HomeMy WebLinkAboutVictoria Dye Equestrian (5)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: APRIL 1, 2023
TABLE OF CONTENTS
1. Grant of Concession
2. Concessionaire Operating Responsibilities
3. Access to the Public
4. Facility Maintenance
5. Sanitation
6. Facility Improvements
7. Ownership of Facility
8. Fees and Charges
9. Boobs, Records, Reports and Audit
10. Collection of Fees and Charges Past Due
11. Concession Fees
12. Agreement Enforcement
13. Compliance with Laws
14. Town Events
15. Possessory Interest Tax
16. Indemnification
17. Insurance
18. Assignment
19. Waiver of Defaults
20. Relationship of Parties
21. Term of Agreement
22. Attorney's Fees
23. Force Majeure
24. Independent Contractor
25. Transition of Stable to Concessionaire
26. Successors in Interest
27 Notices
28. Exhibits Incorporated by Reference
29. Governing Law, Jurisdiction, Venue
30. Entire Agreement
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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 WRI 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 nine (9) 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 "H";
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, 2023, (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 continue to develop
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the business. Victoria Dye Equestrian, 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, annual and monthly fire inspections, maintain
smoke detectors and extinguishers, and trash and manure pickup.
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.
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.
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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 Community 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 riders and 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.
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, 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.
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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 ("WRI"), and will provide WRI with upper
arena usage Monday and Thursday from 4-5 pm.
xv. WRI and Concessionaire shall have a boarding agreement, subject to approval
as to form by the City Attorney, which shall specify the terms and conditions
of that boarder's use of the Stable Facility. Such agreement shall provide a
clause whereby the WRI 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. The WRI facility
use and maintenance agreement between WRI and the Town is outlined in
Exhibit "F."
xvi. Concessionaire shall publish and maintain a current schedule of fees and
charges for all services provided by the Concessionaire at the Facility.
xvii. 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.
xviii. 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.
xix. 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.
xx. The Concessionaire shall be responsible for communicating to the Town any
maintenance needs for fencing in Byrne Preserve and maintaining watering
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troughs in the Byrne Preserve. The Town shall be responsible for maintaining
fire breaks, paths, gates, fence, trails, trees and other plant life and the general
stewardship of the preserve.
xxi. As soon as possible, but not to exceed twenty-four (24) hours, Concessionaire
must notify the Town 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
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
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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 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
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 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. Routine maintenance
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and minor repairs are activities undertaken to keep the Facility in good order and operating repair
and safety, including but not limited to, regular preventative maintenance and incidental repairs
arising from normal wear and tear from the use of the Facility. 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.
B. Town and Concessionaire shall meet twice annually to perform maintenance
walkthroughs to inspect and identify needed repairs.
C. The Town will contract drain flushing and tree maintenance annually.
Concessionaire shall work with the Town to schedule the Town to off-load bedding as needed.
Concessionaire shall work with the Town to schedule the Town to remove manure from the feeding
pasture four (4) times a year. The Town shall provide maintenance support for ten (10) hours
monthly or one hundred and twenty (120) hours annually for items not specifically listed in the
agreement. If Concessionaire goes over the allotted 120 hours, Concessionaire could be charged
for the additional services.
D. 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.
E. 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 relocation fee within 30 days of this
decision.
F. Concessionaire shall not cause any mechanic's or materialmen's liens to be
placed upon the Facility.
G. 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
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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.
H. 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. 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 daily. The Town will provide and pay for
professional janitorial services for the public restroom and kitchen once weekly.
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
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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
Manager, depending on the scope, prior to undertaking any improvements to the Facility that
involve more than day-to-day maintenance.
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 (e.g. 24 hours advance written
notice) 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 Exhibit I. The Town agrees to pay for the arena maintenance costs outlined
in Exhibit I.
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.
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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.
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 work with the Town to prepare a
maintenance and capital improvement projects (CIP) budget for the July 1 st to June 30th fiscal year.
The budget for each ensuing fiscal year shall be submitted to City Manager no later than April 1 st
preceeding the July 1 st 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 (or designee) 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 (or designee) no later than August 31 st
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. 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 paid for by the Town. Concessionaire shall 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. If there are any audit findings, the
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Concessionaire shall respond to all audit findings within 30 days of receipt of the final audit report.
F. Concessionaire shall submit and present 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.
11. Concessionaire Fees
A. Town agrees to pay Concessionaire a monthly Management Payment by the
first day of the month which shall be $3,300.
