2011032102 - Billy Jones Wildcat Railroad'�N4 N O
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..i�\ COUNCIL AGENDA REPORT
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DATE: MARCH 21, 2011
MEETING DATE: 3/21/2011
ITEM NO:
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TO: MAYOR AND TOWN COUNCIL
FROM: GREG LARSON, TOWN MANAGER
SUBJECT: BILLY JONES WILDCAT RAILROAD AGREEMENT
A. AUTHORIZE THE TOWN MANAGER TO EXECUTE THE LEASE
AGREEMENT BETWEEN THE TOWN OF LOS GATOS AND BILLY
JONES WILD CAT RAILROAD.
B. AUTHORIZE A ONE -TIME PAYMENT TO BILLY JONES WILDCAT
RAILROAD OF $13,000 TO OFF -SET SOIL DISPOSAL COSTS
ASSOCIATED WITH TRACK REPAIR WORK CONDUCTED IN 2010.
RECOMMENDATION
1. Authorize the Town Manager to execute the Lease Agreement between the Town of
Los Gatos and Billy Jones Wildcat Railroad.
2. Authorize a one -time payment to Billy Jones Wildcat Railroad of $13,000 to off -set
soil disposal costs associated with track repair work conducted in 2010.
BACKGROUND
Billy Jones Wildcat Railroad has been providing railroad and carousel operations at Oak
Meadow Park under a license agreement with the Town since 1968. The license
agreement has been extended twice, and expired on December 31, 2009. The Town and
Los Gatos Billy Jones Wildcat Railroad each desire a new agreement between them
setting forth the specific lease terms for their facilities within Oak Meadow Park,
including the responsibility for the costs related to utilities, and the circumstances under
which Billy Jones Wildcat Railroad may make capital improvements to their facilities.
PREPARED BY : TODD CAPURSO
Director of Parks and Public Works
Reviewed by: ' � Assistant Town Manager Town Attorney
Clerk Administrator �°� F ance Community Development
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PAGE 2
MARCH 21, 2011
MAYOR AND TOWN COUNCIL
SUBJECT: BILLY JONES WILDCAT RAILROAD AGREEMENT
DISCUSSION
Negotiations with Billy Jones Wildcat Railroad on the terms of this Lease Agreement
have focused on the terms for lease of the buildings and land at Oak Meadow Park
identified for operation of the railroad and carousel. The main proposed terms of the
lease agreement are as follows:
1. The initial term of the agreement is 10 years, with an option of two renewal
periods of 5 years each.
2. Billy Jones Wildcat Railroad will pay $1 /year in rent for the use of land and
facilities at Oak Meadow Park related to railroad and carousel operations.
3. Billy Jones Wildcat Railroad is responsible for the cost of all utilities provided
directly to their operations (for utilities metered separately), and 50% of
electrical utilities for - the park — until such time that a separate electrical
service and /or meter is available.
4. Billy Jones Wildcat Railroad will be responsible for the maintenance of their
buildings associated with the operation of the railroad and carousel operations.
5. All tenant improvements must be approved by the Town Manager, and will be
made at the expense of Billy Jones Wildcat Railroad.
In 2010, Billy Jones Railroad performed a track replacement project that resulted in the
disruption of several hundred yards of contaminated soil. This work occurred in the
section of Vasona Park that the County had recently purchased from the Town. Staff
worked closely with Billy Jones and County officials to dispose of the soil locally, but the
material ultimately had to be shipped out of state, resulting in a disposal cost of
approximately $127,000. These costs have significantly impacted Billy Jones Railroad.
County Supervisor Mike Wasserman convened a meeting with County parks, Billy Jones
Wildcat Railroad, and Town staff to discuss options to assisting with the costs associated
with the disposal. At that meeting, Supervisor Wasserman requested that the Town
consider reimbursing Billy Jones Wildcat Railroad for 10 % of the disposal costs, and that
the County reimburse another 40 %.
CONCLUSION:
Staff is recommending that the Town Council authorize the Town Manager to execute the
Lease Agreement between Town of Los Gatos and Billy Jones Wildcat Railroad, and
authorize a one -time payment of $13,000 to off -set soil disposal costs associated with
track repair in 2010.
PAGE 3
MARCH 21, 2011
MAYOR AND TOWN COUNCIL
SUBJECT: BILLY JONES WILDCAT RAILROAD AGREEMENT
FISCAL IMPACT (cont'd.):
The Town will be responsible for a one -tune payment of $13,000 to Billy Jones Wildcat
Railroad to help off -set soil disposal costs associated with track repair work that occurred
in 2010. There are sufficient funds in the Town's FY 2010/11 Operating Budget to cover
this cost.
ENVIRONMENTAL REVIEW:
The recommended action is not a project defined under CEQA, and no further action is
required.
Attachments:
1. Proposed Lease Agreement between Town of Los Gatos and Billy Jones Wildcat Railroad for
use of land and facilities at Oak Meadow Park.
THIS PAGE
INTENTIONALLY
LEFT BLANK
LEASE AGREEMENT
BETWEEN
TOWN OF LOS GATOS
AND
BILLY JONES WILDCAT RAILROAD INC.
This lease agreement (herein "Lease ") is made and entered into this day of ,
2011, by and between the TOWN OF LOS GATOS, a California municipal corporation (herein
"Town ") and BILLY JONES WILDCAT RAILROAD INC., a non -profit corporation of the
State of California (herein "Lessee "). Town and Lessee may be referred to individually as a
"Party" or collectively as the "Parties" or the "Parties to this Lease."
RECITALS
The Town is the owner of Oak Meadow Park, located at 233 Blossom Hill Road.
Lessee is a non- profit corporation of the State of California, operating the Bill Jones Wildcat
Railroad, Carousel, and associated concessions within Oak Meadow Park.
Lessee has operated the miniature railroad through a license agreement with the Town of Los
Gatos and Santa Clara County since 1968.
Town and Lessee each desire that Lessee continue to conduct miniature railroad and carousel
operations at Oak Meadow Park.
Town and Lessee each desire a new agreement between them setting forth in specific terms the
circumstances under which Lessee may use the land and buildings at Oak Meadow Park,
responsibility for maintenance of the facilities, responsibility for the costs related to utilities, and
the circumstances under which Lessee may make capital improvements to the facilities.
