Hundred Fifty Thousand Dollars ($250,000.00)
during the Term, and shall not exceed Fifty Thousand Dollars ($50,000.00) during any one year of the
Term.
YMCA's obligations hereunder shall apply regardless of whether the repairs, restorations, and
replacements are ordinary or extraordinary, foreseeable or unforeseeable, capital or noncapital, or the
fault or not the fault of YMCA, its agents, employees, invitees, visitors, or contractors. All replacements
made by YMCA shall be of like size, kind, and quality to the items replaced.
5.2 CITY's Right to Inspect; CITY Not Obligated to Repair or Maintain. YMCA shall permit CITY to
enter the Premises at all times during usual hours of operation to inspect the same, provided, however,
that such entry shall not unreasonably interfere with YMCA's operation of the Premises. Nothing
contained in this Article 5, however, shall be construed as creating any duty on the part of CITY to do
any work which, under any provision of this Operating Agreement, YMCA may be required to do.
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5.3 Prevailing Wages. YMCA shall, as obligated by law, pay prevailing wages for work performed on
the Premises.
ARTICLE 6
ALTERATIONS
6.1 Alterations. YMCA may, at its sole cost and expense, make such alterations, replacements,
additions, or changes to the Premises, or may construct additional improvements on the Premises, as
YMCA may find necessary or convenient for its operation of the Premises in accordance with
construction plans submitted to and approved by the CITY.
6.2 Construction Permits and licenses. YMCA shall procure, at its sole cost and expense, all permits
and licenses that are or may now or in the future become necessary or required from any local
governmental agency for the proposed construction of any Alterations.
6.3 As -Built Plans. Within sixty (60) days following a request from the CITY, YMCA, its Engineer or
Architect shall furnish CITY with a complete set of "As -Built" plans of any Alteration,
ARTICLE 7
MECHANICS' LIENS; STOP NOTICES
7.1 Mechanics' Liens; Ston Notices. YMCA shall pay, or cause to be paid, the total cost and expense
of all works of improvement, as that phrase is defined in the Mechanics Lien Law in effect at the place of
construction, done by it, or caused to be done by it, on the Premises, and for all materials furnished for
or in connection with any such work. If any lien or stop notice is filed against the Premises, YMCA shall
cause the lien or stop notice to be discharged of record within one hundred eighty (180) days after it is
filed. YMCA shall indemnify, defend, and hold CITY harmless from any and all liability, loss, damage,
costs, attorneys' fees and all other expenses on account of claims of lien of laborers or materialmen or
others for work performed or materials or supplies furnished for YMCA or persons claiming under
YMCA.
7.2 Notice of Lien or Stop Notice. Should any claim of lien or stop notice related to YMCA's work of
improvement of the Premises be filed against the Premises or any action be filed against the Premises or
any action affecting the title to such property be commenced, the party receiving notice of such lien or
stop notice or action shall immediately give the other party written notice thereof.
7.3 Notice of Nonresponsibilitv. CITY or its representatives shall have the right to post and keep
posted on the Premises notices of nonresponsibility or such other notices which CITY may deem to be
proper for the protection of CITY's interest in the Premises. YMCA shall, before the commencement of
any work which might result in any such lien or stop notice, give to CITY written notice of its intention to
do so in sufficient time to enable posting of such notices.
ARTICLE 8
TAXES
8.1 Definition. "Taxes" shall mean all taxes, governmental bonds, special assessments, charges, or
transfer taxes, license and transaction fees, including, but not limited to, (i) any state, local, federal
income tax, or any real or personal property tax, (ii) increases in taxes attributable to YMCA's operation
of the Premises, or (iii} any taxes which are essentially payments to a governmental agency, other than
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CITY, for the right to make improvements to the Premises. YMCA recognizes and agrees that this
agreement may create a possessory interest subject to property taxation and that YMCA may be subject
to the payment of taxes levied on such interest. YMCA agrees to pay, before delinquency, all taxes,
assessments and fees assessed or levied upon the Premises.
8.2 Responsibility for Payment of Taxes. CITY shall not be obligated to pay any Taxes accruing
against YMCA on the Premises or any interest of YMCA therein before, during the Term, or any •
extension thereof; all such payments shall be the sole responsibility of YMCA. In addition, YMCA shall be
solely responsible for payment of any Taxes levied upon any Improvements, Fixtures or Personal
Property located on the Premises, to the extent that such Taxes result from the operations or other
activities of YMCA upon, or in connection with, the Premises.