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 80% of the gross
revenue received paid to the Concessionaire and 20% to the Town from $04300,000. Revenue
exceeding $300,000 shall be split with 82% of the gross revenue received paid to the Concessionaire
and 18% to the Town. Residents receive a discount on camps and the Town will pay Concessionaire
on the non-resident rate for all camps. Gross revenue shall mean all revenue less any refunds. 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 check payable to the Town for the use of the facility
and in lieu of any revenue split described in section B, above.
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D. Concessionaire runs IEA, a team show program. Concessionaire receives
two types of payments for IEA: a team startup payment and lesson payments. Concessionaire
agrees to pay the Town 20% 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 quarterly 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 time 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. In addition to all other requirements for employees to be
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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 the 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
to or death of a person or damage to or loss of any use of property, from whatever cause, in any
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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) 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
thereto, shall include a cross -liability or severability of interest endorsement, and shall provide it
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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) 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
operation by another person of the concession on the Facility granted by this Agreement or any
16
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 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 one hundred
and twenty (120) days before the expiration of the then current term.
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
17
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. The Town may terminate the Agreement by the delivery of a notice of
termination to the Concessionaire specifying the extentto 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 (18 0) 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.
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..
IN
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
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.
19
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
o the Concessionaire:
Victoria Dye Equestrian, LLC
650 Castro Street, Suite 120-347
20
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.
TOWN OF LOS ALTOS HILLS
Date 3/��3
ATTEST:
CITY CLERK
By:��w/"
MAYOR
21
APPROVED AS TO FORM:
CITY ATTORNEY
Date: 7,3
CONCESSIONAIRE
V'llllltl�--
Its: f- IV fili T
\A C TO?CSC 'DI e, X0.0 'T R (
22
APPROVED AS TO FORM:
CITY ATTORNEY
CONCESSIONAIRE
Date: By:
Its:
22
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 Community Barn Manager Duties
Exhibit H
Vision of Operating Principles for Westwind Community Barn
Exhibit I
Arena Maintenance Plan
5314858.1
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Exhibit B
Town Riding Program Parameters
The programs offered by a former vendor to the Town were extremely successful, received parent
and rider support for excellence and provided entree to other riding opportunities at Westwind
Community Barn. The Concessionaire would provide a comparable program in quality and
scope.
Programs offered over the last ten years were developed to provide quality, low student to teacher
ratio for beginner riders on well -cared, reliable, experienced school horses and to act as a
"feeder" for the community to become more involved with horses and Westwind Community
Barn. The flow advanced children through the different skill levels in the riding programs on to
Pony Club and eventual horse ownership or leasing, training and in many cases working as
volunteer instructors and assistants for the Westwind Riding Institute's disabled riding program.
The programs through the former vendor also enabled the leasing of school horses for use by non -
horse owning Pony Clubbers for Pony Club sessions, events and practice rides.
Quality
Low student to instructor ratio
Well -cared, reliable, experienced, school horses to accommodate many riding skill levels
Riding Program-- all levels - based on Pony Club curriculum (whole horsemanship)
- Year Round Riding Program
- Summer and School Breaks Camp
Promotes graduation into other riding opportunities art Westwind
Summarized Text from Recreation Guide:
"The Year Round Riding Program (YRRP) offers riding lessons geared towards the beginning
and intermediate rider. Participants will learn the basics of riding in a beautiful park -like setting.
The program focuses on learning to maintain an independent, balanced seat, tactful
communication between horse and rider, and correct equitation. Each session is six weeks in
length. Safety helmets are required for all mounted work and can be provided. Participants must
come neatly dressed in form -fitting pants (no shorts), boots with heels, and a shirt that covers the
shoulders. Jewelry is not allowed. Hair must be pulled back and out of the rider's face."
Summer Camps
"A real barn experience, this program focuses on responsible, considerate care of horses. Each
rider is assigned to his or her horse for the week, resembling the responsibility and fain of horse
ownership. Graduates of summer camp have moved into Pony Club and Olympic -level
instruction. We offer quality ponies, pony club curriculum, a low student to instructor/assistant
ratio in a park -like setting, with horse games, vaulting and a horse show on the last day of camp."