In consideration of these recitals and the following covenants, terms, and conditions, Lessee and
Town mutually agree as follows:
LEASE PROVISIONS
1. PREMISES
Town hereby leases to Lessee, certain real property located in the Town of Los Gatos,
County of Santa Clara, State of California, commonly known as a portion of Oak
Meadow. Park (herein the "Premises ") and more particularly described in Exhibit A
attached hereto and incorporated herein by reference. The Premises consists of land in
Oak Meadow Park, which houses a railroad depot, engine storage and shop building,
carousel building, railroad bridge, and tracks. Unless specifically provided, Lessee
accepts the Premises "as -is" on the date of execution of this Lease.
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2. TERM
2.1 Original Term The term of this Lease shall be for ten (10) years, commencing on
April 1, 2011 ( "Delivery Date ") and ending on March 31, 2021, unless extended in
writing or sooner terminated. Lessee shall, at the expiration of the term of this Lease, or
upon its earlier termination, surrender the Premises in as good condition as it is now at
the date of this lease, reasonable wear and tear and damage by age and the elements
excepted.
2.2 Option to Extend Provided Lessee is not in default hereunder, either at the time of
exercise or at the time the extended term commences, Lessee shall have the option to
extend the initial term of this Lease for two (2) additional periods of five (5) years each
( "Option Period ") . Lessee's option shall be automatically exercised without prior notice
unless one of the parties objects to either extension in writing no less than sixty (60) days
prior to the expiration of the then current term, in which event this Lease shall terminate
at the expiration of the then current term.
2.3 Early Termination by Town If Town in its sole discretion determines that it requires
the Premises for any public purpose, Town may terminate this Lease upon one hundred
eighty (180) days written notice. In the event of an emergency, Town may terminate this
Lease upon five (5) days written notice. "Emergency, for the purposes of this
paragraph, is defined as when the Town Council declares a State of Emergency. Upon
termination of this Lease in the event of an emergency, Town and Lessee will work
cooperatively to develop a written plan for transition of services and vacation of Premises
by Lessee.
2.4 Early Termination by the Parties Either Party may choose to terminate this Lease
upon one hundred eighty (180) days written notice to the other Party.
3. RENT
3.1 Base Rent The rent to be paid by Lessee shall beset at $1 /year.
3.2 Payment Date /Late Charge Rent shall be payable in full on July l of each year.
The first payment of Rent in the amount of $1.00 for the period from April 1, 2011
through June 30, 2012 shall be payable upon signing of this Lease. Payment shall be
delivered to Town of Los Gatos, Finance Department, 110 E. Main Street (or P.O. Box
655), Los Gatos, CA 95030.
4. USE OF PREMISES
4.1 Required Uses Throughout the term of this Lease, Lessee shall provide the
following uses, services and activities ( "Required Uses "):
4. 1.1 Uses consistent with Lessee's business purposes limited to the operation and
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maintenance of the Billy Jones Wildcat Railroad Inc..
4.2 Prohibited Uses Lessee shall not use Premises for any purpose not expressly
permitted hereunder. Lessee shall not create, cause, maintain or permit any nuisance or
waste in, on, or about the Premises, or permit or allow the Premises to be used for any
unlawful or immoral purpose. Lessee shall not do or permit to be done anything in any
manner which unreasonably disturbs the occupants of neighboring property. Specifically,
and without limiting the above, Lessee agrees not to cause any unreasonable odor, noise,
vibration, power emission, or other item to emanate from the Premises. Lessee will not
use Premises in a manner that increases the risk of fire, cost of fire insurance or
improvements thereon. No unreasonable sign or placard. shall be painted, inscribed or
placed in or on said Premises; and no tree or shrub thereon shall be destroyed or removed
or other waste committed of said Premises.' No bicycles, motorcycles, automobiles or
other mechanical means of transportation other than those owned by Lessee shall be
placed or stored anywhere on the Premises except for the equipment building.
4.3 Condition, Use of Premises Except as otherwise expressly stated in this Lease,
Town makes no warranty or representation of any kind concerning the condition of the
Premises; or the fitness of the Premises for the use intended by Lessee, and hereby
disclaims any personal knowledge with respect thereto, it being expressly understood by
the parties that Lessee has personally inspected the Premises, knows its condition, finds it
fit for Lessee's intended use, accepts it as is, and has ascertained that it can be used
exclusively for the limited purposes specified in Section 5.1.
5. HAZARDOUS MATERIALS
5.1 Hazardous Materials Defined The term "Hazardous Material(s)" shall mean any
toxic or hazardous substance, material or waste or any pollutant or contaminant, or
infectious or radioactive material, including but not limited to, those substances,
materials, or wastes regulated now or in the future under any of the following statutes or
regulations and any and all of those substances included within the definitions of
"hazardous substances," "hazardous waste," "hazardous chemical substance or mixture,"
"imminently hazardous chemical substance or mixture," "toxic substances," "hazardous
air pollutant," "toxic pollutant" or "solid waste" in the (a) CERCLA or Superfund as
amended by SARA, 42 U.S.C. Sec. 9601 et seq., (b) RCRA, 42 U.S.C. Sec. 6901 et seq.,
(c) CWA., 33 U.S.C. Sec. 1251 et seq., (d) CAA, 42 U.S.C. 78401 et seq., (e) TSCA, 15
U.S.C. Sec. 2601 et seq., (f) The Refuse Act of 1899, 33 U.S.C. Sec. 407, (g) OSHA, 29
U.S.C. 651 et seq. (h) Hazardous Materials Transportation Act, 49 U.S.C. Sec. 1801 et
seq., (i) USDOT Table (40 CFR Part 302 and amendments) or the EPA Table (40 CFR
Part 302 and amendments), .0) California Superfund, Cal. Health & Safety Code Sec.
25300 et seq., (k) Cal. Hazardous Waste Control Act, Cal. Health & Safety. Code Section
25100 et seq., (1) Porter- Cologne Act, Cal. Water Code Sec. 13000 et seq., (m)
Hazardous Waste Disposal Land Use Law, Cal. Health &.Safety Code Sec. 25220 et seq.,
(n) Proposition 65, Cal. Health and Safety Code Sec. 25249.5 et seq., (o) Hazardous
Substances Underground Storage Tank Law, Cal. Health & Safety Code Sec. 25280 et
seq., (p) California Hazardous Substance Act, Cal. Health & Safety Code Sec. 28740 et
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seq., (q) Air Resources Law, Cal. Health & Safety Code Sec. 39000 et seq., (r) Hazardous
Materials Release Response Plans and Inventory, Cal. Health & Safety Code Secs.
