Attachment 2 - Use Agreement West Valley Red Hawks Lacrosse Club
ATTACHMENT 2
Use Agreement
West Valley Red Hawks Lacrosse Club
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USE AGREEMENT
BETWEEN THE TOWN OF LOS GATOS
AND
WEST VALLEY RED HAWKS LACROSSE CLUB
THIS AGREEMENT is dated for identification this 1st day of July 2022 and is made by and between
TOWN OF LOS GATOS, State of California (“Town”) and WEST VALLEY RED HAWKS LACROSSE CLUB
(“Red Hawks”) identified as a nonprofit organization and whose address is 15151 Old Ranch Road,
Los Gatos, California 95033.
I. RECITALS
1.1 Town is the owner of Creekside Sports Park, located at 930 University Avenue, Los Gatos,
California.
1.2 The Red Hawks is a non-profit, club-sponsored program run by volunteers and parent
coaches established in 2004 to bring the sport of lacrosse to the Los Gatos-Saratoga area.
1.3 Red Hawks is an affiliate of the Northern California Junior Lacrosse Association (NCJLA) and
as such, its coaches, players, officials, and parents are required to abide by the United
States Lacrosse “Code of Conduct” that embodies basic common-sense principles,
demonstrates consideration of others, and projects a positive image to the boys and girls
that participate in their programs.
1.4 The Red Hawks were one of the community partners that supported the acquisition and
development of the Creekside Sports Park.
1.5 Town and Red Hawks each desire an agreement between them setting forth the specific
terms and conditions under which the Red Hawks may use the Creekside Sports Park,
including hours of use; responsibility for maintenance of the fields and adjacent grounds;
use and maintenance of associated facilities and structures; storage of Red Hawks goods
and equipment; and other related items.
II. AGREEMENTS
2.1 Subject Premises. The Premises covered by this Agreement is the Creekside Sports Park,
located at 930 University Avenue, Los Gatos, California. A drawing depicting the Premises
is attached hereto and incorporated by reference (Attachment A).
2.2 Use of Premises. Red Hawks shall have exclusive use of the Premises, except bathrooms
and parking, which are open to the public at large, only during those times and dates as
shown on “Annual Schedules”. The Annual Schedule shall cover camps and classes for the
Winter, Spring, Summer, and Fall sessions. No later than October 1st of each year this
Agreement is in force, Red Hawks and Town staff shall meet to develop an Annual
Schedule for the following calendar year. Town has the final say in establishing the master
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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. Town retains the right to use or authorize the use of the Premises for all dates
and times not allocated to Red Hawks in the Annual Schedule.
Red Hawks 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 during each calendar year. All changes should be made in writing no less than 30
days prior to the effective date of the change. The Town of Los Gatos shall have sole
authority to approve the Annual Schedule and any requested changes to the Annual
Schedule.
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, 2022 through June 30, 2027. The term of
this Agreement may be extended for up to two additional five-year periods upon mutual
written consent of the parties.
2.4 Annual Use Fee. Beginning July 1, 2022, and every year thereafter, Red Hawks shall pay
the Town of Los Gatos an Annual Use Fee for the use of the Premises. The initial Annual
Use Fee shall be $6,500. The Annual Use Fee shall be considered full and fair
compensation for the exclusive use of the facility for those days and times indicated on the
Annual Schedule. On July 1, 2023, 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.
2.5 Facility Maintenance Fee. Beginning July 1, 2022, and continuing for the full term of this
agreement, including any extensions, each participant in the Red Hawks Lacrosse program
using Creekside Sports Park will be charged a $4.00 Facility Maintenance Fee (FMF) per
season. The Facility Maintenance Fee shall be assessed by the Red Hawks at the time of
registration or any payment of program fees and shall be retained by the Red Hawks in a
separate account and remitted to the Town annually in conjunction with payment of the
Annual Use Fee, no later than July 1 of each year this agreement is in force. Participants
shall be charged an FMF for each distinct season at which registration and fees are
typically collected by the Red Hawks.