ARTICLE 9
INDEMNIFICATION AND INSURANCE
9.1 YMCA's Indemnity. CITY shall not be liable for, and YMCA shall defend and indemnify CITY and the
employees and agents of CITY (CITY Parties), against any and all claims, liability, damages, or costs
(Claims) related to YMCA's improvement, operation or use of the Premises and arising either directly or
indirectly from any act, error, omission or negligence of YMCA or its contractors, licensees, invitees,
members, agents, servants or employees. YMCA shall have no obligation, however, to defend or
indemnify CITY Parties from a Claim if it is determined by a court of competent jurisdiction that such
Claim was caused by the sole or concurrent negligence or willful misconduct of CITY Parties.
9-2 CITY's Indemnity. YMCA shall not be liable for, and CfTY shall defend and indemnify YMCA and
the employees and agents of YMCA (YMCA Parties), against any and all claims, liability, damages, or
costs (Claims) related to CITY's improvement, operation, or use of the Park, excluding the Premises, and
arising either directly or indirectly from any act, error, omission or negligence of CITY or its contractors,
licensees, invitees, members, agents, servants or employees. The CITY shall have no obligation to
defend or indemnify YMCA Parties for Claims related to the Premises. CITY shall have no obligation,
however, to defend or indemnify YMCA Parties from a Claim if it is determined by a court of competent
` jurisdiction that such Claim was caused by the sole or concurrent negligence orwillful misconduct of
YMCA Parties.
9.3 Covered Claims. The obligations of YMCA and CITY hereunder to indemnify, defend and hold each
other harmless shall not apply to the extent that insurance carried by YMCA or CITY, other than any
program of self-insurance carried by either party, covers any Claim.
9. M insurance Obligations.. Each party shall provide Commercial General Liability Insurance -naming
and Employer's Liability Insurance to the other parry upon 'request. Insurance ObIieations.
"The YMCA. at its sole cost and expense_ shall purchase and maintain. when applicable,
to purchase and maintain throughout the term of this Asrrcement. the following checked
insurance policies:
A. n 1Pchecked. Professional Liability Insurance (errors and
omissions) with minimum limits of S1,000.000 per occurrence.
B. Automobile Insurance covering all bodily injury and property damage
incurred during the performance of this Agreement, with a minimum coverage of $5 000.000
- j Comment [CS33: The YMCA Will not agree to
minimum levels of coverage being specified in the
agreement
combined single limit per accident. Such automobile insurance shall include owned. non -owned.
and hired vehicles ("any auto"). The policy shall name the CITY and its officers, agents and
employees as additional insureds, and a separate additional insured endorsement shall be
provided.
C. Commercial General Liability Insurance. with minimum limits of
$2,000,000 per occurrence and $4.000.000 aggregate. co\ ering all bodily injury and property
damage arising out of its operations under this Agreement. The policy shall name the CITY and
its officers. agents and employees as additional insureds. and a separate additional insured
endorsement shall be proyidcd. The general aggregate limit must apply solely to this "project"
or "location''.
D. Workers' Compensation Insurance in an amount sufficient to meet
statutory requirements covering all of YMCA's employees and employers' liability insurance
with limits of at least $1.000.O00_per accident. In addition. the policy shall be endorsed with a
' . a i vet- of subrogation in favor of the City. Said endorsement shall be provided prior to
commencement of work under this Agreement.
IIYMCA has no employees subject to the California Workers'
Compensation and Lalxwr laws. YMCA shall execute a Declaration to that effect. Said
Declaration shall he provided to YMCA by CITY.
E. The atiwesaid policies shall constitute primary insurance as to the CITY.
its officers. employees. and volunteers. so that any other policies held by the CITY shall not
contribute to any loss under said insurance. Said policies shall provide for thirty (30) days prior
written notice to the CITY of cancellation or material change.
F. If required insurance; coverage is provided on a "claims made" rather than
-occurrence" form. the YMCA shall maintain such insurance coverage for three years after
expiration of the term (and any extensions) of this Agreement. In addition. the "retro" date must
be on or before the date of this Agreement.
