This is the html version of the file http://www.cityofsalem.net/~citygov/staff_reports/current/4.2.i.pdf as stored by Google (http://www.google.com) in its Cache on 25 June 2003; the original City of Salem file was not available on 25 June 2003. Google automatically generates html versions of documents as it crawls the web.
I see some errors of numbering or labelling consecutively that I have not altered.
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In March 2002, George Hutmacher contacted the City of Salem about operating a nine-passenger airboat concession from the Riverfront Park boat dock (p. 1, #1).
In April and May 2002, the City received written letters of concern about the airboat concession from the Oregon Department of Fish and Wildlife (ODFW) and the captain of the Willamette Queen Sternwheeler (p. 2, #6).
In June 2002, the City of Salem approved Hutmacher's airboat concession from the Riverfront Park and/or Wallace Marine Park effective May 31 through September 30 for $50 per month plus and an annual park application fee of $50 (p. 1, #2B) with the conditions that he would not operate his boat to disturb areas noted by the ODFW (p. 2, #7A) and that he would "feather" his propeller to reduce noise near the Riverfront Park boat dock, which the Willamette Queen Sternwheeler also used (p. 2, #7B).
In 2002, the noise level of the airboat was to be tested (p. 2, #7B), but the results are not given. The airboat may have passed the Oregon law for boat noise that is written for engine noise; however, most of the noise of airboats is from the propeller.
Hutmacher did not get final approval for his Operator's License from the U. S. Coast Guard, so he did not offer rides in 2002 (p. 2, #9).
In 2003, Hutmacher requested to renew his Riverfront Park Use License Agreement for May 31 through September 30 (p. 3, #1). His request was approved (p. 1, Recommendation).
In 2003, Hutmacher is to pay the City a minimum license fee of $50 per month or pro rata portion for a portion of the month that the license is used plus an annual park application permit fee of $50 (p. 5, II-A). If gross revenues exceed $30,000 per month of operation, then the license fee shall be 1% of the gross revenues for that month (p. 5, II-A).
A "5 mph" speed limit shall be enforced at all times in Riverfront Park or Wallace Marine Park (p. 7, #5-4).
The airboat concession must strictly adhere to conditions established by the ODFW restricting use between January 1 and May 31 (p. 8, #1A).
The airboat pilot "feather (low acceleration up river until the air boat travels to the point of land where the Willamette Slough and the Willamette River meet" (p. 8, #1B).
The airboat concession shall not operate up Willamette Slough at any time (p. 8, #1C).
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The City of Salem's Agreement with George Hutmacher is given below:
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TO: Mayor and City Council and Urban Renewal Agency
FOR MEETING: 5/12/03
AGENDA ITEM NO: 4.2.i
THRU: Robert DeLong, City Manager
FROM: Edward L. Jochums, Director, Department of Community Services
George Hutmacher has requested the use of the Riverfront Park boat dock and/or the Wallace Marine Park old boat ramp area to operate an air boat concession.
That City Council and the Agency approve the grant of a license for an air boat concession to operate from the Riverfront Park and/or Wallace Marine Park effective May 31 through September 30, 2003.
1. In March 2002, Department of Community Services staff was contacted by George Hutmacher with a proposal to operate an air boat concession from the Riverfront Park boat dock. Mr. Hutmacher proposed to operate a nine passenger, flat-bottom, air boat powered by a gasoline engine. The air boat utilizes a propeller for propulsion (see Attachment A). He desired to utilize Riverfront Park for his operation due to the availability of passenger parking and the relative proximity to downtown Salem.
2. At a subsequent meeting on March 28, 2002, several City staff members met with Mr. Hutmacher to discuss the following as it relates to his proposal:
a. City and Agency Obligations - Mr. Hutmacher desired to use the Riverfront Park boat dock for the loading and unloading of passengers only. The dock would be used as is, except for a slight adjustment in the railing on the north side of the dock. The railing would be reconfigured to include a gated access for the loading and unloading of passengers. The cost to reconfigure the dock railing would be the responsibility of Mr. Hutmacher.
b. Air Boat Operator Obligations - Mr. Hutmacher would pay, to the City of Salem, a sum of $50 per month of operation and an annual park application fee of $50. Other park use obligations, as required by the City of Salem, are included in Attachment B - Riverfront Park Use License Agreement.
