HomeMy WebLinkAboutAgreement for Use with Sunrise Cafe for Temporary use of Parklet to extend amenities and services to sidewalkAGREEMENT FOR USE OF PARKLET
This AGREEMENT FOR USE OF PARKLET (hereinafter "Agreement") is made this ~ day of
~'s~, 2013 (the "Effective Date"), by and between the City of Meridian, a municipal corporation
organized under the laws of the State of Idaho (hereinafter "City"), and Sunrise Cafe Boise, Inc., a
corporation organized under the laws of the State of Idaho whose address is 7135 W. State Street, Garden
City, Idaho (hereinafter "User").
WHEREAS, the term "parklet" describes a space that temporarily extends the sidewalk area into a
parking spot for the purpose of offering amenities such as seating, vegetation, and art to pedestrians and
downtown business patrons;
WHEREAS, the Planning Division of the City of Meridian Community Development Deparhnent
has prepared a pilot parklet program for downtown Meridian, with the objectives of encouraging interest in
downtown businesses, demonstrating the value of streetscape improvements to aesthetic and economic
development, and creating a space for downtown patrons to enjoy outdoor dining while preserving pedestrian
use of the sidewalk; and
WHEREAS, City owns mobile decking and related accoutrements generally as depicted in the
rendering attached hereto as Exhibit A ("Pazklet"), and the Parklet will be parked in a parking spot front of
User's business;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged and agreed, and in consideration of the mutual promises and covenants herein
contained, and in consideration of the recitals above, which are incorporated herein, City and User agree as
follows:
I. PERMISSION GRANTED.
Subject to the terms and conditions set forth herein, City hereby grants to User permission to utilize the
Parklet from 4:00 p.m. to 11:00 p.m. on Friday, September 13, and from 6:00 a.m. to 1 ] :00 p.m. on
Saturday, September 14, 2013, and and from 6:00 a.m. to 11:00 p.m. on Sunday, September 15, 2013, in the
manner set forth in this Agreement for all uses approved for the principal use at 805 N. Main Street,
Meridian, Idaho.
II.OBLIGATIONS OF USER.
A. Reasonable use. User shall employ best efforts to ensure that its use of Pazklet is appropriate and
reasonable. Where User's use of Pazkle[ causes disproportionately excessive damage to same, User shall
reimburse City for the cost or proportionate cost of necessazy repairs and/or replacement.
B. Permitting. In addition to compliance with all terms and provisions of this Agreement, User shall
separately obtain and comply with each and all of the following permits, as required by law:
1. Any and all applicable licenses, permits, inspections, and/or certifications from the Central District
Health Depazhnent; and
2. City of Meridian liquor catering permit.
C. Manner. The permission extended under this Agreement shall be subject to the following terms and
conditions:
AGREEMENT FOR USE OF PARKLET PAGE I OF 4
1. Use of Pazklet comply in all respects with all applicable permits, laws, ordinances, and regulations,
including, but not limited to, those related to the service of food and/or alcoholic beverages.
2. User shall not allow the use of tobacco products or e-cigazettes on Parklet.
3. User shall ensure that all personal property placed on Parklet, including umbrellas, tables, chairs, etc.:
a. Is removed from the Parklet and the right-of-way during non-business hours; and
b. Does not, in any way, create an unsafe condition for motorists or pedestrians.
4. User shall maintain the Parklet in a clean condition, free of litter and debris.
5. The following items shall be prohibited on Parklet: receptacles for solid waste or recyclables,
automated teller machines (ATMs), vending machines, generators, decorative rugs or ground
coverings, platforms, grills, cooking appliances or stations, beverage serving appliances or stations,
shelves, storage containers, equipment, supplies, or products.