Cr. insurance shall he written with °MN, California admitted companies that
hold a current policy holder's alphabetic and financial size category rating of not less than A Vlll
according to the current Best's Key Rating Guide. or a company equal financial stability that is
approved by the CITY'S Risk Manager. In the event coverage is provided by non -admitted
`surplus lines" carriers. they must he included on the most recent California T..ist of Eligible
Surplus Lines Insurers (I,F.SI.I list) and otherwise meet rating requirements.
1I. This Agreement shall not take effect until certilicatefs) or other sufficient
proof that these insurance provisions have been complied with, arc tiled with and approved by
the CITY'S Risk Manager. if the YMCA does not keep all of such insurance policies in full
force and effect at all times during the terms of this Agreement the CITY may elect to treat the
failure to maintain the requisite insurance as a breach of this Agreement and terminate the
Agreement as provided herein.
1. All deductibles and self -insured retentions in excess of 510.000 must be
disclosed to and approved by the CITY.
ARTIC'_t 10
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I Formatted: Left
HAZARDOUS MATERIALS
10.1 Hazardous Materials Laws -Definition, As used in this Article, the term "Hazardous Materials'
Laws" means any and all federal, state or local laws or ordinances, rules, decrees, orders, regulations or
court decisions (including the so-called "common law"), including without limitation the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C., sec.9601 et
seq.}, the Hazardous Materials Transportation Act, as amended (49 U.S.C., sec.1801 et seq.), and the
Resource Conservation and Recovery Act of 1976, as amended (42 U.S.C., sec. 6901 et seq.), relating to
hazardous substances, hazardous materials, hazardous waste, toxic substances, environmental
conditions on, under or about the Premises, soli and ground water conditions or other similar
substances or conditions.
10.2 Hazardous Materials - Definition. As used in this Section the term "Hazardous Materials" means
any chemical, compound, material, substance or other matter that:
a. is a flammable, explosive, asbestos, radioactive nuclear medicine, vaccine, bacteria, virus,
hazardous waste, toxic, overtly injurious or potentially injurious material, whether injurious or
potentially injurious by itself or in combination with other materials;
b. is controlled, referred to, designated in or governed by any Hazardous Materials Laws;
c. gives rise to any reporting, notice or publication requirements under any Hazardous Materials
Laws, or
d, is any other material or substance giving rise to any Liability, responsibility or duty upon the
CITY or YMCA with respect to any third person under any Hazardous Materials Law.
10.3 YMCA's Representations and Warranties. YMCA represents and warrants that, during the Term
or any extension thereof, YMCA shall comply with the following provisions of this Section unless
otherwise specifically approved in writing by CITY, subject to the terms and conditions of YMCA's
maintenance obligations provided elsewhere in this Operating Agreement:
a. YMCA shall not cause or permit any Hazardous Materials to be brought, kept or used in or
about the Premises by YMCA, its agents, employees, assigns, contractors or invitees, except as required
by YMCA's permitted use of the Premises in the normal course of operations;
b. Any handling, transportation, storage, treatment or usage by YMCA of Hazardous Materials
that is to occur on the Premises following the Commencement Date shall be in compliance with all
applicable Hazardous Materials Laws;
c. Any leaks, spills, release, discharge, emission or disposal of Hazardous Materials which may
occur on the Premises following the Commencement Date shall be promptly and thoroughly cleaned
and removed from the Premises by YMCA at its sole expense, and any such discharge shall be promptly
reported in writing to CITY, and to any other appropriate governmental regulatory authorities;
d. No friable asbestos shall be constructed, placed on, deposited, stored, disposed of, or located
by YMCA in the Premises;
e. No underground improvements, including but not limited to treatment or storage tanks, or
water, gas or oil wells shall be located by YMCA on the Premises without CITY's prior written consent;
f. YMCA shall conduct and complete all investigations, studies, sampling, and testing procedures
and all remedial, removal, and other actions necessary to clean up and remove all Hazardous Materials
on, from, or affecting the Premises in accordance with all applicable Hazardous Materials' Laws and to
the satisfaction of CITY;
g. YMCA shall promptly supply CITY with copies of all notices, reports, correspondence, and
submissions made by YMCA to the United States Environmental Protection Agency, the United
Occupational Safety and Health Administration, and any other local, state or federal authority which
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requires submission of any information concerning environmental matters or hazardous wastes or
substances pursuant to applicable Hazardous Materials' Laws; and
h. YMCA shall promptly notify CITY of any liens threatened or attached against the Premises
pursuant to any Hazardous Materials' Law. If such a lien is filed against the Premises, then, within the
earlier of (i) twenty (20) days following such filing, or (ii) before any governmental authority commences
proceedings to sell the Premises pursuant to the lien, YMCA shall either: (a) pay the claim and remove
the Tien from the Premises, or (b) furnish either (1} a bond or cash deposit reasonably satisfactory to
CITY in an amount not less than the claim from which the lien arises, or (2) other security satisfactory to
CITY in an amount not less than that which is sufficient to discharge the claim from which the hen arises.
