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Home My WebLink About2009-065 Concession Agrmt - Louies .' . , i ! i I ) '/ .- .'- -~", 2009 CALLE GUANAJUATO RESTAURANT CONCESSION, LICENSE, RELEASE AND HOLD HARMLESS AGREEMENT (f/k/a "Restaurant Site Permit Agreement") THIS AGREEMENT is made and entered into this Co day of ~ \ 2009, by and between the City of Ashland, a municipal corporation of the State of Oregon, by and through the Ashland Parks and Recreat~n Commission, (hereinafter c,ollectively referred to as "City~'), and )JJUlL'-, iJY t.(f.V:\JI , (hereinafter referred to as "Concessionaire"). WITNESSETH: WHEREAS, pursuant to AMC 10.68.060, commercial sales activity is prohibited on City of Ashland Park properties, except when expressly authorized in,a written concession agreement; and --. WHEREAS, the City of Ashland owns or controls certain real parks property comprising the Calle Guanajuato, situated and being in the City of Ashland, Jackson County, Oregon; and WHEREAS, the Calle Guanajuato property was acquired with federal funds and is restricted to publiC park purposes; and WHEREAS, the use and occupancy of a portion of the Calle Guanajuato by commercial entities, including restau~ants, pursuant to a valid concession agreement is consistent with the purposes of such publiC park property; and, '10 WHEREAS, Concessionaire is a restaurant business entity, legally formed and existing as L ,.ClUf$tJ.LarrLCv111 , , " , currently registered and existing in the St~!e of Oregon and in the City of Ashland, [Registry Number t.::" llU'L1d'f' L\llW I-~i ], Business License Numberf2L- 0L601"l; and - WHEREAS, Concessionaire has requested permission to operate an outdoor dining area on a portion of the Calle Guanajuato, said portion of the Calle Guanajuato being adjacent to or in direct proximity to the Concessionaire.'s existing and licensed Plaza Restaurant, said "concession area", "premises" or "s'uoject property" being more particularly described and shown in Exhibit A attached hereto and made a part hereof by this reference; and WHEREAS, City processes requests for restaurant concessions on the Calle Guanajuato in accordance with City Parks and Recreation policies, procedures and standards, attached hereto as Exhibit D, and incorporated herein by this reference, which policies, procedures and standards, may be revised from time to time by the Parks Commission; and , Calle Guanajuato Restaurant Outdoor Dining Concession 1 '. , ' WHEREAS, the City desires to award to Concessionaire, through this concession agreement, a revocable license and permit to use and occupy, under the terms and conditions set forth herein, the portion of Calle Guanajuato referenced in Exhibit A, and no other areas; and. WHEREAS, the use and occupancy permitted under this concession agreement shall be strictly limited to outdoor dining areas supportive of the existing Plaza Restaurant operation of CQnces~ionaire. N() other commercial activity is authorized; and . ~ WHEREAS, pursuant to Oregon Statutes and City ordinance, parks concession agreements are ex~mpt from public contracting regulations; and WHEREAS, Concessionaire agrees to fully comply with all the terms, conditions and requirements of this Agreement as well as all applicable rules and regulations referenced herein; and NOW THEREFORE, in consideration of the mutual promises and covenants set forth herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Concessionaire and City agree as follows: 1. RECITALS: The above statements are true and correct and are incorporated herein.by this reference. 2. CITY GRANT OF REVOCABLE LICENSE /CONCESSION: City hereby grants and delivers and Concessionaire hereby accepts this rel(ocable license and concession for use of the concession area outlined in Exhibit "A" (hereinafter "concession area"), subject to the conditions, covenants, terms and provisions of this Agreement. Concessionaire shall be permitted to take occupancy of the concession area on April 15 and the occupancy shall end on November 15 for the current year. Concessionaire shall have the right to operate and maintain an exclusive outdoor dining concession within the described concession area, subject to all required fire and emergency access areas. The Calle Guanajuato facility shall also be used and maintained for the public purpose for which the property is held or controlled by the City; accordingly, the license or grant of this concession is subject to all the terms, covenants, conditions regulations and restrictions as applicable to the property and as otherwise recorded in the official records. As such, the public shall be authorized to use the concession area for ingress and egress, subject only to rea.sonable security restrictions, limitations and conditions as established by concessionaire pursuant to this concession agreement. 3.' SCOPE OF GRANT: The use of the premises and sole purpose of the license and concession granted herein is to allow the use of the property as outdoor dining for the Concessionaire's Plaza restaurant. The concession is strictly limited to this use. The authorized concession is more particularly described and shown in the Concessionaire proposal and related Ashland Parks and Recreation Commission communications, all such documents being attached hereto as Exhibit B and made a part hereof by this reference. It is the responsibility of the Conc~ssionaire to be aware of and comply with all current Calle Guanajuato Restaurant Outdoor Dining Concession 2 ,". ~ Ashland Parks and Recreation Commission policies and rules, as they may be amended from time to time. 4. TERM / EFFECTIVENESS: The term of this Agreement shall commence upon approval and execution by both City and Concessionaire and shall terminate on November 15, 2009, unless terminated early as provided for herein. The effective date of this Agreement shall be the latest date of signature by the parties. Additional or subsequent dates or seasons shall require a new Agreement. The City shall have no obligation to hereafter grant any future license or concession to Concessionaire.J~,egaldless of the end of the term or early termination, the obligations of the Concessionaire continue in full force and effect until full payment of all financial obligations to the City, removal of restaurant equipment and the complete resolution and satisfaction of any claims under this Agreement. 5. DURATION / MINIMUM INTERVAL OF USE: The duration and scope of the revocable License and Concession granted by this Agreement is for one season, beginning April 15 and ending November 15 of the concession year. Notwithstanding this maximum duration, the minimum period of active viable restaurant outdoor dining operation in the Concession area (inclusive of placement of restaurant equipment and regular diner usage in the form of consistent and regular restaurant-style operations) is between Memorial Day and Labor Day. Failure to maintain minimum operations is considered a default under this Agreement. 