SHERWOOD TENNIS CENTER
930 NORTH MAIN STREET, SALINAS, CALIFORNIA
OPERATIONS AND MANAGEMENT AGREEMENT
This Operations and Management Agreement (the “Agreement”) is entered into this 6th day of August 2024, by and between the City of Salinas, a California charter city and municipal corporation hereinafter referred to as “the City,” and the Central Coast YMCA, a 501(c)(3) not-for-profit corporation hereinafter referred to as “the YMCA.” The City and the YMCA may sometimes be individually referred to as a “party” and be collectively referred to as “the parties.”
RECITALS
The City owns the real property and the buildings and other improvements located at 930 North Main Street in the city of Salinas, County of Monterey, Assessor’s Parcel Number 003-231-002-000, including the facility commonly known as the “Sherwood Tennis Center” (the “Tennis Center”).
The City desires to enter into an agreement for the management, maintenance and operation of the Tennis Center including the operation of a publicly-accessible recreational tennis program, among other related programs and services.
The YMCA has indicated it has the capability and the desire to manage, maintain, and operate the Tennis Center and to provide programs and activities for the community at the Tennis Center.
NOW, THERFORE, in mutual consideration of the covenants, terms, and conditions set forth herein, the Parties agree as follows.
TERMS
Purpose. The purpose of this Agreement is to provide for the management, operation, and maintenance of the Sherwood Tennis Center. To help fulfill this purpose, the City and the YMCA will meet on at least a monthly basis to discuss the Tennis Center, the programs offered by the YMCA at the Tennis Center, and the finances of the YMCA as they relate to the Tennis Center. In addition to the monthly meetings, either party may request additional meetings, as needed to discuss this Agreement and the operation, management, and maintenance of the Tennis Center.
In fulfilling this purpose, the YMCA will provide quality programs and services for the community and will ensure access to the Tennis Center for the general public.
The City and the YMCA will also agree on three to five desired outcomes for participants in the YCMA’s activities at the Tennis Center. The YMCA will provide written annual reports to the City documenting the results.
Tennis Center. The Tennis Center is located at 930 North Main Street and consists of six lighted tennis courts and building which has historically housed the pro shop (“Pro Shop”). The facilities and the improvements, excluding the parking spaces, are generally shown on the Attachment B.
Term. This Agreement will commence on August 6, 2024 (the “Effective Date”) and will continue for a period of three (3) years, thereafter terminating on August 6, 2027 (the “Initial Term”).
The Initial Term may be extended for one (1) additional three-year term upon the mutual written consent of the Parties. Not less than forty-five (45) days prior to the end of the Initial Term, the YMCA may provide the City with written notice of its desire to extend the term of this Agreement. In the event the YMCA does not give timely notice of its desire to extend the term of this Agreement, this Agreement will terminate at the end of the then existing term and will be of no further force or effect and except as may otherwise be specifically provided for herein, neither the City nor the YMCA will have any further obligations hereunder.
Upon the expiration or the earlier termination of this Agreement, the YMCA will peaceably vacate the Tennis Center and deliver the same to the City in at least as good a condition as it was delivered to the YMCA on the Effective Date, reasonable wear and tear and casualty excepted.
Tennis Center Supervision. The YMCA shall supervise the general operation of said Tennis Center insofar as the tennis playing public is concerned, and shall assume responsibility for managing and monitoring the Tennis Center during designated hours, enforcing all rules and regulations, regulating play and conduct of players, keeping off trespassers, preventing damage to the Tennis Center by players and others, and preserving proper order in and about the pro shop and premises. Except as detailed herein, the YMCA shall determine the method, details and means of performing the above described services.
The YMCA shall develop and maintain a tennis program of lessons for all ages, tournament play, and court rentals. In connection herewith, the YMCA shall conform to and enforce all rules and regulations now in existence or thereafter adopted by City. The YMCA shall devote the following time to operation of the Tennis Center:
Regular Hours
Monday 11-4
Tuesday 11-4
Wednesday 11-4
Thursday 11-7
Friday 11-8
Saturday 9-3
Sunday 9-3
Winter/Rainy Days
Monday 11-4
Tuesday 11-4
Wednesday 11-4
Thursday 11-6
Friday 11-6
Saturday 9-3
Permitted Use. The Tennis Center may be used only and exclusively for a public recreation facility managed, operated, and maintained for the purpose of operating a publicly accessible recreational tennis facility, among other related programs and services to the general public. Any other uses will require the express prior written consent of the City.