3. The Riverfront Park boat dock is also utilized as a year-round berth for the Willamette Queen Sternwheeler. Sternwheeler Excursions, LLC, operates the Sternwheeler and maintains a Use License Agreement with the City of Salem for use of the boat dock. Sternwheeler Excursions, LLC, pays the City of Salem $300 per month for boat dock rental. The agreement is reviewed annually by City staff.
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4. Sternwheeler Excursions, LLC, and the City of Salem are in the fourth year of the Use License Agreement (annually renewable).
5. In researching the potential use of the Riverfront Park boat dock for an air boat concession, City staff obtained the following information:
a. State Marine Board Requirements - In order to carry paying passengers, Mr. Hutmacher is required to complete the Oregon Outfitter/Guide Program process and successfully obtain a Coast Guard Operator's License.
b. Polk County Sheriff's Office Requirements - The Polk County Sheriff's Office has recently indicated that they have no requirements for Mr. Hutmacher's air boat concession.
6. In April and May 2002, staff received written communications from the Oregon Department of Fish and Wildlife and the captain of the Willamette Queen Sternwheeler citing concerns with air boat operations from the Riverfront Park boat dock (Attachments C and D).
7. In June 2002, the Salem Parks and Recreation Advisory Board approved the air boat concession effective mid-June through September 30, 2002, under the following conditions:
a. Maps of the Bald Eagle nests and Blue Heron rookeries were provided to Mr. Hutmacher who indicated that he would operate his boat in such a manner as to not disturb the areas noted by the Oregon Department of Fish and Wildlife.
b. A concern voiced by Captain Richard Chesbrough, Willamette Queen Sternwheeler, is that of extreme noise and a potential for negative impact to his
Sternwheeler operations. Mr. Hutmacher assured City staff that during his approach and
departure from the Riverfront Park boat dock, he would "feather" his propeller, keeping noise to a minimum. As indicated earlier in this report, the air boat must
complete a sound level test procedure which measures the noise output of motorized
water craft.
Should Mr. Hutmacher's air boat successfully complete the procedure,
his craft would most likely not exceed the existing noise levels of water craft already
operating on the Willamette River.
8. While studying this issue during the spring and summer 2002, it was also determined that the Wallace Marine Park old boat ramp area was also an option for operation of the air boat concession.
9. For 2002, Mr. Hutmacher did not operate the air boat concession as final approval from the U.S. Coast Guard was not obtained. Mr. Hutmacher indicated that the U.S. Coast Guard had delayed approving his Operator's License based upon inspection technicalities with the mechanical operation of the air boat. Mr. Hutmacher has recently received his Operator's License which is valid for a five year period.
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1. Mr. Hutmacher contacted Department of Community Services staff and desires to renew the Riverfront Park Use License Agreement and operate his air boat concession May 31 through September 30, 2003.
2. Mr. Hutmacher desires to utilize the Riverfront Park boat dock and/or the Wallace Marine Park old boat ramp area on the following schedule:
a. Operating Schedule - May 31 through September 30, 2003. Excursions will be scheduled as necessary based on advance reservations. Fees vary depending on duration of the excursion.
b. Charters - Private charters will be offered on an as requested basis. Days, times, and fees will vary based on the duration of each excursion.
3. In order to execute the Riverfront Park Use License Agreement (Attachment B), it will require that Mr. Hutmacher meet the requirements as outlined in items #5(a) and #7 (a and b) of the Background section of this report.
4. At the April 10 Salem Parks and Recreation Advisory Board meeting, the Board recommended approval of operation of the air boat concession from Riverfront Park and Wallace Marine Park effective May 31 through September 30, 2003, and added a requirement that the operator maintain a log (of excursion activity) so it can become part of the record.
Prepared by Bruce W. Bolton, CPRP Recreation/Public Events Supervisor
[None of the attachments were included in the file.]
Attachments: A - Photographs of 15 Passenger Air Boat
B - 2003 Air Boat Concession Riverfront Park/Wallace Marine Park Use License Agreement
C - Letter from Nancy Taylor, Oregon Department of Fish and Wildlife
D - Letter from Captain Richard Chesbrough, Sternwheeler Excursions, LLC
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[This page is blank in this file.]
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The AGREEMENT is made and entered into this day of , 2003, by and between the CITY OF SALEM, OREGON, a municipal corporation, herein called "City," THE URBAN RENEWAL AGENCY OF THE CITY OF SALEM, OREGON, a public body corporate and politic, herein referred to as "Agency," and George Hutmacher, a private citizen, herein called "Licensee."
