Attachment 2 - Use Agreement Los Gatos-Saratoga Community Education and Recreation ATTACHMENT 2
Use Agreement DRAFT – May 2023
Los Gatos-Saratoga Community Education and Recreation
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USE AGREEMENT
BETWEEN THE TOWN OF LOS GATOS
AND
LOS GATOS-SARATOGA COMMUNITY EDUCATION AND RECREATION
THIS AGREEMENT is dated for identification this 1st day of July 2023 and is made by and between
TOWN OF LOS GATOS, State of California (“Town”) and LOS GATOS-SARATOGA COMMUNITY
EDUCATION AND RECREATION (“LGSR”) identified as a California nonprofit corporation and whose
address is 123 E. Main Street, Los Gatos, CA 95030.
I. RECITALS
1.1 Los Gatos-Saratoga Community Education and Recreation (“LGSR”), a joint powers agency
of the Los Gatos Union School District, Saratoga Union School District, and Los Gatos-
Saratoga Union High School District was established to ensure the effective and efficient
provision of community education and recreation services to the communities of Los
Gatos, Saratoga, Monte Sereno, and Santa Cruz Mountains communities.
1.2 LGSR provides fee-based public recreation, supplemental education, and childcare
programs for Los Gatos, Monte Sereno, Saratoga, and the Santa Cruz Mountains
communities. LGSR and the Town have been under contract since 2014 for programs
within certain parks that are owned and operated by the Town.
1.3 In order to provide convenient and effective programs to its constituent communities,
LGSR desires to use various parks and open spaces owned and maintained by the Town of
Los Gatos (“Town”).
1.4 The Town requested and LGSR has agreed to provide recreational programming for adults
aged 55 years and older for the Town of Los Gatos.
II. AGREEMENTS
2.1 Subject Premises. The premises covered by this agreement are the portions of Blossom
Hill Park, Creekside Sports Park, La Rinconada Park, and Oak Meadow Park (collectively,
the “Premises”) denoted in Attachment 1. LGSR may request the use of additional
premises which shall be considered by the Town and authorized for use as more fully
described in Section 2.7.
2.2 Use of Premises. LGSR shall be allowed the use of the Premises for approved Programs
during those times and dates as shown on the “Annual Schedule”. The Annual Schedule
shall cover camps and classes and shall identify what portion or portions of the Premises
shall be designated for each approved Program. Each year this Agreement is in force, LGSR
shall submit a schedule no later than June 30th for the upcoming Fall session, no later than
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September 30th for the upcoming Winter and Spring session, and no later than February
28th for the upcoming Summer session.
LGSR may request changes to the Annual Schedule by written notification to the
Department of Parks and Public Works but shall endeavor to minimize changes to the
schedule. All changes should be made in writing no less than 30 days prior to the effective
date of the change. Town has the final say in establishing the master schedule. Town will
attempt to accommodate user groups at their requested time but reserves the right to
propose use hours that balance the needs of all user groups equitably. The Town of Los
Gatos shall have sole authority to approve the Annual Schedule and any requested
changes to the Annual Schedule.
LGSR may partner with third party providers that have executed Use Agreements with the
Town. In the case of such partnerships the Use Hours and Facility Maintenance Fee
payments will be paid by the third party and not by LGSR.
2.3 Term of Agreement. Unless terminated sooner pursuant to Section 4.3 of this Agreement,
the Use Agreement remains in effect from July 1, 2023 through June 30, 2024. The term of
this Agreement may be extended for up to nine additional one-year periods.
2.4 Annual Use Fee. Beginning July 1, 2023, and every year thereafter, LGSR shall pay the
Town of Los Gatos an Annual Use Fee for the use of the Premises. The initial Annual Use
Fee shall be $15,500, which represents 4,607 hours of Premises Use. The Annual Use Fee
shall be considered full and fair compensation for use of the Premises for those days and
times on the approved Annual Schedule, and in conjunction with the Facility Maintenance
Fee described in Section 2.5, shall be used by the Town to help fund the cost of the
maintenance of the Premises.
ALTERNATIVE LANGUAGE. TO BE USED IF COUNCIL ACCEPTS THAT PICKLEBALL IS A SENIOR
PROGRAM
Annual Use Fee. Beginning July 1, 2023, and every year thereafter, LGSR shall pay the Town of
Los Gatos an Annual Use Fee for the use of the Premises. The based initial Annual Use
Fee shall be $13,245.22, which represents 3,936 hours of Premises Use. The parties
recognize that 671 hours of pickleball programming at LaRinconada Park is not included
in this calculation in consideration of pickleball as a senior program serving people aged
55 years and older. The Annual Use Fee shall be considered full and fair compensation
for use of the Premises for those days and times on the approved Annual Schedule, and
in conjunction with the Facility Maintenance Fee described in Section 2.5, shall be used
by the Town to help fund the cost of the maintenance of the Premises.
