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Victoria Dye Equestrian (3)
CONCESSION AGREEMENT FOR OPERATION OF THE WESTWIND COMMUNITY BARN OWNED BY THE TOWN OF LOS ALTOS HILLS BETWEEN THE TOWN OF LOS ALTOS HILLS AND VICTORIA DYE EQUESTRIAN, LLC DATED: APRILI, 2020 TABLE OF CONTENTS Page No. 1. Grant of Concession 2 2. Concessionaire Operating Responsibilities 3 3. Access to the Public 7 4. Facility Maintenance 7 5. Sanitation 8 6. Facility Improvements 9 7. Ownership of Facility 10 8. Fees and Charges 10 9. Books, Records, Reports and Audit 11 10. Collection of Fees and Charges Past Due 12 11. Concession Fee/Subsidy 12 12. Agreement Enforcement 12 13. Compliance with Laws 13 14. Town Events 14 15. Possessory Interest Tax 14 16. Indemnification 14 17. Insurance 15 18. Assignment 16 19. Waiver of Defaults 17 20. Relationship of Parties 17 21. Term of Agreement 17 22. Attorney's Fees 18 23. Force Majeure 18 24. Independent Contractor 19 25. Transition of Stable to Concessionaire 19 26. Successors in Interest 20 27 Notices 20 28. Exhibits Incorporated by Reference 20 29. Governing Law, Jurisdiction, Venue 21 30. Entire Agreement 21 1 CONCESSION AGREEMENT FOR OPERATION OF THE WESTWIND COMMUNITY BARN OWNED BY THE TOWN OF LOS ALTOS HILLS THIS CONCESSION AGREEMENT ("Agreement") is made and entered into by and between the TOWN OF LOS ALTOS HILLS, a municipal corporation, ("Town") and Victoria Dye Equestrian, a California Limited Liability Company ("Concessionaire"). (Town and Concessionaire are each a "Party" and are collectively the "Parties.") RECITALS A. Town owns a 15 -acre property located at 27210 Altamont Road, Los Altos Hills known as the Westwind Community Barn upon which are buildings and other improvements intended for the private boarding of horses, the instruction and training of riders and their horses, promoting the community aspects of the Facility including the 4H Program, the Interscholastic Equestrian Association (IEA), public recreation and special events. This real property and all buildings and improvements shall be collectively referred to in this Agreement as the "Stable Facility" or "Facility"; B. Concessionaire has cost effectively maintained and safely operated the Stable Facility for six (6) years. Concessionaire shall manage the Facility use schedule in such a manner to minimize conflict and foster a socially vibrant and healthy learning environment for all Facility users pursuant to a concession agreement; C. The Town's overall vision of operating principles for Westwind Community Barn is further described in Exhibit "I"; D. The Parties therefore desire to enter into this Agreement; NOW, THEREFORE, in consideration of the mutual covenants, promises and agreements herein contained, the Parties hereby covenant, promise and agree as follows: 1. Grant of Concession A. As of April 1„ 2020, (the "Effective Date"), Town grants to Concessionaire a concession at the Stable Facility for the limited purpose of maintaining and operating the Stable Facility as further described in the attached Exhibit A and in conformance with all requirements of this Agreement. Concessionaire shall devote the greater part of his or her working time and attention to the operation of the Concession and shall promote, increase and develop the business. Victoria Dye LLC shall assign Victoria Dye to manage the Facility during the days and hours of operation of the Concession. B. Concessionaire shall maintain payment and utilities costs for Facility including electric, water, telephone and internet, except that the Town shall reimburse 50% of the water utility cost upon submittal of invoice and utility payment receipt. Town also agrees to continue to pay utility service cost for sewer service and trash and manure pickup. C. Prior to Effective Date of Agreement, Town and Concessionaire shall create a written inventory of tools and equipment belonging to the Town which shall remain onsite. Town agrees to lease New Holland tractor and attachments currently onsite to Concessionaire in "as is" condition. Concessionaire agrees to maintain all equipment and tools in accordance with manufacturer maintenance recommended schedules or in accordance with industry best practice. Town agrees to pay for repairs to New Holland tractor and attachments cumulatively in excess of $500.00 and provided that Concessionaire uses a manufacturer's authorized repair shop. Town shall not be responsible for repairs necessary as a result of misuse or improper maintenance of tractor and its attachments or operator error. 2. Concessionaire Operating Responsibilities A. Concessionaire shall at all times during the term of this Agreement provide sufficient material, supplies, equipment, and labor to accomplish required programs and services on the Facility and be responsible for performing duties and responsibilities which include: i. Concessionaire shall use the premises solely for the boarding and care of horses and related services including the training and instruction of riders and horses. The Facility is not permitted or warranted for overnight human habitation. ii. Concessionaire, shall maintain a maintenance and operations plan that demonstrates how the Concessionaire will maintain and operate the Facility. The plan should include schedules, procedures and documentation methods for all of the maintenance, housekeeping, sanitation and safety programs and tasks that are necessary to operate the Facility in accordance with applicable rules and regulations. iii. Three (3) times a year Concessionaire agrees to provide job-related safety and risk management training to employees by a certified vendor. 