6. USE OF PREMISES AND CONCESSION OPERATION PARAMETERS: The Concessionaire shall use, manage, operate and maintain the concession and concession area as follows: A. Strict Limitation on Uses. Operate the concession and use the concession area in strict compliance with the terms and conditions and provisions of this Agreement, and for the sole purpose of the operation and use of the property as outdoor dining for the Concessionaire's Plaza Restaurant. As described under "Scope of Agreement" above and elsewhere in this Agreement. B Compliance with Law. Comply with all applicable federal, state and local laws, rules, and regulations, including specifically but not limited to, City business license laws, food and beverage license laws, County public health regulations, including regulation of food handlers, OLCC regulations, and all such laws and regulations concerning non-discrimination in employment and provision of services, publiC health and safety regulations and the policies, ordinances, rules and regulations of the City of Ashland and Ashland Parks and Recreation Commission in effect on date of use. Compliance with the Americans with Disabilities Act all applicable regulations and administrative rules established pursuant to those laws, in the construction, remodeling, maintenance and operation of any structures and facilities, and in the conduct of all programs, services, training, educational or otherwise, shall be required. Calle Guanajuato Restaurant Outdoor Dining Concession 3 C. Responsibility for Compliance. Obtain all federal, state and local permits, licenses and authorizations as necessary for the management, operation and maintenance of the Concession as envisioned by this Agreement and the proposal; Concessionaire shall be solely responsible for obtaining all such approvals, permits, licenses, insurance, and authorizations from the responsible Federal, State, County, and local. authorities, or other entities, necessary to use the property in the manner contemplated,including all authorizations necessary, to perform placement of restaurant equipment in the location and manner contemplated. 'All costs of compliance and permitting are to be borne by Concessionaire and not the City. Further, it is expressly agreed and understood that the City has no duty, responsibility or liability for requesting, obtaining, ensuring, or verifying Concessionaire's compliance with the applicable state, county and federal agency permit or approval requirements. Any permit or authorization granted by the City, shall not in any way be interpreted as a waiver, modification, or grant of any other city, state, county or federal agency permits or authorizations or permission to violate any city, state, county or federal law or regulation. Concessionaire shall be held strictly liable, and shall hold the City, its officers, employees, and agents harmless for administrative, civil and criminal penalties for any violation of federal state, county and city statutes or regulations. Nothing herein shall be interpreted as restricting or limiting the City from bringing any criminal or civil proceedings or administrative enforcement action under the Ashland Municipal Code or Oregon State Statute. D. 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 acceptable to, and approved by the City. This obligation includes provision of adequate security measures to prevent the unauthorized use of the concession area, facilities, grounds and protect the resources of the Concessionaire and the City. City shall be under no obligation to make or perform any repairs, maintenance, replacements, alterations, or improvements on the Calle Guanajuato Property for; or on behalf of Concessionaire, or to provide security measures. City reserves the right to make repairs, replacements, alterations, and to perform other work on or around the subject concession property, and to exercise police power and regulatory functions in the Concession area and will strive not to cause unreasonable interference with use of the property by Concessionaire. Concessionaire, shall have no right to any abatement of charges under this Agreement nor any claim against City, its officers, employees and agents for any inconvenience or disturbance resulting from City's activities in conducting the above-referenced activities. E. Damage/Repair.. Not injure, damage or deface or allow its employees, contractors or patrons to injure, damage or deface the Calle Guanajuato premises, including but not limited to the grounds, improvements, facilities, assets and fixtures owned or controlled by City. Upon demand, the Concessionaire shall completely repair any such damage to the City's satisfaction or reimburse the City for the cost Calle Guanajuato Restaurant Outdoor Dining Concession 4 of repair or replacement of any items, at the sole discretion of the City. Failure to make such repair or reimburse the City within 15 days of such written demand shall be considered a default and may result in a termination of the license and concession. Claims may be submitted to Concessionaire's insurance carrier but such submission does not excuse the prompt and timely reimbursement or payment as called for in this Agreement. Concessionaire shall further indemnify and hold the City, its officers, employees, and agents harmless from all damages or injuries to the premises including the grounds, improvements, facilities, assets and fixtures caused or permitted by the Concessionaire. F. Improvements and Placement of Restaurant Equipment. Except for placement of restaurant equipment authorized below, this Agreement does not authorize or permit physical improvements or alterations to City property or installation of structures or fixtures thereon without the express written authorization of the City Parks Director. Improvements may only be made in accordance with Community Development Department approved plans. Any and all improvements must meet local and state code and all work must be performed by appropriately licensed contractors; physical improvements, structures, or installation of fixtures shall, upon termination of the concession, become the property of the City and shall be treated as donations to the City, free of any and all encumbrances. Similarly, restaurant equipment abandoned by Concessionaire and left on concession property after the term of the concession shall be forfeited and shall be treated as donations to the City, free of any and all encumbrances. . Concessionaire may place tables and chairs, serving tables or host podium or stand (generically referred to as restaurant equipment) in the concession area. . All furniture and restaurant equipment shall be of sturdy and durable construction and shall meet all applicable Ashland Municipal Code standards in effect at the time for outdoor dining furniture. . Restaurant equipment shall be easily moved and shall be self-supporting; at no time shall restaurant equipment be attached, tied or locked to trees, hydrants, poles, fences or other items. .' Restaurant equipment, or materials otherwise associated with the restaurant owner and restaurant employees shall not block, impede or in any way hamper pedestrian access to the Calle Guanajuato. . Restaurant equipment, or materials otherwise associated with the restaurant owner and restaurant employees, shall not block, impede or in any way hamper fire and emergency vehicle access as required by this Agreement. . Restaurant equipment, or materials otherwise associated with the restaurant owner and restaurant employees, shall not block, impede or in any way hamper other concessions, including concessions granted to other Plaza restaurants as well as concession operations and activities of vendors authorized in the Calle Guanajuato Marketplace Concession. . Restaurant equipment, or materials otherwise associated with the Calle Guanajuato Restaurant Outdoor Dining Concession 5 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 Mondav through Fridav Saturdav and Sundav prior to 11:30 a.m. prior to 8:00 a.m. and after 10:00 p.m. and after 10:00 p.m By scheduling outdoor operation hours outside of these time parameters, Concessionaire assumes complete responsibility, and liability for operating in and around the resulting vehicular traffic, as, pertains to their business and clientele. . Restaurant equipment shall be. kept in a sanitary condition at all times. . Concessionaire shall promptly see to the removal of any offensive, hazardous or dangerous restaurant equipment, furniture, junk or debris or other materials within the concession area, at all times. Removal may be demanded by the Ashland Parks Director, in writing if necessary. . Concessionaire shall not be permitted to set up restaurant equipment furniture or other authorized materials prior to 7:00 a.m. on April 15, of the concession year. All restaurant equipment furniture or other authorized materials shall be removed before 5:00 p.m. on November 15. G. Fire and Life Safety. Strictly comply with