Attachment 1Page 1 of 10
AGREEMENT BY AND BETWEEN THE TOWN OF LOS GATOS AND THE KIWANIS
CLUB OF LOS GATOS FOR THE LOS GATOS FIESTA DE ARTES
THIS Agreement is made and entered into this ____ day of May 2016, by and between the
Town of Los Gatos, a municipal corporation of the State of California (hereinafter “Town”), and
the Kiwanis Club of Los Gatos, a California nonprofit corporation (hereinafter KCLG").
WITNESSETH
WHEREAS, the Town has previously authorized the Kiwanis Club of Los Gatos to organize
and coordinate the “Los Gatos Fiesta de Artes” festival at the Los Gatos Civic Center grounds in
order to raise funds for scholarships, local schools, bike trail maintenance, and services for
seniors.
WHEREAS, to insure the Town will have adequate advance notice of “Los Gatos Fiesta de
Artes” festival and to adequately plan Town services and to preserve the Town’s commitment to
attract quality events with significant cultural and entertainment enrichment for the community
at-large an agreement is necessary; and
WHEREAS, KCLG is a local nonprofit agency that has shown its ability to organize and
coordinate this weekend festival and desires to enter into an agreement with the Town; and
WHEREAS, the Town desires to enter into an Agreement with KCLG to administer, and
coordinate the “Los Gatos Fiesta de Artes” festival (the “Event”) subject to the following terms
and conditions:
NOW, THEREFORE, THE PARTIES AGREE, as follows:
1. TERM OF AGREEMENT
The term shall commence upon the execution of this Agreement and shall terminate on
September 30, 2018. An amendment to this Agreement may be made to renew its term, pursuant
to Section 8, Terms and Amendments. Such amendment must be approved by the Town Council
prior to December 30, 2018.
2. EVENT DATES & TIMES
The Event will take place on a weekend mutually agreed upon between the parties in the month
of August. Set up shall be allowed to begin at 9:00 a.m. the Friday before the Event. Prior to
April 1st of each year, the parties shall mutually agree upon the date of the Event.
3. PREMISES
The Event shall take place on the grounds of the Civic Center, as designated on amap provided to
the Town Council for annual approval no later than June 1, and attached as Exhibit A (the
“Grounds”) to this agreement.
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4. SCOPE OF SERVICES
KCLG shall provide the following scope of services:
1. KCLG shall provide the Town annually with documentation establishing its non-profit
status.
2. KCLG agrees to plan, organize, produce and manage the Fiesta de Artes weekend festival
that provides a positive, high quality, social experience through music and arts for
families and community members.
3. KCLG shall be responsible for all financial costs and management services required for
production and promotion of the Event and raise funds sufficient to cover production
costs, through solicitation of sponsorships, merchandise sales and other fundraising
activities.
4. KCLG shall provide an adequate number of staff and volunteers to run the Event, and
cleaning after the Event.
5. KCLG shall maintain a clean, safe, and attractive environment for the Event.
6. KCLG shall reimburse the Town any and all fees to the American Society of Composers,
Authors and Publishers (ASCAP); Broadcast Music Inc. (BMI); and Society of European
Stage Authors and Composers (SESAC).
7. KCLG shall apply for and pay the non-profit Special Event Administrative Annual Fee in
the amount of $ 169.00 and an Annual Banner Fee of $90.60 to the Town which shall be
subject to annual adjustments set forth in the Town’s Master Fee Schedule. All other fees
and permits are waived by the Town unless specially set forth in this Agreement.
8. KCLG shall comply with all Alcohol Beverage Control (ABC) regulations and obtain all
necessary permits, including a Temporary Alcohol Sales Permit from the Los Gatos
Police Department and pay a permit as set forth in the Master Fee Schedule. KCLG shall
post signs noting the prohibition of alcoholic beverages outside the event site and provide
adequate fencing or barriers to prevent the carrying of alcohol outside of the event site.
KCLG shall provide security at each exit and entrance of the event to prevent
consumption of alcoholic beverages outside of the event and to monitor alcohol use and
compliance with alcohol use in accordance to the permits issued.
9. KCLG shall have security provided by the LGMSPD Explorers during the evening hours.
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10. KCLG shall obtain permission from property owners for the use of their parking lot areas
and provide signage indicating additional parking for event.
11. KCLG shall apply for and follow all conditions of the Sound Amplification Permit and
limit amplified sound between the hours of 10 a.m. and 8 p.m. and amplified sound shall
not exceed a noise level of 98 decibels, as measured from a distance of 300 feet from the
Civic Center grounds. If noise complaints are submitted to Town Staff, the Town
reserves the right to direct KCLG to reduce the volume level not to exceed 95 decibels, as
measured from a distance of 300 feet from the Civic Center grounds. The sound company
provided by KCLG shall provide industry standard sound measuring equipment and
establish that sound is within the limits.
