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HomeMy WebLinkAbout2016-084 Concession License - Sesame Asian Kitchen 2016 Calle Guanajuato Restaurant Concession License This RESTAURANT CONCESSION LICENSE (also referred to herein as "License") is made and entered into this 2, day of 1n 2016, by and between the City of . Ashland, a municipal corporation of the State of Oregon, by and through the Ashland Parks ,-pd Recreatio Commission, (hereinafter collectively referred to as "City'), and (hereinafter referred to as "Concessionaire"). 1. SCOPE OF GRANT: Concessionaire has license to operate and maintain an outdoor dining concession within the described Concession Area Exhibit A. a. This license gives no estate or interest in the Concession Area, is revocable and not assignable. b. This license does not otherwise waive, modify or grant compliance with federal, state, or local laws applicable to the Concessionaire or its business. c. The City retains all rights to use and maintain the Concession Area for those purposes which it holds the property without unreasonably interfering with the license granted to concessionaire. 2. TERM / EFFECTIVENESS: The term of this License shall commence upon approval and execution by both City and Concessionaire and shall terminate on November J3, 20161 unless terminated early as provided for herein. 3. DURATION / MINIMUM INTERVAL OF USE: The duration and scope of the revocable icense and Concession granted by this License is for one season, beginning March I 2016 and ending November 2016. LL a. Concessionaire is permitted to prepare, operate, and shall terminate Concession Area for outdoor dining concession operation between the period beginning March J-~- 2016 at 7:00 A.M. and ending November _1,~, 2016 at 5:00 P.M. 4. PAYMENT OF LICENSE FEES: Concessionaire shall pay a license fee based upon the square footage of the Concession Area. The square footage awarded shall be determined each year by written order of the Parks Director and shall be set forth precisely in Exhibit A. a. The square footage flat fee shall be $7.00 per square foot for restaurants, for the 2016 concession year. b. Any payments for fees, taxes or assessments required or in arrears or disputed must be made by Concessionaire before any new license will be authorized for the Concessionaire. 5. USE OF PREMISES AND CONCESSION OPERATION LIMITS: a. Compliance with Law. Comply with all federal, state and local laws, rules, and regulations applicable to public health and safety and licensing related to food and food handling and doing business in the State and City of Ashland; b. Maintenance and Safety. Maintain all the grounds, improvements, facilities, assets equipment and fixtures contained within the Concession Area in good repair and in safe, sanitary, clean, and attractive condition that is approved acceptable by the City, such approval not to be unreasonably withheld. c. Improvements and Placement of Restaurant Equipment. Unless otherwise set forth herein, Concessionaire may make physical improvements or alterations to the concession Area or install structures or fixtures thereon only after express written authorization of the City Parks Director, such approval not to be unreasonably withheld. Calle Guanajuato Restaurant Outdoor Dining Concession 1 . d. Concessionaire may place tables and chairs, serving tables or host podium stand or other items reasonably related to the outdoor dining concession ("restaurant equipment') in the Concession Area. e. Restaurant equipment shall be of sturdy and durable construction, movable by one person, and shall be self-supporting, and at no time attached, tied or locked to trees, hydrants, poles, fences or other items. f. Restaurant equipment, or materials otherwise associated with the restaurant owner and restaurant employees shall not block or in any way impede pedestrian or fire and emergency vehicle access to the Calle Guanajuato as required by this License. g. Restaurant equipment, supplies or materials otherwise associated with the restaurant owner and restaurant employees shall not block, impede or in any way hamper vehicular traffic on Calle Guanajuato during the following hours or as otherwise permitted under Ashland Municipal Code 10.68.400 Monday through Friday Saturday and Sunday Prior to 11:30 a.m. Prior to 8:00 a.m. & after 10:00 p.m. & after 10:00 p.m. h. Concessionaire shall promptly remove any offensive, hazardous or dangerous restaurant equipment, furniture, or solid waste within the Concession Area, at all times. 6. FIRE AND LIFE SAFETY. Concessionaire shall comply with any and all fire and life safety guidelines, recommendations and requirements issued by the City of Ashland Fire Marshal, including, but not limited to: a. Maintain all required fire and emergency access areas; b. Ensure that permitted restaurant equipment shall not encroach upon or obstruct public walkways or open space areas while maintaining a clear eight (8) foot pathway for emergency vehicles as approved by the City of Ashland Fire Marshal; c. Maintain a clear, unobstructed space around any fire hydrant as required for fire safety; d. Have available and shall maintain such fire extinguishers as determined by the Fire Marshal; e. Advise patrons and shall strictly abide by the Park prohibition on smoking. Smoking is not permitted on the Calle Guanajuato under any circumstances; and f. No use any bottled gas, electrical devices, or hazardous materials or hazardous substances without prior approval by the Ashland Parks Director. [For purposes of this License "Hazardous Substance" or "Hazardous Material" means any hazardous, toxic, infectious, or radioactive substance, waste, or material as defined or listed by any local, state or federal environmental law.] 7. VEHICULAR ACCESS. As otherwise provided herein, Concessionaire shall strictly comply with vehicular access to the Calle Guanajuato as is permitted by AMC 10.68.400. a. City, at its sole discretion, will issue revocable access permits to Concessionaire according to limited purposes and for limited times to facilitate set up, take down, and removal of restaurant equipment and other materials authorized by this License. b. Vehicles will exclusively ingress and egress from Winburn Way, and will not enter or exit from the plaza end of Calle Guanajuato; nor will they extend beyond the area designated for the Concession. c. At no time will the Concessionaire interfere with the eight (8) foot path required Calle Guanajuato Restaurant Outdoor Dining Concession 2 for emergency vehicles. d. The Concessionaire shall ensure that appropriate pedestrian safety precautions are maintained while vehicles using the access permits are in the vicinity. e. Concessionaire shall procure and maintain insurance in accordance with the requirements of Exhibit C in full force and effect throughout the term of this License. 