3 iv. Concessionaire shall inform the Town of any and all services, programs and activities that the Concessionaire shall offer; the Town reserves the right to approve any or all services, programs and activities offered on the premises by the Concessionaire. If a service or program is expressly disapproved by the Town, Concessionaire shall immediately suspend operations associated with the identified service or program. V. Concessionaire shall understand and comply with all applicable laws, rules, regulations and guidelines in the care of horses. Concessionaire shall manage the Facility in a responsible and safe manner consistent with the terms of this Agreement, applicable equine industry best management practices and previously established Westwind Barn manager duties as further described in Exhibit "G" vi. Concessionaire shall maintain a written Medical Emergency Plan (MEP) to address immediate medical care needs of individual horses in the event of a medical emergency. vii. Concessionaire shall maintain an Emergency Evacuation Plan (EEP) for immediate evacuation of any or all boarded horses in the event of an emergency. Concessionaire shall participate and make Facility available for large animal rescue and training exercises. viii. Concessionaire shall comply with the State of California Cal -OSHA regulations, including Section 3203 of Title 8 of the California Code of Regulations which requires all California employers to have a written, effective Injury and Illness Prevention Program (IIPP) that addresses hazards pertaining to the particular workplace covered by the program. ix. Concessionaire shall undertake background and security investigations of each of Concessionaire's staff as a condition of beginning and continuing work under any resulting Contract, the cost of which is the sole responsibility of the Concessionaire. This provision does not apply to stable hands currently employed at the Facility by Town's maintenance service contractor if hired by Concessionaire. S X. Concessionaire shall undertake all aspects of financial management and record keeping, including billing for services, programs and payments to vendors/trainers. xi. Concessionaire shall be responsible for ensuring the safety of the public and Facility users while on the Facility and shall consistently apply and enforce all rules, regulations and policies and equestrian best management practices. xii. Concessionaire shall be responsible for all use of space and assignment of resources for the Facility. Concessionaire shall prohibit the storage or placement of trunks, tacks and other supplies in Barn aisle ways. xiii. Concessionaire shall manage the number of horses and no more than ten (10) shall be pastured in Byrne Preserve. Concessionaire may pasture up to eight (8) school horses in Byrne Preserve and have use of the Facility without charge for Facility land use. School horses must have a calm temperament due to the many other users of the Preserve. xiv. Concessionaire shall reasonably accommodate public community programs such as Westwind Riding Institute/4H ("WRI") and Pony Club. Obligations and Agreements with WRI and Pacific Ridge Pony Club are further described in Exhibit "F" and Exhibit "H". Such accommodation will be contingent upon WRI and Pacific Ridge Pony Club agreements including indemnification provisions on Concessionaire's behalf, with Concessionaire being named as an additional insured party under the WRI and Pacific Ridge Pony Club agreements. Said Agreements are hereby assigned to Concessionaire upon receipt of Concessionaire indemnification. xv. Concessionaire shall publish and maintain a current schedule of fees and charges for all services provided by the Concessionaire at the Facility. xvi. Concessionaire shall provide existing and future instructional riding programs offered to the public as further described in Exhibit "B". The Concessionaire shall work with Town to ensure that riding programs requested by the Town shall meet the scope and quality established by the Town for such programs. 5 xvii. Concessionaire shall publish arena time allocations on a weekly basis and seek input from Facility users in order to resolve potential conflict. Special events will be communicated to Facility users with adequate notice. xviii. Concessionaire shall be able to recognize if a horse is in distress and shall take the appropriate steps to safeguard the health and safety of the animal. xix. The Concessionaire shall be responsible for maintaining fencing and watering troughs in the Byrne Preserve. The Town shall be responsible for maintaining fire breaks, paths, gates, trails, trees and other plant life and the general stewardship of the preserve. xx. Within 24 hours of any incident involving threat to public safety or injury/ fatality to Facility workers or Facility users, or damage to public property, Concessionaire shall transmit an incident report to Town on a Town approved Incident Report form. B. Concessionaire agrees to post at conspicuous locations about the Facility notices giving the name, address, and telephone number of the superintendent responsible for the premises. Concessionaire agrees to allow Town to maintain Sheriff's office at current location in Facility solely for the occupancy and benefit of law enforcement personnel at no charge to Town. Town agrees to maintain the existing un -monitored digital video recording surveillance system of the Stable Facility 24/7 and provide system access to Concessionaire. Town agrees that Concessionaire is not required to maintain 24-hour on-site supervision of the Facility. C. Concessionaire shall have a Town approved written agreement with each Facility user and trainer who utilizes the Facility. The agreement shall be subject to approval as to form by the City Attorney and shall specify the terms and conditions of that trainer's use of the Stable Facility. Such agreement shall provide a clause whereby the trainer and Concessionaire shall release the Town from all liability and hold harmless and defend Town, its agents, Commissioners, Committee Members, staff and Council Members for any and all losses associated with boarding, lessons, riding or any other activity on the Facility while under control of Concessionaire. Trainer agreement shall include a description of how the trainer is to be compensated and what programs and services the trainer is required or permitted to provide. Any fees which may be charged by a trainer for any program or service at the Facility shall be specified in the written agreement. Concessionaire shall provide Town with a copy of Facility user and 6 trainer's signed agreement