12. KCLG shall encourage attendees of the Event to not interfere with pedestrian or vehicular
traffic in the area.
13. KCLG shall provide a best estimate of attendance for the Event for Town management
planning.
14. KCLG shall include clearly designated access throughout the site grounds for mobility
impaired attendees.
15. KCLG shall contract, transport, provide and pay for restrooms and modern full feature
hand wash stations at a ratio recommended by a rest room vendor. Restrooms shall be
delivered the day before the Event and picked up the morning after the Event.
16. KCLG shall pay for extra trash/recycle/glass containers and pick up costs as determined
and required by the Town. KCLG will also include the method of recycling of aluminum
and plastic and the company or organization responsible for the recycling. All containers
shall be cleared following the conclusion of the event. KCLG shall be responsible for the
cleanliness of the Grounds, including the removal of trash-refuse not contained in any
designated can before vacating the site for any single Event. Should KCLG fail to
perform adequate cleanup or damage occurs to Town property, the Town will invoice
KCLG at full recovery rates, plus overhead for cleanup and repair.
17. KCLG shall be responsible for notifying neighboring businesses and residences within
300 feet of the Event, to address any concerns, prior to the Event and provide proof of
notice to Event coordinator. Town shall provide KCLG with names and addresses of
businesses and residences affected by this requirement.
18. KCLG shall provide signage posted in the audience area prohibiting blankets and other
items that might interfere with the Event. KCLG shall not allow the unattended staking
of any spots and KCLG shall collect any articles in violation of this section and relocate
them to a convenient area that does not obstruct the flow of foot traffic.
19. KCLG shall pay the cost of one (1) uniformed police personnel assigned to the event per
day at a cost of $166.21 per hour for Police Personnel for the Event. Other than the one
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(1) uniformed police personnel, KCLG shall not require the use of other police personnel
outside their regularly scheduled deployment. If additional police are deemed necessary
by the Chief of Police, he/she shall so inform KCLG. Should the Event require extra
assignment of police personnel to protect public safety, then KCLG shall compensate the
Town at an hourly police officer rate established within the adopted fee schedule.
20. Sponsor shall be responsible for the cost of “no parking” signs at.46 cents a sign and for
removing all “no parking” signs and barricades and leaving the Civic Center and
surrounding area clean of all debris, signs, and tape or any materials used to adhere signs
immediately following event.
21. KCLG shall not close any streets or parking spaces unless clearly designated on Exhibit
“A”. A barricade with an attendant shall be placed at the entrance of any streets that are
barricaded off to vehicle access.
22. KCLG shall be responsible for any portion of Civic Center grounds that are damaged by
the act, default or negligence of KCLG, its agents, employees, contractors, sub-
contractors, patrons, guests, and will pay to the Town, within thirty (30) days of written
invoice, such actual and documented sum as shall be reasonably necessary to restore the
Civic Center grounds to its condition as received by KCLG at the beginning of the Event
Series, excluding normal wear and tear. In connection with the repairs and/or restoration
referenced herein, designated representatives of the parties shall conduct a walk-through
of pertinent areas of Civic Center grounds prior to the Event and again after the Event.
During the walk-through, the parties will assess and identify, as applicable, pre-existing
conditions and damages, if any, that may have occurred during KCLG’s use, and will
consult and agree in good faith as to what, if any, repair or restoration costs will be paid
for by KCLG.
23. KCLG agrees that the Town Manager or his/her designee reserves the right to adjust any
of the above conditions based on the conduct at the Event, as well as based on legitimate
complaints received by the Town from the community at large regarding the Event. The
Town agrees that any adjustment of the above conditions constitutes a change in this
Agreement and must be feasible for KCLG to accomplish. If any conditions the Town
adjusts are not feasible for KCLG, the parties shall meet to discuss a workable remedy. If
not possible, the particular Event in question may be cancelled by either party.
24. KCLG shall make certain all vendors are properly licensed through the Town of Los
Gatos and shall follow all conditions of approval related to food truck vendors presented
on the Special Event Permit application and understand that it is KCLG’s obligation to
abide by all conditions. KCLG is responsible for obtaining the one-day business license
application and two-day business license fee for each vendor participating at the event.
All applications should be filed with the Town no later than two weeks prior to the event.
KCLG shall convey to food truck vendors that operation elsewhere in Town or on other
days and times is prohibited. No more than five food truck vendors are permitted and
each shall obtain a Town Business License. Food trucks shall not advertise their presence
in the Town through social media or other promotions.
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25. KCLG shall meet all the standards as established by the Fire District.
26. KCLG shall meet all standards as established by the Health Department.
Town shall provide the following scope of services:
27. Town shall provide the use of Civic Center grounds for the Los Gatos Fiesta de Artes
festival.