8. SERVICE OF ALCOHOL. This license suspends compliance by Concessionaire to AMC 10.40.030 prohibiting public consumption of alcoholic beverages under the following conditions: a. Maintain, in force, a comprehensive liability policy including an endorsement for liquor liability at their own expense and at all times during the Concession duration; jlnitial from Concessionaire) b. Serve alcoholic beverages only in conjunction with prepared meals. 9. INSURANCE: Concessionaire shall, at its sole cost and obligation, procure and maintain insurance in accordance with the requirements of Exhibit C in full force and effect throughout the term of this License. Concessionaire shall provide the City with copies of said insurance certificates and shall name the City of Ashland as additional insureds. 10. INDEMNITY AND HOLD HARMLESS: Concessionaire will defend, indemnify and hold City and/or Parks Commission, their officers, employees and agents harmless from any and all losses, claims, actions, costs, expenses, judgments, subrogations, or other damages resulting from injury to any person (including injury resulting in death,) or damage (including loss or destruction) to property, of whatsoever nature arising out of or incident to this license or the activities that take place on licensed property. Concessionaire waives the right of subrogation regarding the insurance policy as described in the Insurance Section in this License. Concessionaire will not be held responsible for damages caused by negligence of City and/or the Parks Commission. a. The obligation to indemnify is expressly understood to survive termination of this License for any reason, and includes reasonable attorneys' fees, including attorneys' fees on appeal, and investigation costs and all other reasonable costs, expenses and liabilities incurred by City or its attorney from the first notice that any claim or demand is to be made or may be made. 11. TERMINATION: Notwithstanding any other provision herein, the City may terminate this license, in whole or in part, at any time for any reason considered by the City, in the exercise of its sole discretion, to reasonably be in the public interest. The City will provide the Concessionaire seven (7) days prior written notice of a termination for public convenience. a. Concessionaire's remedy to contest termination of the license by City is provided in AMC 2.301 Uniform Administrative Appeals Process. b. Notwithstanding any other provision herein, City may order vacation of the Concession Area or immediately remove the Concessionaire or any other person who may be occupying the Concession Area without resort of a Court Order sanctioning such action. c. Upon failure to vacate, City is expressly authorized to remove all Concessionaire property from the Concession Area at the Concessionaire's expense. i. City will reasonably maintain the property of the Concessionaire for at least 30 days and shall leave it reasonably available for Concessionaire to take possession. City may dispose of any property that remains Calle Guanajuato Restaurant Outdoor Dining Concession 3 unclaimed after 30 days. The City may use reasonable discretion to immediately dispose of non-durable or solid waste, including but not limited to food and other putrescible waste. 12. SURRENDER: Upon the expiration of the original term or terms, as extended by the parties, Concessionaire shall surrender to the City the Concession Area in as good or better condition and order as was originally received, except as allowed for within the typical wear and tear. 13. DISPUTE RESOLUTION AND ATTORNEY FEES: The preferred method of resolving disputes between the parties under this License shall be first by mediation. Mediation shall be conducted by a mediator chosen by mutual agreement of the parties; if there is no agreement, the mediator shall be appointed by the elected Municipal Court Judge or Judge pro tem. a. Any mutually incurred cost from the provision of these services, except costs associated with building a case including but not limited to attorney fees or fees for expert witnesses, shall be shared equally between the two parties. b. In any administrative appeal or litigation between the parties arising out of this license, the prevailing party shall recover its reasonable attorneys fees incurred at trial and upon appeal. "Attorneys fees" shall include the reasonable value of the services of in-house counsel. 14. MISCELLANEOUS PROVISIONS. a. Notice. Any notice affecting the rights of the parties under this License shall be delivered in writing either in person or to the following parties by first class mail: City: Director, Michael A. Black Ashland Parks and Recreation Commission 340 South Pioneer Street Ashland, Oregon 97520 (Telephone 541-488-5340; FAX: 541-488-5314) Copy to: City Administrator, Dave Kanner City of Ashland 20 East Main Street Ashland, Oregon 97520 (Telephone: 541-552-2100; Fax: 541-488-5311) Concessionaire: Name of business vt~~ t1~ Y1 L~~ Attn: Address: Phone Number: b. Governing Law. This License, and all matters relating to this License, shall be governed by the laws of the State of Oregon in force at the time any need for interpretation of this License or any decision or holding concerning this License arises. The parties to this License do not intend to confer on any third party any rights under this License. c. Severability. If any provision of this License is held by a court of competent jurisdiction to be either invalid, void, or unenforceable, the remaining provisions of this License shall remain in full force and effect. d. Merger. THIS LICENSE CONTAINS THE ENTIRE AGREEMENT BETWEEN THE Calle Guanajuato Restaurant Outdoor Dining Concession 4 PARTIES HERETO AND SUPERSEDES ANY AND ALL PRIOR EXPRESS AND/OR IMPLIED STATEMENTS, NEGOTIATIONS AND/OR AGREEMENTS BETWEEN THE PARTIES, EITHER ORAL OR WRITTEN, AND MAY NOT BE AMENDED, CHANGED OR MODIFIED IN ANY WAY, EXCEPT BY WRITTEN AGREEMENT SIGNED BY ALL PARTIES HERETO. IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed in two (2) duplicate originals, either as individuals, or by their officers, thereunto duly authorized. DATED this Z day of 2016 Licensee / Concessionaire: Licensor/ City of Ashland, Oregon: Parks and Recreation Commission rated: \Q Michael A. Black, Director Ashland Park and Recreation Date: 2- L /n, Date: Dave Kanner, City Administrator Appr d