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HomeMy WebLinkAbout2004-073 Calle Guanajuato 2004-2008 CALLE GUANAJUATO MARKETPLACE USE PERMIT & SERVICE CONTRACT The Ashland Parks and Recreation Commission may from time to time grant to a marketplace promoter, i.e. operator, through a use permit and service contract, the right to use ahd occupy, under the terms set forth below, that portion of Calle Guanajuato designated by the Ashland Parks and Recreation Commission. The use under this permit and contract shall be for the sole purpose of sale by vendors selected by the Marketplace promoter which is created and handcrafted by the market vendors or performing artists and which meet the Calle Guanajuato MarketplaCe Promoter's Guidelines, including the right to erect on Marketplace space a structure to protect and display such merchandise. II. INDEMNIFICATION: The Calle Guanajuato Marketplace promoter shall defend, indemnify and hold the City of Ashland and the Ashland Parks and Recreation Commission, their officers, agents and employees harmless from and against all losses, claims, actions, liabilities, costs, judgments, or other damages to any Marketplace vendor, participant or other person of whatsoever nature, or in any way related to this permit and contract, the operation of the Marketplace, or other agents, officers and contractors arising out of or incident to this use permit and service contract. In the event any such action or claim is brought against the City and the Commission, the Marketplace shall, if the City and the Commission so elects and upon tender by the City and the Commission, defend the same at the Marketplace promoter's sole cost and expense, promptly satisfy any judgment adverse to the City and the Commission or to the City and the Commission, and the Marketplace, jointly, and reimburse the City and the Commission for any loss, cost damage or expense, including attorney fees, suffered or incurred by the City and the Commission. The Marketplace is not required to indemnify the City and the Commission for damages caused solely by the negligence of the City and the Commission, their officers, agents, or employees. INSURANCE: The Calle Guanajuato Marketplace promoter shall, at its own expense, at all times during the duration of this use permit and service contract, maintain in force the insurance coverages specified as follows: a comprehensive general liability policy including coverage for contractual liability for obligations assumed under this use permit and service contract, blanket contractual liability, products and completed operations, owner's and contractor's protective insurance and comprehensive automobile liability policy including owned and non-owned automobiles. The liability under each policy shall be a minimum of $500,000 per occurrences (combined single limit for bodily 2004-08 CALLE GUA_NAJUATO MARKETPLACE USE PERMIT/SERVICE CONTP~ACT injury and property damage claims) or $500,000 per occurrence for bodily injury and $100,000 per occurrence for property damage. Such limit shall automatically increase in the event of any change in the provisions of ORS 30.270, or in the event these limits are found to be not totally applicable to a city. Each policy shall contain a contractual liability endorsement to cover the Marketplace's indemnification obligations under this use permit and service contract. Certificates of insurance acceptable to the Ashland Parks and Recreation Commission shall be filed with the Commission prior to the commencement of any activities by the Calle Guanajuato Marketplace promoter under this use permit and service contract, and at any time thereafter during the duration of this permit and contract when any insurance policy required by these provisions is renewed or renegotiated. Written verification shall be required of the Marketplace promoter to provide documentation that the insurance policy is in effect. Unless otherwise specified, each policy shall be written on an "occurrence" form with an admitted insurance carrier licensed to do business in the state of Oregon and shall contain an endorsement entitling the City and the Commission to not less than 30 days' prior written notice of any material change, non- renewal or cancellation. The City of Ashland and the Ashland Parks and Recreation Commission, its officers, employees and agents shall be named as additional insureds, in a form satisfactory to the City and the Commission, and expressly providing that the interest of the City and the Commission shall not