any and all fire and life safety guidelines, recommendations and requirem~nts as dictated by the City of Ashland Fire Marshal, including, but not limited to the following: . Concessionaire shall, at all times, 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. . Each fire hydrant shall have a clear, unobstructed space maintained around it as required for fire safety. . Concessionaire have available and shall maintain such fire extinguishers as determined by the Fire Marshal. . Concessionaire shall advise patrons and shall strictly abide by the Park prohibition on smoking, specifically, "no smoking" is permitted on the Calle Guanajuato under any circumstances; . Concessionaire shall not use any bottled gas, electrical devices, or hazardous materials or hazardous substances without prior approval by the Ashland Parks Director. [For purposes of this Agreement "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] Any violation of the fire and structure safety requirements detailed herein or as established by the Fire Marshal may result in default and immediate revocation of the license to use the Calle Guanajuato and termination of the concession. The Calle Guanajuato Restaurant Outdoor Dining Concession 6 Concessionaire shall be required to meet, annually, with the City of Ashland Fire Department Fire Marshal in order to identify and coordinate fire safety regulations for operations on the Calle Guanajuato. H. Land Use Approvals and Permits. Strictly abide by existing land use laws, authorizations approvals and conditions for Concessionaire's Plaza restaurant. Concessionaire is not authorized by this Concession to make application for any new land use approvals, including signage permits. Similarly, applications for building department permits or other applications concerning city property are not authorized by this Agreement. No banners, flags, signage and/or marking of any kind shall be placed on Calle Guanajuato for restaurant purposes, except that "exempt" signs under the Sign Ordinance in effect at the time, are permitted. [e.g. small "No Smoking" signs]. This Concession grants no permit or authorization for signage or banners, Applications for signs on City Park property can only be submitted by the City Parks Director and shall only be for governmental purposes. Banners on City right-of-way must be applied for at City Administration. I. Vehicular Access. AMC 10.68.400 provides: 10.60.400. Vehicle Access to Calle Guanajuato. A. Access by vehicles to Calle Guanajuato, that area located between Winburn Way and North Main Street is prohibited between the hours of 11:30 A.M. and 10:00 P.M., Monday through Friday, and 8:00 A.M. and 10:00 P.M. Saturdays from April 15 through November 15. B. The Ashland Parks and Recreation Commission may issue permits for access during the hours of closure for vehicles of property owners or lessees that have parking spaces on private land accessed through Calle Guanajuato, or for other functions that are approved by the Ashland Parks and Recreation Commission. Permit holder must show proof of car insurance. (see requirements in Exhibit C) C When not otherwise prohibite~ parking in Calle Guanajuato shall be limited to loading and unloading only, and for a period not to exceed 5 minutes. D. Any vehicle parked in violation of this Section shall be subject to the penalty contained in Section 10.68.350, and as well, is subject to impoundment according to the provisions of Chapter 11.36 of the Ashland Municipal Code Concessionaire shall strictly comply with the above limitations, except that pursuant to AMC 10.60.400 B., access permits are authorized to be issued by the Parks Director, in the Director's sole discretion as set forth below. Parks Director may authorize the issuance of vehicle access permits' to Concessionaire for limited purposes and for limited times to facilitate set up and take down and removal of restaurant equipments and other materials authorized Calle Guanajuato Restaurant Outdoor Dining Concession 7 by this Agreement Concessionaire shall procure and maintain insurance in accordance with the requirements of Exhibit C in full force and-effect throughout the term of this Iicense/ concession. Ingress and egress for vehicles shall be off Winburn Way, exclusively. Vehicles will not enter or exit from the plaza end of Calle Guanajuato; nor will they extend beyond the area designated for the Concession. The Director reserves the right to revoke the vehicle access permits at any time. At no time will the Concessionaire interfere with the eight (8) foot path required for emergency vehicles. The Concessionaire shall also be held accountable for insuring that appropriate pedestrian safety precautions are maintained while vehicles using the access permits are in the area. J. Parking Compliance. Concessionaire is required to strictly comply with all City of Ashland Parking Regulations, including time limits and, except for the limited purposes identified in the above permits; this Agreement does not excuse compliance. Concessionaire shall advise employees that parking prohibitions are fully applicable to Plaza restaurant employees. ' K. Restroom. Concessionaire shall make available restaurant restrooms for patrons of outdoor dining. L. Garbage Cleanup. Concessionaire shall provide refuse receptacles as needed to keep the concession area in a neat, clean and sanitary condition during the restaurant, hours of operation, and shall have the refuse collected as soon as possible consistent with normal operations of the sanitary service. Concessionaire shall be also be held accountable for cleaning and removing all refuse from the concession area, each day, periodically during the day and at closure for the evening. Clean-up shall be done to the standards set by the Parks Director. Failure to perform the obligations of this paragraph is subject to the procedure specified in Summary Abatement [paragraph 6.M] below. \ M. Summary Abatement. When the Parks Director, or designee, believes upon inspection, that the Restroom Maintenance and Garbage Cleanup provisions of this Agreement are violated, or that some other unsanitary or public health and lor publiC safety condition exists which was caused by, permitted by or allowed to occur by Concessionaire, or their patrons, Director may immediately cause the violations and conditions to be summarily abated using Ashland Parks and Recreation Department employees or City contractors. Concessionaire shall be responsible to reimburse the City for the actual cost [including overtime costs] to remedy the violation or condition. Director or Director's designee will attempt to contact Concessionaire to demand Concessionaire remedy the violation but Director is not required to wait to perform summary abatement. Reimbursement shall be made to the City within three (3) working days after the performance of the abatement and delivery of the charges to Concessionaire. N. Non-Interference with Plaza Retail Businesses and other authorized Concessions. Concessionaire shall ,operate the outdoor dining concession and Calle Guanajuato Restaurant Outdoor Dining Concession 8 interact with plaza business establishments and other concessionaires in a manner that does not damage, conflict with, or interfere with Plaza Merchant businesses, and other approved concessions, including permitted access and normal business functions. This is a food concession. Concessionaire is not authorized to sell other products or materials Plaza restaurants, with valid concession agreements, shall have sole rights to serve food or edibles of any type whether hot, cold, freshly prepared or packaged and/or beverages on Calle Guanajuato. No other Plaza business merchant, commercial establishment or Calle Guanajuato Marketplace vendor shall be allowed to serve any type of prepared or packaged food or edible and/or beverage on Calle Guanajuato. It is a violation of the Ashland Municipal Code to conduct commercial activity on park property, including food service, without a concession agreement approved by the City. Concessionaire is not authorized to conduct any other business other than food service pursuant to this Agreement; therefore it is unlawful, as well as a default under this Agreement, for concessionaire to sell, offer for sale, expose for sale or solicit offers to purchase any other product t of any kind on any portion of Calle Guanajuato. Concessionaire conducting food service without necessary concession and associated approvals shall be in default of this Agreement and City may immediately revoke the license to use the concession area. . O. Special Alcoholic Beverage Rules. AMC 10.40.030 provides: No person shall drink or consume alcoholic liquor in or upon any street, alley, public ground, or other public place unless the place has been licensed for that purpose by the Oregon Liquor Control Commission. ~ Accordingly, if Concessionaire desires to serve alcoholic beverages in the concession area on the Calle Guanajuato, Concessionaire shall also: 1. 