Cooperation with the City. The YMCA agrees to work cooperatively with the City with regard to the use of the Tennis Center for City recreational programs and activities.
Condition of the Tennis Center; Care and Maintenance. The YMCA acknowledges personal inspection of the Tennis Center and surrounding areas and evaluation of the extent to which the physical condition of the Tennis Center and of the surrounding areas will or may affect the operation of the Tennis Center. The YMCA expressly acknowledges its acceptance of the Tennis Center in its "As Is, Where Is" condition and acknowledges the City has made no warranties or representations as to the condition of the Tennis Center or its fitness for the intended uses by the YMCA hereunder. The YMCA agrees not to make any demands upon the City for any improvements or alterations of the Tennis Center. The YMCA agrees at all times during the term of this Agreement to maintain and to operate the Tennis Center in a clean, safe, and sanitary condition.
Included among the YMCA’s maintenance and operation responsibilities are the following which the YMCA must undertake to make sure the Tennis Center is in operable condition:
Minor repairs to nets for all six courts.
The Pro Shop, lavatories, locker rooms and the area surrounding them must be kept in a neat, clean and sanitary condition, and free from rubbish at all times, and in connection therewith shall assume complete responsibility for such janitorial service as may be necessary therefore.
The YMCA shall notify the City immediately of any repairs or maintenance necessary to keep the Tennis Center in good condition. The City will assume the cost of these repairs.
Provide sufficient and appropriate staffing levels at all times of operation.
Provide verification of completed criminal background screening for all staff.
The YMCA will provide at its sole cost and expense, all equipment, materials, and supplies required to operate and to manage the Tennis Center and the programs and the activities offered by the YMCA at the Tennis Center.
The YMCA will provide a detailed inventory of personal property prior to execution of this Agreement. (Attachment C) All personal property not listed by the YMCA will be considered a part of the Tennis Center and property of the City. The YMCA will retain sole title to its personal property.
Donations made to the YMCA for the exclusive use at the Tennis Center will be the property of the City.
The City will provide a detailed inventory of its property prior to execution of this Agreement. (Attachment D) The City will retain sole title to its personal property.
In addition to those specific responsibilities otherwise listed in this Section, the YMCA is responsible for maintaining the Tennis Center in a good state of repair, as well as providing all maintenance necessary for optimizing the life of the Tennis Center’s amenities. The costs for all such maintenance, as generally and expressly described herein, will be a part of the expenses set forth in this Agreement. For the purposes of this Agreement, maintenance is defined, as all housekeeping/janitorial activities concerned with keeping the facility clean, neat and orderly, including sweeping, mopping, waxing, dusting, washing, hosing, and other activities necessary for the cleaning and the preservation of the Tennis Center’s interior floors, walls, ceilings, doors, windows, and other fixtures.
If through routine inspection the city determines that maintenance is not satisfactory, the City will provide notice that will allow the YMCA thirty (30) days to make the necessary corrections. If the YMCA is unable to do so, the City will perform the maintenance. The cost of any maintenance performed by the City which is the YMCA’s responsibility as detailed above, will also be reflected as a deduction in revenue from the City’s subsidy equal to the amount of the expenses.
City Responsibilities. The City will be responsible for the following:
City shall clean the six courts and paved areas; City shall assist in clean up after major storms. City shall also provide such janitorial supplies as may be necessary to serve the Pro Shop, including restrooms.
Controls of Services, Rates, and Charges. It is the intent of the City under this Agreement to provide the residents of Salinas and the general public with a clean and safe environment to recreate, assemble, and celebrate at reasonable and affordable prices, and concurrently, to the maximum extent feasible, ensure that the Tennis Center is self-supporting. The YMCA therefore agrees to operate and to manage the Tennis Center as a quality operation and to charge reasonable and appropriate fees for its use and enjoyment.
Personnel. The YMCA will employ the services of a knowledgeable and competent manager to oversee the Tennis Center and premises and provide supervision of all operations under this Agreement. Additionally, the YMCA will have competent employees on the premises at all times while the Tennis Center is being used.
Rates and Charges. The YMCA will set the rates and charges for programs and activities it plans to offer at the Tennis Center, subject to the prior approval of the City Manager or his designee. The YMCA shall use all fees generated from its operation of the Tennis Center including, but not limited to, fees for the use of the tennis courts, to cover all operational costs it incurs for programs and activities it offers at the Tennis Center consistent with this Agreement.
Operating Rules and Procedures. The YMCA will set all policies and regulations for use of the Tennis Center and will cause a copy of the policies and regulations to be available at the Tennis Center and cause a copy of the policies and procedures to be delivered to the City Manager and to the Library and Community Services Director.