WHEREAS, it appears to be in the public interest for the Agency to license use of the boat dock for public recreation at Riverfront Park; and
WHEREAS, the parties desire to establish the terms of the license and to provide by written agreement their rights and responsibilities relative to the license; NOW THEREFORE
IN CONSIDERATION of the mutual promises and covenants herein stated, the parties each agree as follows:
Agency agrees to license nonexclusive use of the "Boat Dock" at Riverfront Park and/or the "Old Boat Ramp" at Wallace Marine Park, between the Center Street and Marion Street Bridges, (hereinafter "licensed premises") to Licensee under the terms and conditions detailed herein. The licensed use is the operation of an Air Boat Concession at the licensed premises, provided, however this license agreement makes no expression or implied warranty of fitness of the dock or boat ramp for any particular use.
The licensed premises is licensed for use "as is" and any restoration or improvement to such premises is not obligatory and is completely within the discretion of the Agency.
Licensee agrees to comply with the following license terms:
A. Fees:
(1) Pay to the City a minimum license fee of $50 per month or pro rata portion thereof representing the portion of month the license is used.
(2) Should gross revenues exceed $30,000 per month of operation, the license fee shall be one percent of the gross revenues per month. As used herein, "gross revenues" means any revenue earned by Licensee for services rendered and goods sold in the corporate limits of the City.
(3) Pay to the City an annual park application permit fee of $50.00.
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(4) Payment. Except as provided in Section II. A. (5), payment of license fees shall be made in full by the 15th of the month prior to licensed use. Any amounts owing in excess of the minimum fee shall be paid by the 15th of the month following the month for which payment is due.
5. The City shall have reasonable access to Licensee's books, which shall contain an accurate statement of Licensee's gross revenues and the computation basis and method. All amounts paid shall be subject to confirmation and recomputation by the City. If confirmation and recomputation discloses that the Licensee has paid 90% or less of the fees owing, Licensee shall pay the City's costs of confirmation and recomputation.
Licensee agrees to comply with all local, state, and federal laws, codes, and regulations respecting its activity under this license, including in particular the Riverfront Park Rules and Park Use Policies and Procedures, attached and incorporated by this reference, as these rules, policies, and procedures may be amended by the City from time to time.
Licensee agrees to the following conditions:
(1) Schedules. Licensee shall operate as needed on a reservation basis.
2. Vacation/Leave. Licensee shall provide dates of vacation, leave, or non-operation to the City at least 10 working days in advance.
(3) Insurance and Permits. Prior to use under this license, licensee shall provide copies of the following to the City:
a. Certificate of Insurance/General Liability - naming the Agency and the City as additional insured (see paragraph D., below);
2. Division of State Lands confirmation of compliance with agreements and requirements (if required by Division of State Lands).
c. Letter identifying all persons licensed, privileged, or otherwise authorized to operate the Air Boat Concession.
(4) Hours of Operation. Hours of operation shall be first approved by the City. Licensee shall immediately relay proposed changes to hours of operation to the contract administrator.
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(5) Vehicular Access. Vehicular access shall be limited to personal vehicles only and during times of loading and unloading only. Vehicles not in use for these purposes may be cited and towed.
1. Licensee shall take reasonable care in removal and replacement of bollards to allow such vehicular access. Licensee shall replace bollards immediately after park entry and exit and while loading and unloading.
2. No other vehicles shall enter the park grounds unless prior approval is granted by the City.
3. Licensee shall not utilize any park pathways except those necessary for immediate access to the boat ramp and dock.
4. A "5 mph" vehicle speed limit shall be enforced at all times while driving in Riverfront Park or Wallace Marine Park.
5. A current list of Licensee's and Licensee's employees' vehicle license numbers, and corresponding phone numbers shall be maintained and provided in writing to the City.
6. Licensee shall provide to all employees and service providers these rules regarding vehicle access in writing.
(6) Public Access to Licensed Premises. Licensee shall insure that security gates remain open and the premises are open to the public during Licensee's hours of operation.
(7) Servicing. Servicing the air-boat(s), (i.e., waste pumping, fuel, etc.) is the responsibility of Licensee. No service related activities shall take place at the Riverfront Park boat dock or the old boat ramp (Wallace Marine Park).
(8) Signage. If desirable, Licensee shall be responsible to develop
appropriate and permanent signage indicating program information and dates of
operation, including contact names and phone numbers. Licensee shall not
develop, use, or place such signage without prior written approval from
the City's Director of the Department of Community Services or the
Director's designee.