At the end of this Operating Agreement, YMCA shall surrender the Premises to CITY free of any and all
Hazardous Materials and in compliance with all Hazardous Materials' Laws affecting the Premises.
ARTICLE 11
ASSIGNMENT
11.1 CITY's Consent Required. YMCA shall not voluntarily or involuntarily assign or otherwise
transfer all or any portion of its rights and duties under this Operating Agreement without CITY's prior
written consent. Any attempted assignment or transfer without CITY's prior written consent shall be
void.
• ARTICLE 12
DEFAULTS BY YMCA; REMEDIES
12.1 Events of Default; Remedies. If YMCA neglects or fails to perform or observe any of its
obligations under the terms, covenants, or conditions contained in this Operating Agreement within
thirty (30) days after written notice of default or, when more than thirty (30) days shall be required
because of the nature of the default, if YMCA fails to procccd diligently to cure such default after
written notice thereof, then YMCA shall be liable to CITY for any and all damages sustained by CITY as a
result of YMCA's breach and CITY may terminate this agreement.
ARTICLE 13
DEFAULTS BY CITY; REMEDIES
13.1 Events of Defaul; Remedies. If CITY neglects or fails to perform or observe any of its obligations
under the terms, covenants, or conditions contained in this Operating Agreement within thirty (30) days
after written notice of default or, when more than thirty (30) days shall be required because of the
nature of the default, if CITY fails to procccd diligently to cure such default after written notice thereof,
then CITY shall be liable to YMCA for any and all damages sustained by YMCA as a result of CITY's breach
and YMCA may terminate this agreement.
ARTICLE 14
ABANDONMENT
14.1 Abandonment. YMCA shall not vacate or abandon the Premises at any time during the Term nor
permit the Premises to remain unoccupied for a period of longer than five (5) consecutive days during
the term of this Operating Agreement. These provisions shall not apply if the Premises are closed and
operation is temporarily discontinued therein on account of strikes, lockouts, or similar causes beyond
the reasonable control of YMCA.
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ARTICLE 15
DAMAGE OR DESTRUCTION
15.1 YMCAs Duty to Repair Casualty. Except as provided in this article and subject to the terms and
conditions of YMCA's maintenance obligations provided elsewhere in this Operating Agreement, should
the Premises be damaged by fire, earthquake, or any other identifiable event of a sudden, unexpected,
or unusual nature (Casualty), YMCA, at YMCA's sole cost and expense, shall, as expeditiously as
reasonably possible, repair any damages to the Premises, and repair, restore and replace any such
damaged or destroyed Fixtures, Improvements or Personal Property.
15.2 Construction Provisions. In the event of any reconstruction of the Premises, Fixtures or
Improvements required of YMCA pursuant to this Article, YMCA shall repair the Premises, and repair or
rebuild such Fixtures and Improvements, to substantially the same condition they were in immediately
preceding such Casualty.
15.3 No Abatement. In the event of reconstruction, replacement or repair by YMCA pursuant to this
Article, YMCA shall continue its operations on the Premises during any such period to the extent
reasonably practicable from the standpoint of prudent business management, and in continuing
compliance with applicable laws and regulations. YMCA shall not be entitled to any compensation or
damages from CITY for loss of use of the whole or any part of the Premises, YMCA's Personal Property,
or any inconvenience or annoyance occasioned by such damage, reconstruction or replacement.
15.4 Maiar Destruction. Notwithstanding any of the foregoing provisions of this Article to the
contrary, if, at anytime after the Commencement Date, (i) the Improvements are damaged or destroyed
to the extent of more than twenty-five percent (25%) of their replacement cost, or (ii) the damage is
such that the Improvements cannot be repaired and restored within one hundred and eighty (180) days
after the Casualty, then YMCA shall have the right to terminate this Operating Agreement upon thirty
(30) days' prior written notice to CITY.