Scheduling Requirements. The YMCA will schedule the use of the Tennis Center and premises in order to maximize the public’s use, enjoyment, and convenience and to minimize conflicts between the users. The YMCA will keep a record of the number of users and activities and programs. The City Manager and his/her designee will have the right at all reasonable times to examine such records. The YMCA will provide the City Manager and the Library and Community Services Director an annual summary of the Tennis Center’s use.
Records of Complaints. The YMCA will record any and all complaints. Such record of complaints and investigation reports will be made available to the City Manager and the Library and Community Services Director at all reasonable times for review.
Records and Reporting. The YMCA will keep separate true and accurate books and records showing all transactions under this Agreement related to the operation of the Tennis Center. Books and records will be maintained according to generally accepted accounting principles. The City will have the right, at all reasonable times, to examine such books and records.
Budget Reports. This section would only be applicable after the initial term is complete and the Agreement is extended. In addition to other reports which may be required by this Agreement, the YMCA will annually submit to the City the following budget reports:
A semi-annual operating statement (year-to-date results for January 1-June 30) to the City by August 1.
A year-end operating statement by February 1.
The operating budget for the upcoming year by December 31.
The YMCA will provide an approved audited financial statement for the Central Coast YMCA by June 1.
Other Reports. The YMCA will provide the following reports forty-five days following the execution of this agreement and thereafter, annually, by February 1, to the City:
A Demographic Report of Tennis Center participants.
A Program Summary Report.
A fee schedule for programs and activities.
A list of policies, rules, and regulations for all programs and activities at the Tennis Center.
Agreement With California Rodeo Association. The YMCA understands and acknowledges that the City has entered into an Agreement with the California Rodeo Association for the use and the occupancy of the property and the facilities commonly referred to as the “Salinas Sports Complex”. The YMCA further understands and acknowledges that pursuant to the City’s Agreement with the California Rodeo Association the City has agreed to make a portion of the Sherwood Community Center available to the California Rodeo Association both before and during the period known as “Big Week” in association with the California Rodeo for a period of fourteen (14) days and then for a period not to exceed two (2) days following the last day of the California Rodeo. The Tennis Center shall remain closed during the time in which the California Rodeo Association occupies a portion of the Sherwood Community Center.
Breach; Termination.
Termination for Cause. In addition to all other remedies available to the City under the law or in equity, this Agreement may be terminated by the City as provided herein below:
Change in Conditions or Circumstances. The City, in its sole discretion, for any reason or for no reason, determines that the conditions and circumstances have changed such that the City desires to resume management and operation of the Aquatic Center.
Impairment or Prejudice of City’s Interests. The City, in its sole discretion, determines that the conduct or performance of the YMCA in performing the duties and obligations imposed upon it under this Agreement is such that the interests of the City may be impaired or prejudiced and the YMCA has not remedied such conduct within thirty (30) days after written notice thereof as directed by the City; or YMCA’s Failure to Perform. The City, in its sole discretion, determines that the YMCA has failed in the performance or compliance with any of the covenants, agreements, terms, or conditions contained in this Agreement and such failure continues for a period of thirty (30) days after written notice thereof or, in the case such failure cannot with due diligence be cured within such period of thirty (30) days or such reasonable time as may be required to cure such default, but in no event to exceed sixty (60) days.
Effect of Termination. In the event that this Agreement is terminated by the City for any reason, the YMCA will:
Cessation of Services. Upon receipt of written notice of such termination promptly cease all services performed under this Agreement, unless otherwise directed by the City; and Delivery of Documents and Reports. Deliver to the City all documents, reports, data, summaries, correspondence, computer software output, video and audio tapes, and any other materials provided to the YMCA or prepared by or for the YMCA or the City in connection with this Agreement. Such material is to be delivered to the City in completed form.
City’s Assumption of Obligations. In the event that this Agreement is terminated by the City for any reason, the City is hereby expressly permitted to assume the obligations required under this Agreement and to complete them by any means including, but not limited to, an agreement with another party. The City is further hereby expressly permitted to take possession of the Tennis Center, including all improvements, equipment, and inventory located thereon, and use the same for the purpose of satisfying or mitigating any damage arising from the YMCA’s breach or default of this Agreement.
The City’s Failure to Perform. This Agreement may be terminated by the YMCA upon written notice upon the failure of the City to perform any of the obligations imposed upon it under this Agreement, and for no other reason.