28. Town shall provide electrical power to the stage area for the Event day.
29. Town shall allow KCLG to hang banners, with the payment of an Annual Fee,
advertising the Event. The size and location of any banners shall be subject to the Town
Banner Policy and subject to the Town Manager’s approval.
5. PROGRAM COORDINATION
The Town Manager or his /her designee shall be the Contract Manager for the Town and shall
render overall supervision of the progress and performance of this Agreement by the Town.
The Chairperson of KCLG, or a designated KCLG Board officer, shall be the Program Director
for KCLG, and shall have overall responsibility for the progress and execution of this Agreement
on its behalf. Should circumstances or conditions subsequent to the execution of this Agreement
require a substitute Program Director, the Town shall be notified immediately of such occurrence
in writing.
All notices or other correspondence required or contemplated by this Agreement shall be sent to
the parties at the following addresses:
TOWN:
Town Manager
Town of Los Gatos
110 E. Main Street
Los Gatos, CA 9503
KCLG:
Terry Martin
President and Chairperson
Kiwanis Club of Los Gatos
61 E. Main Street, Suite D
Los Gatos, CA 95030
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6. REPORTING
KCLG shall submit an annual report to the Town each year prior to October 1 on a Report Form
as provided by the Town and any relevant supporting documents shall be attached.
7. DEFAULT, CURE AND TERMINATION
KCLG shall be deemed to be in default of its obligations under this Agreement if the Contract
Manager determines that KCLG is providing services below the established minimum standard
of service set forth in this Agreement. In this Event, KCLG shall be notified in writing and
provided the opportunity to cure the default by providing the Town with a plan for improvement
of services required of KCLG by this Agreement provided hereunder within ten (10) business
days of receipt of written notice of the Town's determination of a default. Said plan shall address
each and every service issue referred to in the Town’s notice, providing the method for
improvement, an explanation, as necessary, for how the method will result in an improvement,
and a schedule for the actions necessary to ensure the planned improvement of services. The
Town shall review KCLG’s plan for improvement and determine within ten (10) business days
after receipt of the plan and at its sole discretion whether the plan is satisfactory to cure the
default. In the Event the plan is not deemed satisfactory, the Town may, at its sole discretion,
suspend or cancel this Agreement without incurring any liability to KCLG.
In addition to the above paragraph, this Agreement shall automatically terminate without a right
to cure upon the occurrence of any of the following circumstances:
1. If KCLG (with or without knowledge) has made any material misrepresentation of any
nature with respect to any information or data furnished to the Town.
2. The existence of pending litigation against KCLG that may in any manner affect its
ability to perform any of its duties or obligations under this Agreement.
3. KCLG taking any action requiring Town approval without first having obtained such
approval.
4. KCLG submits to the Town any reports that are purposely false or incomplete in any
material respect.
5. KCLG declares bankruptcy or otherwise indicates that it is no longer willing or able to
meet its obligations under this Agreement.
6. KCLG refuses to accept any additional conditions that may be imposed by federal or state
requirements.
7. The Town, at its sole discretion, determines there ares imminent health and safety issues
involved with the Event.
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8. ASSIGNABILITY AND INDEPENDENT CONTRACTOR REQUIREMENTS
The relationship of KCLG to the Town is that of an independent contractor. KCLG is responsible
for the results of its services and compliance with the terms of this Agreement. KCLG has full
rights to manage employees subject to the requirements of the law. All persons employed by
KCLG in connection with this Agreement shall be employees of KCLG and not employees of
the Town in any respect. KCLG shall be responsible for all employee benefits, including, but not
limited to, statutory workers' compensation benefits.
None of the work or services to be performed hereunder shall be delegated or subcontracted to
third parties without prior written Town approval. All subcontractors are deemed to be
contractors of KCLG, and KCLG agrees to be responsible for their performance and any
liabilities attached to their actions or omissions.
This Agreement is based on the unique services of KCLG. This Agreement shall not be assigned
or transferred without the written consent of the Town. No changes or variations of any kind are
authorized without the written consent of the Town Manager.
9. COMPLIANCE WITH LAW
KCLG shall comply with all applicable laws, codes, ordinances, and regulations of governing
federal, state, and local laws, ordinances, codes, regulations, and decrees. Failure of KCLG to,
in any manner, observe and adhere to law as described herein or as amended shall in no way
relieve KCLG of responsibility to adhere to same and KCLG herein acknowledges this
responsibility. KCLG represents and warrants to the Town that it has all licenses, permits,
qualifications and approvals of whatsoever nature which are legally required to practice its
profession and to provide the services required hereunder, including all licenses necessary to use
and or display any artistic works in the performance of the services required by this Agreement.