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; and 2. obtain written permission from Ashland Parks and Recreation Department to serve alcohol; and 3. serve alcoholic beverages only in conjunction with prepared meals; and 4. demonstrate compliance with all requirements of the OLCC for,such service, to the satisfaction ofthe J:>arks Director. 7. PAYMENT OF CONCESSION FEES. Concessionaire shall pay a concession fee based upon the square footage of the concession area awarded in the current year to concessionaire. 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. The square footage flat fee shall be $3.60 per square foot, for the concession year. The concession fee will not change once the concession agreement is executed; however the concession fee will likely change every year and Concessionaire has no right to challenge the amount or type of fee. Calle Guanajuato Restaurant Outdoor Dining Concession 9 All required payments must be made and verified by the City before any new license / concession will be authorized with the Concessionaire. Failure to remit the amounts owed the City under this Agreement, or submission of falsified returns or other falsification of records, shall be submitted to the Jackson County District Attorney for consideration of criminal prosecution, in addition to other remedies available to the City identified in this Agreement. 8. FOOD AND BEVERAGE TAXES. . This concessions shall be operated in accordance with applicable law, including payment of all local taxes, fees and charges. Concessionaire shall pay all food and beverage taxes associated with the Plaza restaurant business furthered by this concession. The records inspection provisions of paragraph 7 above apply fully to City verification of compliance with this requirement. No concession shall be granted to a Plaza Restaurant if the Restaurant business entity, its owner or operator is in arrears, in collection, or in administrative or litigation concerning amounts owed to the City of Ashland under the Food and Beverage Tax provisions of AMC 4.34, regardless of whether the obligation concerns a business using a different name. Similarly, no Plaza Restaurant shall be awarded a concession if the restaurant, its owners or operators have pending criminal prosecutions for theft of city food and beverage taxes or involved in violation proceedings under AMC 1.08 for violation of provisions of the food and beverage tax ordinance. Failure to maintain current food and beverage payments, the existence of arrearages, c;ollections, administrative, civil or criminal actions arising out of failure to strictly comply with the City food and beverage tax shall result in default and revocation of the license to use the Calle Guanajuato and termination of the Concession 9. BUSINESS LICENSE TAXES, UTILITIES AND FEES: Concessionaire shall pay all business license taxes associated with the Plaza Restaurant business furthered by this concession agreement. A Concessionaire shall obtain a City business license in accordance with AMC 6.04 and maintain as valid said license during the concession period. No application for a concession shall be accepted by a restaurant, business entity or individual owner or operator without a current business licenses and without full payment for any arrearages owed by said restaurant, business entity or individual owner or operator regardless of whether the obligation concerns a business using a different name. In addition, violation of Chapter 6.04 is punishable by daily fines in accordance with AMC Chapter 1.08. The Concessionaire shall also payor reimburse the City for all actual utility , and service costs provided by City, including specifically electric power, water, sewer, garbage collection, as applicable. Failure to maintain a valid a business license by payment of the business license tax, failure to pay all utilities fees and charges, shall result in default and revocation of the license to use the Calle Guanajuato and termination of the Concession. I 11. INSURANCE: Concessionaire shall procure and maintain insurance in accordance with the requirements of Exhibit C in full force and effect throughout the term of this Iicense/ concession. Concessionaire shall provide the City with copies of said insurance certificates and shall name the City of Ashland aswell as the Parks and Recreation Commission as an additional insured. Any request to modify or waive the Calle Guanajuato Restaurant Outdoor Dining Concession 10 insurance requirements stated herein must be approved in writing by the Parks Director and City Attorney. 12. RELEASE / INDEMNITY AND HOLD HARMLESS: Concessionaire, for itself, its officers, members, employees, and agents, does hereby release and forever discharge the City of Ashland, the Ashland Parks and Recreation Commission, City officers, employees, agents, contractors, successors and assigns, from any and all claims or causes of action which Concessionaire, its officers, members, employees, and agents, now have or which may hereinafter accrue against the City, City officers, employees, agents, contractors, successors and assigns, in connection with or arising out of the this license/concession, including without limitation, personal injury or death, damages for trespass, conversion or other property loss, damage or theft of property placed or located on the Calle Guanajuato premises. Concessionaire, for itself, its officers, members, employees, and agents, shall hold harmless, indemnify, and defend the City of Ashland, City Parks and Recreation Commission, City officers, employees, agents, contractors, successors and assigns, from any and all liability, actions, claims, costs, losses, damages or other costs including attorney's fees and witness costs (at both trial and appeal level, whether or not a trial or appeal ever takes place) that may be asserted by any person or entity, including Concessionaire, patrons, other Concessionaires or plaza businesses, as well as other participants, arising from, during or in connection with the Concessionaire's entry onto and use of City property, and the operation of the Restaurant outdoor dining area, except liability arising out of the sole negligence of the City, its officers or employees. The Concessionaire specifically agrees to indemnify the City of Ashland, Ashland Parks and Recreation Commission, City officers, employees, contractors and agents against all loss injury or damage to concessionaire or concessionaire's property sustained by reason of occupancy of the premises or any portion hereof. Such indemnification shall also cover claims brought against the City under state or federal workers compensation laws. If any aspect of this indemnity shall be found to be illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the validity of the remainder of this indemnification. In the event any action or claim is brought against the City of Ashland, City Parks and Recreation Commission, City officers, employees, agents, contractors, successors and assigns, the Concessionaire shall, if the City so elects, and upon tender by the City, defend the same at the Concessionaire's sole cost and expense, and Concessionaire shall promptly satisfy any judgment adverse to the City, and the Concessionaire, jointly, and reimburse the City of Ashland, City Parks and Recreation Commission, City officers, employees, agents, contractors, successors and assigns for any loss, cost damage or expense, including attorney fees, suffered or incurred. The Concessionaire is not required to indemnify for damages caused solely by the negligence of the City The obligation to indemnify is expressly understood to survive termination of the license/concession for any reason, and includes reasonable attorneys' fees, including attorneys' fees on appeal, and investigation costs and all other reasonable costs, Calle Guanajuato Restaurant Outdoor Dining Concession 11 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. 