Rights and Remedies Not Exclusive. The rights and remedies of the City and of the YMCA provided under this section are not exclusive and are in addition to any other rights and remedies provided by law or appearing in any other section of this Agreement.
Inspection and Entry. The City and its authorized officers, employees, and representatives have the right to enter into and around the Tennis Center, or any part thereof, at all reasonable times, upon reasonable prior notice (except in the case of an emergency, when no such notice will be required) for the purpose of inspecting the same and to take all such action thereon as may be necessary or appropriate for any such purpose provided for under this Agreement or any other lawful purpose to include protecting the Tennis Center. No such entry will constitute an eviction of the YMCA or a disturbance of its quiet enjoyment to use and to occupy the Tennis Center. When entering in or around the Tennis Center for any reason, the City and its authorized officers, employees, and representatives will use all commercially reasonable efforts to protect the YMCA's property and personnel from loss and injury and to avoid interfering with the conduct of the YMCA's business.
Warranty of Title. The City warrants and represents that except as may be otherwise specifically set forth in this Agreement, the City has sole and exclusive rights and title to the Tennis Center such that it may enter into this Agreement.
Non-Discrimination. The YMCA will not discriminate on the basis of a person's place or residence, race, religion, color, national origin, age, physical or mental handicap or disability, medical condition, marital status, sex or sexual orientation, against any participant in, recipient of, or applicant for any services or programs provided at the Tennis Center by the YMCA. The YMCA will comply with all applicable federal, state, and local laws, policies, rules, and requirements related to equal opportunity and non-discrimination in the provision of any services or programs offered at the Tennis Center.
Representative. The YMCA will assign a single representative to have overall responsibility for the execution of this Agreement for the YMCA. Amy Grames, is hereby designated as the representative for the YMCA. The YMCA provide the City with written notice of any changes in the designated representative.
Signs. The YMCA will not post temporary or permanent signs upon the Tennis Center unless the City has given its prior written consent. And, except as may be specifically authorized in writing by the City, no advertising of any kind or description, bill or poster, whether printed or painted, or by the use of any other method or application, will appear on any building or structure, fence, canopy, poster or sign, except valid and authorized legal notices required to be placed thereon.
Utilities and Services. The City shall pay all gas, light, waste disposal and other utility services in and about Tennis Center, including telephone service, but not including long distance calls.
Liens and Encumbrances. The YMCA will keep the Tennis Center free and clear of any liens or encumbrances of any kind whatsoever created by the YMCA's acts or omissions.
Taxes. Throughout the term of this Agreement, the YMCA will pay before they become delinquent all real property tax obligations of any kind and which are assessed against the Tennis Center in addition to all taxes and assessments imposed on any personal property ], equipment, or trade fixtures belonging to the YMCA and located at the Tennis Center. The YMCA will also be responsible for any applicable possessory interest tax assessed or levied against the Tennis Center and will make timely payment thereof.
Security and Reporting. The City will provide an on-site security guard during the Tennis Center operating hours, solely at the City’s cost. All violations of law, abuse or damage to the facility and/or the premises surrounding the Tennis Center, or injuries to the public or the YMCA’s employees will be reported immediately to the City Manager, the Library and Community Services Director, and the City Attorney. The YMCA will maintain a record of all known or reported violations of law, abuse, or facility damage which will be available for inspection by the City Manager and the Library and Community Services Director and/or their designees.
The YMCA will immediately report to the City in writing any accident causing, or reasonably estimated to have caused, more than ten thousand dollars ($10,000) worth of property damage or any serious injury to person or to property that occurs on or in connection with the Aquatic Center. This written report shall contain the names and addresses of the parties involved, a statement of the circumstances, the date and hour, the names and addresses of any witnesses, and any other pertinent information.
Liability for Damages; Waiver of Claims. Aside from the security guard services described in Section 21 above, the YMCA will be fully responsible for any and all damage to the Tennis Center, damage to personal property of private individuals or other property of the public, and for any injury to any individual, including any guest, employee, agent, licensee, invitee or member of the City that results from the affirmative act or the negligence of the YMCA or its agents, employees, invitees, or licensees.
The City assumes no responsibility for the guarding or the safe-keeping of the Tennis Center or any of the equipment or improvements located thereon or used in connection with the YMCA's use of the Tennis Center. The YMCA waives all claims against the City, its officers, employees, agents, and volunteers for any damage to such equipment or improvements and for injuries to any employees and/or volunteers or their agents, guests, or invitees in or about the Tennis Center arising from any cause at any time.