25500- 25541, (s) TCPA, Cal. Health and Safety Code Secs. 25208 et seq., and (t)
regulations promulgated pursuant to said laws or any replacement thereof, or as similar
terms are defined in the federal, state and local laws, statutes, regulations, orders or rules.
Hazardous Materials shall also mean any and all other substances, materials, and wastes
which are, or in the future become, regulated under applicable local, state or federal law
for the protection of health or the environment, or which are classified as hazardous or
toxic substances, materials or wastes, pollutants or contaminants, as defined, listed or
regulated by any federal, state or local law, regulation or order or by common law
decision, including without limitation: (i) trichloroethylene, tetracholo ethylene,
perchloro ethylene and other chlorinated solvents; (ii) any petroleum products or fractions
thereof; (iii) asbestos, (iv) polychlorinated biphenyls; (v) flaminable explosives; (vi) urea
formaldehyde; and, (vii) radioactive materials and waste.
5.2. Compliance with Laws
Lessee shall use, store and dispose of any Hazardous Materials (as defined in this Section
5) in reasonable quantities and necessary only to operate or maintain the Billy Jones
Wildcat Railroad Inc. Lessee shall obtain and maintain any permit (local, State or
Federal) required for the use, storage or disposal of Hazardous Materials. Lessess shall
be obligated to fife a Hazard Materials Business Plan, if required by County. Lessee shall
complete and submit a list of all Hazardous Materials, including quantity, used or stored
on Premises to Town on July 1 St of each year during the term of this Lease. The Premises
shall be subject to reasonable inspections by Town or County Fire personnel at all times
during this Lease to insure that Hazardous Materials are being properly used, maintained
and disposed. Lessee shall not dispose of any Hazardous Materials on the Premises at
any time during this Lease.
5.3 Termination of Lease Town shall have the right to terminate the Lease in Town's
sole and absolute discretion in the event that: (i) any anticipated use of the Premises by
Lessee involves the generation" or storage, use, treatment, disposal, or release of
Hazardous Material in a manner or for a purpose prohibited or regulated by any
governmental agency, authority, or Hazardous Materials Laws; (ii) Lessee has been
required by any lender or governmental authority to take remedial action in connection
with Hazardous Material contaminating the Premises, if the contamination resulted from
Lessee' s action or use of the Premises; or (iii) Lessee is subject to an enforcement order
issued by any governmental authority in connection with the release, use, disposal, or
storage of a Hazardous Material on the Premises.
5.4 Assignment and Subletting Lessee shall not assign or sublet the Premises.
5.5 Hazardous Materials Indemnity Lessee shall indemnify, defend (by counsel
reasonably acceptable to the Town), protect, and hold the Town ( "Indemnified Party)
harmless from and against any and all claims, liabilities, penalties, forfeitures, losses,
and /or expenses, including without limitation, diminution in value of the Premises,
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damages for the loss or restriction on use of the rentable or usable space or of any
amenity of the Premises, damages arising from any adverse impact or marketing of the
Premises and sums paid in settlement of claims, response costs, cleanup costs, site
assessment costs, attorneys' fees, consultant and expert fees, judgments, administrative
rulings or orders, fines, costs of death of or injury to any person, or damage to any
property whatsoever (including, without limitation, groundwater, sewer systems, and
atmosphere), arising from, caused, or resulting, either prior to or during the Lease Term,
in whole or in part, directly or indirectly, by the presence or discharge in, on, under, or
about the Premises by the Lessee, its agents, employees, licensees, or invitees or at the
Indemnifying Party's direction, of Hazardous Material, or by the Indemnifying Party's
failure to comply with any Hazardous Materials Law, whether knowingly or by strict
liability. For purposes of the indemnity provided herein, any acts or omissions of an
Lessee or its employees, agents, customers, sub lessees, assignees, contractors, or
subcontractors (whether or not they are negligent, intentional, willful or unlawful) shall
be strictly attributable to the Lessee. Lessee's obligations shall include, without
limitation, and whether foreseeable or unforeseeable, all costs of any required or
necessary Hazardous Materials management plan, investigation, repairs, cleanup or
detoxification or decontamination of the Premises, and the presence and implementation
of any closure, remedial action or other required plans, and shall survive the expiration of
or early termination of the Lease Term.
5.6 ' Town's Rikht to Perform Tests At any time prior to the expiration of the Lease
Term, Town shall have the right to enter upon the Premises in order to conduct tests of
water and soil. Before exercising such right, Town shall give Lessee not less than three
(3) days prior notice. Town agrees to exercise such right in a manner which is reasonably
calculated to cause as little disturbance as possible to Lessee..
6. UTILITIES AND OPERATING EXPENSES
Lessee at Lessee's sole expense shall fully and promptly pay for all expenses associated
with the operation of the Premises, including but not limited to the furnishing of gas,
water, sewer, telephone service, garbage pickup and disposal, other public utilities and
custodial service. Electricity is currently provided to the premises by a shared meter with
the Town. Lessee shall pay for 50 % of the monthly Electric Use for Oak Meadow Park.
If at some point in the future dedicated metering is provided, Lessee shall be responsible
for electricity costs associated with their use of the property. Town, at its sole expense,
shall maintain all exterior landscaping in a good and attractive condition.
7. TAXES.
7.1 Revenue and Taxation Code Lessee specifically acknowledges it is familiar with
section 107.6 of the California Revenue and Taxation Code. Lessee realizes that a
possessory interest subject to property taxes may be created, agrees to pay any such tax,
and hereby waives any rights Lessee may have under said California Revenue and
Taxation Code section 107.6.
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7.2 Personal Property Taxes Except for real property taxes (the payment of which is
governed by Section 8.2), Lessee shall pay before delinquent, or if requested by Town,
reimburse Town for, any and all taxes, fees, and assessments associated with the
Premises, the personal property contained in the premises and other taxes, fees, and
assessments regarding any activities which take place at the Premises.
8. MAINTENANCE
8.1 Town and Lessee Responsibilities Lessee at Lessee's expense, shall perform all
interior maintenance and repairs, including all painting, necessary to keep the Premises in
first -class order, repair, and condition, and shall keep the Premises in a safe, clean,
wholesome, and sanitary condition in compliance with all applicable laws, throughout the
term of this Lease. Lessee shall also be required to make structural repairs or
replacements or repairs or replacements to building systems (e.g., plumbing, electrical,
water, sewer, etc.).
