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HomeMy WebLinkAbout14 - McFadden Place Farmers Market AgreementCITY OF NEWPORT BEACH ?�Rr COMMUNITY AND ECONOMIC Hearing Date: DEVELOPMENT U�? PLANNING DEPARTMENT Agenda Item No.: a. oyLFORN�r 3300 NEWPORT BOULEVARD NEWPORT BEACH, CA 92658 (949) 644 -3200; FAX (949) 644 -3250 Staff Person: REPORT TO THE MAYOR AND CITY COUNCIL PROJECT: McFadden Place Farmers Market Agreement April 26, 1999 14 Daniel R. Trimble (949) 644 -3230 SUGGESTED ACTION: 1. If desired, approve the Encroachment Agreement with Mr. Larry Nedeau as an independent operator of the McFadden Place Farmers Market, and 2. If desired, direct staff to provide a report to include discussion of the markets operation during the first six months of the agreement for City Council review. Background • . On July 22, 1996 the City Council approved an encroachment agreement with the Orange County Farm Bureau to hold a Certified Farmers Market each Tuesday morning in the portion of the McFadden Place Parking Lot adjacent to Balboa Boulevard. The term of the original agreement was one year, expiring on July 29, 1997. On August 4, 1997, the City Manager signed a sixty -day renewal amendment to the encroachment agreement allowing the market to continue until review by the City Council. On September 22, 1997, the City Council did approve the renewal of the farmers market. The McFadden Place Farmers Market three -year renewal was scheduled for discussion in July 1999. However, the Orange County Farm Bureau on April 6, 1999 notified the City that, due to the resignation of Mr. Zany Nedeau, the market manager, they would be closing the market effective that day. In addition, they stated that as the market was not cost effective for them to operate they would not be interested in reopening it in the future. Subsequently, Mr. Nedeau has requested to reopen the market as an independent operator. Community & Merchant Support Since the opening of the Farmers Market on July 30, 1996, there have been periodic phone inquiries and complaints by nearby merchants. In March 1997, and again in May 1997, petitions were circulated and signed by sixteen merchants and employees requesting the removal of the Farmers Market due to parking demand. Of those complaining of the Farmers Market, most stated their opposition in the summer months only. This is the peak season for fruits and vegetables sold at the McFadden Place Famaers Market Agteenrent April 26,1999 Page 1 Market, as well as for parking demand in the municipal lot. To address the issue of parking during the peak summer season, the Farmers Market now opens and closes one hour earlier — summer hours are 8:00 a.m. to noon, and non -peak hours are 9:00 a.m. to 1:00 p.m. The Farmers Market must be taken down and off the premises one hour after closing. No complaints, parking or otherwise, were filed during the summer of 1998. As the 1996 agreement approached expiration, customer petitions circulated in support of the Farmers Market at the present location, with 517 unverified signatures. There were also several phone calls of support received by local residents and a few by local merchants. Most of the calls of support heralded the Farmers Market as a community event bringing together peninsula residents. Staff has already started to receive calls for community members inquiring why the market was closed this past Tuesday. Analysis Mr. Nedeau has operated the Farmers Market for several years now. Although there have been occasional issues that staff has had to raise with either Mr. Nedeau or the Orange County Farm Bureau, the market currently operates as a relatively passive commercial use and requires minimal regulatory enforcement. Community and merchant support still appears strong in favor of the market remaining open. Staff does have some concern about the ability of an independent operator to manage this market without the support of the Orange County Farm Bureau. For this reason staff is recommending that the new Encroachment Agreement include a six -month review and a one - year renewal by the City Council. Submitted by: SHARON Z. WOOD Assistant City Manager Prepared by: DANIEL R. TRIMBLE Associate Planner Attachments: New Encroachment Agreement \\MIS_t\SYS \Us n \PLN\Shared\FRMRSMK\MCFFM99.doc Page 2 0 is ENCROACHMENT AGREEMENT This Encroachment Agreement ( "Agreement ") is made and entered into by and between the City of Newport Beach, a municipal corporation, organized and existing under and by virtue of its charter and the constitution and the laws of the State of California, hereinafter "City" and Lawrence Nedeau, an individual, hereinafter "Permittee ": The Parties agree as follows: Section 1. Recitals. This Agreement is made and entered into with respect to the following facts, which the Parties stipulate are true and correct: A. Permittee desires to operate a Certified Farmers Market, in accordance with Food and Agriculture Code