be affected by the Marketplace's breach of each policy's provisions. In the event the statutory limit of liability of a public body for claims arising out of a single accident or occurrence is increased above the combined single limit coverage requirements specified, City and Commission coverages to the statutory limit for such claims and to increase the aggregate coverage to twice the amount of the statutory limit. The adequacy of all insurance required by these provisions shall be subject to approval by the City's Risk Manager. Failure to maintain any insurance coverage required by this permit and contract shall be cause for immediate termination of this agreement by the City of Ashland and the Ashland Parks and Recreation Commission. III. SPECIAL TERMS ARE AS FOLLOWS: Ao MARKETPLACE FEES: The Marketplace promoter will pay to the Ashland Parks and Recreation Commission a 2.5 percent fee of all Calle Guanajuato Marketplace monthly vendor gross sales receipts to be paid by the l0th working day of each month. This will be for a five (5) year use permit & service contract with the duration beginning each May 1 and CALLEkMKTPL 04.08 PAGE 2 OF 9 2004-08 CALLE GUANAJUATO MARKETPLACE USE PERMIT/SERVICE CONTRACT B o C o Do E o concluding each October 31 for the following years: 2004, 2005, 2006, 2007 & 2008. BOOTH FEES: Each Calle Guanajuato Marketplace vendor may use and occupy a market space designated by the Marketplace promoter and allocated by the Ashland Parks and Recreation Commission as useable market space on Calle Guanajuato and agrees to furnish everything necessary for its marketing ventures. For actual booth space use on Calle Guanajuato, each vendor shall refer solely to the Calle Guanajuato Marketplace promoter for site determination and payment. The Marketplace promoter retains all booth fees and all rights to booth fee price setting. APPLICATION FORM and REGISTRATION/JURY FEES: Each Marketplace vendor will be required to complete and sign a Calle Guanajuato Marketplace application form with the Marketplace promoter. At the time the application is submitted a (current) registration fee and current non- refundable jury fee will both be collected by the Marketplace promoter in the form of two (2) separate checks. Both of these fee charges are set and retained by the Marketplace promoter. An individual vendor application form will be kept on file by the Marketplace promoter for the duration of the current market season which shall be available to the Ashland Parks and Recreation Commission upon request. GROSS RECEIPTS: The Calle Guanajuato Marketplace promoter shall maintain and keep proper account books, records and other papers pertaining to Marketplace gross receipts per season. Ail Marketplace promoter books, records and other papers shall be held available at a location reasonably accessible to the Ashland Parks and Recreation Commission, who may in turn inspect these during reasonable times to verify promoter's and/or vendors' gross sales receipts. For each Marketplace day hereafter that the Ashland Parks and Recreation Commission grants use of a Calle Guanajuato market space to the Calle Guanajuato Marketplace promoter, the terms of this permit and contract shall be effective. The Ashland Parks and Recreation Commission shall have no obligation to hereafter grant such a use permit and service contract. THE FOLLOWING SHALL IN ALL CASES BE BINDING UPON THE PARTIES: 1. This use permit and service contract is valid only for five (5) Saturday/Sunday market seasons beginning each May 1 and ending each October 31 for the years 2004-2008. Any default by the Calle Guanajuato Marketplace promoter and/or CALLEkMKTPL 04.08 PAGE 3 OF 9 2004-08 CALLE GUANAJUATO MARKETPLACE USE PERMIT/SERVICE CONTP~ACT vendor(s) of this use permit and service contract shall be cause for revocation of the use permit and service contract by the Ashland Parks and Recreation Commission. 2. The Ashland promoter shall not assign, sublease or in any way transfer the use permit and service contract; any attempt to do so shall result in the immediate termination of this use permit and service contract by the Ashland Parks and Recreation Commission. 3. The federal and special statues or ordinances regarding public health, safety and welfare, and use of the Calle Guanajuato market space in a reasonable and non-offensive manner subject to the policies and rules of the Ashland Parks and Recreation Commission in effect on date of use. 4. The Calle Guanajuato Marketplace shall be operated in accordance with the Marketplace Promoter's Proposal and Marketplace (promoter's) Vendor's Information Handbook submitted to and approved by the Ashland Parks and Recreation Commission prior to any confirmation of this use permit and service contract. 