13. TERMINATION: Notwithstanding any other provision hereof to the contrary, this license and concession agreement may be terminated as follows: a. All or part of this agreement may be terminated by mutual consent by both parties at any time, or by either party upon fifteen (-15) days notice personally delivered or upon deposit in the United States mail, postage fully prepaid, certified, return receipt requested, addressed to the Party as provided in Paragraph 17.C. below or such other address as either party may provide to the other by notice given in accordance with this provision. b. Subject to Section 14, the City shall have the right in its sole discretion, to immediatelv terminate this Agreement at any time, with cause, by giving written notice to Concessionaire in the same manner (not timing) as provided in B.a. above. "Cause" means any failure to perform any of the obligations or requirements of this agreement, including but not limited to any specified default provision or any other violation of the terms of this Agreement by Concessionaire. c. Notwithstanding any other provision in this agreement, City may terminate this agreement immediately upon Concessionaire's failure to have in full force and effect any insurance required by Exhibit D to this Agreement. The City may provide the Concessionaire with an opportunity to secure replacement insurance, (not to exceed 48 hours) but the concession area shall not be used, occupied, operated or maintained for any reason whatsoever while Concessionaire's required insurance protection is not in full force and effect. d. Notwithstanding any other provision in this agreement, in the event of termination, City may at its option and sole discretion, direct Concessionaire to remove any or all improvements, equipment, and furnishings installed pursuant to this Agreement. 14. DEFAULT: The Concessionaire may be declared in default by the City if: . Concessionaire vacates, deserts or abandons the premises for two or more consecutive weeks during the season; or . Concessionaire violate~ any material provision of this Agreement, including but not limited to, those provisions specifically identified as triggering default, violation, revocation, termination or breach. ' . Concessionaire fails to keep the premises in a safe and sanitary condition or operates the concession in a manner which is hazardous or offensive to the public; or . . Concessionaire fails to comply with any of the statutes, ordinances, rules, orders, regulations or requirements of the federal, state, county, city government, including speCifically park commission regulations, health department regulations, fire and building codes and planning laws and Calle Guanajuato Restaurant Outdoor Dining Concession 12 conditions; or . Concessionaire becomes insolvent; or . A voluntary or involuntary petition in bankruptcy is filed by or against the Concessionaire; or . A receiver is appointed to take charge of the Concessionaire's affairs, or' . Concessionaire fails to maintain compliance with paragraphs (7),(8), and (9) concerning payment of taxes, fees and charges, or Concessionaire fails 'to provide access to adequate financial records, including failure to submit an annual report. City will protect the confidentiaiity of the concessionaire's financial records to the extent allowed by law except where access to such records is material to pending litigation. In such event or events of default as set forth .above, whether the Agreement shall be terminated or not, the Concessionaire agrees, to surrender to the City the entire concession' area immediately upon notice of default and the City may order vacation of the premises or immediately remove the Concessionaire or any other person who may be occupying the premises without resort to courts for an Order sanctioning such action. Removal includes complete removal of personal property using City forces, or pursuant to this Agreement. Upon failure to vacate, City is expressly authorized to remove all Concessionaire property from the premises at the Concessionaire's expense. The City is relieved and discharged from any and all loss, damage or claim occasioned by such removal, and shall not be responsible for safe-keeping of property so removed. 15. SURRENDER: Upon the expiration of the original term or terms, as extended by the parties, Concessionaire shall surrender to the City the premises in as good or better condition and order as was originally received, except as allowed for within the typical wear and tear. Surrender is considered complete only upon approval of site conditions as determined by the City. City will inspect site within 48 hours written notice by Concessionaire of readiness for inspection. The 48 hour period does not apply to Saturday, Sunday, or any recognized City holiday. Upon expiration, abandonment, termination, or cancellation of this Agreement for any cause, Concessionaire shall immediately quit the premises and shall remove its personal property not affixed to the land and leave the site in a clean and tidy condition acceptable to the City. Any personal property not removed within that time shall be deemed abandoned and shall become at once the property of the City. Any buildings, alterations, or other improvements affixed to the land, except for movable furniture and trade fixtures, shall become a part of the land and shall belong to the City upon the expiration or termination of this agreement for any cause. In the event of termination of this contract prior to its expiration for reasons other than breach, or default on the part of Concessionaire or other than abandonment by Concessionaire or other than for cause, or other than wrongful termination or repudiation by Concessionaire, City shall pay Concessionaire such sums as the parties agree represent the reasonable value of improvements made by Concessionaire on the property and existing at the time of , Calle Guanajuato Restaurant Outdoor Dining Concession 13 termination of the agreement, provided such improvements were made with authorization. Concessionaire shall in such event accept said sum in complete and full satisfaction of any claim. If the parties cannot agree on the value, the matter shall be resolved as provided in Section 16 - Dispute Resolution. 16. DISPUTE RESOLUTION: The preferred method of resolving disputes between the parties under this Agreement shall be first by mediation and second arbitration as provided below. However, neither party shall be deprived of the right to seek court remedy for damages or for declaratory or injunctive relief and either may pursue such remedies and to seek and have protection by restraining order, preliminary injunction or the like. Provided however, that either party shall have the right, in the event of commencement of such judicial process, after the issuance of preliminary process, to demand that the issues to be decided in the case then be submitted to arbitration and to suspend the judicial proceeding until such issues have been arbitrated. The parties will be bound by decision of the arbitrators on the issues thus submitted. - 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. 