ARTICLE 16
EMINENT DOMAIN
16.1 Condemnation. if all of the Premises is taken under eminent domain proceedings by a party
other than CITY, or, if Tess than all of the Premises is taken under such proceeding and the part taken
substantially impairs the ability of YMCA to use the remainder of the Premises for the purposes
permitted by this Operating Agreement, then YMCA may terminate this Operating Agreement as of the
date that the condemning authority takes possession by delivery of written notice of such election
within twenty (20) days after YMCA has been notified of the taking or, in the absence thereof, within
twenty (20) days after the condemning authority shall have taken possession.
16.2 Continuation of Operating Agreement After Condemnation. If this Operating Agreement is not
terminated by YMCA, it shall remain in full force and effect as to any portion of the Premises remaining,
and this Operating Agreement will end as of the date possession of the part taken by the public entity as
to the part of the Premises that is taken.
16.3 Award. All monies awarded in any condemnation shall belong to the CITY. CITY shall have no
liability to YMCA for any award not provided by the condemning authority.
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ARTICLE 17
SALE OR MORTGAGE BY CITY
17.1 Sale or Mortgage. Subject to YMCA's rights under this Operating Agreement, CITY may,
pursuant to existing and subsequently enacted CITY ordinances and State laws, at any time and without
the consent of YMCA, sell, purchase, exchange, transfer, assign, lease, encumber or convey CITY's
interest in whole or in part, in the Park (collectively referred to in this Article as a "Sale"). CITY shall
provide to YMCA written notice of CITY's intent to a Sale pursuant to this Article at least ninety (90) days
prior to said proposed transfer.
17.2 Release on Sale. From and after a Sale of CITY's entire interest in the Premises, CITY shall be
release from all liability to YMCA and YMCA's successors and assigns arising from this Operating
Agreement because of any act, occurrence or omission of CITY occurring after such Sale.
17.3 Right of First Refusal. Should CITY enter into a contract for a Sale, YMCA shall have the first right
to take the place of the purchaser in such transaction. Should YMCA decline to exercise its right under
this provision, and CITY thereafter modify any of the terms of the Sale, YMCA's right under this provision
shall be to the modified Sale, and shall continue with any subsequent;modificationt _ ' Comment [CS4]: The YMCA seeks right of first
refusal In case the City desires to sell the property.
ARTICLE 18
SUBORDINATION; ATTORNMENT
18.1 Subordination. Without the necessity of any other document being executed and delivered by
YMCA, this Operating Agreement is and shall be junior, subject and subordinate to any existing or future
permits or approvals issued by the United States of America or any local, State or federal agency
affecting the control or operation of the Premises; YMCA shall be bound by the terms and provisions of
such permits or approvals. In addition, this Operating Agreement is and shall also be subject,
subordinate and junior to all mortgages, deeds of trust, and other security instruments of any kind
covering the Premises, or any portion thereof, as of the Commencement Date of this Operating
Agreement.
18.2 Attornment. If any proceedings are brought for foreclosure, or in the event of the exercise of
the power of sale under any mortgage or deed of trust made by CITY covering the Premises, YMCA shall
attorn to the purchaser upon any such foreclosure or sale and recognize such purchaser as owner under
this Operating Agreement. The CITY and any successor in interest to CITY shall not unreasonably impair,
harass, or interfere with the business operations of YMCA on the Premises during the foreclosure
process or upon taking ownership of the underlying fee title of said Premises.
ARTICLE 19
CITY'S RIGHT OF ACCESS
19.1 Right of Entry. CITY, its agents, employees, and contractors may enter the Premises at any time
in response to an emergency, and, at reasonable hours, upon prior reasonable notice to YMCA, to (a)
inspect the Premises and Improvements; (b) determine whether YMCA is complying with its obligations
in this Operating Agreement (including its obligations with respect to compliance with Hazardous
Materials Laws); (c) post notices of nonresponsibility or similar notices; (d) inspect the progress of
construction of any improvement; or (e) make repairs that this Operating Agreement requires or allows
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CITY to make, or make repairs to any adjoining space or utility services, or make repairs, alterations, or
improvements to any other portion of the Premises; provided, however, that all work will be done as
promptly as reasonably possible and so as to cause as little interference to YMCA as reasonably possible.