Sections 58101 through 58104 and implementing regulations, 3 California Code of Regulations Section 1392.1, et seq. (hereinafter "Certified Farmers Market "); and, B. Permittee has requested the use of a portion of public parking lot owned by the City of Newport Beach located between McFadden and 21st Street known as the McFadden Place Municipal Parking Lot, Newport Beach, ( "Encroachment Area "), as depicted on • attached Exhibit A; and, C. Permittee represents that he has the requisite skills and experience to operate a Certified Farmers Market; and, D. After conducting a hearing regarding this proposal, the City Council approved this Agreement on April 26, 1999, and, E. The execution and implementation of this Agreement is within the power of the Parties signing this Agreement. Section 2. The Purpose of Permit. The purpose of this Agreement is to permit the operation of a Certified Farmer's Market within the Encroachment Area as is shown on Exhibit A, attached to this Agreement and incorporated into this Agreement by reference. Section 3. Conditions of Permit. Permittee shall comply with the following conditions prior to operation of the first Certified Farmer's Market: A. Permittee shall procure and maintain any and all required certifications, permits, and licenses to operate the Certified Farmers Market. Permittee shall provide to the City Planning Department all required permits, including without limitation those permits as may be issued by the State of California, Department of 1 Agriculture, the Orange County Agricultural Commissioner, the Orange County Health Department, and the City of Newport Beach. B. Permittee shall submit for review and obtain approval for all advertising and directional signage from the Public Works Department and the Planning Department. Permanent signs regarding parking restrictions shall be installed in parking lot encroachment area as required by Traffic Engineer. C. The Permittee shall work with adjacent commercial property owners to reach agreement over the use of parking facilities or develop a shared use parking plan, as determined and approved by the Planning Director. City Staff may assist in obtaining this approval. D. Permittee shall submit a site plan and /or floor plan showing the layout of the Certified Farmer's Market sales areas, for review and approval by the Planning Department and the Public Works Department. If the Planning Department and the Public Works Department determine that it is necessary, the Permittee shall obtain building permits and /or any other permits required for any proposed improvements. E. Permittee shall maintain an agreement with property owner and tenant in order to provide accessible customer parking at the • private parking lot at 2000 West Balboa Boulevard, and provide evidence of such agreement to City. Section 4. Conditions of Operation. A. The Certified Farmers Market may operate during the term of this Agreement on each Tuesday from 8:00 a.m. to 1:00 p.m., except during the summer months defined as June 15th through September 15th, when the market shall close at noon. Permittee shall be present during each and every Certified Farmers Market from commencement of set up to the completion of clean up. Set up of the Certified Market shall not occur prior to 6:30 a.m. Permittee shall ensure that the Encroachment Area is returned, clean and free of debris, to its original condition by no later than the designated hour for closing. City reserves the right to modify the hours of set up and operation, within the City's sole discretion, as necessary to alleviate any noise complaints which result from the operations under this Agreement. B. On any occasion when Permittee cannot be present during the operation of a Certified Farmers Market, Permittee may provide a substitute qualified person to manage the operations, subject to prior approval of the City. 2 C. Permittee shall operate the Certified Farmers Market in accordance with all applicable provisions of the statutes, rules and regulations . of the State of California, the ordinances, and regulations of the County of Orange, and the Charter and Ordinances of the City of Newport Beach. D. Permittee shall recruit and retain certified producers for the Certified Farmers Market, verify that individual vendors are certified producers within the meaning of 3 California Code of Regulations 1392.2 (e), or producers selling non - certifiable agricultural products produced by themselves, and ensure that vendors adhere to all applicable rules and regulations concerning product quality and that the products offered for sale by vendors are pest and disease free. Permittee shall obtain a completed Liability Release Statement from each vendor, prior to participation in any Certified Farmers Market, in the form of Exhibit B attached to this Agreement. Permittee shall not allow any person or organization to participate in the Certified Farmers Market until a completed