2.5 Facility Maintenance Fee. Beginning July 1, 2023, and continuing for the full term of this
agreement, including any extensions, each participant in programs or classes offered by
LGSR on Town premises will be charged a four ($4.00) Facility Maintenance Fee (FMF) per
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session . The Facility Maintenance Fee shall be assessed by LGSR at the time of
registration or payment of program fees and shall be remitted to the Town quarterly.
Participants shall be charged an FMF for each separate registration in a program or class
offered by LGSR offered on the Premises covered by this agreement.
ALTERNATIVE LANGUAGE: TO BE USED IF COUNCIL ACCEPTS THE REDUCED FACILITY USE FEE
FOR LGSR
Facility Maintenance Fee. Beginning July 1, 2023, and continuing for the full term of this
agreement, including any extensions, each participant in programs or classes offered by
LGSR on Town premises will be charged a two ($2.00) Facility Maintenance Fee (FMF) per
session. The Facility Maintenance Fee shall be assessed by LGSR at the time of
registration or payment of program fees and shall be remitted to the Town quarterly.
Participants shall be charged an FMF for each separate registration in a program or class
offered by LGSR offered on the Premises covered by this agreement.
2.6 Annual Use Fee Adjustment-Change in CPI. On July 1, 2024, and each anniversary
thereafter, the Annual User Fee shall be adjusted according to the percent change in the
U. S. Department of Labor, Bureau of Labor Statistics Consumer Price Index, All Items, All
Urban Consumers, San Francisco-Oakland-San Jose, 1982-84-100 Index.
2.7 Annual Use Fee Adjustment-Change in Programming or Facilities. On July 1, 2024, and
each anniversary thereafter, the Annual User Fee shall also be adjusted based on
programming changes resulting in a material increase or decrease in the use of the
Premises. In addition, the Annual User Fee shall be adjusted to reflect the addition of any
new facilities or cessation of use at any of the facilities that comprise the Premises. Should
LGSR increase or decrease its requested hours of use as set forth in the Annual Schedule,
by 5% or more, the Annual Use Fee shall be adjusted proportionally based on the
percentage change in hours. Any fee adjustment under this section will be negotiated in
good faith between the Town and LGSR as part of the development of the Annual
Schedule. Programming that is specifically marketed to and participation is limited to
senior participants aged 55 years and older shall not be included in the calculated increase
of hours.
2.8 Maintenance. LGSR shall be responsible for general site clean-up including pick up and
disposal of trash that may result from the approved use of the Premises.
2.9 Facility Use Policies. LGSR shall comply, without limitation, with all applicable provisions of
the Los Gatos Town Code, with special attention to Chapter 19, Parks and Recreation
provisions. LGSR shall also comply with any park rules and regulations established by the
Director of Parks and Public Works pursuant to Section 19.10.025(17) of the Town Code,
including those rules set forth in Attachment A, Town of Los Gatos Park Rules and
Regulations. LGSR agrees to comply with the current rules and regulations available at
www.losgatosca.gov/parkres as well as any future amendments to those rules and
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regulations. Failure to comply with these policies may result in suspension and/or
termination of this agreement.
LGSR agrees to comply with the state “Fair Play in Community Sports Act.” LGSR will not
discriminate on the basis of gender and boys’ and girls’ teams will have equal access to the
facilities.
2.10 Payment. LGSR shall make all payments, whether or not invoiced by Town, required
pursuant to this Agreement no later than November 1 and April 1 of each year that such
payments are due. All payments shall be mailed by first class mail or delivered in person at
Town offices and addressed as follows:
Town of Los Gatos
Attn: Finance Department
P.O. Box 697
Los Gatos, California 95031
2.11 Assignment. LGSR shall not assign any portion of this Agreement or allow any use of the
Premises by any other person or entity contrary to this Agreement's terms, without the
Town's prior written approval. LGSR is expressly prohibited from use of the Premises for
any activity other than activities sanctioned and associated with LGSR.
2.12 Personal Property. Personal property of LGSR shall be LGSR’s sole responsibility to
acquire, repair, replace and store. Any storage of personal property on the Premises shall
require prior approval by the Town. LGSR shall remove all personal property at the
expiration or termination of this Agreement, or sooner, as directed by the Town in its sole
discretion. Any personal property not so removed with 30 days of notification by the
Town shall become the sole property of Town with no compensation.