ARTICLE 20
NOTICES
20.1 Notices. Whenever in this Operating Agreement it shall be required or permitted that notice or
demand be given or served by either party to this Operating Agreement to or on the other, such notice
or demand shall be in writing, mailed or personally delivered to the other party at the addresses
specified below. Mailed notices shall be sent by United States Postal Service, postage prepaid and shall
be deemed to have been given, delivered and received three (3) business days after the date such notice
or other communication is posted by the United States Postal Service. All other such notices or other
communications shall be deemed given, delivered and received upon actual receipt. Either party may,
by written notice delivered pursuant to this provision, at any time designate a different address to which
notices shall be sent.
Lessor: CITY OF NATIONAL CITY
Lessee:
City of National City
1243 National City Boulevard
National City, CA 91950-4301
YMCA OF SAN DIEGO CITY
President
YMCA of San Diego County
3708 Ruffin Road
San Diego, CA 92123-1812
ARTICLE 21
NONDISCRIMINATION
21.1 Nondiscrimination. YMCA hereby covenants by and for itself, its successors, assigns and all
persons claiming under or through it, that this Operating Agreement is made and accepted upon and
subject to the condition that there shall be no discrimination against, or segregation of, any person or
group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry
in the use, operation, or enjoyment of the Premises.
ARTICLE 22
RECORDS, ACCOUNTS AND AUDITS
22.1 YMCA's Duty to Keep Records. YMCA shall, at all times during the Term, and for a period of five
(5) years following expiration or earlier termination of this Operating Agreement, keep or cause to be
kept, true and complete books, records and accounts of all (i) construction undertaken pursuant to the
rights conferred on YMCA under this Operating Agreement, and (ii) financial transactions in the
operation of all business activities, of whatever nature, conducted pursuant to the rights granted by this
Operating Agreement. Such records shall also include the source and disposition of all trash and other
waste collected and disposed of by YMCA in the operation of its business. Said records must be
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supported by source documents such as sales slips, cash register tapes, purchase invoices or other
pertinent documents.
22.2 CITY's Right to Audit. All YMCA's books or accounts and records shall be kept and made
available at one location within the limits of the County of San Diego. CITY shall have the right at any
reasonable time to examine and perform audits of YMCA's records pertaining to (i) construction
undertaken pursuant to the rights conferred on YMCA under this Operating Agreement, and (ii) its
operations on the Premises, including, without limitation, any records pertaining to YMCAs use of
utilities on the Premises. The cost of said audits shall be borne by CITY; however, YMCA shall provide to
CITY at YMCA's expense, necessary data to enable CITY to fully comply with each and every requirement
of the State of California or by the United States of America for information or reports relating to this
Operating Agreement and to YMCA's use of the Premises.
ARTICLE 23
GENERAL PROVISIONS
23.1 Authority. YMCA represents and warrants that it has full power and authority to execute and
fully perform its obligations under this Operating Agreement pursuant to its governing instruments,
without the need for any further action, and that the person executing this Operating Agreement on
behalf of YMCA is the duly designated agent of YMCA and is authorized to do so.
23.2 Captions. The captions and headings appearing in this Operating Agreement are inserted for
convenience only and in no way define, limit, construe, or describe the scope or intent of the provisions
of this Operating Agreement.
23.2 CITY Approval. Except where stated herein to the contrary, the phrases "CITY's approval," and
"CITY's written approval" or such similar phrases shall mean approval of the City Manager of National
City or said person's representative as authorized by said person in writing, which approval shall not be
unreasonably withheld.
23.2 Cumulative Remedies. In the event of a default under this Operating Agreement, each party's
remedies shall be limited to those remedies set forth in this Operating Agreement; any such remedies
are cumulative and not exclusive of any other remedies under this Operating Agreement to which the
non -defaulting party may be entitled.
23.3 Entire Agreement. This Operating Agreement, together with all addenda, exhibits and riders
attached hereto, constitutes the entire agreement between the parties with respect to the subject
matter hereof, and all prior or contemporaneous agreements, understandings and representations, oral
or written, are superseded.