prior to allowing user or trainer use of the Facility, and shall further provide Town with a copy of any amendment to any such signed agreement within two (2) days after the execution of such amendment. D. Concessionaire shall have a Town approved written boarding agreement with each boarder who utilizes the Facility. The boarding agreement shall be subject to approval as to form by the City Attorney and shall specify the terms and conditions of that boarder's use of the Stable Facility. Such agreement shall provide a clause whereby the Boarder and Concessionaire shall release the Town from all liability and hold harmless and defend the Town, its agents, Commissioners, Committee Members, staff and Council Members from any and all losses, claims or actions associated with boarding, lessons, riding or any other activity on the Stable Facility while under control of Concessionaire. E. Concessionaire shall maintain a written process to resolve disputes with boarders or other persons utilizing the Stable Facility. A written copy of such process shall be posted on the Facility in a place accessible to the public, shall be provided to each boarder at the time of execution of each boarding agreement, and shall be filed with Town. 3. Access to the Public A. Programs and services provided by Concessionaire shall be made available to the public on a first-come, first-served basis, provided, however, Town residents shall have priority at all times over persons who are non-residents of Town in all programs and services offered at the Facility. Separate waitlists for residents and non-residents, containing the date and time of entrance on the list, shall be established for each program or service for which demand exceeds supply. A copy of each such list shall be posted at the Facility in an area accessible to the public and shall be provided to Town on an as needed basis. B. The Facility shall be operated by Concessionaire under the name "Westwind Community Barn." The Facility shall be open to the public no earlier than one-half hour before sunrise and not later than one-half hour after sunset, seven days a week pursuant to Section 12-1.03 of the Los Altos Hills Municipal Code. The right of the public to free physical access to the Facility shall be maintained during posted hours of operation and in no event shall the Facility be fenced and gated so as to prohibit such access during hours of operation, provided, however, that Concessionaire may implement such security measures as deemed appropriate to assure the health, welfare, and safety of persons utilizing the Facility and the horses boarded on 7 the Facility. Concessionaire shall reasonably secure Facility nightly at the close of operating hours to assure the health, welfare, and safety of the horses boarded on the Facility. 4. Facility Maintenance A. Except for the 4H/WRI premises or as otherwise stipulated in this Agreement, Concessionaire shall at all times be responsible for routine maintenance and minor repairs to the Stable Facility in a condition satisfactory to the City Manager or designee. Minor repairs are those repairs costing $500.00 or less for any single incident. Concessionaire shall in a timely fashion provide written notice to the City Manager or designee of any major repairs needed and Town shall make such repairs in a timely fashion. In an emergency, including after hours, Concessionaire shall immediately contact 911 and Town public works emergency staff in that order. Prior to or upon effective date of this Agreement, Town shall furnish Concessionaire with contact information for Town staff responsible for afterhours public works emergencies. B. Concessionaire shall provide Town with a detailed description of all signage it proposes to utilize at any location on the Facility to advertise programs or services. Such signage shall not be installed without the prior written permission of the City Manager or designee. C. If the Stable Facility, or any part thereof, is damaged by weather storm, wildfire, earthquake, or any other Act of God or terrorism, Concessionaire shall not be responsible to repair or replace said Facility. Town may in its sole discretion determine to rebuild or repair all or part of the Facility or to terminate this Agreement with no further liability to Concessionaire. In the event Town determines it will not rebuild or repair the Facility in the event of a substantial destruction, Town shall pay Concessionaire a $15,000.00 relocation fee within 30 days of this decision. D. Concessionaire shall not cause any mechanic's or materialmen's liens to be placed upon the Facility. E. Notwithstanding any other provision of this Agreement to the contrary, Concessionaire shall operate and maintain the Facility, and every part thereof, in compliance with the conditions, restrictions, and reservations by which the Town has authority to utilize the Facility and in compliance with all rules and regulations and any amendments thereto promulgated by the Town, County of Santa Clara, and/or State of California. F. Town agrees to repair and maintain Facility landscaping, irrigation, parking and driveway areas. 5. Sanitation A. Concessionaire shall allow no offensive matter, litter or refuse, or substance constituting an unnecessary, unreasonable or unlawful fire hazard, or material detrimental to the public health, to remain on the Facility. Concessionaire shall prevent the storage of clutter, junk or excess equipment, vehicles, and materials anywhere on the Facility. Concessionaire shall ensure that Facility appearance is neat and orderly at all times and prevent the accumulation of trash, debris and manure anywhere on the Facility and shall make all reasonable efforts to ensure that trash generated on-site is not blown or otherwise allowed to leave the Facility except in a proper disposal container. Concessionaire shall promptly notify the Town of any waste receptacles needed at the Facility. B. Concessionaire shall clean all stalls, corrals and paddocks on a daily basis, removing all manure and replacing wet bedding material. Concessionaire shall clean feeding pasture on a twice monthly basis. Collected