"Advanced camp is for riders jumping comfortably at 2'3". Each day will be devoted to a
different discipline of eventing: dressage, stadium jumping and cross country. Each lesson will
be videotaped. The instructor and students will analyze the videotape at the end of the day and
develop strategies to improve the overall ride as well the rider's position and striding. Horse
management will cover advanced topics such as conditioning, bandaging and nutrition."
Please note: Current Activity Guide available on Town website.
Prepared by Parks and Recreation Committee
Date: May 31, 2013
Exhibit C
Westwind Community Barn
Agreed -Upon Procedure
A. Perform cash receipt testing for one randomly selected month
1. Compare boarding receipts to boarding agreements
2. Compare program receipts to program fee and enrollment
agreement
3. Trace receipts to bank statement and to the general ledger
4. Compare total payments from Town to amount recorded on
VDE's accounting records
5. Attest reasonableness of total lessons revenues and boarding
revenues through June 30, 2026
B. Perform expense testing
1. Confirm compliance with Section F.2.viii of the Agreement where
all Concessionaire's staff shall undertake background checks
2. While the Town is providing boarding subsidy:
a. Review payroll expenses and agree salary to employment
agreement
b. Review Feed, Grain and Hay expense and agree amount to
aid invoices
C. Compliance with Section 9 of Agreement
1. Compare tax return and December general ledger balance for
completeness
2. Confirm record retention in compliance with Section E (3 -year)
Exhibit D
March 21, 2005
Mr, Dan Alexander-
Friends
lexanderFriends of Westwind Barn
27210 Altamont Road
Los Altos Hills, CA 94022
RE: File #39 -02 -CUP
27210 Altamont Road
Conditional Use Permit Renewal
Dear Mr, Alexander:
Your request for a Conditional Use Permit renewal was approved at the City Council meeting of
March 3, 2005..Please note the following conditions which apply to this approval:
A, PLANNING DEPARTMENT
1. All conditions of the Westwind Banc. Conditional Use Permit approved by the
City Council on April 20,1977 and as amended by the Planning Commission on
January 9, 1985, April 260', 1995 and September 121h, 2002 shall be conditions of
this approval,
2.. The perimeter of the upper hillside portion of the feeding pasture shall be
permanently fenced and animals shall have no access to this area. (CUP#39-02
renewal March 3, 2005)
1 In the event that any of the conditions of this permit are not satisfied, the Planning
Department may cause a noticed public hearing to be sent to review whether the
permit should be continued; and upon a showing of compelling public necessity
demonstrated at the noticed public hearing, the Town may add, amend, or delete
conditions and regulations contained in this permit. (CUP #11-95)
4,. This permit does not authorize the applicant to intensify the authorized activity
beyond that which is specifically described in this permit.. (CUP #11-95)
5. This Use Permit shall be issued in the name above and the life of this Permit shall
run with the life of the ownership of the property or until it is amended or
cancelled, (Property designated as parcel # A&4, 14,96 acres.) (CIDP 48022-77)
26379 Fremont Road
Taos Altos ]-Tills
California 94022
650/941-7222
Fax 650/941-3160
Westwind Barn C..U.P
March 21, 2005
Page 2
b. The number of horses to be kept or maintained at this facility shall not exceed 54,
(CUP#39-02 renewal March 3, 2005) .
7.. Any proposed new buildings or structures shall require an amendment to this Use
Permit. (CUP #802.277)
81 There shall be twenty-four (24) hour supervision of said premises by a competent
attendant who is knowledgeable about horse care and authorized to see that the
conditions of this Use Permit are met. (CUP 48022-77)
9. A business License shall be required and shall be renewed annually on January
1St, as long as all conditions of this Use Permit have been met.. (Amount of fee is
specified by Section 3-1.209 of L,AH Municipal Code.) (CUP #8022-77)
10. Staff, Planning Commission and City Council shall conduct an annual review of
this Permit to assure compliance with conditions and all conditions shall be
subject to amendments and/or, additional conditions as deemed necessary by the
City Council. (CUP #8022-77)
11, All requirements of the Santa Clara County Health Dept„ shall be met:
a. Drainage from stables, corrals, pens, barns, etc..., must not enter a natural
watercourse.