2.13 Temporary Signage. LGSR shall be permitted to install temporary event signage on the
Premises upon approval of an application to the Town of Los Gatos Planning Department
pursuant to the provisions of Section29.10.120 (4) Event Signs of the Town Code. Each
LGSR Activity Quarter (summer, fall spring, winter) shall be eligible for temporary event
signage. All temporary event signage must include the LGSR logo of such size and
placement that it is clear that the signage is for a program or activity sponsored by LGSR.
The Town shall charge a single Temporary Signage fee for each year.
2.14 New Program Vendors Referral. The Town and LGSR shall meet and negotiate in good
faith a New Program Vendor Referral procedure, wherein the Town directs prospective
new program vendors to LGSR for initial consideration prior to any issuance of permits or
negotiation of use agreements directly between the Town and the prospective vendor.
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III. INSURANCE AND INDEMNIFICATION
3.1 Minimum Scope of Insurance:
i. LGSR agrees to have and maintain for the duration of this Agreement,
General Liability insurance policies insuring LGSR, its elected and appointed
officials, employees, and agents to an amount not less than two million
dollars ($2,000,000) combined single limit per occurrence for bodily injury,
personal injury and property damage. Insurance is to be placed with
insurers with a current Best’s rating of no less than B+.
ii. LGSR agrees to have and maintain, for the duration of this Agreement, an
Automobile Liability insurance policy insuring the LGSR, its elected and
appointed officials, employees, and agents to an amount not less than one
million ($1,000,000) combined single limit per accident for bodily injury and
property damage.
iii. LGSR shall provide to the Town all certificates of insurance, with original
endorsements effecting coverage. LGSR shall provide all certificates and
endorsements before term of Agreement begins.
General Liability:
i. The Town, its elected and appointed officials, employees and agents are to
be covered as additional insured as respects to liability arising out of
activities occurring on or related to the occupancy and use of the Premises
by LGSR.
ii. The LGSR’s insurance coverage shall be primary insurance as respects the
Town, its elected and appointed officials, employees and agents. Any
insurance or self-insurance maintained by the Town, its elected and
appointed officials, employees or agents shall be excess of the LGSR’s
insurance and shall not contribute with it.
iii. Any failure to comply with reporting provisions of the policies shall not
affect coverage provided to the Town, its officers, officials, employees or
volunteers.
iv. The LGSR’s insurance shall apply separately to each insured against whom a
claim is made, or suit is brought, except with respect to the limits of the
insurer’s liability.
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3.2 All Coverages. Each insurance policy required in this item shall be endorsed to state that
coverage shall not be suspended, voided, canceled, reduced in coverage or in limits except
after thirty (30) days’ prior written notice by certified mail, return receipt requested, has
been given to the Town. The LGSR shall ensure that current certification of such insurance
is on file at all times with the Town Clerk during the term of this agreement.
3.3 Workers’ Compensation. In addition to these policies, LGSR shall have and maintain
Workers’ Compensation insurance as required by California law. Further, LGSR shall
ensure that all contractors employed on the Premises by the LGSR provide the required
Workers’ Compensation insurance for their respective employees.
3.4 Property Insurance. LGSR shall have no obligation to maintain any insurance of the
Premises or any personal property placed on the Premises. LGSR shall be solely
responsible for obtaining whatever insurance coverage that the LGSR believes may be
appropriate to protect and indemnify the LGSR for loss to the Premises or to any personal
property that the LGSR may place on the Premises.
3.4 Indemnification. LGSR agrees to indemnify, hold harmless, and defend the Town, its
elected and appointed officials, employees, and agents, from and against any and all
damages, claims or liability, penalties, costs or expenses in law or equity that may at any
time arise from any loss, damage, or injury to persons or property occurring in or about
the Premises that arises out of or incident to the LGSR’s use of the Premises, including use
by anyone that the LGSR has permitted or allowed to use the Premises. This obligation to
indemnify, hold harmless, and defend applies whether or not the incident or claim or
liability is or may be related negligence on the part of the Town.
IV. GENERAL TERMS
4.1 Damage and Destruction. Damage or destruction of any portion of the Premises by any
cause shall not terminate this Agreement or otherwise affect the respective obligations of
the two parties, any present or future law to the contrary notwithstanding, except
pursuant to the provisions of this Section 4.1.
If because of destruction or damage, a portion of the Premises becomes unsuitable or
inadequate for use as specified in the Annual Schedule the Town and LGSR shall meet and
work cooperatively to identify an alternative location for the use. If the alternative
location can be found on Town-owned property, then no modification of the Annual Use
Fee shall be made. If no alternative location can be found, or if an alternative location is
found that is not on Town-owned property, then LGSR shall be entitled to a prorated
refund of the Annual Use Fee, calculated by determining that fee that would have been
assessed for the displaced program or activity is if it had been issued a Facility Use Fee
Permit. Any such calculation will be based on the Town’s approved schedule of Annual
Fees and Charges in effect at the time of the program displacement.