Assignment and Subletting. The YMCA will not have the right to assign, sublet, hypothecate, or mortgage the Tennis Center, or any part thereof, or to lease, license, or otherwise enter into management agreements with any other individual or entity for any portion of the Tennis Center. Any attempted assignment, hypothecation, mortgage, lease, license, or management without the express written consent of the City will constitute a material breach of this Agreement and will render this Agreement void and no longer of any force or effect. The City will have the right to recapture the Tennis Center in the event of any sublease or assignment and no sublease or assignment will constitute a release of the YMCA from the obligation of performance or the terms and the provisions of this Agreement.
Insurance.
Commercial General Liability, Property Insurance and Miscellaneous Coverage. The YMCA shall, throughout the Term of this Agreement, maintain commercial general liability, property, and miscellaneous other insurance covering all operations of The YMCA, its agents and employees, performed in connection with this Agreement including but not limited to premises and automobile.
Minimum Coverage Limits. The YMCA shall maintain at least the following limits:
General Liability
Combined Single Limit Per Occurrence……………………………..$2 million General Aggregate…………………………………………………………..$5 million
(The policy shall cover on an occurrence or an accident basis, and not on a claims made basis.) Automobile Liability
Combined Single Limit Per Occurrence………………….…………$1 million (The policy shall cover on an occurrence or an accident basis, and not on a claims made basis. The coverage should be at least as broad as Insurance Services Office Form Number CA 00 01 using Code 1, Any Auto.) Liability and Crimes……………………………………………………………………..$100,000 (The policy shall contain no limitation on the class or type of crime and shall specifically include sexual molestation and other sex-related crimes.) Worker’s Compensation………………………………………………………..Statutory Limits Employer’s Liability Insurance:………………………………………………….$1 million per employee and per accident for bodily injury or disease.
All Risk Property Insurance (Covering all real and personal property of the City and occupied or used by the YMCA, and all real and personal property of the YMCA utilized or stored at the Aquatic Center. The City shall be added as a loss payee on all property coverage required under this Agreement and obtained by the YMCA.) Facility Replacement Coverage (Covering all buildings, equipment, and structures located thereon and all furnishings or equipment owned by the City and also located thereon, in no event less than the full replacement value, against the perils of fire and extended coverage, including demolition.) Additional Insurance Coverages………………………………………As may be required by the City Additional Insured by Endorsement. All insurance companies with the exception of “Worker’s Compensation” and “professional errors and omissions” affording coverage to the The YMCA shall be required to add the City of Salinas, its officers, employees, and agents as additional “insured” by endorsement under the insurance policy and shall stipulate that this insurance policy will operate as primary insurance for the work performed under this Agreement and that no other insurance affected by the City or other named insured will be called upon to contribute to a loss covered thereunder. The policy shall contain no special limitations on the scope of protection afforded to City, its officers, employees or agents. Coverage shall be at least as broad as Insurance Services Officers Commercial General Liability coverage (occurrence Form CG 00 01).
Authorization to Conduct Business. All insurance companies affording coverage to The YMCA shall be insurance organizations authorized by the Insurance Commissioner to transact the business of insurance in the State of California and shall have an A.M. Best Rating of no less than A- VII.
Cancellation or Reduction in Coverage. The YMCA shall provide no less than thirty (30) days written notice to the City should the policy be canceled or reduced in coverage before the expiration date. For the purpose of this notice requirement, any material change prior to expiration shall be considered cancellation.
Certificate of Insurance. The YMCA shall provide evidence of compliance with the insurance requirements listed above by providing a certificate of insurance, in a form satisfactory to the City’s Risk and Benefits Analyst, concurrently with the submittal of this Agreement. A statement on the insurance certificate which states that the insurance company “will endeavor” to notify the certificate holder, “but failure to mail such notice shall impose no obligation or liability of any kind upon The YMCA, its agents or representatives” does not satisfy the requirements of this subsection. The YMCA shall ensure that the authorized representative of the insurance company strikes the above quoted language from the certificate.
Substitution of Insurance. The YMCA shall provide a substitute certificate of insurance no later than ten (10) days prior to the policy expiration date. Failure by The YMCA to provide such a substitution and extend the policy expiration date shall be considered default by The YMCA. In the event The YMCA is unable to provide a substitute certificate of insurance within the time prescribed in this subsection, The YMCA shall provide written confirmation of renewal, in a form satisfactory to the City, to act as proof of insurance only until such time as a certificate of insurance has been received by the City.