b. Animal quarters must be swept clean, sprayed and otherwise kept in a
sanitary manner so as to prevent unnecessary odor, fly breeding and rodent
attraction,
12. Manure shall be disposed of regularly by spreading, collection in an appropriate
bin or removal from site, (CUP 4802277)
13, All requirements of the Los Altos hire Department shall be met as designated by
the office inspecting the facility.: (CUP 48022-77)
14. There shall be no external lighting, other than that needed for safety and security.
All fixtures should be adequately shielded to prevent any nuisance to adjoining
property owners, (CUP #802277)
15, All driveways, parking areas, and horse riding areas shall be maintained in a
manner sufficient to control dust to a level compatible with adjoining uses. Except
as otherwise permitted by this use permit B.2, the cars of
guests and visitors shall at all times be parked on the property. (CUP 4802277)
Westwind Barn C.U.P
March 21, 2005
Mage 3
16, Public riding instructions may be given. This shall be under, the supervision of
qualified instructors,. (CUP 48022-77)
17. Parking of horse trailers limited to twenty-four (24) hours except for horse trailers
not exceeding six (6) at any time, belonging to lessee or its management. Parking
of the horse trailer's shall be restricted to Lot 4. (CUP 48022-77)
18. Any horse breeding operations are to be conducted in an enclosed, discreetly
located area during normal working hours and in a safe manner. (CUP 48022-77)
19. The applicant shall maintain existing trees and shrubs for- landscaping to mitigate
the visual impact frorn offsite. Such landscaping shall not interfere with buildings
or the program at the site. The condition of the trees and shrubs shall be evaluated
every spring and the replacement, as needed, to maintain the mitigation of off site
view, shall occur by June 1 of each year. (Amended by Planning Commission
January 9th, 1985)
20. All equipment necessary for the operation of the stable shall be kept in good
repair. Equipment generating noise shall be subject to the Town's noise ordinance
and a time schedule approved by the town. (Amended by Planning Commission
January 9th, 1985)
21, There shall be no more than five (5) horse shows per year, to be held between
9:00 A.M. and 5:00 P.M. A schedule of these shows and other scheduled events
must be filed with the Town, in writing, at least seventy-two (72) hours prior to an
event. Street and/or driveway parking will be allowed at the discretion of Town
staff„ When there is parking in the streets or driveway, parking attendants as
requested by Staff will be present. (Amended by Planning Commission January
9th, 1985)
2.2. Use of a public address system shall be limited to the permitted horse shows and
for other special events with prior City Council approval, and used in such a
mariner as not to be a nuisance to the adjacent property owners. (Amended by
Planning Commission January 9th, 1985)
B.• ENGINEERING:
23. Any, and all, changes to the existing grading and drainage plan shall first be
approved by the Engineering Department. No grading shall take place during the
grading moratorium between November 1 and April 1 except with prior approval
from the City Engineer. No grading shall take place within ten feet of any
property line. (CUP #11-95)
Westwind Barn CUT
March 21, 2005
Page 4
Please contact us if you have any questions.
Sincerely,
Carl Cahill
Planning Director
cc: Brian Froelich
Exhibit E
REQUIRED TOWN EVENTS
Expected duties performed by WCB Concessionaire
*Dates are subject to change
Hoppin' Hounds (Saturday before Easter):
• Some event items are held onsite prior to the event and removed after the
event.
• Takes place in Byrne Preserve.
• Barn Staff ensures that horses in Byrne Preserve are brought in the night
before the event or no later than 7:30am on event day.
2. Pathways Run/Walk (Saturday, before Mother's Day)
• The public event draws roughly 500 people and takes place in the parking
lot. Race routes extend through WCB, Byrne Preserve and neighboring
areas.
• The event blocks trailer parking; any who will need access shall move their
trailer the night before the event.
• The barn shuts down for this morning public event.
• A few days prior to the event Town Staff begins staging, storage space is
needed, porta-potties are delivered, signage hung, etc.
• Barn staff:
➢ Completes a thorough barn cleaning;
➢ Extra bathroom supplies stocked;
➢ Ensures that horses in Byrne Preserve are brought in the night before
the event;
➢ For safety, horses remain in their stalls from 7:30am - Noon.
Hoedown (First Saturday in September):
• This public event draws roughly 600 people and takes place around the Barn
and inside of the gate.
• The event blocks trailer parking; any who will need access shall move their
trailer the night before the event.
• A few days prior to the event Town Staff begins staging, the bar must be
brought down, porta-potties are delivered, signage hung, etc.
• Barn staff:
➢ Completes a thorough barn cleaning;
➢ Stocks extra bathroom/kitchen supplies, etc.;
➢ Provides temporary storage of event materials in an area of
approximately one stall for not more than one week per event.