8.2 Maintenance and Repairs Lessee farther agrees that if and when any repairs shall be
made by Lessee as. required by Section 8. 1, Lessee shall promptly pay for all labor done
or materials furnished and shall keep the Premises free and clear of any lien or
encumbrance of any kind whatsoever; provided, that Lessee may contest and such lien by
appropriate proceedings and in a manner which stays the enforcement of such lien. If
Lessee fails to make any repairs or perform any maintenance work for which Lessee is
responsible within a reasonable time (as determined by the Town Manager in the Town
Manager's sole discretion) after demand by the Town, Town shall have the right, but not
the obligation, to make the repairs at Lessee's expense; within ten (10) days of receipt of
a bill, Lessee shall reimburse Town for the cost of such repairs, including a fifteen
percent (15 %) administrative overhead fee. The making of such repairs or performance
of maintenance by Town shall in no event be construed as a waiver of the duty of Lessee
to make repairs or perform maintenance as provided in this Section. Any changes or
alterations to the Premises other than routine maintenance and repair may require public
bidding. If public bidding is required under the California Public Contracts Code, Lessee
shall be responsible for all costs associated with the public bidding process. Lessee
expressly waives the benefit of any statute now or hereinafter in effect, including the
provisions of sections 1941 and 1942 of the Civil Code of California, which would
otherwise afford Lessee the right-to make repairs at Town's expense.
83 Maintenance of Common Areas Town, at its expense, shall maintain or cause to be
maintained, including repair and replacement as necessary, the parking lot associated
with the park, as well as the pathways leading to the railroad and carousel buildings.
9. TENANT IMPROVEMENTS.
9.1 Improvements Permitted Subject to prior written approval of the Town Manager,
which shall not be unreasonably withheld, Lessee shall be entitled to install
improvements in an efficient and workmanlike manner within the Premises, at no cost to
Town.
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9.2 Cost of Improvements All improvements shall be made at Lessee's sole expense,
including expenses related to any requirement to utilize the public bidding process, .
9.3 Ownership of Improvements All improvements constructed, erected, or installed
upon the Premises must be free and clear of all liens, claims, or liability for labor or
material and shall become the property of Town, at its election, upon expiration or earlier
termination of this lease and upon Town's election, shall remain upon the Premises upon
termination of this Lease. Title to all equipment, furniture, furnishings, and trade fixtures
placed by Lessee upon the Premises shall remain in Lessee, and replacements,
substitutions and modifications thereof may be made by Lessee throughout the term of
this Lease. Lessee may remove such fixtures and furnishings at any time during the term
of this Lease and upon termination of this Lease if Lessee is not then in default under this
Lease, provided that Lessee shall repair to the satisfaction of Town any damage to the
Premises and improvements caused by such removal and provided that usual and
customary lighting, plumbing and heating fixtures shall remain upon the Premises upon
termination of this Lease.
9.4 Indemnity for Claims Arising Out of Construction Lessee shall defend and
indemnify Town against all claims, liabilities, and losses of any type arising out of work
performed on the Premises by Lessee, together with reasonable attorneys' fees and all
costs and expenses reasonably incurred by Town in negotiating, settling, defending or
otherwise protecting against such claims.
9.5 Certificate of Inspection Upon completion.of construction of any building, Lessee
shall submit to the Town Manager a Certificate of Inspection, verifying that the
construction was completed in conformance with Title 20 of the California Code of
Regulations for residential construction, or in conformance with Title 24 of the California
Code of Regulations for non - residential construction.
9.6 As Built Plans Lessee shall provide the Town Manager with a complete set of
reproducible "as built plans" reflecting actual construction. within or upon the Premises
upon completion of any: (i) new construction; (ii) structural alterations; or, (iii) non-
structural alterations costing more than $25,000.
10. HOLD HARMLESS /INDEMNIFICATION
10.1 Indemnification To the extent permitted by law, Lessee agrees to protect, defend,
hold harmless and indemnify the Town, its elected and appointed officials, commissions,
officers, agents, volunteers, and employees from and against any claim, injury, liability,
loss, cost, and /or expense or damage, however same may be caused, including all costs
and reasonable attorney's fees in providing a defense to any claim arising therefrom for
which the Town shall become legally liable arising from Lessee's negligent, reckless, or
wrongful acts, errors, or omissions with respect to or in any way connected with this
Lease. Lessee and Town shall both provide the other Party immediate notice of any
claim, loss or liability hereby indemnified against. This indemnity provision shall be in
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addition to the Hazardous Materials indemnity contained in this Lease and shall survive
shall survive the expiration of or early termination of the Lease Tenn.
10.2 Waiver of Claims Lessee waives any claims against the Town for injury or
damages to Lessee' business or any loss of income therefrom, for damage to Lessee's
property, or for injury or death of any person in or about the Premises or the Town
Property, from any cause whatsoever, except to the extent caused by the Town's willful
misconduct.
11. DAMAGE, DESTRUCTION AND TERMINATION.
11.1 Restoration of Premises by Lessee
11.1.1 Destruction Due to Risk Covered by Insurance If, during the term of the
Lease, the Premises are totally or partially destroyed from a risk covered by the
insurance described in Section 18 (Insurance), rendering the Premises totally or
partially inaccessible or unusable, Lessee shall restore the Premises, at their
option if they wish to continue to operate, to substantially the same condition as it
was in immediately before destruction, to the extent possible based on the
insurance proceeds received by Lessee, it being agreed that Lessee shall not be
obligated to expend more than the amount of the insurance proceeds received in
restoring the Premises. All applicable insurance proceeds must be directed
toward this purpose. Such destruction shall not terminate this Lease. If the laws
existing at that time do not permit the restoration, either party can terminate this
Lease immediately by giving notice to the other party.
A. Minor Loss If, during the term of this Lease, the Premises are
destroyed from a risk covered by the insurance described in Section 18
(Insurance), and the total amount of loss does not exceed twenty thousand
dollars ($2.0,000), Lessee shall make the loss adjustment with the
insurance company insuring the loss. The proceeds shall be paid directly
to Lessee for the sole purpose of making the restoration of the Premises in
accordance with this Lease.