Additional Insurance Coverage. Maintenance of insurance by The YMCA as specified in this Agreement shall in no way be interpreted as relieving The YMCA of any responsibility whatever and The YMCA may carry, at its own expense, such additional insurance as it deems necessary.
Applicability of Insurance. When the term “The YMCA” is used, it shall be deemed to include the parent and any other subsidiaries involved in any way with this Agreement.
Deductible and Self-Insurance Limitations. Any self-insured retentions must be declared and approved by the City. Any policy of insurance provided to meet the requirements of this section which has a deductible over $25,000 shall not meet the requirements of this section unless it has first been approved by the City. Self-funding, policy fronting or other mechanisms to avoid risk transfer are not acceptable.
Periodic Review of Insurance Coverage. All insurance coverage and limits required under this section shall be subject to periodic review at which time the City may require additional or different coverage types and limits as set forth herein in order to meet changed circumstances or conditions that exist at the time of such periodic review.
Waiver of Subrogation. The YMCA, to the extent and limits of insurance coverage applicable under any policy of insurance procured as required under this Agreement, releases the City, its officers, employees, and agents from any claims for damage to any person or to the Aquatic Center, or any part thereof including the buildings, fixtures, personal property, and other improvements or alterations located thereon, of either the City or The YMCA, including loss of income, that are caused by or result from risks insured against under any insurance policies required by this Agreement and in force at the time of any such damage, excluding those which result from the affirmative act or the negligence or willful misconduct of the CITY or its agents, employees, invitees, or licensees.
The YMCA shall cause each such insurance policy obtained by it including, but not limited to the Workers Compensation insurance required by this Agreement, to provide that the insurance company waives all rights of recovery by way of subrogation against the City in connection with any damage or injury covered by such policy. The City shall not be liable to The YMCA or to any other party for any damage caused by fire or any other risk insured against under any property insurance policy carried under the terms of this Agreement, to the extent and limits of coverage applicable under any policy of insurance procured as required under this Agreement, excluding those which result from the affirmative act or the negligence or willful misconduct of the CITY or its agents, employees, invitees, or licensees.
Hazardous Substances. The YMCA represents and warrants that the services it will provide, the chemicals it will use, the methods of application is will use, and the products it will use will not violate any federal, state or local environmental laws, statutes, ordinances, codes, rules, regulations, orders, decrees or similar authoritative pronouncements. The YMCA understands and acknowledges the City is subject to a National Pollution Discharge Elimination System (NPDES) Permit issued by the Central Coast Regional Water Quality Control Board. The YMCA agrees to cooperate with the City in implementing best management practices and other strategies and techniques necessary to protect the quality of water runoff from the Tennis Center and to meet the requirements of the City’s NPDES Permit.
For purposes of this Agreement “Hazardous Substances” shall have the meaning ascribed in and shall include those substances listed in the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §6901 et seq., as amended from time to time, and shall include any other elements or compounds which are contained in the list of hazardous substances adopted by the United States Environmental Protection Agency (“EPA”) and the list of toxic pollutants designated by Congress or the EPA or defined by any other federal, state, local or quasi-governmental statute, ordinance, law, code, rule, regulation, order or decree regulating, relating to, or imposing liability or standards of conduct concerning any hazardous, toxic or dangerous waste, substance or material, now existing or at any time hereafter in effect.
The YMCA shall make and maintain any and all such records or reports as may be required under any federal, state or local law or regulation, in the proper form and for the proper time periods, regarding the handling, maintenance, storage or application of any pesticides or other hazardous materials whether or not specifically described in this section.
Waiver. Any waiver by the City of any breach of any one or more of the covenants, conditions, terms, or agreements of this Agreement will not be construed to be a waiver of any subsequent or other breach of the same or of any other covenants, condition, term, or agreement herein contained, nor shall the failure on the part of the City to require exact, full, and complete compliance with any of the covenants, terms, conditions or agreements herein contained be construed as in any manner changing the terms of this Agreement or stopping the City from enforcing the provisions. No delay, failure, or omission of the City to re-enter the Tennis Center or to exercise any rights, power, privilege, or option arising from any default, nor any subsequent acceptance of payments then or thereafter will impair any such right, power, privilege, or option, or be construed as a waiver of or acquiescence in such default or as a relinquishment or any right.