application and Liability Release, is received by City. E. No more than 40 vendors shall display and /or sell products at the Certified Farmers Market. No additions, enlargements or modifications of uses or structures within the Encroachment Area shall be allowed without prior approval of the City. • F. Permittee shall be responsible for setup, operation, maintenance, sanitation and clean up of the Certified Farmers Market as set forth below: (i) Set up shall include placement of vendors in accordance with the approved site plan; Operation shall be conducted in accordance with 3 California Code of Regulations, Section 1392.1, et seq., and within the guidelines set forth in the State of California Department of Agricultural marketing plan; (iii) After the completion of each Certified Farmers Market, Permittee shall be responsible for properly disposing of all trash that has accumulated from the operations of the Market. Maintenance, sanitation, and clean up shall be conducted within such rules and guidelines as may be promulgated by the Orange County Health Department and the City of Newport Beach. G. All loading and unloading of merchandise, vendor booths and other related improvements shall take place within the encroachment . area 3 H. The site plan shall be designed and operated so as to conform to access standards set forth by Title 24 of the Uniform Building Code (handicapped access requirements). I. Food items shall not be processed, cooked or prepared on site. Processed, cooked or prepared food items shall not be sold for on- site consumption. J. Only a Certified Farmers Market may be operated in the encroachment area. Permittee may not operate or conduct any other event or enterprise unless Permittee receives required additional approvals from the City. K. Sale or consumption of alcoholic beverages is not permitted. L. The Certified Farmer's Market shall not create a significant impact to existing City police services, as determined by the City Chief of Police. The Permittee may be required to secure a private security guard or guards and/or reimburse the City for additional police services including City Traffic Officer services if these services are required on a regular basis, as determined by the City Chief of Police. M. Permittee shall comply with all traffic regulations established for the operation of the Certified Farmers Market by the City Traffic • Engineer. N. City staff will conduct a review of the operation and management of the Certified Farmers Market after the first six (6) months of operation and prepare a report to the City Council. The City Council may add or modify conditions of operations as necessary for efficient operations of the market with minimal adverse impact on the community. Section 5. Term. The term of this Agreement shall be for a period of one year. The first Certified Farmers Market will, begin on May 4, 1999, and continue on each Tuesday through May 3, 2000. At least thirty (30) days before the expiration of this Agreement the City Council shall conduct a hearing regarding the renewal of this Agreement. The City Council may authorize and the City Manager at his or her sole discretion, to extend this Agreement for up to two (2) additional one -year terms. Section 6. Termination of Encroachment Agreement. Notwithstanding the term of this Agreement, this Agreement may be terminated during the term or any extended term in the following manner: A. By Permittee: is 0 At any time, without cause upon the giving of thirty (30) days . written notice of termination to City; or B. By City: At any time, without cause upon the giving of thirty (30) days written notice of termination to Permittee; or C. If, after written notice of default to Permittee of any of the terms or conditions of this Agreement, Permittee fails to cure or correct the default within 10 days of receipt of written notice, City may immediately terminate the Agreement. Section 7. Indemnity. Permittee agrees to indemnify, protect, defend and hold harmless the City and its officers, employees, agents and volunteers, against any and all claims or actions arising from any claim, demand, defense costs, liability or damages arising out of or in connection with the operation of the Certified Farmers Market or Permittee's performance or failure to perform under the terms of this Agreement, excepting those claims arising from the sole negligence of City. Section 8. Insurance Coverage. During the term or any extended term of this Agreement Permittee shall procure and maintain at his sole expense, • the following insurance coverage which includes all occurrences arising out of the use of the Encroachment Area pursuant to this Agreement, issued by companies acceptable to the City Risk Manger, and which are admitted and authorized to do business in California as insurance carriers, with limits as shown: A. Workers' Compensation: A program of Workers' Compensation insurance or state - approved Self- Insurance Program in an amount and form to meet all applicable requirements of the California Labor Code, Section 3700 et seq. B. Comprehensive General Liability Insurance: This coverage shall include contractual coverage and liability coverage. The policy shall have combined single limit, per occurrence limits for bodily injury and property damage of not less than one - million dollars ($1,000,000). If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work or services performed under this Agreement, or the general aggregate limit shall be twice the required occurrence limit. Said insurance coverage shall be at least as broad as Insurance Services Office Commercial General Liability coverage (Occurrence Form CG001). 