FMF revenue received by the Town from the Red Hawks shall be used solely to fund the
cost of maintenance and operations of the Premises.
2.6 Additional Annual Use Fee Adjustment. Should Red Hawks 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. In no case
shall the Annual Use Fee be decreased by more than 10% below the initial Annual Use Fee
set forth in Section 2.4.
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2.7 Maintenance. Red Hawks shall be responsible for the maintenance responsibilities set
forth in Attachment B, Maintenance Responsibilities.
2.8 Facility Use Policies. Red Hawks shall comply, without limitation, with all applicable
provisions of the Los Gatos Town Code, with special attention to Chapter 19, Parks and
Recreation provisions. Red Hawks 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 C, Town of Los Gatos Park
Rules and Regulations, and Attachment D, Town of Los Gatos Creekside Sports Park Special
Use Policies. The Red Hawks agrees to apply with the current rules and regulations
available at www.losgatosca.gov/parkres as well as any future amendments to those rules
and regulations. Failure to comply with these policies may result in suspension and/or
termination of this Agreement.
Red Hawks agrees to comply with the state “Fair Play in Community Sports Act.” Red
Hawks will not discriminate on the basis of gender and boys’ and girls’ teams will have
equal access to the facilities.
2.9 Payment. Red Hawks shall make all payments, whether or not invoiced by Town, required
pursuant to this Agreement no later than February 1 of each year payments are due. All
payments shall be mailed by first class mail or delivered in person at the Town office and
addressed as follows:
Town of Los Gatos
Attn: Finance Department
P.O. Box 697
Los Gatos, California 95031
2.10 Assignment. Red Hawks shall not assign any portion of this Agreement or allow the use of
the Premises by any other person or entity contrary to this Agreement's terms, with the
out Town's prior written approval. Red Hawks is expressly prohibited from use of the
Premises for any activity other than activities sanctioned and associated with Red Hawks.
2.11 Personal Property. Personal property of Red Hawks shall be Red Hawks’ sole responsibility
to acquire, repair, replace and store. Red Hawks shall remove its personal property at the
expiration or termination of this Agreement. Any personal property not so removed shall
become the sole property of Town with no compensation
III. INSURANCE AND INDEMNIFICATION
3.1 Minimum Scope of Insurance:
i. Red Hawks agrees to have and maintain for the duration of this Agreement,
General Liability insurance policies insuring Red Hawks, its elected and
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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. Red Hawks agrees to have and maintain for the duration of this Agreement,
an Automobile Liability insurance policy insuring the Red Hawks, 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. Red Hawks shall provide to the Town all certificates of insurance, with
original endorsements effecting coverage. Red Hawks 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 Red Hawks.
ii. Red Hawks 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 Red Hawks’
insurance and shall not contribute with it.
iii. Any failure to comply with the reporting provisions of the policies shall not
affect coverage provided to the Town, its elected and appointed officials,
employees or volunteers.
iv. Red Hawks 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.
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 Red Hawks 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, Red Hawks shall have and maintain
Workers’ Compensation insurance as required by California law. Further, Red Hawks shall
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ensure that all contractors employed on the Premises by the Red Hawks provide the
required Workers’ Compensation insurance for their respective employees.
3.4 Property Insurance. Town shall have no obligation to maintain any insurance of the
Premises or any personal property placed on the Premises. Red Hawks shall be solely
responsible for obtaining whatever insurance coverage that Red Hawks believes may be
appropriate to protect and indemnify Red Hawks for loss to the Premises or to any
personal property that Red Hawks may place on the Premises.
3.5 Indemnification. Red Hawks 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 Red Hawks’ use of the Premises, including
use by anyone that the Red Hawks 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 the destruction or damage to the Premises, the Premises is entirely
unsuitable or inadequate for the use specified herein, Red Hawks shall be entitled to a pro
rata rebate of the fee paid to the Town calculated by dividing the Annual User Fee by the
total number of hours of exclusive use as listed in, Annual Schedule and then multiplying
this calculated hourly rate by the number of hours remaining on the Annual Schedule after
the date of the damage or destruction of the Premises.