Indemnification. The YMCA shall hold harmless, indemnify, and defend the City and its officers, employees, and agents from and against any and all liability, claims, suits, actions, damages, and causes of action arising out of any personal injury, bodily injury, loss of life or damage to any property, or violation of any relevant federal, state or local law or ordinance, or other cause occurring on the Tennis Center or in connection with The YMCA’ use of the Tennis Center or in connection with any negligent or intentional acts or omissions of The YMCA, its officers, employees, agents, contractors, subcontractors, guests, and invitees, while such guests and invitees are on the Tennis Center, including The YMCA’s default under this Agreement. Acceptance of insurance certificates and endorsements required under this Agreement does not relieve The YMCA from liability under this indemnification and hold harmless clause. This indemnification and hold harmless clause shall apply whether or not such insurance policies shall have been determined applicable to any of such damages or claims for damages. The YMCA’s obligations with respect to indemnification hereunder shall remain effective, notwithstanding the expiration or termination of this Agreement, as to claims arising or accruing prior to the expiration or termination of this Agreement.
Notice of Right to Farm. The Tennis Center is located within one thousand (1000) feet of agricultural land, agricultural processing, and/or agricultural farming operations. As a result of the proximity of the Tennis Center to these activities and uses, the Tennis Center may experience inconvenience or discomfort associated with these activities and uses including, but not limited to, noise, odor, dust, fumes, smoke, burning, vibration, insects, rodents, the application of pesticides, herbicides, and fertilizers, and/or the operation of machinery and farm equipment (including aircraft) during any twenty-four hours period. If these farming activities and uses are conducted in a manner consistent with applicable State and local laws, said inconveniences and discomforts shall not be considered a nuisance. One or more of the inconveniences described may occur as a result of agricultural operations that are in compliance with existing laws and regulations and accepted customs and standards.
The YMCA hereby waives and releases the City, its officers, employees, agents, and contractors from any and all claims or causes of action which it may now or hereafter have against the City, its officers, employees, agents or contractors, for any loss, damage or injury as outlined in this section.
Waiver. Any waiver by the City of any breach of any one or more of the covenants, conditions, terms, or agreements of this Tennis Center shall not be construed to be a waiver of any subsequent or other breach of the same or of any other covenant, condition, term, or agreement herein contained, not shall failure on the part of the City to require exact, full, and complete compliance with any of the covenants, terms, conditions or agreements herein contained be construed as in any manner changing the terms of this Tennis Center or stopping the City from enforcing the provisions. No delay, failure, or omission of the City to re-enter the Leased Premises or to exercise any rights, power, privilege, or option arising from any default, nor any subsequent acceptance of payments then or thereafter shall impair any such right, power, privilege or option, or be construed as a waiver of or acquiescence in such default or as a relinquishment or any right.
Compliance with Laws, Rules, and Regulations. The YMCA’s use and occupancy of the Tennis Center pursuant to this Agreement shall be performed in accordance and full compliance with all applicable federal, state, and City laws and rules or regulations promulgated thereunder.
Exhibits and Attachments Incorporated. All exhibits referred to in this Agreement and attached to it are hereby incorporated in it by this reference. In the event there if a conflict between any of the terms of this Agreement and any of the terms of any exhibit to the Agreement, the terms of the Agreement shall control the respective duties and liabilities of the parties.
Independent Contractor. It is expressly understood and agreed by both parties that The YMCA, while using and occupying the Tennis Center and complying with any of the terms and conditions of this Agreement, is a tenant of the City and is not an employee or agent of the City and this Agreement is not intended, and shall not be construed, to create the relationship of agent, contractor, servant, employee, partnership, joint venture or association. The YMCA expressly warrants not to represent at any time or in any manner that The YMCA is an employee or agent of the City.
Integration and Agreement. This Agreement represents the entire understanding of the City and The YMCA as to those matters contained herein. No prior oral or written understanding shall be of any force or effect with respect to those matters contained herein. No prior oral or written understanding shall be of any force and effect with respect to those matters covered in it. This Agreement may not be modified or altered except by amendment in writing signed by both parties.
Non-Discrimination in Employment and Hiring. During the performance of this Agreement, The YMCA shall not discriminate against any employee or applicant for employment, including in the procurement of materials and leases of equipment, because of race, color, religion, ancestry, creed, sex, national origin, familial status, sexual orientation, age (over 40 years) or disability. The YMCA shall take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, ancestry, creed, sex, national origin, familial status, sexual orientation, age (over 40 years) or disability.
Jurisdiction. This Agreement shall be administered and interpreted under the laws of the State of California. Jurisdiction of litigation arising from this Agreement shall be in the State of California, in the County of Monterey or in the appropriate federal court with jurisdiction over the matter.
Notices.