manure shall be stored in accordance with Facility conditional use permit requirements (Exhibit "D") and Health Department regulations and removed from the Facility no less than once per week. Concessionaire shall inspect and clean public restroom at Facility on a daily basis. C. Concessionaire shall actively suppress and control the accumulation and breeding of flies and offensive odors resulting from accumulation of manure and urine in stalls, corrals, paddocks, pasture and uncovered manure bins. This will be done utilizing industry accepted methods intended to minimize health hazard to humans or the surrounding natural environment. This shall be an ongoing program for the duration of the Agreement. D. Concessionaire shall notify Town within 24 hours if the Town's trash, recycling and manure collector (GreenWaste Recovery, Inc.) fails to make a regularly scheduled collection of either trash, recyclables or compostables including manure. E. Concessionaire shall control for all pest populations which may adversely affect the Facility. Known pests at the Facility include gophers, ground squirrels, flies and rats. Concessionaire shall employ pest control methods which poses no health hazard to humans, and minimizes negatively affect the surrounding natural environment including watercourses and wildlife. This shall be an ongoing program for the duration of the Agreement. 6. Facility Improvements. A. Concessionaire must obtain the approval of the City Council or City 06 Manager depending on the scope prior to undertaking any improvements to the Facility that individually or collectively would cost more than $500.00. B. Town may, in its sole and absolute discretion, make improvements to the Facility. Town shall retain the right to enter the Facility for purposes of construction/demolition of any improvement upon reasonable notice to the Concessionaire and will make reasonable efforts to minimize disruption to Concessionaire's business operation. Improvements which cannot be completed in less than one month's time shall be coordinated with Concessionaire so as to find a minimally disruptive period of use of the Facility. C. By execution of this Agreement, Concessionaire waives all claims for damages incurred due to business disruption which may be attributable to the construction of new site improvements, demolition or reconstruction of existing improvements, including, but not limited to loss of income due to temporary dislocation of boarded horses. D. The Town and Concessionaire agrees to the arena maintenance management plan in attachment J. The Town agrees to pay for the arena maintenance costs outlined in attachment J. 7. Ownership of Facility A. All structures, improvements and fixtures existing on the Facility as of the Effective Date shall be and remain the property of Town, and structures, improvements and fixtures installed on the Facility by anyone during the term of this Agreement shall become and remain the property of Town, unless ownership rights to said fixtures, structures and improvements are formally waived by Town. B. Concessionaire agrees that any Facility including structures, improvements or fixtures purchased and placed in or upon the Facility by Concessionaire by way of additions, repairs, replacements, or improvements shall at no time be removed by Concessionaire unless (i) prior written consent of Town is first obtained, or (ii) the purpose of such removal is repair or replacement of said property. Absent prior written agreement of the Parties, all such property shall at all times be the property of Town. 8. Fees and Charges A. Concessionaire shall be responsible for collecting all facility use fees and charges for boarding services and may require existing and future boarders to enter into new boarding contracts, which may require each boarder to remit first and last month's rents and may provide the last month's rent may be retained by Concessionaire as security for future past due rent payments. B. Fees and charges for all services, programs, rentals and leases provided by Concessionaire may be established at the discretion of Concessionaire. Fees and service charges should be reasonable and competitive with similar facilities in the area. 9. Books, Records, Reports and Audit A. Each year Concessionaire shall prepare a maintenance and operations budget for the July 1 to June 30 fiscal year. The budget for each ensuing fiscal year shall be submitted to City Manager no later than April 1 proceeding the July 1 on which the next fiscal year is to start. B. Concessionaire shall keep full, complete and accurate books of account and records which will reflect all business and monetary transactions of Concessionaire as well as all in-kind services provided to Concessionaire in connection with this Agreement. All such books and records, including tax return records shall be open to inspection by Town upon reasonable notice during normal business hours. Town shall have the right to undertake an independent audit of said books and records at any time but not more than once per twelve (12) month period. C. Within fifteen (15) days of the end of each month, Concessionaire agrees to present to the City Manager an unaudited financial operating statement and an activity report delineating the activities at the Facility during the month. In addition, Concessionaire shall forward an annual financial statement to the City Manager no later than August 31 following the close of a fiscal year. Upon termination or expiration of this Agreement, Concessionaire shall forward to Town a final report for any such partial fiscal year. Such report shall be provided within forty-five (45) days after the final date this Agreement remains in effect. This report obligation shall survive termination of this Agreement. D. Within sixty (60) days after the close of Concessionaire's fiscal year, Concessionaire shall file a report with Town setting forth the value of all Concessionaire improvements on the Facility. E. On an annual basis for each full year, Concessionaire shall perform an audit as described in Exhibit C and submit to Town an audit report prepared by an independent auditor. The cost of the audit shall be split evenly by the Town and Concessionaire.. Concessionaire shall 11 maintain, preserve and protect any and all records requested by the auditor or by Town in the form requested and in the manner dictated for a period of at least three (3) years. F. Concessionaire shall submit an annual report detailing accomplishments to the City Council. G. Town may, in its sole discretion, undertake a survey of customer satisfaction at the end of each year during the term of this Agreement, the results of which shall be shared with Concessionaire along with a suggested plan for improvements if any are deemed to be needed. 