11 C. To the extent that automobiles, trucks, or other motor vehicles are used in connection with the operation of the Certified Farmers Market, Permittee and each vendor shall certify and provide proof • of automobile insurance covering activities related to the Certified Farmers Market. Permittee shall file with the City Clerk, within seven (7) days of the execution of this Agreement and before the first Certified Farmer's Market is held, a Certificate of Insurance evidencing the required insurance coverage pursuant to this Agreement. In addition, at the City's request, the Permittee shall provide to City, a copy of each Liability Insurance Policy obtained in compliance with the provisions of this Agreement. During the term or any extended term of this Agreement, Permittee shall maintain on file with the City Clerk Certificates of Insurance which evidence current insurance coverage. The Certificates of Insurance by endorsement or otherwise, in a form acceptable to the City Attorney of City, shall provide that no change in coverage or policy limits, nor termination of such policy shall be accomplished unless and until the then carrier gives not less than thirty (30) days written notice to City of the fact of such alteration or termination. Notwithstanding any other provision of this Agreement, a failure to maintain the required insurance coverage shall be cause for the immediate termination of this Agreement by City. Section 9. City as an Insured. All policies, except for the Worker's Compensation coverage, shall contain additional endorsements covering City and its officers, agents, employees and volunteers as insureds under the policies • with respect to liabilities arising out of the Agreement. Section 10. Waiver of Subrogation Rights. Permittee shall require the carriers of the above required coverage to waive all rights of subrogation against City, its officers, employees, volunteers and agents. Section 11. Policies Primary and Noncontributory. All insurance policies required above are to be primary and noncontributory with any insurance of self- insurance programs carried or administered by City. Section 12. Insurance Review. The above insurance requirements shall be subject to periodic review by City. City is authorized, but not required, to reduce or waive any of the above insurance requirements whenever City determines that any of the above insurance is not available, is unreasonably priced, or is not needed to protect the interests of the City. In addition, if the City determines that heretofore unreasonable priced or unavailable types of insurance coverage or coverage limits become reasonably priced or available, City is authorized, but not required to change the above insurance requirements to require additional types of insurance coverage or higher coverage limits, provided that any such change is reasonable in light of past claims against City, inflation, or any other item reasonably related to City's risk. 2 Any such reduction or waiver for the entire term of the Agreement and any change requiring additional types of insurance coverage or higher coverage limits must be made by amendment to this Agreement. Permittee agrees to execute any such amendment within thirty (30) days of receipt. Section 13. Permittee as an Independent Contractor. Permittee is, and at all times hereafter shall be, independent of City during the term of this Agreement. Permittee specifically recognizes and acknowledges its status as an independent contractor and not as an officer, agent or employee of City. All Permittee's personnel shall be employees of Permittee and not employees of City. Permittee shall pay all salaries and wages, employer's social security taxes when applicable, and unemployment insurance and similar taxes relating to employees and shall be responsible for all withholding taxes. Permittee shall comply with all federal and state statutes and regulations relating to the employer /employee relationship including but not limited to, minimum wage, non- discrimination, equal opportunity, Worker's Compensation, hazardous /unsanitary or dangerous surroundings, the Fair Labor Standards Act, 29 U.S.C, 201, et seq., and the Immigration Reform and Control