D. Insurance. User shall submit to City proof of an insurance policy issued by an insurance company
licensed to do business in Idaho protecting User, User's employees, agents, contractors, officials,
officers, servants, guests, patrons, and invitees from all claims for damages to property and bodily injury,
including death, which may arise during or in connection with such persons' use of or involvement with
Pazklet. Such insurance shall name City as additional insured, and shall afford at least five hundred
thousand ($500,000.00) per person bodily injury, five hundred thousand ($500,000.00) per occurrence
bodily injury, and five hundred thousand ($500,000.00) per occurrence property damage. The limits of
insurance shall not be deemed a limitation of the covenants to indemnify and save and hold harmless City
as set forth in this Agreement or any permit. If City becomes liable for an amount in excess of the
insurance limits herein provided due to the actions or omissions of User or any User employee, agent,
contractor, official, officer, servant, guest, patron, and/or invitee, User covenants and agrees to indemnify
and save and hold harmless City from and for all such losses, claims, actions, or judgments for damages
or liability to persons or property.
III. OBLIGATIONS OF CITY.
A. Placement of Parklet. In exchange for the obligations accepted herein, between 1:00 p.m. and 4:00 p.rn.
on Friday, September 13, 2013, City will deliver Parklet to a parking space in front of or near the
restaurant known as Sunrise Bakery and Cafe, located at 805 N. Main Street, Meridian, Idaho.
B. Maintenance. Except as otherwise set forth herein, City shall provide general maintenance and upkeep
with regard to Pazklet infrastructure.
C. Primary Source of Contact for City. City shall provide User the name, e-mail address, and telephone
number of specific City personnel (hereinafter "City Contact") who shall serve as City's primary contact
between City and User for all day-to-day matters regarding set-up, operation, and removal of Parklet.
City Contact for Parklet shall be:
City Contact: Brian McClure
Community Development Department
E-mail: bmcclure@meridiancity.org
Phone: 208-884-5533
IV. GENERAL PROVISIONS.
A. Notice. Communication between User and the City Contact regazding day-to-day matters shall occur via
e-mail or telephone. All other notices required to be given by either of the parties hereto shall be in
AGREEMENT FOR USE OF PARKLET PAGE 2 OF 4
writing and be deemed communicated when personally served, or mailed in the United States mail, or via
e-mail, addressed as follows:
City: User:
City of Meridian Robert Godsill
Attn: Ernily Kane, Deputy City Attorney Sunrise Bakery & Cafe
33 E. Broadway Avenue 7135 W. State
Meridian, Idaho 83642
ekane@meridiancity.org
Garden City, Idaho 83714
sunri sefinehomes @ aol. com
B. City property. The parties hereto expressly acknowledge that Pazklet is publicly-owned property, the
management and scheduling of which shall at all times be within the sole purview of City. City shall
have the right to allow or limit the use of Parklet, to close all or any porfion of Parklet, or to remove
Parklet, for any and all purposes and under any and all conditions.
C. Assignment. User shall not assign or sublet all or any portion of User's interest in this Agreement or any
privilege or right hereunder, either voluntarily or involuntarily, without the prior written consent of City.
This Agreement and each and all of the terms and conditions hereof shall apply to and are binding upon
the respective organizations, legal representative, successors, and assigns of the parties.
D. No agency. Neither User nor User's employees, agents, contractors, officials, officers, servants, guests,
or invitees shall be considered agents of City in any manner or for any purpose whatsoever in their use
and occupancy of Pazk.
E. Indemnification. User and each and all of User's employees, agents, contractors, officials, officers,
servants, guests, patrons, and/or invitees, shall indemnify and save and hold harmless City and the Ada
County Highway District from and for any and all losses, claims, actions, judgments for damages, or
injury to persons or property and losses and expenses caused or incurred by User or any of User's
employees, agents, contractors, officials, officers, servants, guests, patrons, and/or invitees, at or in its
use of Pazklet or right-of-way, or any lack of maintenance or repair of the Parklet or of the right-of-way,
and not caused by or ar7sing out of the tortious conduct of City or Ada County Highway District. User
acknowledges that user of Parklet carries risks, some of which are unknown, and with that knowledge
User does assume all such risks.