10. Collection of Fees and Charges Past Due A. If any person utilizing the Facility fails to pay promptly any sum due to Concessionaire, then Concessionaire shall give such person written notice of such default, and if such person fails to pay all sums due within forty-five (45) days of such written notice of default, Concessionaire shall terminate the right of such person to utilize the Facility, and shall undertake all necessary actions in accordance with State statute to collect such sum. It. Concessionaire Management Fee A. Town agrees to pay Concessionaire a monthly Management Payment by the first day of the month which shall be $3,300.00 B. Town and Concessionaire agree that revenue from all Concessionaire operated programs other than horseshows including riding, training, clinic, instruction services, Facility rentals and horse leases further described in Exhibit "B" shall be split with 75% of the gross revenue received paid to the Concessionaire and 25% to the Town. Gross revenue shall mean all revenue less any refunds or 3`d party transaction fees. For any program revenue, collected by the Town, Town shall remit Concessionaire's share of collected funds to Concessionaire within thirty (30) days following the completion/delivery of services. For any program revenue, collected by the Concessionaire, Concessionaire shall remit Town's share of collected funds to Town by the 15th day following the month in which the funds are received. The remitting party shall provide the funds along with a report specifying the date, program recipient name and contact information, description of service provided and amount of fees collected. C. Concessionaire shall be limited to four (4) horseshows per year. For each horseshow, Concessionaire shall remit $500.00 check payable to the Town for the use of the facility and in lieu of any revenue split described in section B, above. D. Concessionaire runs IEA, a team show program. Concessionaire receives 12 two types of payments for IEA. A team startup payment and lesson payments. Concessionaire agrees to pay the Town 25% of the gross lesson payments. 12. Agreement Enforcement A. The City Manager shall be responsible for the enforcement of this Agreement on behalf of Town and shall be assisted therein by those officers and employees of Town having duties in connection with the administration thereof. Concessionaire and Town agree to meet on at least a monthly basis at Town Hall to discuss matters concerning Facility management, maintenance, operations and finance. B. Any officers and/or authorized employees and agents of Town may enter upon the Facility at any and all reasonable times for the purpose of determining whether or not Concessionaire is complying with the terms and conditions hereof, or for any other purpose incidental to the rights of Town within the Facility without disruption to Facility users, visitors or guests. C. In the event Town commences legal proceedings for the enforcement of this Agreement or recovery of the Facility and/or any property, Concessionaire does hereby agree to pay any sum which may be awarded to the Town by the Court for attorney's fees and costs incurred in the action brought thereon. In the event Concessionaire commences legal proceedings for the enforcement of this Agreement or recovery of the Facility and/or any property, Town does hereby agree to pay any sum which may be awarded to the Concessionaire by the Court for attorney's fees and costs incurred in the action brought thereon. 13. Compliance with Laws A. In performing any work under this Agreement, Concessionaire shall comply with all applicable Federal, State, and local statutes, ordinances, rules and regulations, including but not limited to those related to the hiring of undocumented workers, the Fair Labor Standards Act and the Americans with Disabilities Act. Concessionaire further understands and agrees it must pay "prevailing wage" for construction projects which are considered "public works" under Labor Code § 1720. Concessionaire shall indemnify, defend, and hold harmless the Town and its agents, officers, and employees from any and all liability, including, but not limited to, wages, overtime pay, liquidated damages, penalties, court costs, and attorneys' fees arising under any wage and hour law, including, but not limited to, the Federal Fair Labor Standards Act, for work performed by the Concessionaire's employees. 13 In addition to all other requirements for employees to be certified as eligible to be employed, Concessionaire shall require all prospective employees to be subject to "live scan" to determine if there is any criminal history which would make the prospective employee a risk to work with and/or around minor children and complete California Child Abuse Mandated Reporters training by the CA Department of Social Services. B. Concessionaire shall operate in full compliance with all applicable governmental permits, including applicable provisions of the Facility Conditional Use Permit (Exhibit "D"). 14. Town Events A. Concessionaire agrees that Town may at no charge or fee hold up to five (5) public events annually at the Facility. Details of the events and required accommodations by the Concessionaire are stipulated in Exhibit "E". 15. Possessory Interest Tax A. Concessionaire understands a possessory interest tax may be imposed under State or Federal tax law upon Concessionaire's assumption of interest in the Facility and agrees to pay any such tax if and when due. Such tax shall be considered a boarding facility expense and be allowed in the Concessionaire's calculation of the Subsidy. 