B. Major Loss - Insurance Trustee If, during the term of this Lease, the
Premises are destroyed from a risk covered by the insurance described in
Section 18 (Insurance), and the total amount of loss exceeds the amount
set forth in paragraph (A), Lessee shall make the loss adjustment with the
insurance company insuring the loss and on receipt of the proceeds shall
immediately pay them to Town.
11.1.2 Destruction Due to Risk Not Covered by Insurance If, during
the term, the Premises are totally or partially destroyed from a risk not
covered by the insurance described in Section 18 (Insurance), rendering
the Premises totally or partially inaccessible or unusable, Lessee shall
restore the Premises, at their option if they wish to continue operations, to
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substantially the same condition as it was in immediately before
destruction, to the extent possible based on the insurance proceeds
received by Lessee. All applicable insurance proceeds must be directed
toward this purpose whether or not the insurance proceeds are sufficient to
cover the actual cost of restoration. Such destruction shall not terminate
this Lease. If the laws existing at that time do not permit the restoration,
either party can terminate this Lease immediately by giving notice to the
other party.
11.1.3 Procedure for Restoring Premises If Lessee decides to continue
operations and to restore the Premises, then within sixty (60) days Lessee, at its
own cost, shall prepare final plans, specifications, and working drawings
complying with applicable Laws that will be necessary for restoration of the
Premises. The plans, specifications, and working drawings must be approved by
Town, which approval will not be unreasonably withheld. Town shall have thirty
(30) days after receipt of the plans and specifications and working drawings to
either approve or disapprove the plans, specifications, and working drawings and
return them to Lessee. If Town disapproves the plans, specifications, and
working drawings, Town shall notify Lessee of its objections and Town's
proposed solution to each objection. Lessee acknowledges that the plans,
specifications, and working drawings shall be subject to approval of the
appropriate governmental bodies and that they will be prepared in such a manner
as to obtain that approval. Lessee's restoration shall be subject to all applicable
laws, Town standards, permits and fees for construction.
11. 1.4 Demolition. If Lessee decides not to restore the Premises after damage or
destruction, partial or complete, then Lessee, at its sole expense shall obtain
permits and demolish any remaining structures and return the site to its original
condition, without any structures. Site should be returned to Town in a clean,
uncontaminated condition, free from any structures or Lessee improvements.
11.2 Force Majeure Prevention, delay or stoppage due to strikes, lockouts, labor
disputes, Acts of God, inability to obtain labor, inability to obtain materials or reasonable
substitutes, governmental restrictions, governmental regulation, governmental controls,
judicial orders, enemy or hostile governmental actions, civil commotion, fire or other
casualty, and other causes beyond the reasonable control of Lessee (financial inability
excepted), shall excuse the performance by Lessee for a period equal to the prevention,
delay, or stoppage, except the obligations imposed with regard to rent to be paid by
Lessee pursuant to this Lease. In the event any work performed by Lessee or Lessee's
contractors results in a strike, lockout, and /or labor dispute, the strike, lockout, and /or
labor dispute shall not excuse the performance by Lessee of the provisions of this Lease.
12. SIGNS AND MARKETING
12.1 Lessee shall not place, construct, maintain, or allow any signs upon the exterior of
the Premises without prior written consent of the Town Manager, which consent will not
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be unreasonably withheld. Lessee shall include the Town logo on all signs and items
marketing programs operated, conducted, sponsored, in whole or in part, by Lessee on
the Premises.
12.2 Town shall include references to Lessee on signs and marketing programs prepared
by or for Town in association with Lessee's operations on the Premises.
13. ASSIGNMENT AND SUBLETTING
13.1 Town's Consent Required Lessee shall not assign this Lease, nor any interest
therein, and shall not sublet or encumber the Premises or any part thereof, nor any right
or privilege appurtenant thereto, nor allow or permit any other person(s) to occupy or use
the Premises, or any portion thereof.
14. DEFAULTS; REMEDIES
14.1 Defaults The occurrence of any one or more of the following events shall
constitute a material default, or breach of this Lease, by Lessee:
14. 1.1 Abandonment of the Premises by Lessee as defined by California Civil
Code section 1951.3;
14.1.2 Failure by Lessee to make any payment of rent or any other payment
required to be made by Lessee hereunder, as provided in this Lease, where such
failure shall continue for a period of ten (10) business days after written notice
thereof from Town to Lessee. In the event Town serves Lessee with a Notice to
Pay Rent or Quit pursuant to applicable Unlawful Detainer statutes, such Notice
to Pay Rent or Quit shall be in addition to the notice required by this
subparagraph;
14.1.3 Failure by Lessee to observe or perform any of the covenants, conditions
or provisions of this Lease in any material respect where such failure shall
continue for a period of thirty (30) days after written notice thereof from Town to
Lessee; provided, however, that if the nature of Lessee's default is such that more
than thirty (30) days are reasonably required for its cure, then Lessee shall not be
deemed to be in default if Lessee commenced such cure within said thirty (30)
day period and thereafter diligently prosecutes such cure to completion;
14.1.4 Making by Lessee of any general arrangement or assignment for the
benefit of creditors; Lessee's becoming a "debtor as defined in 11 U.S.C. §101
or any successor statute thereto (unless, in the case of a petition filed against
Lessee, the same is dismissed within sixty (60) days); the appointment of a
bankruptcy trustee or receiver to take possession of all or substantially all of
Lessee's assets located at or on the Premises or of Lessee's interest in this Lease
where possession is not restored to Lessee within thirty (30) days; or the
attachment, execution or other judicial seizure of all or substantially all of
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Lessee's assets located at or on the Premises or of Lessee's interest in this Lease,
where such seizure is not discharged within thirty (30) days.
14.2 Remedies In the event. of any material default or breach by Lessee, 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 Town may have by reason of such default or
breach:
14.2.1 Terminate Lessee's right to possession of the Premises by any lawful
means, in which case this Lease shall terminate and Lessee shall immediately
surrender possession of the Premises and Improvements to Town. In such event,
Town shall be entitled to recover from Lessee all damages incurred by Town by
reason of Lessee's default including but not limited to: the cost of recovering
possession of the Premises and Improvements; expenses of reletting, including
necessary renovation and alteration of the Premises and Improvements;
reasonable attorneys'. fees; the worth at the time of the award of the unpaid rent
that had been earned at the time of termination of this Lease and the worth at the
time of award of the amount by which the unpaid rent for the period of one
hundred eighty (180) days after the time of such award exceeds the amount of
such rental loss for the same period that Lessee proves could be reasonably
avoided.