as to for ave Lohm , City Att ney Calle Guanajuato Restaurant Outdoor Dining Concession 5 Exhibit A- Concession Area See attached picture and highlight entire area of interest. Calle Guanajuato Restaurant Outdoor Dining Concession 6 w Exhibit B Proposal Documents Ashland Parks & Recreation Department REQUEST FOR RESTAURANT SERVICE SPACE-CALLE GUANAJUATO NAME OF RESTAURANT WK PHONE MESSAGE PHONE EMAIL ADDRESS NAME OF AUTHORIZED REPRESENTATIVE WHAT IS THE BEST WAY TO CONTACT YOU? *(Circle one) email/phone MAILING ADDRESS CITY STATE ZIP DESCRIPTION OF AREA. SEE ATTACHED PICTURE (Exhibit A) ARE YOU REQUESTING A NEW SPACE THAT IS NO-tCURRENLY A SEATING AREA? (Circle One) YES NO. TOTAL NUMBER OF SQUARE FEET REQUESTED? per square foot) WILL ALCOHOLIC BEVERAGES BE SERVED? YES NO i Date Signature (owner or rep esentative) * Total Square Footage x $ = Date Paid The following items must be o tained before license can be issued: • Business License Number: • Copy of OLCC License for outdoor seating • Copy of Insurance Certificate naming City of Ashland as additional insureds Calle Guanajuato Restaurant Outdoor Dining Concession 7 Exhibit C Insurance Requirements The Concessionaire, at its sole cost and expense, commencing on the effective date of this License, shall procure and maintain insurance acceptable to the City in full force and effect throughout the term of this License. It is agreed that any insurance maintained by City shall apply in excess of, and not contribute with, insurance provided by Concessionaire. Concessionaire's Insurance shall be primary and non-contributory and have a cross-liability clause. During the term of this contract, Concessionaire shall maintain in full force, all the insurance coverage noted below with the City named as additionally insured: 1. Comprehensive General Liability insurance, with a general aggregate limit of not less than $2,000,000 and $2,000,000 per occurrence. Each policy shall contain a blanket contractual liability endorsement to cover the Concessionaire's indemnification and other obligations under this License as well as owners' and contractors' protective insurance, products and completed operations coverage, fire damage, personal and advertising injury coverage. It shall also include, if appropriate for the contract, coverage for Concession Area operations, explosion and collapse hazard, underground hazard, products, completed operations, contractual insurance, and independent contractors. 2. Comprehensive Automobile Liability insurance, with a general aggregate limit of not less than $2,000,000 and $2,000,000 per occurrence, including coverage for owned, hired or non-owned vehicles. 3 Notice of cancellation or change. There shall be no cancellation, material change, reduction of limits or intent not to renew the insurance coverage(s) without 30 days written notice from the Concessionaire or its insurer(s) to the City. 4. Certificates of insurance. As evidence of the insurance coverage's required by this contract, the Concessionaire shall furnish acceptable insurance certificates to City at the time Concessionaire returns signed contracts. For general liability insurance and automobile liability insurance the certificate will provide that the City, Parks Commission, its officers, employees and agents are Additional Insureds. The certificate will include the 30-day cancellation clause, and will include the deductible or retention level. Insuring companies or entities are subject to City acceptance. If requested, complete copies of insurance policies shall be provided to the City. The Concessionaire shall be financially responsible for all pertinent deductibles, self-insured retention's, and/or self-insurance. Certificates of Insurance shall be forwarded to: (Ashland Parks and Recreation 340 S. Pioneer St., Ashland OR 97520). 5. Workers Compensation insurance in compliance with Oregon Statutes, [ORS 656.017] which requires subject employers to provide Oregon workers' compensation coverage for all their subject workers. (Required of Concessionaires with one or more employees, unless exempt under ORS 656.027). ) Only if Concessionaire does not employ workers subject to ORS Chapter 656, Concessionaire shall sign the following affidavit: EXEMPTION AFFIDAVIT Concessionaire declares, under penalty of perjury and false swearing, that Concessionaire does not currently employ, and will not employ any individuals for work under this contract during the term this License is in force. Date: Concessionaire Calle Guanajuato Restaurant Outdoor Dining Concession 8 Exhibit D Minimum Policies, Procedures, and Concession Standards for Outdoor Dining on Calle Guanajuato The Ashland Parks and Recreation Commission may award a concession on the Calle Guanajuato to Plaza restaurants, adjacent to Calle, for the specific purpose of placing outdoor food service tables on approved concession sites, said sites designated and approved by the Parks Director on an annual basis, The Policies, Procedures and Standards below govern this process fSubject to change by the Parks Commission], Definitions For the purpose of this document, all references, certain words and phrases are defined, and certain provisions shall be constructed as herein set out, unless it appears from their context that a different meaning is intended. • "Restaurants" shall pertain strictly to City of Ashland Plaza Restaurant owners and establishments adjacent to Calle Guanajuato. These restaurants are in the business of selling or causing to be sold for cash or consideration of any kind any of the following items: food or edibles of any type whether hot, cold, fresh prepared or packaged. This definition includes an offer for sale. • "Concession" is that City authorization which provides the restaurant owner the right to maintain a restaurant venture at a certain location on the Calle Guanajuato. • "Calle Guanajuato" is that area behind the Ashland Plaza business area, adjacent to the south side of Ashland Creek, between North Main Street and Winburn Way. • "Restaurant Equipment" includes but is not limited to any materials, merchandise, tools, carts, table's chairs, podiums, or other items owned by, in possession of or associated with a licensed restaurant owner. • "Restaurant Owner" is a person or legal entity who is the legal owner of the restaurant business. • "Employee" means any person hired or paid compensation by, or any person under contract to, a licensed restaurant owner. • "Site Location" (also referred to as "concession area", or "premises" is that useable space or area on Calle Guanajuato which has been allocated for individual plaza restaurant