KCLG represents and warrants to Town that KCLG shall, at its sole cost and expense, keep in
effect or obtain at all times during the term of this Agreement any licenses, permits, and
approvals which are legally required to provide its services, including all licenses necessary to
use and or display any artistic works in the performance of the services required by this
Agreement.
10. TERMS AND AMENDMENTS
Amendments to the terms and conditions of this Agreement shall be requested in writing by the
party desiring such revision, and any such adjustment to this Agreement shall be determined and
effective only upon the mutual Agreement in writing of the parties hereto unless the
Amendments are made by the Town as corrective actions, in which case they will be adopted as
ordered.
11. LEGAL MATTERS
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This document, including Exhibits represents the entire and integrated Agreement between the
Town and KCLG, and supersedes all prior negotiations, representations, and agreements, either
written or oral.
The terms of this Agreement shall bind, and inure to the benefit of, the parties, their heirs,
successors, and assigns.
12. HOLD HARMLESS AND INDEMNIFICATION
KCLG hereby assumes full responsibility for the acts and conduct of all persons at the Town
Plaza during the Event and hereby releases and agrees to protect, defend, hold harmless, and
indemnify the Town, its Town Council, its officers, employees and elected officials, boards and
commissions, from and against all claims, injury, liability, loss, costs and expense, or damage,
however same may be caused, including all cost and reasonable attorney' s fees in providing the
defense to any claim arising therefrom, for any loss or damage to property (real and/ or personal)
and for personal injury to or death of any person or persons arising out of, occurring by reason
of, or in any way connected with KCLG's activities under this Agreement, or in consequence
thereof, except to the extent arising from the Town’s or its officers’, agents’, employees’ or
representatives’ gross negligence, willful misconduct or criminal act.
13. INSURANCE REQUIREMENTS
KCLG shall supply proof of General Liability (GL) insurance and Automobile Liability (AL)
insurance from an insurance company licensed to do business in the state of California and
having a financial rating in Best's Insurance Guide of not less than AA. Such insurance will
provide "occurrence" coverage against liabilities for death, personal injury or property damage
arising out of or in any way connected with the Event. Both the GL and AL insurance will be in
the minimum amount of $1,000,000.00 combined single limit, and will name the Town and the
Town officers, employees, agents, and registered volunteers as additional insured under the
coverage afforded. Such insurance will be primary and noncontributing with respect to any other
insurance available to the Town and will include a severability of interest (cross-liability) clause.
Each insurance policy required in this item shall be endorsed to state that coverage shall not be
suspended, voided, cancelled, 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. Current
certification of such insurance shall be kept on file at all times during the term of this agreement
with the Town Clerk.
In addition to these policies, Service Provider shall have and maintain Workers' Compensation
insurance as required by California law and shall provide evidence of such policy to the Town
before beginning services under this Agreement. Further, Service Provider shall ensure that all
subcontractors employed by Service Provider provide the required Workers' Compensation
insurance for their respective employees.
A copy of the policy or a certificate of insurance along with an additional endorsement naming
the Town as an Additional Insured must be filed in the Town Clerks Office at least ten (10)
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business days prior to the scheduled Event. The Additional Insured Endorsement, effective for
ongoing and completed operations, must be approved in advance by the Town.
14. MISCELLANEOUS PROVISIONS
This Agreement shall not be construed or deemed to be an Agreement for the benefit of any third
party or parties, and no third party shall have any claim or right of action hereunder for any cause
whatsoever.
In case any one or more of the provisions contained herein shall, for any reason, be held invalid,
illegal, or unenforceable in any respect, it shall not affect the validity of the other provisions
which shall remain in full force and effect.
Under no circumstances shall KCLG have the authority or power to pledge the credit of the
Town, or incur any obligation in the name of the Town. KCLG shall save and hold harmless the
Town, its Town Council, its officers, employees and boards and commissions from expenses
arising out of this Agreement.
In any dispute over any aspect of this Agreement, the prevailing party shall be entitled to
reasonable attorney's fees, as well as reasonable costs.
Neither KCLG nor any of its subcontractors shall discriminate in the employment of persons
because of their race, color, national origin, sex, age, ancestry, sexual orientation, religion,
physical or mental disability, or marital status, unless based upon a bona fide qualification under
the California Fair Employment and Housing Act. Neither KCLG nor any of its subcontractors
shall discriminate in the provision of any services or programs because of race, color, national
origin, sex, age, ancestry, sexual orientation, religion, physical or mental disability, or marital
status, unless based upon a bona fide qualification under the California Fair Employment and
Housing Act.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first
herein above set forth.
TOWN OF LOS GATOS KIWANIS CLUB OF LOS GATOS
____________________________ ___________________________
Laurel Prevetti Terry Martin
Town Manager President
APPROVED AS TO FORM
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____________________________
Robert Shultz
Town Attorney