14.2.2 Maintain Lessee's right to possession, in which case this Lease shall
continue in effect whether or not Lessee shall have abandoned the Premises. In
such event, Town shall be entitled to enforce all of Town's rights and remedies
under this Lease, including the right to recover rent and other payments as they
become due hereunder.
14.2.3 Pursue any other remedy now or hereafter available to Town under the
laws or judicial decisions of the State of California. Town shall have all remedies
provided by law and equity.
14.3 No Relief from Forfeiture After Default. Lessee waives all rights of redemption or
relief from forfeiture under California Code of Civil Procedure sections 1174 and 1179,
and any other present or future law, in the event Lessee is evicted or Town otherwise
lawfully takes possession of the Premises by reason of any default or.breach of this Lease
by Lessee.
14.4 Disposition of Abandoned Personal PropertX If the Lessee fails to remove any
personal property belonging to Lessee from the Premises after forty -five (45) days of the
expiration or termination of this Lease, such property shall at the option of Town be
deemed to have been transferred to Town. Town shall have the right to remove and to
dispose of such property without liability to Lessee or to any person claiming under
Lessee, and the Town shall have no need to account for such property.
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15. INTEREST ON PAST -DUE OBLIGATIONS
Except as expressly provided herein, any amount due Town when not paid when due
shall bear interest at the lesser of ten percent (10 %) per year or the maximum rate then
allowable by law from the date due.
16. HOLDING OVER
If Lessee remains in possession of the Premises or any part thereof after the expiration of
the term or option term hereof, such occupancy shall be a tenancy from month to month
with all the obligations of this Lease applicable to Lessee and at a monthly rental
obligation of the Rent in effect at the time of expiration. Nothing contained in this Lease
shall give to Lessee the right to occupy the Premises after the expiration of the term, or
upon an earlier termination for breach.
17. INSURANCE
Lessee's responsibility for the Premises begins immediately upon delivery and Lessee, at
its sole cost and expense, and at no cost to Town, shall purchase and maintain in fall
force and effect during the entire term of this Lease insurance coverage in amounts and in
a form acceptable to Town as set forth in Exhibit C attached hereto and incorporated
herein by reference. Said policies shall be maintained with respect to Lessee's
employees, if any, and all vehicles operated on the Premises. The policies shall include
the required endorsements, certificates of insurance and coverage verifications as
described in Exhibit C.
Lessee shall deposit with the Town Manager, on or before the effective date of this
Lease, certificates of insurance necessary to satisfy Town that the insurance provisions of
this Lease have been complied with, and to keep such insurance in effect and the
certificates therefore on deposit with Town during the entire term of this Lease. Should
Lessee not provide evidence of such required coverage at least three (3) days prior to the
expiration of any existing insurance coverage, Town may purchase such insurance, on
behalf of and at the expense of Lessee to provide six months of coverage.
Town shall retain the right at any time to review the coverage, form, and amount of the
insurance required hereby. If, in the opinion of the Town's Risk Manager (or comparable
official), the insurance provisions in this Lease do not provide adequate protection for
Town and for members of the public using the Premises, the Town Manager may require
Lessee to obtain insurance sufficient in coverage, form, and amount to provide adequate
protection as determined by the Risk Manager. Town's requirements shall be reasonable
and shall be designed to assure protection from and. against the kind and extent of risk
that exists at the time a change in insurance is required.
The Town Manager shall notify Lessee in writing of changes in the insurance
requirements. If Lessee does not deposit copies of acceptable insurance policies with
Town incorporating such changes within sixty (60) days of receipt of such notice, or in
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the event Lessee fails to maintain in effect any required insurance coverage, Lessee shall
be in default under this lease without further notice to Lessee. Such failure shall
constitute a material breach and shall be grounds for immediate terinination of this Lease
at the option of Town.
The procuring of such required policy or policies of insurance shall not be construed to
limit Lessee's liability hereunder nor to fulfill the indemnification provision and
requirements of this Lease. Notwithstanding the policy or policies of insurance, Lessee
shall be obligated for the full and total amount of any damage, injury, or loss caused by
or connected with this Lease or. with use or occupancy of the Premises.
18. DISPUTE RESOLUTION
18.1 Unless otherwise mutually agreed to, any controversies between Lessee and Town
regarding the construction or application of this Lease, and claims arising out of this
Lease or its breach shall be submitted to mediation within thirty (30) days of the written
request of one Party after the service of that request on the other Party.
18.2 The Parties may agree on one mediator. If they cannot agree on one mediator, the
Party demanding mediation shall request the Superior Court of Santa Clara County to
appoint a mediator. The mediation meeting shall not exceed one day (eight (8) hours).
The Parties may agree to extend the time allowed for mediation under this Lease.
18.3 The costs of mediation shall be borne by the Parties equally.
18.4 Mediation under this section is a condition precedent to filing an action in any
court. In the event of litigation arising out of any dispute related to this Lease, the Parties
shall each pay their respective attorney's fees, expert witness costs and cost of suit,
regardless of the outcome of the litigation.
19. NON - LIABILITY OF OFFICIALS AND EMPLOYEES OF THE TOWN
No official or employee of Town or Lessee shall be personally liable for any default or
liability under this Lease.
20. NON- DISCRIMINATION
20.1 Non - discrimination in Lease Activities. Lessee agrees that in the performance of
this Lease and in connection with all of the activities Lessee conducts on the Premises, it
shall not discriminate against any employee or person because of the race, skin color,
gender, age, religion, disability, national origin, ancestry, sexual orientation, housing
status, marital status, familial status, weight or height of such person. Lessee
acknowledges that is familiar with the provisions set forth in Section 2.30.510 of the Los
Gatos Municipal Code relating to nondiscrimination in employment and Section 9.73 of
the Los Gatos Municipal Code relating to Town policy against arbitrary discrimination.
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20.2 Human Rights Policy. In connection with all activities that are conducted upon the
Premises, Lessee agrees to accept and enforce the statements of policy set forth in
Section 9.73.010 which provides: "It is the policy of the Town of Los Gatos to affinn,
support and protect the human rights of every person within its jurisdiction. These rights
include, but are not limited to, equal economic, political, and educational opportunity;
equal accommodations in all business establishments in the Town; and equal service and
protection by all public agencies of the Town.