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. Arbitration shall be conducted by an arbitrator chosen from the applicable panel of arbitrators available from American Arbitration Association, unless otherwise chosen by mutual agreement between City and Concessionaire, following the procedure prescribed by that association for such services and shall proceed thereafter in accordance with ORS Chapter 36. If there is a pending court action on the issues between the parties and the parties are unable to agree upon an arbitrator, a decision of the assigned judge appointing the arbitrator shall be binding on the parties. 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. In any litigation between the parties arising out of this contract, 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. 17. MISCELLANEOUS PROVISIONS A. Status of Concessionaire. The parties intend that Concessionaire in. performing the concession speCified in this agreement, shall act as an independent contractor and shall have the control of the work and the manner in which it is performed. Concessionaire is not to be considered an agent or employee of the City and is not entitled to participate in any pension plan, insurance, bonus, or similar benefits City provides its employees. Calle Guanajuato Restaurant Outdoor Dining Concession 14 Concessionaire will not be eligible for any federal social security, state worker's compensation, unemployment insurance, or Public Employees Retirement System benefits from this agreement. Concessionaire certifies that he is not currently employed by the, Federal government and the amount charged does not exceed his normal charge for the type of service provided. City will report the total amount of any and all payments, if any, to Concessionaire, including any expenses, in accordance with Federal Internal Revenue Service and State of Oregon Department of Revenue regulations. Concessionaire shall be responsible for any Federal or State taxes applicable to amounts paid, if any, under this agreement. Nothing in this Agreement shall be construed to render the City in any way or for any purpose a partner, joint venturer, or associate in any relationship with Concessionaire other than that of Licensor and Licensee/Concessionaire, nor shall this Agreement be construed to authorize either party to act as agent for the other B. Entry for Inspection. Concessionaire consents to and provides an irrevocable right of entry to permit inspection by City personnel, City contractors, City authorized representatives and other governmental authorities for purposes of regulatory compliance inspection and determination of compliance with this Agreement, federal, state and local laws as well as the general condition of facilities. Entry by City personnel, City contractors, representatives and other governmental authorities on official business shall not be deemed a trespass. City also reserves to itself the unqualified and irrevocable right-of-entry for the inspection of the premises to determine compliance with this Agreement and for emergency purposes. C. Notice. Except as otherwise expressly provided by law, any and all notices or other communications required or permitted by this Agreement or by law to be served on or given to a party of this Agreement shall be in writing and shall be deemed duly served and given when personally delivered to the party, any managing employee of the party, or, in lieu of personal service, when deposited in the United States mail, first class postage prepaid, addressed to the appropriate party as follows: City: Don Robertson, Parks Director City of Ashland Parks and Recreation 340 South Pioneer Street Ashland, Oregon 97520 (Telephone 541-488-5340; FAX: 541-488-5314) Copy to: Martha Bennett, City Administrator 20 East Main Street Ashland, Oregon 97520 (Telephone: 541-552-2100; Fax: 541-488-5311) Concessionaire: ~~~~ -JMIMi\-u-Y ~M I. 5> -uw ~ fwill u.c./ Calle Guanajuato Restaurant Outdoor Dining Concession 15 and when so addressed, shall be deemed given upon deposit in the United States Mail, postage prepaid. In all other instances, notices, bills, and payments shall be deemed given at the time of actual delivery. Changes may be made in the names and addresses of the person to whom notices, bills, and payments are to be given by giving notice pursuant to this paragraph. D. Assignment/Delegation. Neither party shall assign, sublet, transfer any interest in, or delegate any duty under this Agreement without the written consent of the other, and no assignment or delegation shall be of any force or effect whatsoever unless and until the other party has so consented. Any attemptto assign, sublet, transfer any interest in, or delegate any duty under this Agreement without the written consent of the other, shall result in default and the license and concession authorized pursuant to this Agreement may then be immediately be revoked and terminated E. Emergency. Nothing in this Agreement prohibits or restricts the power ofthe City of Ashland governing body, the Mayor, the City Administrator or other City Official from exercising regulatory power or other authority over City property pursuant to the City emergency operations ordinance, AMC Chapter 2.62. F. No Waiver. Failure or delay of the City to require performance of any provision of this permit and contract shall not limit, waive or prejudice the right of the City to later enforce that or any other provision of this Agreement. G. ' Attorney Fees. In the event of any action to enforce or interpret this Agreement, the prevailing party shall be entitled to recover from the losing party reasonable attorney fees incurred in the proceeding, as set by the court, at trial, on appeal or upon review. H. Governing Law. This Agreement, and all matters relating to this Agreement, shall be governed by the laws of the State of Oregon in force at the time any need for interpretation of this Agreement or any decision or holding concerning this Agreement arises. The parties to this Agreement do not intend to confer on any third party any rights under this Agreement. I. Binding on Successors. This Agreement shall be binding on and shall inure to the benefit of the heirs, executors, administrators, successors, and assigns of the parties hereto. J. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be either invalid, void, or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect unimpaired by the holding K. Merger. This Agreement is intended both as the final expression of the Agreement between the parties with respect to the included terms and as a complete and exclusive statement of the terms of the Agreement. There are no promises, conditions or obligations , Calle Guanajuato Restaurant Outdoor Dining Concession 16 other than those contained or incorporated herein. This Agreement shall supersede all prior communications, representations or agreements, either oral or written, between the parties. No modification of this Agreement shall be effective unless and until it is made in writing and signed by both parties. From time to time the parties may choose by mutual consent to modify the contract. Such modification will be made by numbered Amendment which will become a part of the Agreement the same as though it had been an original part of the Agreement. Such Amendments shall be dated and signed by both parties and attached to the original agreement. 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 J!fril ,2009. Licensee / Concessionaire: Licensor/ City of Ashland, Oregon: Parks a Recreation Commission 1MJ.?fc.n- Name Printed: IA~s~A ~ <~ Don Robertson, Director Parks and Re<;reation Director Date: <)/U!11 Calle Guanajuato Restaurant Outdoor Dining Concession 17 Exhibit A- Concession Area ,--- ---~---.--...--.. _._,- -"i ~E!E! ~tt9<;h~d !!lflP " '.' , '" " .'"" Calle Guanajuato Restaurant Outdoor Dining Concession 18 ~ + <:t .)