23.4 Exhibits. All exhibits referred to herein are attached hereto and incorporated by reference:
Exhibit A: Description of the Park
Exhibit B: Map of the Premises
Exhibit C: Schedule of Proposed Programs
Exhibit D: Deferred Maintenance
23.5 Force Maieure. If either party is prevented or delayed from performing any act or discharging
any obligation hereunder, because of any and all causes beyond either party's reasonable control,
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including unusual delays in deliveries, abnormally adverse weather conditions, unavoidable casualties,
strikes, labor disputes, inability to obtain labor, materials or equipment, acts of God, governmental
restrictions, regulations or controls, any hostile government actions, civil commotion and fire or other
casualty, legal actions attacking the validity of this Operating Agreement or the CITY's or YMCA's
operations of the Premises, or any other casualties beyond the reasonable control of either party
("Force Majeure"), performance of such act shall be excused for the period of such delay, and the period
for performance of such act shall be extended for a period equivalent to the period of such delay. Force
Majeure shall not include any bankruptcy, insolvency, or other financial inability on the part of either
party hereto.
23.6 Governing Law. This Operating Agreement shall be governed, construed and enforced in
accordance with the laws of the State of California.
23.7 Independent Contractor. YMCA.acknowledges that it is an independent contractor; that it alone
retains control of the manner of conducting its activities in furtherance of this Operating Agreement;
and that it, as well as any persons, contractors or agents it may employ, are not employees of CITY for
any purpose.
23.8 Interpretation. The provisions of this Agreement shall be liberally construed to effectuate its
purpose. The Language of all parts of this Agreement shall be construed simply according to its plain
meaning and shall not be construed for or against either party.
23.9 YMCA's Operating Agreement Administration. YMCA confirms that YMCA's Operating
Agreement Administrator has been given full operational responsibility for compliance with the terms of
this Operating Agreement. YMCA shall provide CITY with a written schedule of its normal hours of
business operation on the Premises, and YMCA's Operating Agreement Administrator or a
representative designated thereby shall be available to CITY during YMCA's normal business hours, to
resolve problems or answer question pertaining to this Operating Agreement and YMCA's operations on
the Premises.
23.10 Modification. The provisions of this Operating Agreement may not be modified, except by a
written amendment signed by both parties.
23.11 Partial Invalidity. If any provision of this Operating Agreement is determined by a court of
competent jurisdiction to be invalid or unenforceable, the remainder of this Operating Agreement shall
not be affected thereby. Each provision shall be valid and enforceable to the fullest extent permitted by
Law.
23.12 Successors & Assigns. This Operating Agreement shall be binding on and inure to the benefit of
the parties and their successors and assigns, except as may otherwise be provided herein. YMCA shall
not assign this agreement to any other party unless approved in writing by CITY.
23.13 Time of Essence. Time is of the essence of each and every provision of this Operating
Agreement.
23.14 Waiver. tJo provision of this Operating Agreement or the breach thereof shall be deemed
waived, except by written consent of the party against whom the waiver is claimed.
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IN WITNESS WHEREOF, the CITY and YMCA have duly executed this Operating Agreement as of the day
and year first above written.
Date:
YMCA OF SAN DIEGO COUNTY
a California nonprofit, public benefit corporation
By:
Baron Herdelin-Doherty, President & CEO
THE CITY OF NATIONAL CITY
a municipal corporation
Date: By:
Approved as to form:
City Attorney
Date: By:
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EXHIBIT A
DESCRIPTION OF THE PARK
LAS PALMAS PARK & CAMACHO RECREATION CENTER
1810 E. 22nd St. (619) 336-6756
Las Palmas Park is30 acres with a swimming pool, ball fields, tennis courts, picnic areas, playground
equipment and Recreation Center/ gymnasium. Camacho Recreation Center contains a gymnasium with
basketball courts, bleachers and scoreboard. In addition, there are three classrooms, one large office,
multiple storage closets, men and women's restrooms, and a janitor's closet.
NATIONAL CITY MUNICIPAL POOL
1800 E. 22nd St. (619) 336-6758
Main pool is 50 meters by 19.8 meters (8 lanes of 50 meters) including one 3 meter diving board (9.8
feet) and two 1 meter diving boards.
Activity pool is 70 feet long and at its widest it is 45 feet wide with a total area of 81,000 square feet. It
has 4 different spray features and a 16 foot high slide with a ride length of 134.58'. The locker rooms
are enclosed by a high wall and have a large changing area. There is a main pump room adjacent to the
pool along with multiple storage rooms.