F. No warranty. City makes no warranty or promise as to the condition, safety, usefulness, or habitability
of the premises; User accepts Park for use as is, both at the Effective Date of this Agreement and
throughout the course of its use of Parklet and all related activities.
G. Attorney Fees. Should any litigation be commenced between the parties hereto concerning this
Agreement, the prevailing party shall be entitled, in addition to any other relief as maybe granted, to
court costs and reasonable attorneys' fees as determined by a court of competent jurisdiction. This
provision shall be deemed to be a separate contract between the parties and shall survive any default,
termination or forfeiture of this Agreement.
H. Time of the essence. The parties shall fulfill obligations described in this Agreement in a timely
manner, as set forth herein. The parties acknowledge and agree that time is strictly of the essence with
respect to this Agreement, and that the failure to timely perform any of the obligations hereunder shall
constitute a default of this Agreement.
I. Termination.
AGREEMENT FOR USE OF PARKLET PAGE 3 OF 4
1. Grounds. Grounds for termination of this Agreement shall include, but shall not be limited to: an act
or omission by either pazty which breaches any term of this Agreement; an act of nature or other
unforeseeable event which precludes or makes impossible the performance of the terms of this
Agreement by either party; or a change in or occurrence of circumstances that renders the
performance by either party a detriment to the public health, safety, or welfaze.
2. Process. Either party may terminate this Agreement by mailing, e-mailing, or personal delivery of
written notice of termination. Such notice shall include a description of the breach or circumstances
providing grounds for termination. A two (2) hour cure period shall commence upon provision of the
notice of intention to terminate. L`, upon the expiration of such cure period, cure of the breach or
circumstances providing grounds for termination has not occurred, this Agreement shall be
terminated.
J. Construction and severability. If any part of this Agreement is held to be invalid or unenforceable,
such holding will not affect the validity or enforceability of any other part of this Agreement so long as
the remainder of the Agreement is reasonably capable of completion.
K. Exhibits. All exhibits to this Agreement are incorporated by reference and made a part of this
Agreement as if the exhibits were set forth in their entirety in this Agreement.
L. Enflre Agreement. This Agreement contains the entire agreement of the parties and supersedes any and
all other agreements or understandings, oral or written, whether previous to the execution hereof or
contemporaneous herewith.
M. Non-waiver. Failure of either party to promptly enforce the strict performance of any term of this
Agreement shall not constitute a waiver or relinquishment of any party's right to thereafter enforce such
term, and any right or remedy hereunder maybe asserted at any time after the governing body of either
party becomes entitled to the benefit thereof, notwithstanding delay in enforcement.
N. Applicable law. This Agreement shall be governed by and constmed and enforced in accordance with
the laws of the State of Idaho.
O. Approval required. This Agreement shall not become effective or binding until approved by both User
and by Meridian City Council.
IN WITNESS WHEREOF, the parties shall cause this Agreement to be executed by their duly
authorized officers to be effective as of the day and year first above written.
USE .
BY: ~~ ~~
Robert Godsill
CITY OF MERIDIAN: ~wTEOauc~ Attest:
cry of
BY: E IDIZ IAIS~
Tammy d eerd, Mayor ~ ~oaxa
AGREEMENT FOR USE OF PARKLET ° SEAL
Ay~Fd Oi It a 10.E 0.5~A~VPy
City Clerk
PAGE 4 of 4
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FIRST AMENDMENT AND ADDENDUM TO
MASTER LICENSE AGREEMENT FOR REGULATION AND MAINTENANCE
OF SIDEWALK FACILITIES IN THE MERIDIAN CITY CORE
THIS FIRST AMENDMENT AND ADDENDUM TO THE MASTER LICENSE
AGREEMENT is entered into this 11th day of September, 2013, by and between ADA
COUNTY HIGHWAY DISTRICT, a body politic and corporate of the State of Idaho
("ACRD") and the CITY OF MERIDIAN, an Idaho municipal corporation ("City").