Licensee shall place signage approved by the City on and in the area of
the licensed premises at a location approved by the City in order to notify
other dock or ramp users of operating schedules so that use conflicts are
avoided. Any vandalism to signage is the responsibility of the Licensee.
(9) Overnight Stays. Overnight stays without prior written approval from the City are prohibited.
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(10) Community Events/Special Considerations. This license is subject to all other uses of Riverfront Park.
The City schedules a number of community and special events at Riverfront Park. Each event is unique in park use and restrictions may be placed on availability of access to the park and parking areas. The City will inform event sponsors that it will be the responsibility of each event sponsor to coordinate directly with Licensee to address issues such as access to parking areas for employees, vehicle access, and location area for ticket sales. In cases where Riverfront Park parking is controlled and limited to event personnel, the agents, vendors, and patrons of Licensee shall park off-site, utilizing downtown or nearby public parking areas. The City staff may mediate park use conflicts that may arise.
(1) Operational Conditions. The Licensee has approved use of the Riverfront Park boat dock and the old boat ramp at Wallace Marine Park based on compliance with the following operational conditions:
a. Operation of the concession strictly adhere to the conditions established by the Oregon Department of Fish and Wildlife restricting use between January 1 and May 31 of each year.
b. The pilot of the air boat "feather" (low acceleration) up river until the air boat travels to the point of land where the Willamette Slough and the Willamette River meet. If the pilot operates down river, the air boat will "feather" until the air boat reaches the northern-most border of Wallace Marine Park.
c. The concession not operate the air boat up the Willamette Slough at any time.
d. That the operator maintain a log of the excursions to include date and time.
(12) Park Construction.
Anticipated City construction of park and facilities improvements including the Boat Dock may impact the ability of the parties to perform this agreement. It is the intent of the parties that the Licensee be able to operate to the fullest extent possible under the terms of this agreement and that the City be able to undertake and complete the improvements to the benefit of both parties. Pursuant to the terms of this agreement, the City may, in order to proceed with construction projects, either terminate or amend this agreement including to alter or restrict period(s) of Licensee's operation. The undertaking and completion of these projects by the City does not constitute cause for termination of this agreement.
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D. Risk Allocation
(1) Licensee shall indemnify, defend, and save harmless the Agency and the City, their officers, agents, employees, and volunteers from any and all claims arising out of or in connection with Licensee's activities under the Agreement; provided, however, that Licensee shall have no such obligation with respect to claims for which the Agency or City is obligated to provide indemnity to Licensee under paragraph two of this section.
(2) Agency or City agrees to indemnify Licensee from each and every claim which the Agency or City would be legally liable to pay if:
a. A claim asserting the same loss or injury were made directly against the Agency or City, whether or not such a direct claim is actually made, and
b. The loss or injury sustained by the claimant resulted from the acts, errors, or omissions of the Agency or City or those for whose actions the Agency or City is legally responsible.
"Indemnify," as used herein, means to indemnify, defend and save harmless.
c. Licensee assumes the risk of, and Agency indemnification obligations do not encompass loss or damage occasioned by the condition of trees adjacent to the licensed premises.
(3) Licensee shall obtain and maintain in effect during the term of this Agreement a policy or policies of general liability insurance including coverage for personal injury, bodily injury and property damage, and, if motor vehicles will be used by Licensee in furtherance of its obligations hereunder, automobile liability insurance as well. Such insurance shall provide not less than $1,000,000 combined single limits coverage without deductible unless otherwise approved by the City's Risk Manager. Coverage as required by this paragraph shall be evidenced by a standard certificate of insurance issued by an insurance agency or broker authorized to do business in the State of Oregon and acceptable to the City's Risk Manager. Such policy or policies shall include an endorsement naming "The Urban Renewal Agency of the City of Salem and the City of Salem, their officers, employees, volunteers, and agents," as additional insured.
(4) The terms of ORS 279.312, 279.314, 279.316, and 279.320 are, by this reference, incorporated herein as if fully set forth.
(5) Pursuant to ORS 279.320(2), if Licensee employs any person, whether or not such employee will be performing any work on or related to this Agreement, and whether or not such person resides in or will perform any work in the State of Oregon, Licensee is a "subject employer" and must comply with ORS 656.017, requiring maintenance of Workers' Compensation coverage as a self-insured or carrier-insured employer. Maintenance of Workers' Compensation through a
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state-operated fund or program of a state other than Oregon does not comply with this requirement.