use by the Ashland Parks Director. • "Licensed" is that business license required by the City of Ashland constituting a tax for revenue purposes, and is not a regulatory permit fee. The payment of a license tax required by, and its acceptance by the City, and the issuance of such license to any person, shall not entitle the holder thereof to carry on any business on the Calle Guanajuato unless he or she has complied with all the requirements of the City and all other applicable site permit policies and rules of the Ashland Parks and Recreation Commission as agreed upon when obtaining a site permit. Restaurant Concession Application. • Every plaza restaurant, adjacent to Calle Guanajuato, desiring an outdoor dining concession on the Calle Guanajuato shall file an application with the Ashland Parks and Recreation Commission upon a form obtained from the Ashland Parks and Recreation Department. The applicant shall meet the application deadline and place the same on file with the department. Calle Guanajuato Restaurant Outdoor Dining Concession 9 Review of Concession Applications. Restaurants shall have first priority for all Calle Guanajuato alcove use as site locations. Calle's alcove position, design and square footage provides an appropriate setting for restaurant traffic and layout. Upon receipt of applications, the Ashland Parks and Recreation Commission shall review each according to the following "priority" criteria: • Restaurant proximity shall constitute a major determining factor for a site location on Calle Guanajuato. Only restaurants that are adjacent to and have the greatest accessibility to a designated location shall have contractual preference. • Restaurant "seniority" shall take precedence when two or more restaurants are within the same proximity to a site location. "Seniority" shall be determined by a review of past year's site permit agreements affording privilege status to most recent and / or continuous use. Final selection shall be made by the Commission. Restaurant Concession Fee Schedule. The Call`-Juanajuato Restaurant Concession Fee Schedule shall be set at $7.00 per square foot of use. March , 2016 through November 13, 2016 shall constitute a concession season. The site permit fee shall be paid by the second Friday of May of each year covered under the permit. Minimum Period of operation is between Memorial Day and Labor Day. Restaurant Concession Reservation and Duration. 1. Any restaurant concession shall be nontransferable and shall be valid for one season in a single calendar year. 2. No Plaza restaurant may hold or be issued more than one concession. (Owners with interests in multiple restaurants are not restricted by this provision). 3. Should a restaurant "abandon" a reserved site, it shall be "awarded" through the competitive process under the selection "Review of Applications." 4. At the end of each year, during the month of December, an "intent" notification shall be required of the restaurant owner regarding continued use of the original reservation. After the third (3) consecutive "intent" notification, the restaurant must reapply for a new concession and no reservation will be held. 5. In considering "intent" notifications, the Ashland Parks and Recreation Commission shall consider the original application criteria in the section "Review of Applications" and the restaurant owner's compliance with other applicable City laws and regulations. Any site permit reservation which is rescinded shall receive in writing an explanation of such action from the Commission. Restaurant Cancellation. • A restaurant issued a concession may be canceled at the request of the restaurant owner. In such case, the annual site permit fee requirement shall be null and void. • In the event of a cancellation, the restaurant site vacated shall be available for another licensed plaza restaurant owner or designated as part of the Calle Guanajuato Marketplace Concession. • The Ashland Parks and Recreation Department reserves the right to revoke any restaurant's concession for a designated Calle area at any time if that individual restaurant does not conform to applicable law, including but not limited to the rules and regulations established by the Ashland Parks and Recreation Commission. Restaurant Concession Regulations. • Concessionaires shall be required to enter into a standard Concession agreement with the City to lawfully operate a concession on city park property. Calle Guanajuato Restaurant Outdoor Dining Concession 10 2016 Calle Guanajuato Restaurant Concession License This RESTAURANT CONCESSION LICE SE (also referred to herein as "License") is made and entered into this I day of -ofC, 2016, by and between the City of Ashland, a municipal corporation of the State of Oregon, by and through the Ashland Parks and Recreatio Commission, (hereinafter collectively referred to as "City', and (hereinafter referred to as "Concessionaire"). 1. SCOPE OF GRANT: Concessionaire has license to operate and maintain an outdoor dining concession within the described Concession Area Exhibit A. a. This license gives no estate or interest in the Concession Area, is revocable and not assignable. b. This license does not otherwise waive, modify or grant compliance with federal, state, or local laws applicable to the Concessionaire or its business. c. The City retains all rights to use and maintain the Concession Area for those purposes which it holds the property without unreasonably interfering with the license granted to concessionaire. 2. TERM / EFFECTIVENESS: The term of this License shall commence upon approval and execution by both City and Concessionaire and shall terminate on November 13, 20161 unless terminated early as provided for herein. 3. DURATION / MINIMUM INTERVAL OF USE: The duration and scope of the revocable License and Concession granted by this License is for one season, beginning March, 2016 and ending Novembers 2016. a. Concessionaire is permitted to prepare, operate, and shall terminate Concession Area for outdoor dining concession operation between the period beginning March , 2016 at 7:00 A.M. and ending November ~-3 , 2016 at 5:00 P.M. 4. PAYMENT OF LICENSE FEES: Concessionaire shall pay a license fee based upon the square footage of the Concession Area. The square footage awarded shall be determined each year by written order of the Parks Director and shall be set forth precisely in Exhibit A. a. The square footage flat fee shall be $7.00 per square foot for restaurants, for the 2016 concession year. b. Any payments for fees, taxes or assessments required or in arrears or disputed must be made by Concessionaire before any new license will be authorized for the Concessionaire. 