5. The Calle Guanajuato promoter (vendors) shall not set up booths, tables and/or other mechanisms for selling prior to 8:00 a.m. during the designated market season(s). This time will be strictly enforced and any deviation and/or violation may result in immediate cancellation of the use permit and/or market vendor's space allocation. The Marketplace day will conclude at 7:00 p.m. Weekend selling hours will be: Sat. 10 a.m. - 6 p.m. Sun. 11 a.m. - 5 p.m. 6. The Calle Guanajuato Marketplace promoter may allow each market vendor to construct a structure in accordance with size and safety specifications as found in the Calle Guanajuato Marketplace (promoter's) Vendor Information Handbook. Ail booths shall be kept neat with tables covered and boxes out of sight. The Marketplace promoter shall, at all times, ensure that such structures shall not encroach upon or obstruct public walkways or open space areas while maintaining a clear 12-foot pathway for emergency vehicles as approved by the City of Ashland fire chief. Each fire hydrant shall have a clear, unobstructed space maintained around it as required for fire safety. The Marketplace promoter shall further have available such fire extinguishers as determined by the fire chief. Ail market vendors shall also abide by the "no smoking" rules near Calle buildings and within market booths vicinities. CALLEkMKTPL 04.08 PAGE 4 OF 9 2004-08 CALLE GUANAJUATO MARKETPLACE USE PERMIT/SERVICE CONTP_ACT The Marketplace promoter shall promptly see to the removal of any offensive structure upon request of the Ashland Parks and Recreation Commission. Any violation of these fire and structure safety requirements may result in immediate cancellation of the use permit and service contract, and/or market vendor's space allocation. The Marketplace promoter and market vendors shall be required to meet, annually, with the City of Ashland Fire Department in order to identify and coordinate fire safety regulations for the market on Calle Suanajuato. 7. The Calle Guanajuato Marketplace promoter shall not allow market vendors to use any bottled gas, electrical devices, or hazardous materials without prior approval by the Ashland Parks and Recreation Commission. Permission shall also be obtained from the Commission prior to any type of sign and/or marking placed on Calle Guanajuato for market purposes. The Marketplace promoter(vendors) shall not injure or in any way deface Calle Guanajuato premises and shall not cause or permit anything to be done whereby such premises may in any manner be injured or defaced. The Calle Guanajuato Marketplace promoter shall indemnify and hold the Ashland Parks and Recreation Commission harmless from all damages for injury to the premises or permitted by the Marketplace promoter. 8. The Ashland Parks and Recreation Commission will issue six (6) Calle Guanajuato Vehicle Access Permits to the Calle Guanajuato Marketplace promoter for market vendors' and/or plaza merchants' use. These vehicle access permits shall be valid only between each May 1 and each October 31 of 2004-08 on the following days and 'times: 6:30 p.m. to 7:30 p.m. (Sat.) and 5:30 p.m. to 6:130 p.m. (Sun.) Both ingress and egress for vehicles will be only off Winburn Way. Vehicles will not enter or exit from the plaza end of Calle Guanajuato; nor will they ,extend beyond the area designated for Marketplace use. The Commission will reserve the right to revoke the vehicle access permits at any time. At no time will the Marketplace promoter, vendors and/or plaza merchants who use a vehicle access permit interfere with the 12-foot path required for emergency vehicles. The Marketplace promoter will be responsible for issuing the vehicle access permits and shall do so in such a manner as not to cause traffic congestion nor to disrupt free movement along the 12-foot emergency vehicle pathway. The Marketplace promoter shall also be held accountable for insuring that appropriate pedestrian safety precautions are maintained while vehicles using the access permits are in the area. 9. The Calle Guanajuato Marketplace promoter shall be responsible to see that vendors refrain from utilizing the following prohibited parking locations: Granite Street and Winburn Way. The promoter will also maintain a vehicle CALLE\MKTPL 04.08 PAGE 5 OF 9 2004-08 CALLE GUANAJUATO MARKETPLACE USE PERMIT/SERVICE CONTRACT license number list of all market vendors which shall be made available to the Commission upon request. 