• The Barn stakeholders usually host a 30 minute horseshow.
• Riding is not allowed for duration of the event.
4. Barn Lighting (First Sunday in December):
• Pending weather, this public event draws roughly 300 people and takes place
around the Barn and inside of the gate.
Exhibit E
• The event blocks trailer parking; any who will need access shall move their
trailer the night before the event.
• A few days prior to the event Town Staff begins staging, storage space is
needed, bar must be brought down, signage hung, etc.
• Barn staff:
➢ Completes a thorough barn cleaning;
➢ Stocks extra bathroom/kitchen supplies, etc;
➢ Provides temporary storage of event materials in an area of
approximately one stall for not more than one week per event.
• Weather Permitting, pony rides will be held either in the round pen or
around the barn.
• A petting zoo is hosted in one stall.
TBD Town Event (Up to an additional event, Dates TBD):
• The Town reserves the right to conduct an additional event annually as
needed. At this writing, no new events are scheduled or known; this
paragraph is included as a placeholder for future events TBD. The
Concessionaire shall allow for such one -day event should they occur.
FACILITY USE AND MAINTENANCE AGREEMENT
BETWEEN WESTWIND RIDING INSTITUTE
AND THE TOWN OF LOS ALTOS HILLS
This agreement for use and maintenance of the WRI Barn Facilities at Westwind
Community Barn (`.`Agreement") is made and entered into on this I" day of April, 2023
by and between the TOWN OF LOS ALTOS HILLS, a municipal corporation
("TOWN") and the Westwind Riding Institute (WRI). In consideration of their mutual
covenants, the parties agree hereto as follows:
1. Purpose. This Agreement authorizes WRI to use specified areas of .
Westwind Community Barn (identified herein as the "WRI Barn Facilities") and to use
on a non-exclusive basis Byrne Preserve and makes WRI responsible for maintaining the
"WR17 Barn Facilities in a competent and professional manner in order to operate the
Riding for the Disabled program. WRI may keep a maximum of eight (8) horses at the
WRI Barn Facilities. Two (2) of the eight (8) horses may be kept at Byrne Preserve for
grazing purposes. WRI shall be provided the current tack room, or a reasonably
equivalent and convenient alternative tack facility. Hay storage space sufficient to store a
minimum of 19 bales of hay shall be available in the WRI Barn Facilities for feeding of
WRI and pasture horses.
WRI currently has exclusive use of upper arena shown on Exhibit A to provide
horseback riding instructions during the days and times specified in the Concessionaire
Agreement with the TOWN. This Agreement supersedes any prior use agreements
between the TOWN and WRI.
2. Premises. The premises covered by this Agreement include limited non-
exclusive use of Byrne Preserve (APN: 182-21-016), Westwind Community Barn (27210
Altamont Road), and the exclusive use of the WRI Barn Facilities located within
Westwind Community Barn (collectively, "Premises"). The WRI Barn Facilities include
a four stall barn, a four stall shed row, the adjoining paddocks, and the side pasture,
described more particularly in Exhibit A.
3. Term. The term of the Agreement shall be from April 1, 2023 through
July 31, 2026, unless terminated earlier pursuant to Section 5 of this Agreement.
4. Renewal. This Agreement shall be subject to renewal, upon mutual consent
of the parties, for additional three-year periods. If a party desires to not extend the term
as provided herein, that party will provide written notice to the"other party of its intent
not to renew the Agreement no later than January 1 st of the final year of the term of the
Agreement.
5. Termination. Either party may terminate this Agreement without cause upon
three hundred and sixty-five (365) days' written notice. TOWN may immediately
terminate or suspend this Agreement for cause. Cause for immediate termination or
suspension shall include, but not be limited to, any breach of this Agreement by WRI.
11. Hold Harmless. WRI agrees to indemnify, defend and hold harmless the
TOWN, its officers, agents and employees from any and all demands, claims or liability
of any nature, including personal injury and death, which may arise out of or occur by
reason of any act or omission of its part, or the part of its employees, contractors, agents
or representatives arising in anyway out of its performance of this Agreement, except to
the extent that such liability is caused by the .gross negligence or willful misconduct of
the TOWN.