5. USE OF PREMISES AND CONCESSION OPERATION LIMITS: a. Compliance with Law. Comply with all federal, state and local laws, rules, and regulations applicable to public health and safety and licensing related to food and food handling and doing business in the State and City of Ashland; b. Maintenance and Safety. Maintain all the grounds, improvements, facilities, assets equipment and fixtures contained within the Concession Area in good repair and in safe, sanitary, clean, and attractive condition that is approved acceptable by the City, such approval not to be unreasonably withheld. c. Improvements and Placement of Restaurant Equipment. Unless otherwise set forth herein, Concessionaire may make physical improvements or alterations to the concession Area or install structures or fixtures thereon only after express written authorization of the City Parks Director, such approval not to be unreasonably withheld. Calle Guanajuato Restaurant Outdoor Dining Concession 1 d. Concessionaire may place tables and chairs, serving tables or host podium stand or other items reasonably related to the outdoor dining concession ("restaurant equipment') in the Concession Area. e. Restaurant equipment shall be of sturdy and durable construction, movable by one person, and shall be self-supporting, and at no time attached, tied or locked to trees, hydrants, poles, fences or other items. f. Restaurant equipment, or materials otherwise associated with the restaurant owner and restaurant employees shall not block or in any way impede pedestrian or fire and emergency vehicle access to the Calle Guanajuato as required by this License. g. Restaurant equipment, supplies or materials otherwise associated with the restaurant owner and restaurant employees shall not block, impede or in any way hamper vehicular traffic on Calle Guanajuato during the following hours or as otherwise permitted under Ashland Municipal Code 10.68.400 Monday through Friday Saturday and Sunday Prior to 11:30 a.m. Prior to 8:00 a.m. & after 10:00 p.m. & after 10:00 p.m. h. Concessionaire shall promptly remove any offensive, hazardous or dangerous restaurant equipment, furniture, or solid waste within the Concession Area, at all times. 6. FIRE AND LIFE SAFETY. Concessionaire shall comply with any and all fire and life safety guidelines, recommendations and requirements issued by the City of Ashland Fire Marshal, including, but not limited to: a. Maintain all required fire and emergency access areas; b. Ensure that permitted restaurant equipment shall not encroach upon or obstruct public walkways or open space areas while maintaining a clear eight (8) foot pathway for emergency vehicles as approved by the City of Ashland Fire Marshal; c. Maintain a clear, unobstructed space around any fire hydrant as required for fire safety; d. Have available and shall maintain such fire extinguishers as determined by the Fire Marshal; e. Advise patrons and shall strictly abide by the Park prohibition on smoking. Smoking is not permitted on the Calle Guanajuato under any circumstances; and f. No use any bottled gas, electrical devices, or hazardous materials or hazardous substances without prior approval by the Ashland Parks Director. [For purposes of this License "Hazardous Substance" or "Hazardous Material" means any hazardous, toxic, infectious, or radioactive substance, waste, or material as defined or listed by any local, state or federal environmental law.] 7. VEHICULAR ACCESS. As otherwise provided herein, Concessionaire shall strictly comply with vehicular access to the Calle Guanajuato as is permitted by AMC 10.68.400. a. City, at its sole discretion, will issue revocable access permits to Concessionaire according to limited purposes and for limited times to facilitate set up, take down, and removal of restaurant equipment and other materials authorized by this License. b. Vehicles will exclusively ingress and egress from Winburn Way, and will not enter or exit from the plaza end of Calle Guanajuato; nor will they extend beyond the area designated for the Concession. c. At no time will the Concessionaire interfere with the eight (8) foot path required Calle Guanajuato Restaurant Outdoor Dining Concession 2 for emergency vehicles. d. The Concessionaire shall ensure that appropriate pedestrian safety precautions are maintained while vehicles using the access permits are in the vicinity. e. Concessionaire shall procure and maintain insurance in accordance with the requirements of Exhibit C in full force and effect throughout the term of this License. 8. SERVICE OF ALCOHOL. This license suspends compliance by Concessionaire to AMC 10.40.030 prohibiting public consumption of alcoholic beverages under the following conditions: a. Maintain, in force, a comprehensive liability policy including an endorsement for liquor liabili at their own expense and at all times during the Concession duration; (Initial from Concessionaire) b. Serve alco f c beverages only in conjunction with prepared meals. 9. INSURANCE: Concessionaire shall, at its sole cost and obligation, procure and maintain insurance in accordance with the requirements of Exhibit C in full force and effect throughout the term of this License. Concessionaire shall provide the City with copies of said insurance certificates and shall name the City of Ashland as additional insureds. 10. INDEMNITY AND HOLD HARMLESS: Concessionaire will defend, indemnify and hold City and/or Parks Commission, their officers, employees and agents harmless from any and all losses, claims, actions, costs, expenses, judgments, subrogations, or other damages resulting from injury to any person (including injury resulting in death,) or damage (including loss or destruction) to property, of whatsoever nature arising out of or incident to this license or the activities that take place on licensed property. Concessionaire waives the right of subrogation regarding the insurance policy as described in the Insurance Section in this License. Concessionaire will not be held responsible for damages caused by negligence of City and/or the Parks Commission. a. The obligation to indemnify is expressly understood to survive termination of this License for any reason, and includes reasonable attorneys' fees, including attorneys' fees on appeal, and investigation costs and all other reasonable costs, expenses and liabilities incurred by City or its attorney from the first notice that any claim or demand is to be made or may be made. 11. TERMINATION: Notwithstanding any other provision herein, the City may terminate this