HomeMy WebLinkAbout2009-067 Concession Agrmt - Grilla Bites
2009 CALLE GUANAJUATO RESTAURANT CONCESSION, ,
LICENSE, RELEASE AND HOLD HARMLESS AGREEMENT
(f/k/a "Restaurant Site Permit Agreement")
THIS AGREEMENT ;s made and entered into this }() day of IJ hill I 2009, by
and between the City of Ashland, a municipal corporation of the ~n, by and
through the Ashland Parks and ~eCrjtio.n cxmmission, (hereinafter collectively
referred to as . "City''), and C\4\(~, ~\l\ CA ~;~" .... .'.
(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 restaurants, pursuant to a valid concession agreement is
consistent with the purposes of such public park property; and.
WHEREAS, ConcessiQnajre is a restaurant business entity, legally formed and
existing as A b ret-l"l(Mj , currently
registered and existin "n the State of Oregon and in the City of ASh~, [RegistrY
Number -- 6' ~' . ], Business License Number - ooiEi,~; 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 "subject 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
Guanajuatoin 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 Concessionaire. No other commercial activity is authorized; and
, >
WHEREAS, pursuant to Oregon Statutes and City ordinance, parks concession
agreements are exempt 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 revocable 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 subjectto 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 Concessionaire 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.J3.egacdless
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 I 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 requesti[lg, _ 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 concessipn 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 Re~taurant 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
anyway 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 throuqh Friday 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, ur)obstructed 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 signagepermits. 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.
1. 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 Ash/and 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 prohibited, 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 license/ 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 of the !:larks 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, collections, 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 Gual')ajuato and termination of the
Concession.
/
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 license/ concession. Concessionaire shall provide the City with copies of
said insurance certificates and shall name the City of Ashland as well 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
a nd 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 violates any material provision of this Agreement, incluging
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
prpvide 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 surrenderto 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 limd 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
v
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, afte'r 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 ofthe 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 appiicable 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 th_e 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 c~ntractor 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, insura"nce, 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 eitl}er party tq act asagent 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)
I
Copy to:
Martha Bennett, City Administrator
20 East Main Street
Ashland, Oregon 97520
(Telephone: 541-552-2100; Fax: 541-488-5311)
Concessionaire:
cl
- I
Calle Guanajuato Restaurant Outdoor Dining Concession
6,6
--o08f
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 attempt to 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 of the City
of Ashland governing body, the Mayor, the City Administrator or other City Off\cial 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.
1. 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 nunibered 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 '30.\,hday of -~.r\ \
see / Concessionaire:
,2009.
Licensor/ City of Ashland, Oregon:
Parks an -Recreation Commission
J)", ~J S.
Date:
Don Ro ertson, Director
Parks and Recreation Director
Date: ~(lf/11
, City Administrator
Calle Guanajuato Restaurant Outdoor Dining Concession
17
Exhibit A- Concession Area
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Calle Guanajuato Restaurant Outdoor Dining Concession
18
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Exhibit B
Proposal Documents
~~e_C1ttacb~~_F~sta~J:irifseatil}g r~gLJ~~t
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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 Gwinajuato 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
Conc~sionaire does not currently employ, and will not employ any individuals for
w~k' under t . contract during the term this agreemen is inf-orce.
. ~/ Date: 4 60 tJ
Concessionaire
Calle Guanajuato Restaurant Outdoor Dining Concession
21
Exhibit 0
Minimum Policies, Procedures, and Concession Standards for
Outdoor Dining on Calle Guanajuato
The Ashland Parks and Recreation Commission may award a concession on the Calle
Guanajuato to Plaza restaurants, adjacent to Calle, for the specific purpose of placing
outdoor food service tables on approved concession sites, said sites designated and approved
by the Parks Director on an annual basis. The Policies, Procedures and standards below
govern this process. [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 whiJ 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 adjacentto 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 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
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 inteht 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 subj!,!ct 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 0
Minimum Policies, Procedures, and Concession Standards for
Outdoor Dining on Calle Guanajuato
The Ashland Parks and Recreation Commission may award a concession on the Calle
Guanajuato to Plaza restaurants, adjacent to Calle, for the specific purpose of placing
outdoor food service tables on approved concession sites, said sites designated and approved
by the Parks Director on an annual basis. The Policies, Procedures and Standards below
govem 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 ftpriority" 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 Schedul~.
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
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RESTAURANT SERVICE SPACE-CALLE GUANAJUA TO
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SEATING AREA? CIRCLE ONE YES ~
TOTAL NUMBER OF SQUARE FEET ARE YOU REQUESTING?
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WILL ALCOHOLIC BEVERAGES BE SERVED? X YES NO
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Date ~hla/1J5
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PRODUCER
ACORD.. CERTIFICATE OF LIABILITY INSURANCE
DATE(.wNDOIYYYY)
95927
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THIS CERTIFIC4TE IS ISSUED AS A M4TTER OF INFORl1lATION
DilLY AND CONFERS NO RIGHTS UPON Tt1E CERTIFICATE
HOlDER. THIS CERTIFICATE DOES NOT All!END, ExTEIlO OR
AL TER TH~ COV~RAO~ AFfORDeD BY THe POUCIES BELOW,
RiakPro In.. Services,
CA License OF19713
PO Box 4954, Chico, CA
530- -810 -891-
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Grills Bites ~nc.
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47 N. Maj,n Street
INSURERS ""FORDING COVERAGE
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THE flOUCIES OF INSURANCE lISTED BELOw HAVE BEEN ISSUEO TO THE INSURED NAMED ~OVE FOR. THE POLICY fERIOD INOJCATEO. NOTWITHSTANOfNG
ANY REQUIREMENT, TERM OR CONDITION OF ANY CONmACT OR OTHER DOCUMENT MrH RESPECT TO WHICH THIS CE~TIFlCATE MAY ee ISSUED OR.
MA,y peRTAJN, THE INSURANCE AFFOROE,O 8Y THE POUCIES OESCA.IBED HEReiN IS SUBJECT TO All THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH
POUCIES,AGGREGATE llMJrSSHOWN ~y HAVE BEEN R,Ii:OUCEDBY PAID CLAIMS.
~ c::o T'lPl' POliCY NIMBER. P ICY s'17vYi <; P8~,tV J~';Y'~VN LIMITS
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GENERAl LIABILITY EACH OCCURRENCf . l.nnn O.Q..Q.
Iil COMMERCIAL GE.NERAL LtABlllTY PREMISES IS. CX:l:lnncel . 150.000'
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DESCRIPTION OF OPERATIONSI LOCA,TIQNSIVEHICLESI E)l:Cl.USIO~SADOED BY ENDORSEMfNT ISPECIAl PR,QVISIONS
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CERTIFICATE HOLDER
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20 East Main Street
Asha~nd, OR 97520
CANCElLA nON
SHOULD ANV OF Tl1E ABOVE DESCRlBEO POUCIES BE CANCEllED BEFORE ~E EXPIAATIOH
DATE THEAEOF', tHE ISSUING INSURER WilL E;ND€AVOR To MAlL30'* D~VS WR,ITTEN
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~ ACORD CORPORATION 1988
ACORD25(2001/08)
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