WRI also agrees to require any contract in excess of $5,000 with its maintenance
contractors or subcontractors to contain a provision requiring that the maintenance
contractor or subcontractor indemnify, defend and hold harmless WRI and the TOWN
and its officers, agents_ and employees from any and all demands, claims or liability of
any nature which may arise out of or occur by reason of any act or omission on the
maintenance contractor or subcontractor's part, or the part of any of its employees,
contractors, subcontractors, agents or representatives in furtherance of or related to the
contract with WRI.
12. Insurance. Upon execution of this Agreement, and at all times during this
Agreement, for its sponsored community riding programs and special events, WRI shall
maintain insurance in the amount of at least one million dollars ($.1,000,000) combined
single limit for bodily injury and property damage and shall provide the TOWN evidence
annually that such a policy is in force. TOWN shall be named.as an additional insured in
such policy.
WRI's maintenance contractors and subcontractors, for projects exceeding
.;$5,000, shall have in full force and effect, at their sole expense, for the joint benefit of the
contractors, WRI and the TOWN, liability insurance in which WRI and TOWN are
named as. additional insured. The insurance thereunder shall be in the amount of at least
one million dollars ($1,000,000) combined limit for bodily injury and property damage,
shall be carried by insurers authorized to transact business in California, and shall be
primary as to TOWN and WRI and non-contributory with any insurance which may be
carried by TOWN or WRI. The insurance policy shall have a thirty (30) day notification
to TOWN and WRI before any change in the policy or cancellation. WRI shall beep a
current certificate of insurance from its contractors and subcontractors on file with the
TOWN at all times.
13. Non -Discrimination. No discrimination shall be made in the employment
of persons under this Agreement because of race, color, national origin, age, ancestry,
sexual orientation, religion or gender.
14. Independent Contractor. At all times during the term of this Agreement, WRI
acknowledges and the parties hereby agree that WRI shall be an independent contractor
and that neither it, nor its agents, employees, or volunteers are agents or employees of the
TOWN for any purpose whatsoever. TOWN shall have the right to control WRI only to
the extent expressly provided .in this Agreement. Except as expressly set forth in this
Agreement, TOWN shall not have the right to control the means by which WRI
amended, modified or otherwise changed in any respect whatsoever, except by a writing
executed by all Parties hereto.
20. Severability. If any term, condition or provision of this Agreement is declared
illegal or invalid for any reason by a court of competent jurisdiction, the remaining terms,
conditions and provisions shall nevertheless remain in full force or effect.
21. Notices. Any material changes to this contract or the relationship between
TOWN and WRI must be noticed or communicated in writing and sent to the Parties at
their respective addresses specified below or to such other address as the Parties may
designate by written notice delivered to the other Party in accordance with this Section.
All such notices shall be sent by
a. Personal delivery, in which case notice is effective upon delivery;
b. Certified or registered mail, return receipt requested, in which case notice
shall be deemed delivered upon receipt if delivery is confirmed by a return
receipt or upon attempted delivery if delivery is refused;
If to City: Town of Los Altos Hills
26379 Fremont Road
Los Altos Hills, CA 94022
Attention: City Manager
If to WRI: Westwind Riding Institute
27210 Altamont Road
Los Altos Hills, CA 94022
Attention: President.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the day
and year first above written.
WRI:
r 9
By:� .
Nancy Cou erus, P esident
ATTEST:
Deborah Padovan, City Clerk
5314859.1
By:
Peter Pirnejadl ity Manager
APPROVED AS TO FORM
s. $�
Steven T. Mattas, City Attorney
Exhibit G
Barn Manager Duties
At a community barn like Westwind, a working manager performs a multitude of functions
necessary for the safe and smooth running of the barn. Of all of these tasks, "administration"
is just one responsibility that is ancillary to the primary mission but not part of the mission.