Notices to the City. Written notices to the City hereunder, until further notice by the City, are to be addressed to:
Library and Community Services Director
City of Salinas
200 Lincoln Avenue
Salinas, California 93901
With a Copy to:
City Attorney
City of Salinas
200 Lincoln Avenue
Salinas, California 93901
Notices to the YMCA. Written notices to the YMCA hereunder, until further notices by the YMCA, are to be addressed to:
Central Coast YMCA
600 Camino El Estero
Monterey, CA 93940
Authority of City Manager. The execution of any such notices by the City Manager of City shall be effective as to The YMCA as if it were by resolution or order of the City Council, and The YMCA shall not question the authority of the City Manager to execute any such notice.
Form and Manner of Notice. All such notices shall either be delivered personally to the other party’s designee named above, or shall be deposited in the United States Mail, properly addressed as aforesaid, postage fully prepaid, and shall be effective the day following such deposit in the mail.
Severability. If any part of this Agreement is found to be in conflict with applicable laws, such part shall be inoperative, null and void insofar as it is in conflict with said laws, but the remainder of the Agreement shall continue to be in full force and effect.
Force Majeure. Neither City nor the YMCA shall be deemed in breach of this Agreement for failure to perform any of the obligations or duties imposed upon it under this Agreement as the direct result of any reason beyond its reasonable control including, without limitation, acts of God, terrorist attacks, riots, strikes, fires, storms or any regulation of any federal, state or local government or agency thereof; however, such excuse shall continue only during the pendency of the particular occurrence or force majeure.
Conflict of Interest. The YMCA warrants and declares that it, to the best of its knowledge, it presently has no interest, and shall not knowingly acquire any interest, direct or indirect, financial or otherwise, in any manner or degree which will render the services required under the provisions of this Agreement a violation of any applicable local, state or federal law. In the event that any conflict of interest should nevertheless hereinafter arise, The YMCA shall promptly notify City of the existence of such conflict of interest so that City may determine whether to terminate this Agreement.
Headings. The section headings appearing herein shall not be deemed to govern, limit, modify, or in any manner affect the scope, meaning or intent of the provisions of this Agreement.
Attorney's Fees. In case suit shall be brought to interpret or to enforce this Agreement, or because of the breach of any other covenant or provision herein contained, the prevailing party in such action shall be entitled to recover their reasonable attorneys’ fees in addition to such costs as may be allowed by the Court. City’s attorneys’ fees, if awarded, shall be calculated at the market rate.
Rights and Obligations Under this Agreement. By entering into this Agreement, the Parties do not intend to create any obligations express or implied other than those set out herein; further, this Agreement shall not create any rights in any party not a signatory hereto.
Licenses. If a license or permit of any kind, which term is intended to include evidence of registration, is required of the YMCA, its representatives, agents or subcontractors by federal, state or local law, the YMCA warrants that such licenses or permits have or will be obtained, are valid and in good standing, and that any applicable bond posted in accordance with applicable laws and regulations.
Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute a single agreement.
Successors and Assigns. This Agreement shall bind and inure to the benefit of the successor in interest and the assigns of the Parties.
Warranty of Authority. Each party represents and warrants that it has the right, power, and authority to enter into this Agreement. Each party further represents and warrants that it has given any and all notices, and obtained any and all consents, powers, and authorities, necessary to permit it, and the persons entering into this Agreement for it, to enter into this Agreement.
Legal Representation. Each party affirms that it has been represented by legal counsel of its own choosing, or has had the opportunity to retain legal counsel of its own choosing, regarding the preparation and the negotiation of this Agreement and the matters and claims set forth herein, and that each of them has read this Agreement and is fully aware of its contents and its legal effect. Neither party is relying on any statement of the other party outside the terms set forth in this Agreement as an inducement to enter into this Agreement.
Joint Representation. The language of all parts of this Agreement will in all cases be construed as a whole, according to its fair meaning, and not strictly for or against any party. No presumptions or rules of interpretation based upon the identity of the party preparing or drafting the Agreement, or any part thereof, will be applicable or invoked.
IN WITNESS WHEREOF, the undersigned, as authorized representatives of the City of Salinas and of the Central Coast YMCA, have entered into this Agreement as of the date first written above.
CITY OF SALINAS
______________________________
Kimbley Craig, Mayor
APPROVED AS TO FORM:
___________________________
Christopher A. Callihan, City Attorney
CENTRAL COAST YMCA
____________________________
By Amy Grames
Its Chief Operating Officer
City of SalinasPage 1 of 20
Salinas Tennis Center
Operations and Management Agreement
August 6, 2024