21. INDEPENDENT CONTRACTOR
It is agreed that Lessee shall act and be an independent contractor and not an agent nor
employee of Town.
22. CONFLICT OF INTEREST
Lessee shall at all times avoid conflict of interest or appearance of conflict of interest in
performance of this agreement. Lessee warrants and covenants that no official or
employee of Town nor any business entity in which. any official or employee of Town is
interested: (1).has been employed or retained to solicit or aid in the procuring of this
agreement; or (2) will be employed in the performance of this agreement without the
divulgence of such fact to Town. In the event that Town determines that the employment
of any such official, employee or business entity is not compatible with such official's or
employee's duties as an official or employee of Town, Lessee upon request of Town shall
immediately terminate such employment. Violation of this provision constitutes a serious
breach of this Lease and Town may terminate this Lease as a result of such violation.
23. MEMORANDUM OF LEASE
Following execution of this Lease, either party, at its sole expense, shall be entitled to
record a Memorandum of Lease in the official records of Santa Clara County. Upon
termination or expiration of this Lease, Lessee shall execute and record a quitclaim deed
as to its leasehold interest.
24. ESTOPPEL CERTIFICATE
Each Party shall, from time to time, upon at least thirty (30) days prior written notice
from the other Party, execute, acknowledge and deliver to the requesting Party a
statement in writing: (i) certifying this Lease is unmodified and in full force and effect,
or, if modified, stating the nature of the modification and certifying that the Lease, as
modified, is in full force and effect, and the date to which the rental and other charges, if
any, have been paid; and, (ii) acknowledging that there are not to the responding Party's
knowledge, any defaults, or stating if any defaults are claimed. Any such statement may
be relied upon by any prospective purchaser or encumbrancer of the Town Property or
any prospective assignee or sublessee.
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25. LIENS.
Lessee agrees at its sole cost and expense to keep the Premises free and clear of any and
all claims, levies, liens, encumbrances or attachments; provided, that Lessee may contest
and such claim, levy, lien, encumbrance or attachment by appropriate proceedings and in
a manner which stays the enforcement of the same.
26. VACATING
Upon termination of the tenancy, Lessee shall completely vacate the Premises, including
the removal of any and all of its property. Before departure, Lessee shall return keys and
personal property listed on the inventory to Town in good, clean and sanitary condition,
reasonable wear and tear excepted. Lessee shall allow Town to inspect the Premises to
verify the condition of the Premises and its contents.
27. NOTICES
All notices to the Parties shall, unless otherwise requested in writing, be sent to Town
addressed as follows:
Town of Los Gatos
Attention: Town Manager
110 E. Main Street
Los Gatos, CA 95030
And to Lessee addressed as follows:
Billy Jones Wildcat Railroad Inc.
P.O. Box 234
Los Gatos, CA 95031
Notices may be served upon either Party in person, by first class mail, or by certified mail
whether or not said mailing is accepted. If notice is sent via facsimile, a signed, hard
copy of the material shall also be mailed. The workday the facsimile was sent shall
control the date notice was deemed given if there is a facsimile machine generated
document on the date of transmission. A facsimile transmitted after 1:00 p.m. on a Friday
shall be deemed to have been transmitted on the following Monday. These addresses
shall be used for service of process.
28. TIME
Time shall be of the essence in this Lease.
29. AMENDMENTS
It is mutually agreed that no oral Leases have been entered into and that no alteration or
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variation of the terms of this Lease shall be valid unless made in writing and signed by
the Parties to this Lease.
30. SIGNING AUTHORITY
If this Lease is not signed by all Lessees named herein, the person actually signing
warrants that he /she has the authority to sign for the others.
31. CAPTIONS
The captions of the various sections, paragraphs and subparagraphs of this Lease are for
convenience only and shall not be considered or referred to in resolving questions of
interpretation.
32. SURRENDER OF LEASE NOT MERGER
The voluntary or other surrender of this lease by Lessee, or a mutual cancellation thereof,
shall not work a merger, and shall, at the option of Town, terminate all or any existing
subleases or subtenancies, or may, at the option of Town, operate as an assignment of any
and all such subleases or subtenancies.
33. INTEGRATED DOCUMENT
This Lease, including any exhibits attached hereto, embodies the entire agreement
between Town and Lessee. No other understanding, agreements, conversations or
otherwise, with any officer, agent or employee of Town prior to execution of this Lease
shall affect or modify any of the terms or obligations contained in any documents
comprising this Lease. Any such verbal agreement shall be considered as unofficial
information and in no way binding upon Town. All agreements with Town are subject to
approval of the Town Council before Town shall be bound thereby.
34. WAIVER
Waiver by Town of one or more conditions of performance or any breach of a condition
under this Lease shall not be construed as a waiver of any other condition of performance
or subsequent breaches. The subsequent acceptance by a Party of the performance of any
obligation or duty by another Party shall not be deemed to be a waiver of any term or
condition of this Lease. The exercise of any remedy, right, option or privilege hereunder
by Town shall not preclude Town from exercising the same or any and all other remedies,
rights, options and privileges hereunder and Town's failure to exercise any remedy, right,
option or privilege at law or equity, or otherwise which Town may have, shall not be
construed as a waiver.
35. INTERPRETATIONS
In construing or interpreting this Lease, the word "or" shall not be construed as exclusive
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and the word "including" shall not be limiting. The Parties agree that this Lease shall be
fairly interpreted in accordance with its terms without any strict construction in favor of
or against any other Party.
36.
37.
38.
39.
40.
41
SEVERABILITY CLAUSE
necessary to make the provision legal, valid and enforceable, and the other provisions of
this Lease shall not be affected thereby.
If any provision of this Lease is held to be illegal, invalid or unenforceable in full or in
part, for any reason, then such provision shall be modified to the minimum extent
GOVERNING LAW
This Lease shall be governed and construed in accordance with the statutes and laws of
the State of California.
VENUE
In the event that suit shall be brought by any Party to this Lease, the Parties agree that
venue shall be exclusively vested in the state courts of the County of Santa Clara.
COMPLIANCE WITH LAWS
The Parties hereto shall comply with all applicable laws, ordinances, codes and
regulations of the federal, state and local governments in.the performance of their rights,
duties and obligations under this Lease.
M1
Each party represents that is has not had dealings with any real estate broker, finder, or
other person, with respect to this lease in any manner. Each Party shall hold harmless the
other party from all damages resulting from any claims that may be asserted against the
other party by any broker, finder, or other person with whom the Indemnifying Party has
or purportedly has dealt.