I. RECITALS
A. ACRD is a single county-wide highway district organized and existing
under the laws of the State of Idaho, with the exclusive jurisdiction over public rights-of-
way, including sidewalks, in Ada County; City is a municipal corporation with police
power to regulate and control encroachments and activities upon sidewalks within the
city.
B. Idaho Code § 67-2332 provides that public agencies may contract with
one another to perform any governmental service, activity, or undertaking that each
public agency entering into the contract is authorized by law to perform.
C. The parties entered into a Master License Agreement on August 7, 2012,
in which ACRD granted City a limited license to regulate and maintain sidewalk
facilities in the Meridian City Core.
D. City seeks to periodically install within the Meridian City Core a
temporary "parklet," a space that temporarily extends the sidewalk area into a parking
spot for the purpose of offering amenities such as seating, vegetation, and art to
pedestrians and downtown business pah•ons, and therefore the parties agree herein to
amend the Master License Agreement for the specific purpose of an additional grant of
authority under the Master License Agreement allowing the City to regulate, control, and
authorize temporary parklets in the Meridian City Core.
E. ACRD and City desire to amend and add to the terms and conditions of
the Master License Agreement to additionally grant the City a license to regulate and
control the size, placement, area, operation, and maintenance of any and all parklets
within the public rights-of--way located in the Meridian City Care.
FIRST AMENDMENT AND ADDENDUM TO MASTER LICENSE AGREEMENT FOR
REGULATION AND MAINTENANCE OF SIDEWALK FACILITIES IN TIC, GREATER
DOWNTOWN AREA - l
II. AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals, which are made a
part of this Agreement and not mere recitals, and for good and valuable consideration, the
receipt of which is hereby acknowledged, the Parties hereto agree as follows:
A. That Section 1 of the Master License Agreement be amended to provide an additional
sentence to grant City additional license rights, such that the Section shall read, as
amended:
Section 1. License Grant. ACHD hereby grants a license to City ("License") to (i)
regulate and control the size, placement, operation and maintenance of all
newsstands, ATM's, signs, planters, benches, fountains, fences, streetlights, sidewalk
cafes, outdoor eateries, and similar conunercial and public shuctures, objects, and
uses, regardless of whether the same are or are not affixed to the ground (collectively,
the "Facilities") on the sidewalks within the surface of the public rights-of--way
depicted on Exhibit A (collectively, the "Meridian City Core"), (ii) provide for and
maintain the necessary and/or desired landscaping and streetscaping upon sidewalks
within the public rights-of--way for the Meridian City Core, and (iii) sublicense the
rights and obligations set forth in (i) and (ii). ACHD additionally grants to City a
license to lap ce, operate, and maintain any and all parklets within the same Meridian
City Core upon and within on-street public parking spaces, which are public ri ts-
of-wav. City shall have no right, title, or interest in or to the public rights-of-wav
other than the right to use the same pursuant to the terms and conditions of this
Agreement and pursuant to the authoritygranted in the Idaho Code This Agreement
does not extend to City the right to use the public rights-of--way to the exclusion of
ACHD for any use within its jurisdiction, authority and discretion or of others to the
extent authorized by law to use the public right-of--way. If the public right-of--way
has been opened as a public Highway (as used in the Agreement, the term "Highway"
is as defined in Idaho Code § 40-109(5)), City's authorized use is subject to the rights
of the public to use the right-of--way for Highway purposes. City's authorized use is
also subject to the rights of holders of easements of record or obvious physical
limitations upon inspection of the public right-of--way, and to the statutory rights of
utilities to use the public right-of--way. This Agreement is subject to and shall not
supersede or conflict with license or rights granted under the VRT Agreement,
attached hereto as Exhibit B. This Agreement is not intended to, and shall not
preclude or impede (i) the ability of ACHD to enter into other similar agreements in
the future allowing third parties to also use the public right-of--way, provided that
written notice is provided to the City, and such use does not unreasonably interfere
with City's rights regarding the Facilities as set forth in this Agi•eement and contained
in Idaho Code, or (ii) the ability of ACHD to redesign, reconstruct, relocate, maintain
and improve the public right-of--way and Highways as authorized by and in
accordance with state law. Where ACHD's retained rights, as stated herein, affect the
City's authorized placement or sublicensing of Facilities upon the sidewalks, ACHD
and City will work in good faith to resolve any conflicts.