... b .... .s J:5 ...) -> '~ o ~ ~ ~ a - -:; ~ -.-----~. z C >- w > 0:: :l IfJ , U '~ '" i2 "T' ,::... 0: i::' <( c:: o o Cl. o f- c < :; ~ ti ::.l~ ~ ~~ 'ulC: - P;5 ::;jo z '~ 20 " ' _0 3 :'-z 5:] o- J 'fIi]) ~ ~< " < " " 11 N W .J G g 'b If: " g ~ { , b ~ ~ z . :.~ ~'<a '12l!!~ ~ ~'" ~ '~5 i~~b~ ..u~ ~5." ~D.~~'<:1 ~~~.~ ~h:a~ " ~ ~ . ~ ~ V1. ~ 1,\ \ ~ ~ ""'0 "<: Il I . rD lID I, 1m l' 19J . & f 91 ". lID .' "J 1. 59 o '< " .J ~ iii " . o i ! t I !Ii j J Ii :~ it n~~'L~IU I~q, o UB~nn~nni~'Ud~ 15 ~. = \ III : : ~ ~ .. ~: ~ ~ "! 'I~ii 1 ~ I \ $ " , . ~ ~ ~ ~ ' , '" '. , i ii' , l , , in:nn, 3Nn KllVI'Y , i v G '" e:: () u z ,: OJ > " OJ '" " " " ~ ~ :3 , ~ ~ >- O.J > It :J [f) U J: a. <( It U o a. () z o c < ~ :.... 0:: lJ ~ ~~ irQ::: ~ "'='zinC': ~ <:::: ~ ~~~8 3 ~<~'~ I.J.. 0..(.:. J. v ( '. c _ r\ C;>-~Z ~65~ ~ '1:;;' l ,:>< ~ .~ t"" < , o o , , ! ! I - U I, L ' : i I ,I! ji! I II ~ II ~ ;I ~ u n IiUld!l~!n:n' pqn ~~ ~ . . =IIJIlooooo 1l!..dHii:~dii 3"'~~al$ ell. I "':.!'Ig~ 1~ I 1$ i Li ~~ >g,"-~ :..J ':i!~i;:; > :::;''--'' CC ~ ~e ~ :J::.! ~i5 'i: ~ a~~ 0 ,,~ '; f.llS: ,.. - - -'- -,--' / f,,' / I: , /.: ~ //l / I,' / , / '0 ~ WINBURN WAY b ~ ~------------ <::::::' ,,,.,..,... ,~" ,...~--, ,,--- b ~ SU24"''iI .&,1.11 b ~ -'- - - - -- oS !/ ,0 ,- " OJ ~ < Z < ~ () '/ Gj CJ " U o o ,5 ~ '0, '/j "" o ~" - ii o 7. ~ ' ~;~ .." I~~~ ~".^ , !~::i ~l>-~"''''' i'~~~~ i!.'~' h~~; ~h:.J5 ! . ~ ~ a z < ..J :;: '/J " II 1'1 .; ; . . - -'''" & ["0'" -"--=----- Exhibit B Proposal Documents ....- - - - - - - ~ - -- - ----- - - -.,. . - -, S~eat;tac;,I'1~d, r.es@Ur',lnJhsea!!l}g1:~ql!~S~ Calle Guanajuato Restaurant Outdoor Dining Concession 19 Exhibit C Insurance Requirements The Concessionaire, at its sole cost and expense, commencing on the effective date of this Agreement, shall procure and maintain insurance acceptable to the City in full force and effect throughout the term of this agreement. 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: 1. Comprehensive General Liability insurance, with a general aggregate limit of not less than $2,000,000 and $1,000,000 per occurrence. Each policy shall contain a blanket contractual liability endorsement to cover the Concessionaire's indemnification and other obligations under this Agreement 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 premises 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 $300,000 and $100,000 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, Ashland Parks and Recreation Commission, its officers, employees and agents are Additional Insured. 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: Calle Guanajuato Restaurant Outdoor Dining Concession \ 20 (City Attorney's Office, 20 East Main Street,. Ashland, Oregon 97520), prior to or concurrent with delivery of executed contracts. Concessionaire agrees to deposit with the City, at the time s/he returns the executed contract, Certificates of Insurance or Binders of Insurance if the policy is new or has expired, sufficient to satisfy the City that the insurance provisions of this contract have been complied with and to keep such insurance in effect and the certificates and/or binders thereof on deposit with the City during the entire term of this contract. Such certificates and/or binders must be delivered prior to commencement of the work. The procuring of such required insurance shall not be construed to limit Concessionaire's liability hereunder. Notwithstanding said insurance, Concessionaire shall be obligated for the total amount of any damage, injury or loss connected with this contract. 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 agreement is in force. I ~~ Date:~ \ (P I vJoj ConcessI naire Calle Guanajuato Restaurant Outdoor Dining Concession 21 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 selVice tables on approved concession s,ites, said sites designated and approved by the Parks Director on an annual basis. The Policies, Procedures and Standards below govern this process. [subject to change by the Parks Commission}_ Definitions For the purpose of this document, a)1 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 fc;>r 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, tables chairs, podiums, or other items owned by, in possession of or associated with a licensed restaurant owner. . "Restaurant Owner" i~ 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 Calle Guanajuato Restaurant Outdoor Dining Concession 22 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. 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 I or continuous use. Final selection shall be made by the Commission. Restaurant Concession Fee Schedule. The Calle Guanajuato Restaurant Concession Fee Schedule shall be set at $3.60 per square foot of use, April 1 through November 5 shall constitute a concession season. The site permit fee shall be paid by May 15 of each year covered under the permit. Minimum Period of operation is between Memorial Day and Labor Day, Restaurant Concession Reservation and Duration. . Any restaurant concession shall be nontransferable and shall be valid for one season in a single calendar year. 1. No Plaza restaurant may hold or be issued more than one concession, (Owners with interests in multiple restaurants are not restricted by this provision). 2. Should a restaurant "abandon" a reserved site, it shall be "awarded" through the competitive process under the selection "Review of Applications." 3. 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 held. 4. 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 availabie for another licensed Calle Guanajuato Restaurant Outdoor Dining Concession 23 , " ') 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 24 For: Louie's Bar & Grill, LLC Attn: MelISsa Jensen 690 South Mountain Ave. Ashland, OR 97520 541-482-9701 Western States Insurance of OR 406-327-6400 Business Owners Policy Traveters Insurance Company 16909799S265COB08 09101108 09101108 9211,00 Uablilty Limits BI & PO Per Occurrence Limit 1,000,000 BI & PO Aggregate limit 2,000,000 Medical Expense (Per Person) limit 5,000 Damage 10 Rented Premises Limit 300,000 liquor liability Aggregate Umil 1.000,000 Liquor Liability Per Person lImIl 1,000,000 Location 1 Building 1 41 North Main St Ashland ,OR 97520 Buildln9 Amount 614.750 Dedudible 500 Valuation RC Personal Property Amount 55,702 Dedudible 500 . Valuation RC Add'llnsured: Dave lewis & The Playa ,Inc, 43 W Hersey t Ashland OR 97520 Additional Coverages Valuable Papers Limit 25,000 Valuable Papers Oed 500 Accounts Receivable limit 25,000 Accounts Receivable Oed 500 Spoilage limit 10.000 Spoilage Oed 250 F ART limit 25,000 FARTOed 500 Location Building Liquor liability General Aggregata Limit 1,000,000 Per Person Limit 1,000,000 limit 1,000,000 Additional Coverages Valuable Papers Limit 25,000 Valuable Papers Oed 500 Accounts Receivable limit 25.000 Accounts Receivable Oed 500 Spoilage limit 10,000 Spoilage Oed 250 ANEARTS Limit 25,000 FINEARTS Oed 500 Commercial Application Travelers Insurance Company 16809799B265COF09 09101108 09101108 '-.., For: Louie's Bar & Grill, LLC Attn: Melissa Jensen 690 South Mountain Ave. Ashland, OR 97520 541-482-9701 Western States Insurance of OR 406-327-6400 Business Owners Policy Travelers Insurance Company I6809799S265COF08 09101108 09lO1109 9211,00 lIabIDty Limits BI & PO Per Occurrence Linil 1rOaD,OOO B1 & PO Aggregate Linil 2,000,000 Medical ExpenSe (Per Person) LimK 5,000 Damage to Rentsd Premises Limit 300,000 liquor Liability AggTegate Umlt 1,000,000 Liquor LiabUlty Per Person LImIt 1,000,000 location 1 Building 1 41 North Main 51 Ashland ,OR 97520 Building Amount 614,750 Deductible 500 Valuation RC Personal Property Amount 55,702 Deduebble 500 Vatuation RC Add'llnsured: Dave Lewis & The Playe . Inc, 43 W Hersey t Ashland OR 97520 Addlllonal Cowrages Valuable Papers LImIt 25,000 Val\Jable Papers Oed 500 Accounts Receivable Limit 25,000 Accounts Receivable Oed 500 Spoilage Limit 10,000 Spoilage Dad 250 F ART Limil 25,000 FARTOed 500 locatlon Bulldlng liquor Liability General Aggregate Limit 1,000,000 Per Person Limit 1,000,000 Limit 1,000,000 Additional Coverages Valuable Papera Umil 25,000 Valuable Papers Dad 500 Accounts Receivable Umlt 25,000 Accounts Receivable Oed 500 Spoilage Limit 10,000 Spoilage Oed 250 ANEARTS UInIt 25, 000 FINEARTS Oed 500 Commercial AppllcaUon TraveIe<s Insurance Company I6809199B265C0P08 09101108 09101109 "'tJ (f) .., <' (f) -. c CD m CO 0 CD --l IJI 0 (')-1 r OI 0 Z(j) c: (j)r ~ c- V' s::(') [II -Om :I> -IZ ;:u -(j) IlO Om G) Z)> ;:u or r= ,..