ATTACHMENTS TO LEASE
The following exhibits are attached to and made a part of this Agreement:
"A" — Description of Subject Premises
B" — Inventory of Buildings
"C" — Standard Insurance Requirements
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IN WITNESS WHEREOF, the parties have executed this Lease the day and year first above
written.
TOWN:
Town of Los Gatos
Greg Larson, Town Manager
LESSEE:
Billy Jones Wildcat Railroad Inc.
ATTEST:
Jackie Rose, Town Clerk Administrator
APPROVED AS TO FORM:
Judith J. Propp, Town Attorney
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LEASE AGREEMENT
BETWEEN
TOWN OF LOS GATOS
AND
BILLY JONES WILDCAT RAILROAD INC.
EXHIBIT A
DESCRIPTION OF SUBJECT PREMISES
Page 19
LEASE AGREEMENT
BY AND BETWEEN
TOWN OF LOS GATOS, CALIFORNIA
AND
BILLY JONES WILDCAT RAILROAD INC.
EXHIBIT B
INVENTORY OF BUILDINGS
Page 20
LEASE AGREEMENT
BY AND BETWEEN
TOWN OF LOS GATOS, CALIFORNIA
AND
BILLY JONES WILDCAT RAILROAD INC.
EXHIBIT C
STANDARD INSURANCE REQUIREMENTS
Insurance Requirements for Lessee:
Lessee shall purchase and maintain the insurance policies set forth below on all of its operations
under this Lease at its sole cost and expense. Such policies shall be maintained for the full term
of this Lease and the related warranty period (if applicable). For purposes of the insurance
policies required under this Lease, the term "Town" shall include the duly elected or appointed
council members, commissioners, officers, agents, employees and volunteers of the Town of Los
Gatos, California, individually or collectively.
Coverages (RL 28.1A) S
Minimum Scope of Insurance
Coverage shall be at least as broad as:
1) Insurance Services Office Commercial General Liability coverage
(occurrence form CG 0001).
2) Insurance Services Office form number CA 0001 (Ed. 1/87) covering
Automobile Liability, code 1 (any auto).
3) Workers' Compensation insurance as required by the State of California and
Employer's Liability Insurance (for lessees with employees).
4) Property insurance against all risks of loss to any tenant improvements or
betterments
The policy or policies of insurance maintained by Lessee shall provide the following limits and
coverages;
PO ,TCY
(1) Commercial General Liability
MINIMUM LIMITS OF LIABILITY
$1,000,000 per each occurrence for bodily
injury, personal injury and property damage
(2) Automobile Liability
Including Owned, Hired and
Non -Owned Automobiles
$ 1,000,000 Combined Single Limit
Page 21
(3) Workers' Compensation Statutory
Employers Liability $1,000;000 per accident for bodily injury or
disease
(4) Lessee's Property Insurance
Lessee shall procure and maintain property insurance coverage for:
(a) all office furniture, trade fixture, office equipment, merchandise,
and all other items of Lessee's property in, on, at, or about the
premises and the building, include property installed by, for,
or, at the expense of Lessee;
(b) all other improvements, betterments, alterations, and additions
to the premises.
Lessee's property insurance must fulfill the following requirements:
(a) it must be written on the broadest available "all risk" policy form or an
equivalent form acceptable to the Town of Los Gatos.
(b) for no less than ninety percent (90 %) of the full
replacement cost (new without deduction for depreciation)
of the covered items and property; and
(c) the amounts of coverage must meet any coinsurance
requirements of the policy or policies.
(RL 28.2)
Deductibles and Self - Insured Retentions
Any deductibles or self - insured retentions must be declared to and approved by the Town. At
the option of the Town either: the insurer shall reduce or eliminate such deductibles or self -
insured retentions as respects the Town, its officers, officials, employees and volunteers; or the
Lessee shall procure a bond guaranteeing payment of losses and related investigations, claim
administration and defense expenses.
Insurance shall be in full force and effect commencing on the first day of the term of this Lease.
Each insurance policy required by this Lease shall:
1. Be endorsed to state that coverage shall not be suspended, voided, canceled by
either party, 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.
2. Include a waiver of all rights of subrogation against the Town and the members of
the Town Council and elective or appointive officers or employees, and each
party shall indemnify the other against any loss or expense including reasonable
attorney fees, resulting from the failure to obtain such waiver. The Town waives
this requirement so long as the Lessee continues to participate in a self insurance
pool of public entities that reserves the right of subrogation. A waiver of all rights
of subrogation shall be required immediately upon the Lessee obtaining insurance
Page 22
through a self insurance pool that does not reserve the right of subrogation or the
Lessee obtaining insurance in the private insurance market.
3. Name the Town of Los Gatos as a loss,payee on the property policy.
4. Provide that the Town, its officers, officials, employees, agents and volunteers are
to be covered as insureds as respects: liability arising out of activities performed
by or on behalf of the Lessee; products and completed operations of the Lessee;
premises owned, occupied or used by the Lessee; or automobiles owned, leased,
hired or borrowed by the Lessee. The coverage limits defined in a memorandum
of understanding of a self insurance pool of public entities through which Lessee
obtains insurance coverage shall be acceptable in lieu of these requirements of
this paragraph 4 which shall apply to coverage obtained in the private insurance
market.
Provide that for any claims related to this Lease, the Lessee's insurance coverage
shall be primary insurance as respects the Town, its officers, officials, employees,
agents and volunteers.. Any insurance or self - insurance maintained by the Town,
its officers, officials, employees, agents or volunteers shall be excess of the
Lessee's insurance and shall not contribute with it.
6. Provide that any failure to comply with reporting or other provisions of the
policies including breaches of warranties shall not affect coverage provided to the
Town, its officers, officials, employees, agents or volunteers.
7. Provide that Lessee's insurance shall apply separately to each insured against
whom claim is made or suit is brought, except with respect to the limits of the
insurer's liability.
8. Lessee agrees to promptly pay to Town as Additional Rent, upon demand, the
amount of any increase in the rate of insurance on the Premises or on any other
part of Building that results by reason of Lessee's act(s) or Lessee's permitting
certain activities to take place.
Acceptability of Insurers
All insurance policies shall be issued by California- admitted carriers having current A.M. Best's
ratings of no lower than A -:VII.
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