FIRST AMENDMENT AND ADDENDUM TO MASTER LICENSE AGREEMENT FOR
REGULATION AND MAINTENANCE OF SIDEWALK FACILITIES IN THE GREATER
DOWNTOWN AREA - 2
a. With reference to any Facilities located in the Meridian City Core, ACRD will
use best efforts to terminate all ACHD License Agreements for any existing
Facilities in the Meridian City Core. During the term of this Agreement, ACHD
shall not authorize, permit or license any Facilities to be located in the public
right-of--way in the Meridian City Core, except for underground structures.
b. ACHD and City agree to freely and promptly exchange information reasonably
necessary to comply with the terms of this Agreement, including the provision to
City, by ACHD of all records, documents, databases, or information relating to
known and authorized Facilities licenses in the Meridian City Core, whether
terminated or not.
B. That an additional term be provided by Addendum to the Master License Agreement
as follows:
14. Parklet installation. City shall consult with representatives of the ACHD staff to
determine any traffic operations, motorist and traffic safety issues associated with
parklet installation. Under no circumstances may a parklet installation take place in a
travel lane or interfere with motorist or pedestrian traffic. ACHD shall have the right
to prohibit or request removal of a parklet installation that interferes with or obstructs
traffic operations, motorist or pedestrian safety, street improvement activities,
construction activities, cleaning efforts or other similar activities.
C. Waiver. This Addendum shall not be construed as an amendment or waiver of any of
City's obligations under the Master License Agreement, except as specifically set
forth herein. No failure by either party to insist upon the strict performance of any
covenant, duty, agreement, or condition of the Master License. Agreement or this
Addendum or to exercise any right or remedy consequent upon a breach thereof shall
constitute a waiver of any such breach or any other covenant, agreement, term, or
condition. No waiver shall be binding unless executed in writing by the party making
the waiver. Without limiting the foregoing, ACHD in no way waives any claims.
D. Amendment and Restatement of Aereement. The provisions of this Addendum
shall be incorporated into the Master License Agreement, which is hereby amended
and restated in full. All provisions of the Master License Agreement shall remain the
same except as specifically set forth herein. In the event of any conflict between the
terms of the Master License Agreement and this Addendum, this Addendum shall
control.
E. Entire Addendum. The Master License Agreement and this Addendum and the
exhibits hereto constitute the full and entire understanding and agreement between the
parties with regard to the license contemplated herein, and no party shall be liable or
bound to any other in any manner by any representations, warranties, covenants and
agreements except as specifically set forth herein.
F. Recitals Incorporated by Reference. The Recitals of this Addendum are incorporated
by this reference into this Addendum.
FIRST AMENDMENT AND ADDENDUM TO MASTER LICENSE AGREEMENT FOR
REGULATION AND MAINTENANCE OF SIDEWALK FACILITIES IN THE GREATER
DOWNTOWN AREA - 3
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first set forth above.
CITY OF MERIDIAN
Tammy de Weerd
Mayor
ATTEST:
Jaycee L. Holman
City Clerk
ACRD
ADA COUNTY HIGHWAY DISTRICT
Sara M. Baker
President
ATTEST:
Bruce S. Wong
Director
FIRST AMENDMENT AND ADDENDUM TO MASTER LICENSE AGREEMENT FOR
REGULATION AND MAINTENANCE OF SIDEWALK FACILITIES IN THE GREATER
DOWNTOWNAREA - 4