10. The Calle Guanajuato Marketplace promoter shall be responsible for designating a person to both monitor and attend to the Calle Guanajuato public restrooms during the hours of market operation. The Marketplace promoter shall advise the Ashland Parks and Recreation Department, in writing, of the designated person's name and hours the person will be on duty. The Marketplace promoter may fulfill this requirement by requesting the Parks and Recreation Department to perform such services. If so, the promoter shall pay the department by the 10th of the month following the month in which the services were performed. Any problems with the Calle restrooms shall be immediately reported to the Parks and Recreation Department. 11. The Calle Guanajuato Marketplace promoter (and/or promoter's designated representative) shall be held accountable for cleaning and removing all refuse from the Calle Guanajuato Marketplace, including the Calle restrooms, each day within two (2) hours after the Marketplace closure. Clean-up shall be done to the standards set by the Commission. Upon failure to properly clean the area, the Commission may utilize Ashland Parks and Recreation Department employees te implement the cleaning. If so, the Harketplace promoter shall pay to the Commission $40 per hour per employee. This payment shall be made to the Ashland Parks and Recreation Department within three (311 days after the Marketplace promoter is notified ef charges. The Marketplace promoter shall provide refuse receptacles as needed to keep the Calle area in a clean and neat order during the Marketplace hours of operation, and shall have the refuse collected as soon as possible consistent with normal operations of the sanitary service. The Marketplace shall refrain from using any trash receptacles which belong to or are along any of the plaza business establishments. 12. The Calle Guanajuato Marketplace promoter shall operate the Marketplace and cause the market vendors, their assistants and/or family members to operate and interact with plaza business establishments in a manner that will not conflict with access and/or business functions on Calle Guanajuato. 13. The Ashland Parks and Recreation Commission assumes no responsibility whatever for any Calle Guanajuato Marketplace property placed upon Calle Guanajuato premises. The Marketplace promoter agrees to indemnify the Ashland Parks and Recreation Commission against all loss and damage to market vendors' property sustained by reason of occupancy by the market vendors of the premises or any portion hereof. CALLEkMKTPL 04.08 PAGE 6 OF 9 2004-08 CALLE GUANAJUATO MARKETPLACE USE PERMIT/SERVICE CONTRACT 14. Should the Calle Guanajuato Marketplace promoter (vendor(s) at any time occupy the premises in a manner contrary to this permit and contract, or any policies and rules of the Ashland Parks and Recreation Commission, or in any manner which is hazardous or offensive to the public, other market vendors, and/or plaza business merchants, upon request of the Commission, the Marketplace promoter (vendor(s) shall immediately cease such conduct. Failure to immediately conform one's conduct as requested shall be cause for revocation of this use permit and service contract, and/or a market vendor's space allocation. Upon revocation, the Marketplace promoter (vendor(s) shall promptly vacate the Calle Guanajuato premises. Upon failure to vacate, the Ashland Parks and Recreation Commission is authorized to remove all Marketplace promoter's and/or market vendor(s) property from the premises at the Marketplace promoter's expense. The Ashland Parks and Recreation Commission is relieved and discharged from all loss of damage occasioned by such removal, and shall not be responsible for safe- keeping of property so removed. 15. Failure or delay of the Ashland Parks and Recreation Commission to require performance of any provision of this permit and contract shall not limit the right to later enforce that or any other provision. 16. In the event of any action to enforce or interpret this use permit and service contract, 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 trail, on appeal or upon review. 