16. Indemnification A. Town and its officers, agents, employees and representatives (collectively, the "Town Representatives") shall not be liable for death, injury, or damage of any kind to persons or property from any cause whatsoever by reason of the use and occupancy of the Stable Facility by Concessionaire, or by the agents, servants, employees, or invitees of Concessionaire, and Concessionaire hereby waives all claims and causes of action against Town and the Town Representatives for any such injury or damage as well as for consequential damages, loss of profits, and business interruption. B. Concessionaire agrees to indemnify, defend, and hold harmless the Town, its officers, agents, employees and Town Representatives from and against any and all liability, loss, cost, expense, or obligation, including, without limitation, attorney's fees, court costs, and other expenses, on account of, or arising out of, Concessionaire's performance under this Agreement; and this Agreement is made on the express condition that Town and the Town Representatives shall not be liable for, or suffer any loss or incur any liability by reason of, injury 14 to or death of a person or damage to or loss of any use of property, from whatever cause, in any way connected with the condition or use of the Stable Facility during the term of this Agreement or any extension thereof, or the condition or use of personal property or fixtures on or about the Stable Facility during the term of this Agreement or any extension thereof, whether arising in whole or in part from active or passive negligence on the part of Town or any Town Representative and/or from acts for which Town or any Town Representative would otherwise be held strictly liable, excepting only willful misconduct of Town or the Town Representatives acting in their duly authorized capacities. This indemnification obligation shall survive termination or expiration of this Agreement. C. Concessionaire accepts the Facility in "as is" condition as of the Effective Date. Concessionaire agrees Town and the Town Representatives shall not be liable to Concessionaire or Concessionaire's agents, servants, employees, or invitees for any damage, loss, or injury caused by the condition or design of, or any defect in, the Stable Facility, even if such loss, damage, or injury is or was the result of negligence of Town or any Town Representative, whether active or passive, or from acts for which Town or the Town Representatives would otherwise be held strictly liable. D. The foregoing indemnifications shall not apply to: (i) any damage caused by soils or geotechnical problems, if any, which may have existed at the Facility as of the Effective Date; (ii) any requirement imposed by the Los Altos Hills County Fire District and Santa Clara County Fire Department to widen any road or street; (iii) any requirement to make any sewer or storm drain improvements which Town determines are needed for the public health, safety, or welfare; or (iv) any liability occurring from operation of the Facility by Town prior to the Effective Date. 17. Insurance A. Concessionaire shall procure and maintain, at its sole costs and expense, comprehensive commercial general liability insurance of not less than two million dollars ($2,000,000.00) per occurrence and five million dollars ($5,000,000) general aggregate. Concessionaire's insurer must have an A.M. Best Rating of no less than ANII. Such insurance shall specifically insure performance by Concessionaire of the indemnity set forth in Section 16 of this Agreement, shall specifically name Town and the Town Representatives as additional insured, shall provide such coverage as primary and any coverage Town may maintain shall be in excess 15 thereto, shall include a cross -liability or severability of interest endorsement, and shall provide it shall not be canceled or modified without at least thirty (30) days prior written notice to Town. The presence of such insurance and the specification of liability limits for such insurance by Town shall in no manner limit the liability of Concessionaire under the terms of the indemnification set forth in Section 16 of this Agreement. B. Concessionaire shall procure business automobile liability insurance of not less than one million dollars ($1,000,000.00) per occurrence and one million dollars ($1,000,000) general aggregate. Such insurance shall specifically insure performance by Concessionaire of the indemnity set forth in Section 16 of this Agreement, shall specifically name Town and the Town Representatives as additional insured, shall provide such coverage as primary and any coverage Town may maintain shall be in excess thereto, shall include a cross -liability or severability of interest endorsement, and shall provide it shall not be canceled or modified without at least thirty (30) days prior written notice to Town. The presence of such insurance and the specification of liability limits for such insurance by Town shall in no manner limit the liability of Concessionaire under the terms of the indemnification set forth in Section 16 of this Agreement. C. Concessionaire shall procure and maintain, at its sole cost and expense, Worker's Compensation insurance in the amounts required by law. D. Town shall maintain, at its sole cost and expense, standard form fire, extended coverage, vandalism, and malicious mischief insurance, insuring all real property and fixtures located at and comprising the Stable Facility. Concessionaire may, at its sole discretion, obtain such insurance for personal property maintained by Concessionaire on the Facility. E. Concessionaire shall deliver to the City Manager certificates of insurance as required under the Subsections A and B of this Section. Concessionaire shall also deliver to the City Manager a renewal binder for each policy of insurance required under this Agreement not later than fifteen (15) days before the scheduled date of expiration of such policy. If Concessionaire fails to maintain any required policy of insurance, then the City Manager may obtain said policy upon ten (10) days written notice and Concessionaire shall immediately pay to Town any costs or expenses incurred by Town in acquiring such policy. 