license, in whole or in part, at any time for any reason considered by the City, in the exercise of its sole discretion, to reasonably be in the public interest. The City will provide the Concessionaire seven (7) days prior written notice of a termination for public convenience. a. Concessionaire's remedy to contest termination of the license by City is provided in AMC 2.30, Uniform Administrative Appeals Process. b. Notwithstanding any other provision herein, City may order vacation of the Concession Area or immediately remove the Concessionaire or any other person who may be occupying the Concession Area without resort of a Court Order sanctioning such action. c. Upon failure to vacate, City is expressly authorized to remove all Concessionaire property from the Concession Area at the Concessionaire's expense. i. City will reasonably maintain the property of the Concessionaire for at least 30 days and shall leave it reasonably available for Concessionaire to take possession. City may dispose of any property that remains Calle Guanajuato Restaurant Outdoor Dining Concession 3 unclaimed after 30 days. The City may use reasonable discretion to immediately dispose of non-durable or solid waste, including but not limited to food and other putrescible waste. 12. SURRENDER: Upon the expiration of the original term or terms, as extended by the parties, Concessionaire shall surrender to the City the Concession Area in as good or better condition and order as was originally received, except as allowed for within the typical wear and tear. 13. DISPUTE RESOLUTION AND ATTORNEY FEES: The preferred method of resolving disputes between the parties under this License shall be first by mediation. Mediation shall be conducted by a mediator chosen by mutual agreement of the parties; if there is no agreement, the mediator shall be appointed by the elected Municipal Court Judge or Judge pro tem. a. Any mutually incurred cost from the provision of these services, except costs associated with building a case including but not limited to attorney fees or fees for expert witnesses, shall be shared equally between the two parties. b. In any administrative appeal or litigation between the parties arising out of this license, the prevailing party shall recover its reasonable attorneys fees incurred at trial and upon appeal. "Attorneys fees" shall include the reasonable value of the services of in-house counsel. 14. MISCELLANEOUS PROVISIONS. a. Notice. Any notice affecting the rights of the parties under this License shall be delivered in writing either in person or to the following parties by first class mail: City: Director, Michael A. Black Ashland Parks and Recreation Commission 340 South Pioneer Street Ashland, Oregon 97520 (Telephone 541-488-5340; FAX: 541-488-5314) Copy to: City Administrator, Dave Kanner City of Ashland 20 East Main Street Ashland, Oregon 97520 (Telephone: 541-552-2100; Fax: 541-488-5311) Concessionaire: Name of business: e~-- Attn: Address: Phone Number Ta~11~matters b. Governing Law. This License, relating to this License, shall be governed by the laws of the State of Oregon in force at the time any need for interpretation of this License or any decision or holding concerning this License arises. The parties to this License do not intend to confer on any third party any rights under this License. c. Severability. If any provision of this License is held by a court of competent jurisdiction to be either invalid, void, or unenforceable, the remaining provisions of this License shall remain in full force and effect. d. Merger. THIS LICENSE CONTAINS THE ENTIRE AGREEMENT BETWEEN THE Calle Guanajuato Restaurant Outdoor Dining Concession 4 PARTIES HERETO AND SUPERSEDES ANY AND ALL PRIOR EXPRESS AND/OR IMPLIED STATEMENTS, NEGOTIATIONS AND/OR AGREEMENTS BETWEEN THE PARTIES, EITHER ORAL OR WRITTEN, AND MAY NOT BE AMENDED, CHANGED OR MODIFIED IN ANY WAY, EXCEPT BY WRITTEN AGREEMENT SIGNED BY ALL PARTIES HERETO. IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed in two (2) duplicate originals, either as individuals, or by their officers, thereunto duly authorized. DATED this day of 2016 Licensee / Concessionaire: Licensor/ City of Ashland, Oregon: - Parks and Recreation Commission Nam~'Printed: Michael A. Black, Director Ashland Parks an ecreation Date: Date: L/ Dave Kanner, City Administrator Appr d as to or D Lohma ity Attorney Calle Guanajuato Restaurant Outdoor Dining Concession 5 Exhibit A- Concession Area See attached picture and highlight entire area of interest. Calle Guanajuato Restaurant Outdoor Dining Concession 6 Exhibit B Proposal Documents Ashland Parks & Recreation Department REQUEST FOR RESTAURANT SERVICE SPACE-CALLE GUANAJUATO NAME OF RESTAURANT WK PHONE MESSAGE PHONE EMAIL ADDRESS NAME OF AUTHORIZED REPRESENTATIVE` WHAT IS THE BEST.WAY TO CONTACT YOU? *(Cir% one) email/phone j, MAILING ADDRESS t` CITY STATE ZIP DESCRIPTION OF AREA. SEE ATTACHED PICTURE (Exhibit A) ARE YOU REQUESTING A NEW SPACE THAT IS NOT CURRENLY A SEATING AREA? (Circle One) YES NO TOTAL NUMBER OF SQUARE FEET REQUESTED? per square foot) WILL ALCOHOLIC BEVERAGES BE SERVED? YES NO Date Signature (oift(ner or representative) Total Square Footage x $Date Paid The following items mu be obtained before license can be i ued: • Business License N mber: • Copy of OLCC Lic se for outdoor seating • Copy of Insuranc Certificate naming City of Ashland as additional nsureds Calle Guanajuato Restaurant Outdoor Dining Concession 7 Exhibit C Insurance Requirements The Concessionaire, at its sole cost and expense, commencing on the effective date of this License, shall procure and maintain insurance acceptable to the City in full force and effect throughout the term of this License. It is agreed that any insurance maintained by City shall apply in excess of, and not contribute with, insurance provided by Concessionaire. Concessionaire's Insurance shall be primary and non-contributory and have a cross-liability clause. During the term of this contract, Concessionaire shall maintain in full force, all the insurance coverage noted below with the City named as additionally insured: 1. Comprehensive General Liability insurance, with a general aggregate limit of not less than $2,000,000 and $2,000,000 per occurrence. Each policy shall contain a blanket contractual liability endorsement to cover the Concessionaire's indemnification and other obligations under this License as well as owners' and contractors' protective insurance, products and completed operations coverage, fire damage, personal and advertising injury coverage. It shall also include, if appropriate for the contract, coverage for Concession Area operations, explosion and collapse hazard, underground hazard, products, completed operations, contractual insurance, and independent contractors. 