--- --z,rO ~ r ..-' / - -I' -----.. r s: ?~, ~ ":'"'"' r /'/ ;"" r;<j' ~ ~ /;~ ',,~ 0 ~ //, \'S:\;'\ \,9) ,\.~," " ~ fli ~~~)/?0 )~.. , /' ~~\0, ~-,'--z're. "-- ,,/'1 r' /\.. \ ,) -0~ (j) .Y ~'.. (j / ,'. 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'~'~"""""~"'''... ;11' ~O~E';~orporatlon DIVISiOn I , <~","'~'~~"',,",~c....-.. .., "-""",,"~,,,,"...i)J c.::c,:x;jfx~i~~b:illJl~" ' " , b]!.lriell"i'llgls~ryll:!!i:"~~llL:ioim~~.es:--_holliry'Jl,,!?IJ;""':c.,"'c,:.J t'_::~l-ifrciffil):om;;;ei~i~t~,b,d..' :;:'~nifClrin c;;riim~cTal[~O:~~S'i'i;~[:~do~u'rrtetllS:~ ..taJa.~ryl:Ces, J Business Name Search New Se,arc_h , Printer Fri,endly Business Entity Data 05-27-2009 11:40 Registry Nbr I;l1tity: I;l1li.ty: J_uris,dil:tLon Registry Duration Renewal Tvoe Status Date Date Date 471667-98 DLLC ACT OREGON 10-19-2007 Entity Name LOUIE'S BAR & GRILL, LLC Foreign Name New Search P..ri.nJcr,Fricm!ly Associated Names Type PPB PRINCIPAL PLACE OF BUSINESS Addr 1 141 N MAIN Addr 2 CSZ IASHLAND lOR 197520 I ICountryluNlTED STATES OF AMERICA Please click here for fTeneral informalion about refTislered afTenls and service of orocess, Type iAGl !REGISTERED AGENT Start Date 10-19- Resign Date ~007 Name MELISSA 1 UENSEN 1 I Addr 1 141 N MAIN Addr 2 CSZ ASHLAND lOR 197520 1 lcountryTUNITED STATES OF AMERICA Type MALIMAILING ADDRESS I I Name M I UENSEN I I Addr 1 690 S MOUNTAIN Addr 2 CSZ IASHLAND lOR 197520 I ICountryluNlTED STATES OF AMERICA Type MEM1MEMBER I I Resign Date 1 Name MELISSA I UENSEN T 1 Addr 1 41 N MAIN Addr 2 1 I I I I http://egov.sos,state,or.us/br/pkg_web_name_srch _inq,show _ detl?p _ be Jsn= I 282926&p _s... 5/27/2009 Business Registry Business Name Search Page 2of2 CSZ !ASHLAND lQ.!U97520 I Country IUNITED STATES OF AMERICA Type Name Addr 1 Addr 2 CSZ MEM MEMBER MARK INMAIN Resign Date SHLAND ITED STATES OF AMERICA Type MGRlMANAGER I I Resign Date I Name ERNIE I INALL Y 1 I Addr 1 ~I N MAIN Addr 2 CSZ ASHLAND lOR 197520 I ICountrylUNITED STATES OF AMERICA N S h P' F' dl N H't ew earc nnter ncn y ame IS ory Business Entity Name N<ll11e Nal11.e Start Date End Date Tvpe Status LOUIE'S BAR & GRILL, LLC EN CUR 10-19,2007 Please Lea_d before ordering CORLe.~. N S h P' F' dl S H't e\y ear.c nnter neo y ummary IS ory Image Action Transaction Effective S.ta_tl!!; Name! Agent Dissolved By Date Date Date ChanQe 09-17- AMENDED ANNUAL 09-17-2008 FI 2008 REPORT 10-19- ARTICLES OF 10-19-2007 FI Agent 2007 ORGANIZATION About_Us I AODQuncements I L<:Lv.rs..&J3ules I Eeedback Site...M"p I ~olicy I SOS_l::l.orng I Oregon Blu.e Book I ()l.egon,goj/ For comments or suggestions regarding the operation of this site, please contact : businessr"gistry,s9s@sJaJe~oLus IW3S iHTM~, , ,4.01 .@ 2009 Oregon Secretary of State. All Rights Reserved. http://egov,sos.state.or.uslbr/pkLweb_name_srch _inq.show _ detl?p _be Jsn= I 282926&p _s... 5/27/2009 Exhibit B Proposal Documents Seeratta'"ahed(festal:JraYi~;seatii:i9Jr.egueS1! (' Calle Guanajuato Restaurant Outdoor Dining Concession 19 Exhibit C Insurance Requirements The Concessionaire, at its sole cost and expense, commencing on the effective date of this Agreement, shall procure and maintain insurance acceptable to the City in full force and effect throughout the term of this agreement. 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: 1. Comprehensive General Liability insurance, with a general aggregate limit of not less than $2,000,000 and $1,000,000 per occurrence. Each policy shall contain a blanket contractual liability endorsement to cover the Concessionaire's indemnification and other obligations under this Agreement 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 premises 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 $300,000 and $100,000 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, Ashland Parks and Recreation Commission, its officers, employees and agents are Additional Insured. 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: Calle Guanajuato Restaurant Outdoor Dining Concession 20 (City Attorney's Office, 20 East Main Street, Ashland, Oregon 97520), prior to or concurrent with delivery of executed contracts. Concessionaire agrees to deposit with the City, at the time s/he returns the executed contract, Certificates of Insurance or Binders of Insurance if the policy is new or has expired, sufficient to satisfy the City that the insurance provisions of this contract have been complied with and to keep such insurance in effect ,and the certificates and/or binders thereof on deposit with the City during the entire term of this contract. Such certificates and/or binders must be delivered prior to commencement of the work. The procuring of such required insurance shall not be construed to limit Concessionaire's liability hereunder. Notwithstanding said insurance, Concessionaire shall be obligated for the total amount of any damage, injury or loss connected with this contract. 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 agreement is in force. Date: Concessionaire Calle Guanajuato Restaurant Outdoor Dining Concession 21 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, 'or the specific purpose 0' 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. [subject 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, tables 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 Calle Guanajuato Restaurant Outdoor Dining Concession 22 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. 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 upriority" 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 1 or continuous use. Final selection shall be made by the Commission. Restaurant Concession Fee Schedule. The Calle Guanajuato Restaurant Concession Fee Schedule shall be set at $3.60 per square foot of use. April 1 through November 5 shall constitute a concession season. The site permit fee shall be paid by May 15 of each year covered under the permit. Minimum Period of operation is between Memorial Day and Labor Day. Restaurant Concession Reservation and Duration. . Any restaurant concession shall be nontransferable and shall be valid for one season in a single calendar year. 1. No Plaza restaurant may hold or be issued more than one concession. (Owners with interests in multiple restaurants are not restricted by this provision). 2. Should a restaurant "abandon" a reserved site, it shall be "awarded" through the competitive process under the selection "Review of Applications," 3. 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 held. 4. 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 Calle Guanajuato Restaurant Outdoor Dining Concession 23 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 24 Ashland Parks and Recreation Department REQUEST FOR RESTAURANT SERVICE SPACE-CALLE GUANAJUATO NAME OF RESTAURANT . bIC\Q !}jV 1!;5\M1L r WK PHONE '2tO l LfC'i/:fi" MESSAGE PHONE ? O( l{00'& NAME OF AUTHORIZED REPRESENTATIVE MAILING ADDRESS & q D s, ficrt<,...fJ\ (I IIUM "1400- ~~ CITY M0 STATE 00--, ZIP qi Sz.Q DESCRIPTION OF AREA. PLEASE CIRCLE AREA ON ENCLOSED MAP ARE YOU REQUESTING A NEW SNE THAT IS NOT CURRENLY A SEATING AREA? CIRCLE ONE ~ NO '"'I , TOTAL NUMBER OF SQUARE FEET ARE YOU REQUESTING? ($3.60 per square foot will be charged) WILL ALCOHOLIC BEVERAGES BE SERVED? 'I,( YES NO , ~ It \DC( Date Signature (owner or representative) 1\~~~ OJ ************ Total Square Footage x $3.60 Date Paid =