Act of 1986. Section 14. No Third Party Rights. The Parties intend not to create rights in, or grant remedies to, any Third Party as a beneficiary of this Agreement, or of any duty, covenant, obligation, or undertaking established herein. Section 15. Notification. All notices and written communications sent to City under the Agreement shall be sent to the following address, unless authorized to be sent elsewhere by City: City Manager City of Newport Beach 3300 Newport Boulevard Newport Beach, California 92658 -8915 All such being sent to Permittee shall be sent to: Lawrence Nedeau 20 Cabrillo Newport Beach, CA, 92663 Any such notices and written communications by mail shall be conclusively deemed to have been received by the addressee three (3) working days after the deposit thereof in the U.S. mail, first class postage prepaid and properly addressed as noted above, or upon actual receipt thereof if delivered by personal service. Section 16. Effective Date. This Agreement shall become effective on the date it is signed by both Parties. 7 Section 17. No presumption Re: Drafter. The Parties acknowledge and agree that the terms and provisions of this Agreement have been negotiated and discussed between the Parties and their attorneys, and this Agreement reflects their mutual agreement regarding the same. Because of the nature of such negotiations and discussions, it would be inappropriate to deem any party to be the drafter of this Agreement, and thereof no presumption for or against validity or as to any interpretation hereof, based upon the identity of the drafter shall be applicable in interpreting or enforcing this Agreement. Section 18. Entire Agreement. This Agreement is the complete, final, entire and exclusive expression of the Agreement between the Parties hereto and supersedes any and all other agreements, either oral or in writing, between the Parties with respect to the subject matter herein. Each party to this Agreement acknowledges that no representations by any party which are not embodied herein and that no other agreement, statement or promise not contained in this Agreement shall be valid and binding. Section 19. Modification of Agreement. The terms are subject to modification by mutual agreement between City and Permittee which such changes shall be incorporated by written amendments to this Agreement. The Parties agree that the requirement for prior written changes, amendments or modifications to this Agreement may not be waived and any attempted waiver shall be void. Section 20. Binding Effect. This Agreement shall be in full force and effect and be binding upon each of the Parties hereto and to all of their lawful successors in interest whether or not the obligations of this Agreement are expressly assumed in writing by any such successor. Section 21. Savings Clause. If any provision of this Agreement is found to be invalid, void or unenforceable, the remaining provisions shall nevertheless continue in full force and effect without being impaired or invalidated in any way. Section 22. Section Headings. The section headings contained in this Agreement are for convenience and identification only and shall not be deemed to limit or define the contents of the sections to which they relate. Section 23. Authority to Execute. The person or persons executing this Agreement on behalf of Permittee warrants and represents that he /she /they has/have the authority to execute this Agreement on behalf of his/her /their corporation, partnership, business, or governmental entity and warrants and represents that he /she /they has/have the authority to bind Permittee to the performance of its obligations hereunder. Section 24. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original but all of which shall constitute one and the same Agreement. 0 K 1_..J �J Section 25. Attorney Fees. In the event litigation is commenced by any party hereto or their respective successors or assigns respecting this Agreement, the prevailing party in such litigation shall be entitled to recover reasonable attorney fees and costs incurred in such litigation. Section 26. Lease Fees. The Permittee shall pay the City $330.00 per month, due and payable on the first of each month, commencing ninety (90) days after the first Certified Farmer's Market. Section 27. Non - Transferability. This agreement allows the Permittee to operate a Certified Farmer's Market in McFadden Place. This agreement cannot be sold, traded, assigned or otherwise transferred by the Permittee. Any such assignment, transfer or sale without prior written approval of City shall be null and void. The Parties have executed and approved this Agreement effective as of the date written below. Dated: 11999 Dated: '1999 Approved As To Form Permittee Lawrence Nedeau City of Newport Beach City Manager Robin L. Clauson Assistant City Attomey F: \users\cat\shared\da\ Encroachment \NedeauFarmersMktClean.doc 04 -20 -99 Q Nl 1p. IA ALL POP