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EXHIBIT B
MAP OF THE PREMISES
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EXHIBIT C
SCHEDULE OF PROPOSED PROGRAMS FOR LAS PALMAS YMCA
The following is a list of possible programs that, based upon community need and input, may be
operated at the Las Palmas Park site; which includes Camacho Gymnasium and Las Palmas Pool.
PROGRAM
SEASON
AGE RANGE
Progressive swim lessons
Year round
3 years to 12 years
Private swim lessons
Year round/as requested
5 years and up (including adults)
Water polo/Wet ball
Year round
8yearsto $14 years
SPLASH! Week (5-30 minute swim
lessons)
Spring break (1-2
weeks/as needed)
3 years to 12 years
Parent -child swim lessons
Year round
6 months to 3 years
Masters Swim
Year round
18 years and up
Lap swim
Year round
Must be able to pass the swim
test
'Youth Sports (may include basketball,
flag football, soccer, volleyball, tennis,
footsol)
Year round (or as
requested by the
community)
4 years to 16 years
Pee -wee sports (soccer, t-ball, multi-
sport)
Year round
3 years to 5 years
Martial Arts (may include Tae Kwon
Do, Jiu Jitsu, and/or Capoiera
Year round
4 years and up (including adults)
Gymnastics (parent/child)
Year round
18 months to 3 years
Dance (such as Ballet, Jazz, Hip Hop) &
Kids Fitness Programs
Year Round
3 years and up
Tumbling (various levels)
Year round
8 years to 17 years
Group Exercise classes (may include
Senior Exercise programs, Water
Exercise, Zumba, Yoga, Pilates, group
indoor cycling, interval training, step
aerobics, cardio kick boxing)
Year round
12 years and up
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Specialized group exercise programs
(may include Team Challenge, Boot
Camp, TRX training, sport specific
conditioning)
Year round
12 years and up
Day Camp
During school breaks and
school holidays
5 years to 14 years
Family Programming (May include
Family Health & Wellness, Family
Nights, and other family events)
Year Round
Fam'lies
Teen Programs (such as Adventure
Camps, ESC, Youth & Government and
Leadership Development}
Year Round
Seasonal
Teens
Various Community Events and Classes
such as CPR/First Aid, Lifeguarding,
Healthy Kids Day
Year Round
Youth, Teens and Families
*These programs may be potential member benefits/included as part of a membership to the YMCA.
CITY USE OF PREMISES
City Use of Premises (Provided at
Up to 5 Events per year
Varies
no cost except for direct costs such
including Movie in the Park
as Lifeguards)
and National Night Out (upon
mutual written agreement &
schedule)
Various Community Meetings
Upon Mutual Written
Varies
Agreement & Schedule
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EXHIBIT D
DEFERRED MAINTENANCE
Las Palmas Pool
• Replace Water Slide Booster Pump and necessary plumbing.
• Upgrade natural gas supply to meet BTU demand.
• Repair and/or Replace leaky valves for Recreation pool filters.
• Replace chemical feed tubes and connectors.
• Remove and replace the competition pool expansion joints which requires draining and filling
the pool, new chemicals to balance the water and labor for brushing and vacuuming while
balancing the water.
• Replace broken and missing coping tiles in competition pool.
• Polish competition pool tiles lane lines.
• Re -plaster Recreation pool.
• Repair miscellaneous deck equipment.
• Replace competition pool starting platforms.
• Repaint Recreation pool's spraybow feature
• Replace non-functional pool lights in both the Competition pool and Recreation pool.
• Replace pool covers.
• Confirm conformance to Virginia Graeme Baker Act.
• Replace existing pool deck,
• Flush out Pool Deck Drain Lines.
• Sand and Paint various exterior eves.
• Repair and/or replace bench seats at various locations.
• Replace Door & Frame at pool equipment room.
• Adjust & replace threshold at Aquatics Lobby Door.
• Service Shower Valves.
• P Trap Pads (ADA).
Camacho Gym Recreation Center
• Remove debris from roof drains.
• Install 5' Cap Sheet at Perimeter Roof.
• Repair Miscellaneous Roof Penetrations.
• Demolish and Install new Sheet Metal/Flashing.
• Trim Trees hanging over gym roof.
• Replace Closures and adjust swing on Gym Doors.
• Sand and paint various wood doors.
• Secure Drinking Fountain to the Wall.
• Seal up Roof Top Duct Work.
Estimated Total Cost for Deferred Maintenance = $690,957
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