18. Assignment. Concessionaire shall not assign or hypothecate this Agreement or any interest created hereby, nor any rights or privileges herein, nor shall it enter into any agreement allowing the 16 operation by another person of the concession on the Facility granted by this Agreement or any portion thereof without the prior written consent of Town which consent may be granted or withheld at the sole discretion of Town. Any unapproved assignment or agreement shall be void and confer no rights on or to any third party and shall be cause for termination of this Agreement by Town, at its sole option. This provision against assignment and hypothecation shall be deemed to be a continuing covenant and apply not only to Concessionaire, but to any and all assignees, contractors and mortgagees of the Facility and to any who may in any manner acquire any interest herein. 19. Waiver of Defaults No waiver of any breach, default or term hereof shall constitute a waiver of any other breach, default or term hereof, whether of the same or any other covenant or condition. 20. Relationship of Parties The relationship of the Parties is solely that of owner and Concessionaire, and nothing in this Agreement shall be construed to create the relationship of agent, servant, employee, partnership, joint venture or association, as between Town and Concessionaire. Concessionaire understands and agrees that all persons furnishing services on behalf of Concessionaire pursuant to this Agreement are, for purposes of Worker's Compensation Liability, employees solely of Concessionaire and not of Town. Concessionaire shall bear the sole responsibility and liability for furnishing Workers' Compensation benefits to any person for injuries arising from or connected with services on behalf of Concessionaire pursuant to this Agreement. 21. Term of Agreement A. The term of the Agreement is for three (3) years from the Effective Date. B. Upon expiration of the Agreement term, and subject to the mutual agreement of the Parties, Town and Concessionaire may extend the term of this Agreement for two (2) additional consecutive periods of three (3) years each. Concessionaire may seek to extend the term of this Agreement only if Concessionaire (i) is, at the time of expiration of the extension thereof, in compliance with all of its obligations hereunder and with all restrictions of record applicable hereto and (ii) gives written notice to Town of such desire to extend at least 120 days before the expiration of the then current term. 17 C. Town may terminate this Agreement at any time and without cause upon one hundred and eighty (180) days written notice to Concessionaire. Notwithstanding the foregoing, if Concessionaire fails to perform any of the covenants, conditions, provisions or agreements contained in this Agreement, or if Concessionaire for any reason is dissolved, or if a petition in bankruptcy or insolvency is filed by or against Concessionaire, then, in that event, Town shall have the right to immediately terminate this Agreement and to recover and resume possession of the Facility. This shall be considered termination "for cause." In the event of a "for cause" termination, Town shall give Concessionaire written notice of its election to terminate this Agreement and the date upon which such termination is to occur, which shall be not less than ten (10) days of receipt after the date of such notice. If Concessionaire has not corrected the reason for the termination "for cause" within the time allotted in the written notice of Town's intent to terminate Agreement, then termination shall be considered effective. D. Concessionaire may terminate this Agreement upon ninety (90) days written notice to Town and shall include in such notice the reasons for cancellation. E. In the event that Concessionaire shall hold the Facility, or any part thereof, for any one day after the date upon which Concessionaire is required to terminate possession of the Facility, Concessionaire shall be deemed liable for the unlawful detainer of the Facility under the statutes of the State of California, and shall be subject to eviction. F. Commencing with the third (3) year anniversary date of the start of the agreement, (Aprill, 2023) and at each anniversary date thereafter if agreement is renewed or extended, the Town, in its sole discretion, and for its sole convenience, may terminate the agreement for any reason whatsoever. Termination hereunder shall be effected by the delivery of a notice of termination to the Concessionaire specifying the extent to which the performance of work is terminated and the date upon which such termination shall become effective. The effective date of such termination shall be no less than one hundred eighty (180) days from the date of the notice. G. Without limiting the generality and the effect of any of the preceding provisions of this Agreement, Concessionaire covenants and agrees, upon the termination of this Agreement, that it will immediately peaceably surrender and deliver in good condition to Town the Facility, together with the improvements, appurtenances, furniture, furnishings, equipment and other Town property located thereon. Concessionaire agrees to leave a minimum two-month supply of hay, feed and bedding based on occupancy on Effective Termination Date of Agreement. 