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Under no circumstances does the Town have any obligation to provide LGSR with an
alternative property to conduct its operations, and LGSR is solely responsible for obtaining
such insurance as the LGSR deems appropriate to protect its interests should damage or
destruction to any of the Premises occur.
LGSR shall be liable for any loss, damage, or injury to the Premises as a result of the direct
or indirect use of the Premises by LGSR under this agreement.
4.2 Compliance with Town Codes. LGSR shall comply with all Town Code provisions, including
Chapter 19 of the Code concerning Parks and Recreation.
4.3 Termination of Agreement. LGSR shall promptly terminate its use of the Premises at the
expiration of this Agreement, leaving the Premises in the same condition it was received,
in good order and repair, reasonable wear and tear and damage by the elements
excepted. Any personal property not removed by LGSR within thirty (30) days of the
termination of this Agreement shall become the property of the Town and may be
disposed of as the Town in its sole discretion deems advisable.
This Agreement shall continue in full force and effect unless prior to February 1st of any
calendar year, either Party provides written notice to the other Party that it desires to
terminate the Agreement for convenience and, upon such notice, the Agreement shall
terminate on June 30th of the same calendar year.
If Town in its sole discretion determines that it requires the Premises for any public
purpose, Town may terminate this Agreement upon one hundred eighty (180) days written
notice. In the event of an emergency, Town may terminate this Agreement upon five (5)
days written notice. “Emergency,” for the purpose of this paragraph, is defined as when
the Town Council declares a State of Emergency. Upon termination of this Agreement in
the event of an Emergency, Town and LGSR will work cooperatively to secure alternative
facilities for LGSR programs.
In the event of any material default or breach by LGSR, Town may at any time, thereafter,
following any notice required by statute, and without limiting Town in the exercise of any
right or remedy which may have reason of such default or breach:
Terminate LGSR’s right to possession of the Premises by any lawful means, in which case
this Agreement shall terminate and LGSR shall immediately surrender possession of the
Premises to Town. In such event, Town shall be entitled to recover from LGSR any
damages incurred by Town by reason of LGSR’s default including but not limited to the
cost of recovering possession of the Premises and reasonable attorneys’ fees.
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Pursue any other remedy now or hereafter available to Town under the laws of the State
of California. Town shall have all remedies provided in law and equity.
LGSR waives all rights of redemption or relief from forfeiture under California Code of Civil
Procedure sections 1174 and 1179, and any other present, and future law, in the event
LGSR is evicted or Town otherwise lawfully takes possession of the Premises by reason of
any default or breach of this Agreement by LGSR.
4.4 No Property Rights. Nothing in this Agreement is in any way intended to establish, convey,
create or otherwise grant LGSR any form of property rights in the Premises, nor shall such
rights be established, conveyed, created or otherwise granted by LGSR’s use of the
Premises pursuant to this Agreement. LGSR hereby acknowledges that it currently has no
property interest in the Premises or any improvements thereto or fixture’s location
thereon, and that any claim it may have to same is hereby and forever waived.
4.5 Notices. Any written correspondence of Notices given under this Agreement shall be
addressed as follows:
To the LGSR: To the Town:
Executive Director Director
Los Gatos-Saratoga Recreation Department of Parks and Public Works
123 E. Main Street Town of Los Gatos
Los Gatos, CA 95030 41 Miles Avenue
Los Gatos, CA 95030
Notices shall be delivered by first class, postage prepaid mail or in person. If mailed, a
notice shall be deemed effective on the fifth day following in the U.S. Mail.
4.6 Waiver. No failure on the part of either party to exercise any right or remedy hereunder
shall operate as a waiver of any other right or remedy that party may have hereunder, nor
does waiver of a breach or default under this Agreement constitute a continuing waiver of
subsequent breach of the same or any other provision of this License Agreement.
4.7 Entire Agreement. This Agreement constitutes the complete and exclusive statement of
the Agreement between Town and LGSR. No terms, conditions, understanding, or
agreements purporting to modify or vary this Agreement, unless hereafter made in writing
and signed by the party to be bound, shall be binding on either party.
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IN WITNESS WHEREOF, the Town and LGSR have executed this Use Agreement.
Town of Los Gatos:
Laurel Prevetti, Town Manager
Recommended by:
Nicolle Burnham
Director of Parks and Public Works
Los Gatos-Saratoga Recreation:
Nancy Rollett, Executive Director
Approved as to Form:
Gabrielle Whelan, Town Attorney
Attest:
Wendy Wood, CMC, Town Clerk
ATTACHMENT 1 Areas Included in this Agreement
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ATTACHMENT 1 Areas Included in this Agreement
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ATTACHMENT 1 Areas Included in this Agreement
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