2. Comprehensive Automobile Liability insurance, with a general aggregate limit of not less than $2,000,000 and $2,000,000 per occurrence, including coverage for owned, hired or non-owned vehicles. 3 Notice of cancellation or change. There shall be no cancellation, material change, reduction of limits or intent not to renew the insurance coverage(s) without 30 days written notice from the Concessionaire or its insurer(s) to the City. 4. Certificates of insurance. As evidence of the insurance coverage's required by this contract, the Concessionaire shall furnish acceptable insurance certificates to City at the time Concessionaire returns signed contracts. For general liability insurance and automobile liability insurance the certificate will provide that the City, Parks Commission, its officers, employees and agents are Additional Insureds. The certificate will include the 30-day cancellation clause, and will include the deductible or retention level. Insuring companies or entities are subject to City acceptance. If requested, complete copies of insurance policies shall be provided to the City. The Concessionaire shall be financially responsible for all pertinent deductibles, self-insured retention's, and/or self-insurance. Certificates of Insurance shall be forwarded to: (Ashland Parks and Recreation 340 S. Pioneer St., Ashland OR 97520). 5. Workers Compensation insurance in compliance with Oregon Statutes, [ORS 656.017] which requires subject employers to provide Oregon workers' compensation coverage for all their subject workers. (Required of Concessionaires with one or more employees, unless exempt under ORS 656.027). ) Only if Concessionaire does not employ workers subject to ORS Chapter 656, Concessionaire shall sign the following affidavit: EXEMPTION AFFIDAVIT Concessionaire declares, under penalty of perjury and false swearing, that Concessionaire does not currently employ, and will not employ any individuals for work under this contract during the term this License is in force. Date: Concessionaire Calle Guanajuato Restaurant Outdoor Dining Concession 8 Exhibit D Minimum Policies, Procedures, and Concession Standards for Outdoor Dining on Calle Guanajuato The Ashland Parks and Recreation Commission may award a concession on the Calle Guanajuato to Plaza restaurants, adjacent to Calle, for the specific purpose of placing outdoor food service tables on approved concession sites, said sites designated and approved by the Parks Director on an annual basis The Policies, Procedures and Standards below govern this process fSubject to change by the Parks Commission], Definitions For the purpose of this document, all references, certain words and phrases are defined, and certain provisions shall be constructed as herein set out, unless it appears from their context that a different meaning is intended. • "Restaurants" shall pertain strictly to City of Ashland Plaza Restaurant owners and establishments adjacent to Calle Guanajuato. These restaurants are in the business of selling or causing to be sold for cash or consideration of any kind any of the following items: food or edibles of any type whether hot, cold, fresh prepared or packaged. This definition includes an offer for sale. • "Concession" is that City authorization which provides the restaurant owner the right to maintain a restaurant venture at a certain location on the Calle Guanajuato. • "Calle Guanajuato" is that area behind the Ashland Plaza business area, adjacent to the south side of Ashland Creek, between North Main Street and Winburn Way. • "Restaurant Equipment" includes but is not limited to any materials, merchandise, tools, carts, table's chairs, podiums, or other items owned by, in possession of or associated with a licensed restaurant owner. • "Restaurant Owner" is a person or legal entity who is the legal owner of the restaurant business. • "Employee" means any person hired or paid compensation by, or any person under contract to, a licensed restaurant owner. • "Site Location" (also referred to as "concession area", or "premises" is that useable space or area on Calle Guanajuato which has been allocated for individual plaza restaurant use by the Ashland Parks Director. • "Licensed" is that business license required by the City of Ashland constituting a tax for revenue purposes, and is not a regulatory permit fee. The payment of a license tax required by, and its acceptance by the City, and the issuance of such license to any person, shall not entitle the holder thereof to carry on any business on the Calle Guanajuato unless he or she has complied with all the requirements of the City and all . other applicable site permit policies and rules of the Ashland Parks and Recreation Commission as agreed upon when obtaining a site permit. Restaurant Concession Application. • Every plaza restaurant, adjacent to Calle Guanajuato, desiring an outdoor dining concession on the Calle Guanajuato shall file an application with the Ashland Parks and Recreation Commission upon a form obtained from the Ashland Parks and Recreation Department. The applicant shall meet the application deadline and place the same on file with the department. Calle Guanajuato Restaurant Outdoor Dining Concession 9 Review of Concession Applications. Restaurants shall have first priority for all Calle Guanajuato alcove use as site locations. Calle's alcove position, design and square footage provides an appropriate setting for restaurant traffic and layout. Upon receipt of applications, the Ashland Parks and Recreation Commission shall review each according to the following "priority" criteria: • Restaurant proximity shall constitute a major determining factor for a site location on Calle Guanajuato. Only restaurants that are adjacent to and have the greatest accessibility to a designated location shall have contractual preference. • Restaurant "seniority" shall take precedence when two or more restaurants are within the same proximity to a site location. "Seniority" shall be determined by a review of past year's site permit agreements affording privilege status to most recent and / or continuous use. Final selection shall be made by the Commission. Restaurant Concession Fee Schedule. The Calle11~~uanajuato Restaurant Concessio Fee Schedule shall be set at $7.00 per square foot of use. March ~`~'1, 2016 through November , 2016 shall constitute a concession season. The site permit fee shall be paid by the second Friday of May of each year covered under the permit. Minimum Period of operation is between Memorial Day and Labor Day. Restaurant Concession Reservation and Duration. 