02 22. Attorney's Fees If either Party brings any action or proceeding to enforce, protect, or establish any right or remedy in this Agreement, then the prevailing Party shall be entitled to recover reasonable attorney's fees. 23. Force Majeure Performance by either Party hereunder shall not be deemed to be in default where delays or defaults are due to war, insurrection, strikes, lock -outs, riots, floods, earthquakes, fires, casualties, acts of nature, acts of the public enemy, epidemics, quarantine restrictions, freight embargoes, lack of transportation, governmental restrictions or priority, litigation, unusually severe weather, inability to secure necessary labor, materials or tools, delays of any contractor, subcontractor or supplies, acts of the other party, acts or failure to act of any other public or governmental agency or entity (other than acts or failure to act of Town shall not excuse performance by Town) or any other causes beyond the control or without the fault of the Party claiming an extension of time to perform. An extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause, if notice by the Party claiming such extension is sent to the other Party within thirty (30) days after knowledge of the commencement of the cause. Times of performance under this Agreement may also be extended in writing by mutual agreement of Town and Concessionaire. 24. Independent Contractor A. Concessionaire is and shall at all times remain as to Town a wholly independent contractor. The personnel performing the services under this Agreement on behalf of Concessionaire shall at all times be under Concessionaire's exclusive direction and control. Neither Town nor any of its officers, employees, or agents shall have control over the conduct of Concessionaire or any of Concessionaire's officers, employees or agents, except as set forth in this Agreement. Concessionaire shall not at any time or in any manner represent that it or any of its officers, employees, or agents are in any manner officers, employees, or agents of the Town. Concessionaire shall not incur or have the power to incur any debt, obligation, or liability whatever against Town, or bind Town in any manner. B. No employee benefits shall be available to Concessionaire in connection with the performance of this Agreement. Except for the fees paid to Concessionaire as provided in this Agreement, Town shall not pay salaries, wages, or other compensation to Concessionaire 19 for performing services hereunder for Town. Town shall not be liable for compensation or indemnification to Concessionaire for injury or sickness arising out of performing services hereunder. 25. Transition of Stable to Concessionaire This Agreement does not obligate Concessionaire to utilize any employee, contractor, or supplier of the Town. Concessionaire shall have sole discretion in the hiring, scheduling, discipline and termination of any and all employees working on the Facility pursuant to this Agreement. Town represents that Concessionaire is free to hire existing barn employees, that their employment is acceptable to the Town and that there are no fees due any party for hiring these existing employees. 26. Successors in Interest Each and all of the terms, conditions, covenants and obligations hereof shall inure to the benefit of and bind the heirs, personal representatives, successors and assigns of the parties hereto and all persons holding under or through them or any of them. All of Concessionaire's covenants hereunder, including those against assignment and subletting, are continuing and binding without exception on all who take or acquire any interest hereunder. Without limiting or qualifying any of the foregoing provisions of this Agreement, every person taking any interest hereunder, by, through or under Concessionaire shall by virtue of taking or acceptance of such interest and without further act be deemed to have become bound hereunder not only by privity of estate, but of contract, and to have assumed and agreed to perform all of the covenants and obligation of Concessionaire hereunder to the same extent as though such assignee had personally executed this Agreement. 27. Notices All notices shall be in writing and shall be sufficiently given and served upon the other party by hand delivery, first class mail, registered or certified, return receipt requested, postage prepaid and addressed as follows: To the Town: Town of Los Altos Hills 26379 Fremont Road Los Altos Hills, CA 94022 Attn: City Manager To the Concessionaire: ►.1 Victoria Dye Equestrian, LLC 650 Castro Street, Suite 120-347 Mountain View, CA 94041 28. Exhibits Incorporated by Reference This Agreement consists of twenty-two (22) pages (including signature pages) and nine (9) exhibits. All Exhibits attached hereto are incorporated by reference in this Agreement as though fully set forth herein. In the event of conflict between the provisions contained in this Agreement and any Exhibit, the provisions of this Agreement shall prevail. 29. Governing Law, Jurisdiction, Venue This Agreement shall be governed by, and construed in accordance with, the laws of the State of California. The Concessionaire agrees and consents to the exclusive jurisdiction of the courts of the State of California for all purposes regarding this Agreement and further agrees and consents that venue of any action brought hereunder shall be exclusively in the County of Santa Clara. 30. Entire Agreement This Agreement contains the entire understanding between the parties relating to the obligations of the parties described in this Agreement. All prior or contemporaneous agreements, understandings, representations, and statements, oral or written, are merged into this Agreement and shall be of no further force or effect. Each party is entering into this Agreement based solely upon the representations set forth herein and upon each party's own independent investigation of any and all facts such party deems material. Executed at Los Altos Hills, California, on the dates set forth hereafter. Date: Q I do? ©.) C) ATTEST: TOWN OF LOS ALTOS IIILLS By: MAYOR FAi1 APPROVED AS TO FORM: CITY ATTORNEY Date: 3 Date: CONCESSIONAIRE By: 0 22 Its• ti m / V?—AL I DENT V, r,:�✓ Its: APPROVED AS TO FORM: CITY ATTORNEY Date: 3 Z,02 -b Date: CONCESSIONAIRE B 22 Its: — p m / Pwal-T_ v Its: EXHIBIT LIST Exhibit A Stable Facility Description Exhibit B Instructional Riding Program Description Exhibit C Agreed-upon Audit Procedure Exhibit D Conditional Use Permit Exhibit E Town Events Exhibit F Westwind Riding Institute Agreement Exhibit G Westwind Barn Manager Duties Exhibit H Pacific Ridge Pony Club Agreement Exhibit I Vision of Operating Principles for Westwind Community Barn Exhibit J Arena Maintenance Plan