A working manager:
* Provides an active presence whenever activities are going on — enforcing Barn rules, advising
horsemen who do foolish and unsafe things
* Checks the quality of hay when it is delivered
* Inspects the paddock fencing to make sure it's safe
* Inspects arena fencing and repairs as necessary
* Ensures that all the horses in paddocks have access to water
* Checks that all water troughs are clean and auto -fill mechanisms operational
* Periodically checks arena sprinklers to see if they need adjustment
* Maintains arenas and round pen —trains stable hands on proper maintenance and grooming
* Takes proactive measures to keep flies under control — ensures that manure is regularly
cleaned from the paddocks and the feeding pasture and emptied from the wheelbarrow/muck
buckets in the arenas, round pen and side yard (at a minimum 2 times a week)
* Routinely checks the gates to ensure operational safety and that they're not out of
adjustment
* Routinely monitors Byrne Preserve fencing and ensures corrective measures taken before the
fences are so weakened as to provide an escape for the pastured horses
* Routinely inspects that stalls are properly bedded and horses are fed correctly
Exhibit G
* Monitors the well being of all of the horses — including those in the paddocks and in the
feeding pasture
* Ensures that all horses are current with immunizations
* Assures that required inspections of fire extinguishers and sprinkler system are conducted, as
well as annual fire inspections with the county fire department
* Assures cleanliness of bathroom and kitchen (stocks bathroom with paper towels, toilet
paper, and soap; maintains first aid kits and emergency flashlights)
* Inspects and takes action for rodent control in the barn and on the property
* Establishes self as authority figure at the barn while maintaining courteous, friendly, and
professional relationships with all groups at the barn
*Works with the trainers and their needs
* Represents the barn to the outside world in the context of Public Relations and recruitment of
new boarders
Exhibit H
The Town's overall vision of operating goals and principles for Westwind
Community Barn is as follows:
A. Create.a safe and welcoming environment for all equestrians and Facility users.
B. Build and maintain a healthy and vibrant Facility whose barn, pastures . and
paddocks are full of horses and Facility users.
C. Foster community support and collaboration through the creation of an adnhoc
concession advisory group of key stakeholders and at least one neighbor
(members are chosen by the concessionaire).
D. Practice good schedule management that mfnfmfzes and manages facility
interference by and.among the various user groups.
E. Support public events that the Town may choose to convene at the facility.
F. Provide or obtain over time an adequately balanced supply of equestrian stock
for user use, rental or lease at competitive rates and terms.
G. Provide equestrian and rider training programs.
H. Promote and support equestrian riding programs such as 4H, Pony Club and
YRRP and such others that will encourage a broad range of facility and
community usage.
7.
Exhibit I
Arena Maintenance Plan
Annually: Arena will need to be dragged and laser leveled once a year
Olympic Footing quoted: Lower arena cost $1,600; Upper arena cost. $1,000
Every Other Year: Footing flipped every other year
Olympic Footing quoted 1/2020: $3550
This is done to help with the longevity of your footing additives. The laser provides balance &
consistency for the horse and rider.
Projected:
2023: laser leveled and flipped
2024: laser leveled
2025: laser leveled and flipped
Historical:
3/2014: Lower arena base footing sand installed
10/2015: The upper arena was installed (Footing and sand replaced and base repaired)
8/2017: Round pen Otto Matts installed
6/2018: Well Ran Dry; Part of the need at this time in the lower arena was due to the well
running dry and the arena was not effectively watered for approximately two months. This
caused the footing to move around more than normal.
8/2018: Footing was flipped and laser leveled in both arenas
5/25/22: Upper Arena Laser Leveled and added sand
Attachment 1
RESOLUTION
A RESOLUTION OF THE CITY COUNCIL
OF THE TOWN OF LOS ALTOS HILLS AUTHORIZING THE MAYOR TO EXECUTE
OF AN AMENDED AGREEMENT FOR THE WESTWIND COMMUNITY BARN
OWNED BY THE TOWN OF LOS ALTOS HILLS BETWEEN THE TOWN AND
VICTORIA DYE EQUESTRIAN, LLC.
WHEREAS, on January 14, 2014, the City Council selected Victoria Dye Equestrian, LLC.
(VDE) to operate Westwind Community Barn;
WHEREAS, VDE has been managing Westwind Community Barn since February 1, 2014;
WHEREAS, the agreement was amended and renewed on March 8, 2017 and April 1, 2020;
WHEREAS, VDE provides equestrian riding programs and horse boarding services to the public
for a fee; and
WHEARAS, on February 24, 2023 during the Ad Hoc Committee fully supported the amended
VDE agreement
NOW, THEREFORE, BE IT RESOLVED by the City Council of the Town of Los Altos Hills
that the Mayor is hereby authorized to execute a three-year agreement with Victoria Dye
Equestrian, LLC., for the operation of Westwind Community Barn.
The above and foregoing resolution was passed and adopted by the City Council of the Town of
Los Altos Hills at a special meeting held on the 16th day of March, 2023 by the following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
Linda Swan, Mayor
ATTEST:
Deborah Padovan, City Cleric