1. Any restaurant concession shall be nontransferable and shall be valid for one season in a single calendar year. 2. No Plaza restaurant may hold or be issued more than one concession. (Owners with interests in multiple restaurants are not restricted by this provision). 3. Should a restaurant "abandon" a reserved site, it shall be "awarded" through the competitive process under the selection "Review of Applications." 4. At the end of each year, during the month of December, an "intent" notification shall be required of the restaurant owner regarding continued use of the original reservation. After the third (3) consecutive "intent" notification, the restaurant must reapply for a new concession and no reservation will be held. 5. In considering "intent" notifications, the Ashland Parks and Recreation Commission shall consider the original application criteria in the section "Review of Applications" and the restaurant owner's compliance with other applicable City laws and regulations. Any site permit reservation which is rescinded shall receive in writing an explanation of such action from the Commission. Restaurant Cancellation. • A restaurant issued a concession may be canceled at the request of the restaurant owner. In such case, the annual site permit fee requirement shall be null and void. • In the event of a cancellation, the restaurant site vacated shall be available for another licensed plaza restaurant owner or designated as part of the Calle Guanajuato Marketplace Concession. • The Ashland Parks and Recreation Department reserves the right to revoke any restaurant's concession for a designated Calle area at any time if that individual restaurant does not conform to applicable law, including but not limited to the rules and regulations established by the Ashland Parks and Recreation Commission. Restaurant Concession Regulations. • Concessionaires shall be required to enter into a standard Concession agreement with the City to lawfully operate a concession on city park property. Calle Guanajuato Restaurant Outdoor Dining Concession 10 Exhibit B Proposal Documents Ashland Parks & Recreation Department REQUEST FOR RESTAURANT SERVICE SPACE-CALLE GUANAIUATO NAME OF RESTAURANT WK PHONE MESSAGE PHON9 t~1.11 . 2--cl2C, EMAIL ADDRESS NAME OF AUTHORIZED' REPRESENTATIVE WHAT IS THE BEST WAY TO CONTACT YOU? *(Cir a one) email/phone MAILING ADDRESS vvvl n 1 CITY STATES ZIP DESCRIPTION OF AREA SEE ATTACHED PICTUR Exhibit A) ARE YOU REQUESTING A NEW SPACE THAT IS NOT CURRENLY A SEATING AREA? (Circle One) YES NO TOTAL NUMBER OF SQUARE FEET REQUESTED? per square foot) WILL ALCOHOLIC BEVERAGES BE SERVED? i`'/ YES NO Date_L41 1~0 Signature (owner or representive) Total Square Footage x $aL_ Date Paid The following items must be obtained before license can be issued: • Business License Number: 0 0 a • Copy of OLCC License for outdoor seating Copy of Insurance Certificate naming City of Ashland as additional insureds ✓ ° s a m -t~ t m ~ o s Y z^ 4= r a~~ " u a m - - j a d t e u w<w WMI = s r E -31 3 7_7 e , - I =r ~i 4 I xw - is* a y '%j+a~1~111111111M111~1 I~ r w - te=a a Y r: t e v s I .u ~ A r x~ T eel' f , 7P, ~fl i y ,e a a fi N NN .,u y_ . s z s- a F yam, ~ .r a u ~f 9SESAAS OP ID: PB F 0 O3112/ 2014Y) CERTIFICATE OF LIABILITY INSURANCE 03112!2014 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(iss) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsements . PRODUCER Phone: 541-779-4232 NAME T Hart Insurance 1123 Royal Ave. Fax: 549-772-3963 PHONE E AIC No : Medford, OR 97504 ADDRESS: Hart Insurance / Medford INSURER(S) AFFORDING COVERAGE NAIC N INSURER A : American Hallmark Ins Co of TX 43494 INSURED Beam Consulting & Ventures LLC INSURER e : dba: Sesame Asian Kitchen 21 Winburn Way INSURER C: Ashland, OR 97520 INSURER D : INSURER E : - INSURER F : COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. LLTR TYPE OF INSURANCE POLICY NUMBER MM Dp EFF MdIOfDD~ LIMITS GENERAL LIABILITY EACH OCCURRENCE $ 1,000,00 DAMAGE A X COMMERCIAL GENERAL LIABILITY X PB479356 05/1812015 0511812016 PREMISES Ewa o e S 100,00 CLAIMS-MADE a OCCUR MED EXP (An one person) S 5,00 PERSONAL a ADV INJURY $ 1,000,00 GENERAL AGGREGATE $ 2,000,00 GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMPIOP AGG $ 2,000,00 X POLICY PRO- LOC Liq Liab $ 1,000,00 AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT Ea acci e t $ 1,000,00 ANY AUTO 44PS479356 05/1812015 05/1812016 BODILY INJURY (Per person) $ ALL OWNED X SCHEDULED BODILY INJURY Per accident) S AUTOS AUTOS ! ) HIRED AUTOS X NON-OWNED PROPERTY DAMAGE AUTOS Per accident $ S UMBRELLA LIAO OCCUR EACH OCCURRENCE S EXCESS LIAR CLAIMS-MADE AGGREGATE $ DEb RETENTION $ $ WORKERS COMPENSATION WC STATU- OTH- AND EMPLOYERS' LIABILITY YIN I ER ANY PROPRIETORIPARTNER/EXECUTIVE E. L. EACH ACCIDENT $ OFFICERIMEMBER EXCLUDED? ❑ N I A (Mandatory in NH) E.L. DISEASE - EA EMPLOYEE $ If yes, describe under DESCRIPTION OF OPERATIONS below E. L. DISEASE -POLICY LIMIT $ DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (Attach ACORD 101, Addluonal Remarks Schedule, It more space Is required) Certificate holder is listed as additional insured per attached form CBP045. CERTIFICATE HOLDER CANCELLATION CITYASH SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN City of Ashland ACCORDANCE WITH THE POLICY PROVISIONS. Nancy Slocum AUTHORIZ REPRESENTATIVE 20 E. Main Street Hart t nce Med d Ashland, OR 97520 G ©1988-2010 ACOR ORPORATION. All rights reserved. ACORD 25 (2010105) The ACORD name and logo are registered marks of ACORD POLICY NUMBER: COMMERCIAL ADVANTAGE POLICY CBP 045 03 05 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - DESIGNATED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the following: COMMERCIAL ADVANTAGE POLICY SCHEDULE Name Of Additional Insured Person(s) Or Organization(s): Information required to complete this Schedule, if not shown on this endorsement, will be shown in the Declara- tions. The following is added to Paragraph C. Who Is An Insured in Section II - Liability: 4. Any person(s) or organization(s) shown in the Schedule is also an additional insured, but only with respect to liability for "bodily injury," "property damage" or "personal and advertising injury" caused, in whole or in part, by your acts or omissions or the acts or omissions of those acting on your behalf in the performance of your ongo- ing operations or in connection with your premises owned by or rented to you. 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