17. This permit and contract by reference includes the provisions contained within the (current) Calle Guanajuato Marketplace (promoter's) Vendor Information Handbook, the (current) Marketplace Promoter's Proposal and related Ashland Parks and Recreation Commission communication. Such provisions may be periodically revised by the Ashland Parks and Recreation Commission during the Calle Guanajuato Marketplace season. It is 'the responsibility of the Marketplace promoter to be aware of and comply with all Ashland Parks and Recreation Commission policies and rules. 18. Plaza restaurants 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, any commercial establishment and merchant, or 2004-08 Calle Guanajuato Marketplace and/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. CALLE\MKTPL 04.08 PAGE 7 OF 9 2004-08 CALLE GUANAJUATO MARKETPLACE USE PERMIT/SERVICE CONTRACT IV. Vo VI. That is: It shall be unlawful for any person to sell, offer for sale, expose for sale or solicit offers to purchase any food or edible product of any kind on any portion of Calle Guanajuato except if a person is a plaza restaurant owner and is duly licensed and issued an Ashland Parks and Recreation Commission's restaurant site permit or is an employee ef this owner who is duly licensed and has been issued a restaurant site permit in accordance with the "Restaurant Site Permit Agreement" set forth by the Ashland Parks and Recreation Commission. Any person attempting to so without duly being issued a City of Ashland (restaurant) business license and a Commission restaurant site permit shall be required to immediately cease all such activity by the Ashland Parks and Recreation Commission. It should be further clarified that the Ashland Parks and Recreation Commission asks the Calle Guanajuato Marketplace promoter to convey to all Calle Guanajuato Marketplace vendors that food, edibles and beverages may be pre-ordered, delivered and consumed at Calle Guanajuato with the understanding that all payments to the solicited, delivering establishment(s) and/or merchant(s) be made outside of Calle's boundaries. INTEGRATION: This use permit and service contract embodies the entire agreement of the parties.. There are no promises, conditions or obligations other than those contained herein. This permit and contract shall supersede all prior communications, representations or agreements, either oral or written, between the parties. This permit and contract shall not be amended except in writing, 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 addenda which will become a part of the agreement the same as though it had been an original part of the agreement. Such addenda shall be dated and signed by both par'~ies and attached to the original agreement. INTERPRETATION: This use permit and service contract shall be governed by and interpreted in accordance w~th the laws of the state of Oregon. The parties to this permit and contract do not intend to confer on any third party any rights under this contract. TERMINATION: Notwithstanding any other provision hereof to the contrary, this use permit and service contract may be terminated as follows: Ao The parties, by mutual written agreement, may terminate this use permit and service contract at any time. CALLE\MKTPL 04.08 PAGE 8 OF 9 2004-08 CALLE GUANAJUATO MARKETPLACE USE PERMIT/SERVICE CONTRACT B o Either party may terminate the agreement by written notice personally delivered or upon deposit in the United States mail, postage fully prepaid, certified, return receipt requested, addressed to: Commission: Ashland Parks and Recreation Commission 340 South Pioneer Street Ashland, Oregon 97520 Marketplace: Lithia Arts Guild of Oregon, Incorporated 1102 Holton Rd. Talent, Oregon 97540 or such other address as either party may provide to the other by notice given in accordance with this prevision. C o The Commission or Marketplace promoter may terminate this permit and contract at any time or for any reason upon not less than 60 days written notice pursuant to paragraph VI B, in advance of the termination date. Do Upon termination of this use permit and service contract, the Calle Guanajuato Marketplace promoter shall yield up the Calle Guanajuato Marketplace site in as good order and condition as when the same was first allocated to the Marketplace promoter. VII. EFFECTIVE DATE: The effective date of this Calle Guanajuato use permit and service contract shall be the latest date of signature by the parties. By signing below, the Calle Guanajuato Marketplace promoter agrees to the terms set forth above by the Ashland Parks and Recreation Commission. ASHLAND PARKS AND RECREATION COMMISSION By: (S~g%hture) (Print or type name) Date: 15/' 5/'~ ,~ CALLEkMKTPL 04.08 PAGE 9 OF 9