E. Taxation
This Agreement is not contemplated or intended to alter the status of Agency property as exempt from ad valorem real property taxation. In the event that it is determined by the County Assessor of Marion County or by the Oregon Department of Revenue that all or any portion of licensed property is subject to ad valorem property taxation, Licensee shall do one of the following as its option:
(1) Pay any and all ad valorem real property taxes including interest and penalties, if any, which may accrue against the property during the term of this Agreement and License, and any renewal thereof;
(2) Initiate action for administrative or judicial declaration that the property thus assessed is exempt from taxation; and, in the event of a final determination that the property is not so exempt, pay any and all ad valorem real property taxes, including interest and penalties, if any, accrued against the property; or
(3) Pay any and all ad valorem real property taxes, including interest and penalties, if any, pro-rated to the date of termination. Licensee shall give notice in writing to the City that Licensee has terminated this Agreement and of the date and time of acceptance of payment by the tax collector for the county in which the taxes were assessed. In the event of termination under this paragraph, the parties may negotiate a new Agreement upon such terms as may be mutually acceptable to the parties.
In any event, Licensee shall pay any and all ad valorem taxes upon personal property subject to such taxation and owned, leased, or possessed by Licensee.
F. Improvements.
Licensee shall make no improvements to the licensed premises or adjacent property without prior written approval of City. Upon such approval, Licensee shall meet any and all permit requirements as set forth by the City of Salem. Any such improvements shall be at Licensee's sole expense.
A. Notices/Communications
(1) All notices and communications regarding this Agreement shall be made through the following persons:
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a. AGENCY and CITY's Contract Administrator: Barbara Roberts and/or Bruce W. Bolton, Recreation/Public Events Supervisor, whose address is 555 Liberty Street SE, Salem, Oregon 97301.
b. LICENSEE: George Hutmacher whose address is P.O. Box 3251, Salem, Oregon 97302.
B. Complete Agreement. This Agreement contains the entire understanding of the parties and such understanding may not be modified except in writing signed by the parties.
C. Governing Law. The laws of the State of Oregon shall govern the interpretation and enforcement of the Agreement.
D. No Relationship. Nothing contained in this Agreement shall be deemed or construed by the parties hereto or by any third party to create the relationship of principal and agent or a partnership, joint venture or of any other association whatsoever between the Agency or City and Licensee, it being expressly understood and agreed that no provision contained in this Agreement nor any act or acts of the parties hereto shall be deemed to create any relationship between the Agency or City and Licensee other than the relationship of licensor and licensee.
E. Partial Severability. The invalidity or unenforcibility of any provision of this Agreement shall not affect or impair the validity of any other provision contained herein.
F. Non-Waiver of Breach. The failure of any party hereto to insist upon strict performance of any of the covenants and agreements of this Agreement or terms and conditions of this License, or to exercise any option herein conferred in any one or more instances, shall not be construed to be a waiver or relinquishment of such, or any such other terms, conditions, covenants, or agreements but the same shall be and remain in full force and effect.
G. Paragraph Headings. The paragraph headings herein are for convenience only, and do not define, limit, or construe the contents of such paragraphs.
H. Assignment. The parties contemplate that the rights and interests of the Agency in the licensed premises and adjoining property will be assigned by the Agency to the City, and upon such assignment, the rights and obligations of the Agency hereunder shall devolve upon the City. Licensee shall not assign, encumber or transfer this License or any part thereof without prior written consent of the City.
A. Unless terminated as herein provided, this AGREEMENT shall be effective from the period of May 24, 2003 to September 30, 2003.
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B. This AGREEMENT may be renewed or amended only by written instrument executed with the same formalities as this AGREEMENT.
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C. This AGREEMENT may be terminated by Licensee or Agency, with cause, by not less than 14 days prior written notice if the cause is not cured within that 14-day period after written notice. Such termination is in addition to and not in lieu of any other remedy at law or equity.
SIGNED this Day of , 2003.
George Hutmacher,
(Licensee)
CITY OF SALEM
BY: City Manager
Date
Title
Date
URBAN RENEWAL AGENCY OF THE CITY OF SALEM, OREGON
BY: Authorized Officer
Attachments: Riverfront Park Rules and Regulations
[No attachments included in the file.]
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