Under no circumstances does the Town have any obligation to provide Red Hawks with an
alternative property to conduct its operations, and Red Hawks is solely responsible for
obtaining such insurance as Red Hawks deems appropriate to protect its interests should
damage or destruction to the Premises occur.
Red Hawks shall be liable for any loss, damage or injury to the field and/or Premises as a
result of the direct or indirect use of the Premises by Red Hawks under this agreement.
Compliance with Town Codes. Red Hawks shall comply with all provisions of the Town
Code, including the provisions of Chapter 19 of the Code concerning Parks and
Recreations.
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4.2 Compliance with Town Codes. Red Hawks shall comply with all provisions of the Town
Code, including the provisions of Chapter 19 of the Code concerning Parks and
Recreations.
4.3 Termination of Agreement. Should Town terminate prior to the end of the term of this
Agreement, Red Hawks shall be entitled to a pro rata rebate of the Annual Use Fee
calculated by dividing the Annual User Fee by the total number of hours of exclusive use as
shown in, Annual Schedule and then multiplying this calculated hourly rate by the number
of hours remaining on the Annual Schedule after the effective date of termination.
Red hawks shall promptly terminate its use of the Premises at the termination 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. All
improvements and alterations made by Red Hawks shall become the property of the Town
upon termination of the Agreement without compensation by Town. Any personal
property not removed by Red Hawks within thirty (30) days of the termination of this Use
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 Red Hawks will work cooperatively to develop a
written plan for transition of services and vacation of Premises by Red Hawks.
In the event of any material default or breach by Red Hawks, 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 Red Hawks’ right to possession of the Premises by any lawful means, in which
case this Agreement shall terminate, and Red Hawks shall immediately surrender
possession of the Premises to Town. In such event, Town shall be entitled to recover from
Red Hawks any damages incurred by Town by reason of RedHawks’ default including but
not limited to the cost of recovering possession of the Premises and reasonable attorneys’
fees.
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.
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Red Hawks 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 Red Hawks is evicted or Town otherwise lawfully takes possession of the Premises
by reason of any default or breach of this Agreement by Red Hawks.
If Red Hawks fails to remove any personal property belonging to Red Hawks from the
Premises after forty-five (45) days of the expiration or termination of this Agreement, such
property shall at the option of the Town be deemed to have been transferred to Town.
Town shall have the right to remove and dispose of such property without liability to Red
Hawks or to any person claiming under Red Hawks, and the Town shall have no need to
account of such property.
4.4 No Property Rights. Nothing in this Agreement is in any way intended to establish, convey,
create or otherwise grant to Red Hawks any form of property rights in the Premises, nor
shall such rights be established, conveyed, created or otherwise granted by Red Hawks use
of the Premises pursuant to the Agreement. Red Hawks 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 Disputes. In any dispute over any aspect of this Agreement, the prevailing party shall be
entitled to reasonable attorney's fees, including costs of appeal.
4.6 Notices. Any written correspondence or Notices given under this Agreement shall be
addressed as follows:
To Red Hawks: To the Town:
President Director
West Valley Red Hawks Lacrosse Club Department of Parks and Public Works
15151 Old Ranch Road Town of Los Gatos
Los Gatos, CA 95033 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.
4.7 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.
4.8 Entire Agreement. This Agreement constitutes the complete and exclusive statement of
the Agreement between Town and Red Hawks. 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 Red Hawks have executed this Use Agreement.
Town of Los Gatos:
Laurel Prevetti, Town Manager
Recommended by:
Nicolle Burnham
Director of Parks and Public Works
West Valley Red Hawks Lacrosse Club:
Robert H. Bohn, Jr., President
Approved as to Form:
Gabrielle Whelan, Town Attorney
Attest:
Wendy Wood, CMC, Town Clerk